First Amendment
Dated as of March 25, 1999
to
Amended and Restated Receivables Loan Agreement
Amended and Restated Receivables Purchase Agreement
Amended and Restated Subordination Agreement
Amended and Restated Limited Guaranty
and
Second Amendment to Amended and Restated Indemnity Agreement
Each Dated as of December 23, 1998
This Amendment (the "Amendment"), dated as of March 25, 1999, is entered
into among BWA Receivables Corporation (the "Borrower"), Borg-Warner Automotive,
Inc. ("BWAI" and in its capacity as Collection Agent, the "Collection Agent"),
Borg-Warner Automotive Diversified Transmission Products Corporation ("DTP"),
Borg-Warner Automotive Air/Fluid Systems Corporation ("AFS"), Borg-Warner
Automotive Morse TEC Corporation ("TEC"), Borg-Warner Automotive Automatic
Transmission Systems Corporation ("ATS"), Borg-Warner Automotive Powertrain
Systems Corporation ("PTS"), Borg-Warner Automotive Turbo Systems Corporation
("Turbo"), Borg-Warner Automotive Fuel Systems Corporation ("Fuel"; Turbo and
Fuel at times being hereinafter referred to individually as a "New Originator"
and collectively as the "New Originators"), Windmill Funding Corporation, a
Delaware corporation ("Windmill"), ABN AMRO Bank N.V., as Windmill's program
letter of credit provider (the "Program LOC Provider"), the Bank listed on the
signature page hereof (the "Bank") and ABN AMRO Bank N.V., as agent for
Windmill, the Program LOC Provider and the Banks (the "Agent").
Reference is hereby made to (i) that certain Amended and Restated
Receivables Loan Agreement, dated as of December 23, 1998 (as amended,
supplemented or otherwise modified through the date hereof, the "Loan
Agreement"), among the Borrower, the Collection Agent, Windmill, the Program LOC
Provider, the Bank and the Agent, (ii) that certain Amended and Restated
Receivables Purchase Agreement, dated as of December 23, 1998 (as amended,
supplemented or otherwise modified through the date hereof, the "Purchase
Agreement"), among DTP, AFS, TEC, ATS, PTS and the Borrower, (iii) that certain
Amended and Restated Indemnity Agreement, dated as of December 23, 1998 (as
amended, supplemented or otherwise modified through the date hereof, the
"Indemnity Agreement"), among DTP, AFS, TEC, ATS, PTS and the Agent, (iv) that
certain Amended and Restated Limited Guaranty, dated as of December 23, 1998 (as
amended, supplemented or otherwise modified through the date hereof, the
"Guaranty"), by BWAI, DTP, AFS, TEC, ATS and PTS in favor of the Borrower and
(v) that certain Amended and Restated Subordination Agreement, dated as of
December 23, 1998 (as amended, supplemented or otherwise modified through the
date hereof, the "Subordination Agreement"), among DTP, AFS, TEC, ATS, PTS, the
Borrower and Agent (each of the Loan Agreement, Purchase Agreement, Indemnity
Agreement, Guaranty and Subordination Agreement being referred to herein
individually as an "Amended Agreement" and collectively as the "Amended
Agreements"). Terms used herein and not otherwise defined herein which are
defined in each Amended Agreement or the other Transaction Documents (as defined
in the Loan Agreement) shall have the same meaning herein as defined therein.
For good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendments to Loan Agreement. Subject to the following
terms and conditions, including without limitation the conditions precedent set
forth in Section 6, upon execution by the parties hereto in the space provided
for that purpose below, the Loan Agreement shall be, and it hereby is, amended
as follows:
(a) The defined term "Aggregate Bank Commitment" appearing in Section 1.1
of the Loan Agreement is amended in its entirety to be and to read as follows:
"Aggregate Bank Commitment" shall mean an amount equal to One Hundred Thirty
Seven Million Seven Hundred Thousand Dollars ($137,700,000), as such amount may
be reduced pursuant to Section 2.6.
(b) The defined term "Approved Obligor" appearing in Section 1.1 of the
Loan Agreement is amended in its entirety to be and to read as follows:
"Approved Obligor" shall mean each of Ford Motor Company, General Motors
Corporation, Daimler Chrysler Corporation, New Venture Gear, Caterpillar
Corporation, Freightliner Corporation and the wholly-owned Subsidiaries of each
of the foregoing.
(c) The defined term "Approved Obligor Limit" appearing in Section 1.1 of
the Loan Agreement is amended in its entirety to be and to read as follows:
"Approved Obligor Limit" shall mean, (a) with respect to Ford Motor Company,
$72,000,000, (b) with respect to General Motors Corporation, $40,000,000,
(c) with respect to Daimler Chrysler Corporation, $42,000,000, (d) with respect
to New Venture Gear, $10,000,000, (e) with respect to Caterpillar Corporation,
$7,000,000 and (f) with respect to Freightliner Corporation, $7,000,000;
provided, however, that the Agent may designate a lesser amount as the Approved
Obligor Limit for any Approved Obligor, upon the request of any Bank or the
Program LOC Provider following the occurrence of a Downgrading Event with
respect to such Approved Obligor or any Subsidiary of such Approved Obligor.
