Exhibit 99.3
EXECUTION VERSION
SUBSIDIARY
GUARANTY
This SUBSIDIARY GUARANTY is
entered into as of May 21, 2009 by the undersigned (each a
“Guarantor” , and together with any future
Subsidiaries executing this Guaranty, being collectively referred
to herein as “Guarantors” ) in favor of and for
the benefit of DEUTSCHE BANK TRUST COMPANY AMERICAS , as
agent for and representative of (in such capacity herein called
“Guarantied Party” ) the financial institutions
( “Lenders” ) party to the Credit Agreement
referred to below and any Swap Counterparties (as hereinafter
defined).
RECITALS
A.
Hexcel Corporation, a Delaware corporation (
“Company” ), has entered into that certain
Credit Agreement dated as of May 21, 2009 with Lenders party
thereto from time to time, Banc of America Securities LLC, as
syndication agent for Lenders, as a joint book manager and as a
joint lead arranger, Deutsche Bank Securities Inc., as a joint book
manager and as a joint lead arranger, HSBC Bank USA, National
Association, as a documentation agent, RBS Citizens, N.A., as a
documentation agent, Toronto Dominion (New York) LLC, as a
documentation agent, and Guarantied Party, as Administrative Agent
for Lenders (said Credit Agreement, as it may hereafter be amended,
restated, supplemented or otherwise modified from time to time,
being the “Credit Agreement” ; capitalized terms
defined therein and not otherwise defined herein being used herein
as therein defined).
B.
Company or a Subsidiary of Company may from time to time enter, or
may from time to time have entered, into one or more Interest Rate
Agreements or Currency Agreements (collectively, the
“Lender Swap Agreements” ) with one or more
Persons that are Lenders or Affiliates of Lenders at the time such
Lender Swap Agreements are entered into (in such capacity,
collectively, “Swap Counterparties” ) in
accordance with the terms of the Credit Agreement, and it is
desired that the payment obligations of Company or a Subsidiary of
Company under the Lender Swap Agreements, including without
limitation the obligation of Company or a Subsidiary of Company to
make payments thereunder in the event of early termination thereof,
together with all obligations of Company under the Credit Agreement
and the other Loan Documents, be guarantied hereunder.
C.
Guarantied Party, Lenders and each Swap Counterparty for which
Guarantied Party has received the notice required by
Section 15 hereof are sometimes referred to herein as
“Beneficiaries” .
D.
The Guarantied Obligations (as hereinafter defined) are being
incurred for and will inure to the benefit of Guarantors (which
benefits are hereby acknowledged).
E.
It is a condition precedent to the making of the initial Loans
under the Credit Agreement that Company’s obligations
thereunder be guarantied by Guarantors.
F.
Guarantors are willing irrevocably and unconditionally to guaranty
such obligations of Company.
NOW, THEREFORE,
based upon the foregoing and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and in order to induce Lenders and
Guarantied Party to enter into the Credit Agreement and to make
Loans and other extensions of credit thereunder and to induce Swap
Counterparties to enter into the Lender Swap Agreements, Guarantors
hereby agree as follows:
1.
Guaranty.
(a) Guarantors jointly and severally irrevocably and
unconditionally guaranty, as primary obligors and not merely as
sureties, the due and punctual payment in full of all Guarantied
Obligations (as hereinafter defined) when the same shall become
due, whether at stated maturity, by acceleration, demand or
otherwise (including amounts that would become due but for the
operation of the automatic stay under Section 362(a) of
the Bankruptcy Code). The term “Guarantied
Obligations” means any and all Obligations of Company and
all payment obligations of Company or the applicable Subsidiary of
Company under Lender Swap Agreements, now or hereafter made,
incurred or created, whether absolute or contingent, liquidated or
unliquidated, whether due or not due, and however arising under or
in connection with the Credit Agreement, the Lender Swap
Agreements, this Guaranty and the other Loan Documents, including
those arising under successive borrowing transactions under the
Credit Agreement which shall either continue such obligations of
Company or such Subsidiary of Company or from time to time renew
them after they have been satisfied.
Each Guarantor acknowledges that a
portion of the Loans may be advanced to it, that Letters of Credit
may be issued for the benefit of its business and that the
Guarantied Obligations are being incurred for and will inure to its
benefit.
