SECOND AMENDMENT, dated as of January 16, 1996 (the "Amendment"), to
the Credit Agreement, dated as of December 7, 1994 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"; terms not
otherwise defined herein shall be used herein as therein defined), among:
(i) BORG-WARNER AUTOMOTIVE, INC., a Delaware corporation (the "Borrower");
(ii) the several banks and other financial institutions from time to time
parties to the Credit Agreement (the "Lenders");
(iii) BANK OF MONTREAL, CREDIT LYONNAIS, CHICAGO AND CAYMAN ISLAND BRANCHES,
THE INDUSTRIAL BANK OF JAPAN, LTD., THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
NATIONSBANK OF NORTH CAROLINA, N.A., THE SUMITOMO BANK, LIMITED, CHICAGO BRANCH,
BANK OF AMERICA ILLINOIS, and THE FUJI BANK, LIMITED, as lead managers
thereunder (the "Lead Managers");
(iv) CHEMICAL BANK, a New York banking corporation (the "Chemical"), and THE
BANK OF NOVA SCOTIA, a Canadian chartered bank ("Scotiabank"), as co-arrangers
thereunder (in such capacity, the "Co-Arrangers");
(v) SCOTIABANK, as documentation agent for the Lenders thereunder (in such
capacity, the "Documentation Agent"); and
(vi) CHEMICAL, as administrative agent for the Lenders thereunder (in such
capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, the Borrower has requested that the Credit Agreement be
amended to allow for projections of the operating budget and cash flow budget of
the Borrower and its Subsidiaries to be delivered no later than 90 days after
the beginning of the Borrower's fiscal year;
WHEREAS, the Borrower, the Administrative Agent and the Majority
Lenders have agreed to so amend the Credit Agreement on the terms set forth
below;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, receipt of which is hereby acknowledged, the parties
hereto hereby agree as follows:
1. Amendment to Subsection 9.2 of the Credit Agreement. Subsection
9.2(c) of the Credit Agreement is hereby amended by deleting the paragraph in
its entirety and replacing it with the following paragraph (c):
(c) as soon as available, but in any event no later than 90 days
after the beginning of each fiscal year of the Borrower, a copy of the
projections by the Borrower of the operating budget and cash flow
budget of the Borrower and its Subsidiaries (the "Projections") for
such fiscal year; provided, however, that the Borrower shall not be
obligated to furnish any such Projections unless the board of
directors of the Borrower has reviewed and approved them;
2. Representations; No Default. On and as of the date hereof, and
after giving effect to this Amendment, the Borrower confirms, reaffirms and
restates that the representations and warranties set forth in Section 7 of the
Credit Agreement and in the other Loan Documents are true and correct in all
material respects, provided that the references to the Credit Agreement therein
shall be deemed to be references to this Amendment and to the Credit Agreement
as amended by this Amendment.
3. Conditions to Effectiveness. This Amendment shall become
effective on and as of the date (the "Amendment Effective Date") that the
Administrative Agent shall have received counterparts of this Amendment, duly
executed and delivered by a duly authorized officer of each of the Borrower, the
Administrative Agent, and the Majority Lenders, along with the written consent
of each Subsidiary Guarantor in the form attached hereto.
4. Scope. The Amendment is to be narrowly construed. Except as
expressly amended and waived herein, all of the covenants and provisions of the
Credit Agreement are and shall continue to be in full force and effect.
5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
6. Counterparts. This Amendment may be executed by one or more of
the parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
dully executed and delivered as of the date first above written.
BORG-WARNER AUTOMOTIVE, INC.
By: Borg-Warner Automotive, Inc.