(d) The defined term "Aggregate Commitment" appearing in Section 1.1 of
the Loan Agreement is amended in its entirety to be and to read as follows:
"Aggregate Commitment" shall mean One Hundred Fifty Three Million Dollars
($153,000,000), as such amount may be reduced pursuant to Section 2.6.
(e) The defined term "Loan Limit" appearing in Section 1.1 of the Loan
Agreement is amended in its entirety to be and to read as follows:
"Loan Limit" means One Hundred Fifty Million Dollars $150,000,000).
(f) The defined term "Originator" appearing in Section 1.1 of the Loan
Agreement is amended in its entirety to be and to read as follows:
"Originator" shall mean each of the following Delaware corporations: Borg-
Warner Automotive Diversified Transmission Products Corporation; Borg-Warner
Automotive Air/Fluid Systems Corporation; Borg-Warner Automotive Morse TEC
Corporation; Borg-Warner Automotive Automatic Transmission Systems Corporation;
and Borg-Warner Automotive Powertrain Systems Corporation, Borg-Warner
Automotive Turbo Systems Corporation and Borg-Warner Automotive Fuel Systems
Corporation.
(g) The defined term "Program LOC Provider Commitment" appearing in Section 1.1
of the Loan Agreement is amended in its entirety to be and to read as follows:
"Program LOC Provider Commitment" shall mean Fifteen Million Three Hundred
Thousand Dollars ($15,300,000), as such amount may be reduced pursuant to
Section 2.6.
(h) Exhibit C, Exhibit G, Exhibit H and Schedule I to the Loan Agreement are
each amended in their entirety to be and to read as set forth on Annex I hereto.
Section 2. Amendments to Purchase Agreement. Subject to the following terms
and conditions, including without limitation the conditions precedent set forth
in Section 6, upon execution by the parties hereto in the space provided for
that purpose below, the Purchase Agreement shall be, and it hereby is, amended
as follows:
(a) The cover page of the Purchase Agreement shall be deemed amended so as to
include Turbo and Fuel as one of the parties to the Purchase Agreement.
(b) The first paragraph of the Purchase Agreement is amended in its entirety to
be and to read as follows:
Amended and Restated Receivables Purchase Agreement (this "Agreement"), dated as
of December 23, 1998, by and among Borg-Warner Automotive Diversified
Transmission Products Corporation ("DTP"), Borg-Warner Automotive Air/Fluid
Systems Corporation ("AFS"), Borg-Warner Automotive Morse TEC Corporation
("TEC"), Borg-Warner Automotive Automatic Transmission Systems Corporation
("ATS"), Borg-Warner Automotive Powertrain Systems Corporation ("PTS"), Borg-
Warner Automotive Turbo Systems Corporation ("Turbo") and Borg-Warner Automotive
Fuel Systems Corporation ("Fuel" and collectively with DTP, AFS, TEC, PTS, ATS
and Turbo, the "Sellers") and BWA Receivables Corporation (the "Purchaser")."
(c) Exhibit D and Exhibit E to the Purchase Agreement are each amended in their
entirety to be and to read as set forth on Annex II hereto.
Section 3. Amendment to Indemnity Agreement. Subject to the following terms
and conditions, including without limitation the conditions precedent set forth
in Section 6, upon execution by the parties hereto in the space provided for
that purpose below, the Indemnity Agreement shall be and it hereby is amended by
amending in its entirety the first paragraph of the Indemnity Agreement to be
and to read as follows:
" Amended and Restated Indemnity Agreement (this "Indemnity Agreement"), dated
as of December 23, 1998, made by and among Borg-Warner Automotive, Inc., Borg-
Warner Automotive Diversified Transmission Products Corporation, Borg-Warner
Automotive Air/Fluid Systems Corporation, Borg-Warner Automotive Morse TEC
Corporation, Borg-Warner Automotive Automatic Transmission Systems Corporation,
Borg-Warner Automotive Powertrain Systems Corporation, Borg-Warner Automotive
Turbo Systems Corporation and Borg-Warner Automotive Fuel Systems Corporation
(collectively, the "Indemnifiers") and the Agent (as defined below) for the
benefit of the Beneficiaries (as defined below)."