Any interest on any portion of the
Guarantied Obligations that accrues after the commencement of any
proceeding, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, liquidation or
arrangement of Company (or, if interest on any portion of the
Guarantied Obligations ceases to accrue by operation of law by
reason of the commencement of said proceeding, such interest as
would have accrued on such portion of the Guarantied Obligations if
said proceeding had not been commenced) shall be included in the
Guarantied Obligations because it is the intention of each
Guarantor and Guarantied Party that the Guarantied Obligations
should be determined without regard to any rule of law or
order that may relieve Company of any portion of such Guarantied
Obligations.
In the event that all or any portion
of the Guarantied Obligations is paid by Company, the obligations
of each Guarantor hereunder shall continue and remain in full force
and effect or be reinstated, as the case may be, in the event that
all or any part of such payment(s) is rescinded or recovered
directly or indirectly from Guarantied Party or any other
Beneficiary as a preference, fraudulent transfer or otherwise, and
any such payments that are so rescinded or recovered shall
constitute Guarantied Obligations.
Subject to the other provisions of
this Section 1, upon the failure of Company to pay any of the
Guarantied Obligations when and as the same shall become due, each
Guarantor
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will upon demand pay, or cause to be paid, in
cash, to Guarantied Party for the ratable benefit of Beneficiaries,
an amount equal to such amounts that have become due.
(b)
Anything contained in this Guaranty to the contrary
notwithstanding, the obligations of each Guarantor under this
Guaranty and the other Loan Documents shall be limited to a maximum
aggregate amount equal to the largest amount that would not render
its obligations hereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of Title 11 of the
United States Code or any applicable provisions of comparable state
law (collectively, the “Fraudulent Transfer
Laws” ), in each case after giving effect to all other
liabilities of such Guarantor, contingent or otherwise, that are
relevant under the Fraudulent Transfer Laws (specifically
excluding, however, any liabilities of such Guarantor (x) in
respect of intercompany indebtedness to Company or other affiliates
of Company to the extent that such indebtedness would be discharged
in an amount equal to the amount paid by such Guarantor hereunder
and (y) under any guaranty of Subordinated Indebtedness which
guaranty contains a limitation as to maximum amount similar to that
set forth in this Section 1(b), pursuant to which the
liability of such Guarantor hereunder is included in the
liabilities taken into account in determining such maximum amount)
and after giving effect as assets to the value (as determined under
the applicable provisions of the Fraudulent Transfer Laws) of any
rights to subrogation, reimbursement, indemnification or
contribution of such Guarantor pursuant to applicable law or
pursuant to the terms of any agreement.
(c)
Each Guarantor under this Guaranty desires to allocate among
themselves (collectively, the “Contributing
Guarantors” ), in a fair and equitable manner, their
obligations arising under this Guaranty. Accordingly, in the
event any payment or distribution is made on any date by a
Guarantor under this Guaranty, each such Guarantor or such other
guarantor shall be entitled to a contribution from each of the
other Contributing Guarantors in the maximum amount permitted by
law so as to maximize the aggregate amount of the Guarantied
Obligations paid to Beneficiaries.
2.
Guaranty Absolute; Continuing Guaranty. The obligations of each Guarantor
hereunder are irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a
legal or equitable discharge of a guarantor or surety other than
payment in full of the Guarantied Obligations. In furtherance
of the foregoing and without limiting the generality thereof, each
Guarantor agrees that: (a) this Guaranty is a guaranty
of payment when due and not of collectibility; (b) Guarantied
Party may enforce this Guaranty upon the occurrence and during the
continuance of an Event of Default under the Credit Agreement or
the occurrence of an early termination date or similar termination
event under any Lender Swap Agreements notwithstanding the
existence of any dispute between Company or the applicable
Subsidiary of Company and any Beneficiary with respect to the
existence of such event; (c) the obligations of each Guarantor
hereunder are independent of the obligations of Company or such
Subsidiary of Company under the Loan Documents or the Lender Swap
Agreements and the obligations of any other guarantor of
obligations of Company or such Subsidiary of Company and a separate
action or actions may be brought and prosecuted against each
Guarantor whether or not any action is brought against Company or
such Subsidiary of Company or any of such other guarantors and
whether or not Company or such Subsidiary of Company is joined in
any such action or actions; and (d) a payment of a portion,
but not all, of the Guarantied Obligations by one or more
Guarantors shall in no way limit, affect, modify or
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abridge the liability of such or any other
Guarantor for any portion of the Guarantied Obligations that has
not been paid. This Guaranty is a continuing guaranty and
shall be binding upon each Guarantor and its successors and
assigns, and each Guarantor irrevocably waives any right to revoke
this Guaranty as to future transactions giving rise to any
Guarantied Obligations.