Title:
CHEMICAL BANK, as Administrative Agent, as a
Co-Arranger and as a Lender
By: Chemical Bank
Title:
THE BANK OF NOVA SCOTIA, as a Co-Arranger, as
Documentation Agent and as a Lender
By: The Bank of Nova Scotia
Title:
BANK OF MONTREAL, as a Lead Manager and as a
Lender
By: Bank of Montreal
Title:
CREDIT LYONNAIS, CHICAGO BRANCH, as a Lead
Manager and as a Lender
By: Credit Lyonnais, Chicago Branch
Title:
CREDIT LYONNAIS, CAYMAN ISLAND BRANCH, as a
Lead Manager and as a Lender
By: Credit Lyonnais, Cayman Island Branch
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED, as a
Lead Manager and as a Lender
By: The Industrial Bank of Japan
Title:
THE LONG-TERM CREDIT BANK OF JAPAN, LTD., as
a Lead Manager and as a Lender
By: The Long-Term Credit Bank of Japan
Title:
NATIONSBANK, N.A.,
as a Lead Manager and as a Lender
By: Nationsbank
Title:
THE SUMITOMO BANK, LIMITED, CHICAGO BRANCH,
as a Lead Manager and as a Lender
By: The Sumitomo Bank
Title:
BANK OF AMERICA ILLINOIS, as a Lead Manager
and as a Lender
By: Bank of America Illinois
Title:
THE FUJI BANK, LIMITED, as a Lead Manager and
as a Lender
By: The Fuji Bank
Title:
THE BANK OF NEW YORK
By:THE BANK OF NEW YORK
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By: THE FIRST NATIONAL BANK OF CHICAGO
Title:
MELLON BANK, N.A.
By:MELLON BANK, N.A.
Title:
NATIONAL BANK OF DETROIT
By: NATIONAL BANK OF DETROIT
Title:
TORONTO DOMINION (TEXAS), INC.
By:TORONTO DOMINION (TEXAS), INC.
Title:
BANK OF HAWAII
By:BANK OF HAWAII
Title:
BANK OF TOKYO, LTD., CHICAGO BRANCH
By:BANK OF TOKYO, LTD., CHICAGO BRANCH
Title:
BARCLAYS BANK PLC
By:BARCLAYS BANK PLC
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE
By:CAISSE NATIONALE DE CREDIT AGRICOLE
Title:
THE NORTHERN TRUST COMPANY
By:THE NORTHERN TRUST COMPANY
Title:
THE SANWA BANK, LIMITED, CHICAGO BRANCH
By:THE SANWA BANK, LIMITED, CHICAGO BRANCH
Title:
CONSENT
Each of the undersigned Subsidiary Guarantors hereby consents and
agrees to the provisions of the foregoing Amendment, and hereby affirms that
upon the effectiveness of the foregoing Amendment, each Loan Document to which
it is a party shall continue to be, and shall remain, in full force and effect.
BORG-WARNER AUTOMOTIVE DIVERSIFIED TRANSMISSION
PRODUCTS CORPORATION
By:BORG-WARNER AUTOMOTIVE DIVERSIFIED TRANSMISSION
PRODUCTS CORPORATION
Title: Vice President
BORG-WARNER AUTOMOTIVE POWERTRAIN SYSTEMS
CORPORATION
By:BORG-WARNER AUTOMOTIVE POWERTRAIN SYSTEMS
CORPORATION
Title: Vice President
BORG-WARNER AUTOMOTIVE JAPAN CORPORATION
By:BORG-WARNER AUTOMOTIVE JAPAN CORPORATION
Title: Vice President
BORG-WARNER AUTOMOTIVE POWDERED METALS CORPORATION
By: BORG-WARNER AUTOMOTIVE POWDERED METALS
CORPORATION
Title: Vice President
BORG-WARNER AUTOMOTIVE AUTOMATIC TRANSMISSION
SYSTEMS CORPORATION
By: BORG-WARNER AUTOMOTIVE AUTOMATIC TRANSMISSION
SYSTEMS CORPORATION
Title: Vice President
BORG-WARNER AUTOMOTIVE CONTROL SYSTEMS CORPORATION
By:BORG-WARNER AUTOMOTIVE CONTROL SYSTEMS
CORPORATION
Title: Vice President
BORG-WARNER AUTOMOTIVE MORSE TEC CORPORATION
By:BORG-WARNER AUTOMOTIVE MORSE TEC CORPORATION
Title: Vice President