3.
Actions by Beneficiaries. Any Beneficiary may from time to time,
without notice or demand and without affecting the validity or
enforceability of this Guaranty or giving rise to any limitation,
impairment or discharge of any Guarantor’s liability
hereunder, (a) renew, extend, accelerate or otherwise change
the time, place, manner or terms of payment of the Guarantied
Obligations, (b) settle, compromise, release or discharge, or
accept or refuse any offer of performance with respect to, or
substitutions for, the Guarantied Obligations or any agreement
relating thereto and/or subordinate the payment of the same to the
payment of any other obligations, (c) request and accept other
guaranties of the Guarantied Obligations and take and hold security
for the payment of this Guaranty or the Guarantied Obligations,
(d) release, exchange, compromise, subordinate or modify, with
or without consideration, any security for payment of the
Guarantied Obligations, any other guaranties of the Guarantied
Obligations, or any other obligation of any Person with respect to
the Guarantied Obligations, (e) enforce and apply any security
now or hereafter held by or for the benefit of any Beneficiary in
respect of this Guaranty or the Guarantied Obligations and direct
the order or manner of sale thereof, or exercise any other right or
remedy that Guarantied Party or the other Beneficiaries, or any of
them, may have against any such security, as Guarantied Party in
its discretion may determine consistent with the Credit Agreement,
the Lender Swap Agreements and any applicable security agreement,
including foreclosure on any such security pursuant to one or more
judicial or nonjudicial sales, whether or not every aspect of any
such sale is commercially reasonable, and (f) exercise any
other rights available to Guarantied Party or the other
Beneficiaries, or any of them, under the Loan Documents or the
Lender Swap Agreements, at law or in equity.
4.
No Discharge. This
Guaranty and the obligations of Guarantors hereunder shall be valid
and enforceable and shall not be subject to any limitation,
impairment or discharge for any reason (other than payment in full
of the Guarantied Obligations), including without limitation the
occurrence of any of the following, whether or not any Guarantor
shall have had notice or knowledge of any of them:
(a) any failure to assert or enforce or agreement not to
assert or enforce, or the stay or enjoining, by order of court, by
operation of law or otherwise, of the exercise or enforcement of,
any claim or demand or any right, power or remedy with respect to
the Guarantied Obligations or any agreement relating thereto, or
with respect to any other guaranty of or security for the payment
of the Guarantied Obligations, (b) any waiver or modification
of, or any consent to departure from, any of the terms or
provisions of the Credit Agreement, any of the other Loan
Documents, the Lender Swap Agreements or any agreement or
instrument executed pursuant thereto, or of any other guaranty or
security for the Guarantied Obligations, (c) the Guarantied
Obligations, or any agreement relating thereto, at any time being
found to be illegal, invalid or unenforceable in any respect,
(d) the application of payments received from any source to
the payment of indebtedness other than the Guarantied Obligations,
even though Guarantied Party or the other Beneficiaries, or any of
them, might have elected to apply such payment to any part or all
of the Guarantied Obligations, (e) any failure to perfect or
continue perfection of a security interest in any collateral which
secures any of the Guarantied Obligations, (f) any defenses,
set-offs or counterclaims which Company may assert against
Guarantied Party or any Beneficiary in respect of the Guarantied
Obligations, including but not
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limited to failure of consideration, breach of
warranty, payment, statute of frauds, statute of limitations,
accord and satisfaction and usury, and (g) any other act or
thing or omission, or delay to do any other act or thing, which may
or might in any manner or to any extent vary the risk of a
Guarantor as an obligor in respect of the Guarantied
Obligations.
5.&nb