Section 4. Amendment to Guaranty. Subject to the following terms and
conditions, including without limitation the conditions precedent set forth in
Section 6, upon execution of the parties hereto in the space provided for that
purpose below, the Guaranty shall be, and it hereby is, amended by amending in
its entirety the first paragraph of the Guaranty to be and to read as follows:
"Amended and Restated Limited Guaranty (this "Guaranty"), dated as of
December 23, 1998, made by Borg-Warner Automotive, Inc. ("BWAI"), Borg-Warner
Automotive Diversified Transmission Products Corporation ("DTP"), Borg-Warner
Automotive Air/Fluid Systems Corporation ("AFS"), Borg-Warner Automotive Morse
TEC Corporation ("TEC"), Borg-Warner Automotive Automatic Transmission Systems
Corporation ("ATS"), Borg-Warner Automotive Powertrain Systems Corporation
("PTS"), Borg-Warner Automotive Turbo Systems Corporation ("Turbo") and Borg-
Warner Automotive Fuel Systems Corporation ("Fuel" and collectively with DTP,
AFS, TEC, ATS and Turbo, the "Originators" and collectively with BWAI, DTP, AFS,
TEC, ATS and Turbo, the "Guarantors"), in favor of BWA Receivables Corporation
(the "Beneficiary")."
Section 5. Amendment to Subordination Agreement. Subject to the following
terms and conditions, including without limitation the conditions precedent set
forth in Section 6, upon execution by the parties hereto in the space provided
for that purpose below, the Subordination Agreement shall be, and it hereby is,
amended by amending in its entirety the first paragraph of the Subordination
Agreement to be and to read as follows:
"Amended and Restated Subordination Agreement (this "Subordination Agreement"),
dated as of December 23, 1998, by and among Borg-Warner Automotive, Inc.
("BWAC"), Borg-Warner Automotive Air/Fluid Systems Corporation ("AFS"), Borg-
Warner Automotive Morse TEC Corporation ("TEC"), Borg-Warner Automotive
Automatic Transmission Systems Corporation ("ATS"), Borg-Warner Automotive
Powertrain Systems Corporation ("PTS"), Borg-Warner Automotive Turbo Systems
Corporation ("Turbo"), Borg-Warner Automotive Fuel Systems Corporation ("Fuel"
and collectively with DTP, AFS, TEC, ATS, PTS and Turbo, the "Subordinated
Creditors"), BWA Receivables Corporation (the "Borrower"), and ABN AMRO Bank
N.V., as agent for the Lenders (as defined below) (in such capacity, the
"Agent"), for the benefit of the Agent and the Lenders (the Agent and the
Lenders being collectively referred to herein as the "Senior Creditors"."
Section 6. The effectiveness of this Amendment is subject to the
satisfaction of all of the following conditions precedent:
(a) Each of the parties hereto shall have accepted this Amendment in the spaces
provided for that purpose below.
(b) The Agent shall have received in form and substance satisfactory to the
Agent:
(i) Revolving Subordinated Promissory Notes executed by the Borrower in favor
of each New Originator;
(ii) Originals of proper UCC-1 financing statements executed by each New
Originator;
(iii) Copies of the resolutions of the board of directors of each of
the New Originators, certified by its secretary or any assistant secretary,
approving each of the Transaction Documents to which it is (or is stated to be)
a party.
(iv) A Certificate of incorporation of each of the New Originators
certified by the Secretary of State of its state of incorporation.
(v) Good standing certificates for each of the New Originators issued by
the Secretaries of State of each jurisdiction where it has material operations.
(vi) A certificate of the secretary or any assistant secretary of each of
the New Originators certifying (i) the names and signatures of the officers
authorized on its behalf to execute each Transaction Document to which it is (or
is stated to be) a party and (ii) a copy of its by-laws.
(vii) Favorable opinions of counsel to each of the New Originators in
substantially the form of Exhibit I to the Loan Agreement, and as to such other
matters as the Agent may reasonably request.
(viii) All other legal matters incident to the execution and delivery
hereof and to the transactions contemplated hereby shall be satisfactory to the
Agent.
Section 7. Each Amended Agreement, as amended and supplemented hereby or as
contemplated herein, and all rights and powers created thereby and thereunder or
under the other Transaction Documents and all other documents executed in
connection therewith, are in all respects ratified and confirmed. From and
after the date hereof, each Amended Agreement shall be amended and supplemented
as herein provided, and, except as so amended and supplemented, each Amended
Agreement, each of the other Transaction Documents and all other documents
executed in connection therewith shall remain in full force and effect.
Section 8. This Amendment may be executed in two or more counterparts, each
of which shall constitute an original but both or all of which, when taken
together, shall constitute but one instrument.
Section 9. This Amendment shall be governed and construed in accordance with
the internal laws of the State of Illinois.
[Signature Pages to Follow]
In Witness Whereof, the parties have caused this
Amendment to be executed and delivered by their duly authorized officers as
of the date first above written.
ABN AMRO Bank N.V., as the Agent, as a Bank and as the Program LOC Provider
By:
Title:
By:
Title:
Windmill Funding Corporation
By:
Title:
BWA Receivables Corporation
By:
Title:
Borg-Warner Automotive, Inc.
By:
Title:
Borg-Warner Automotive Diversified Transmission Products Corporation
By:
Title:
Borg-Warner Automotive Air/Fluid Systems Corporation
By:
Title:
Borg-Warner Automotive Morse TEC Corporation
By
Title:
Borg-Warner Automotive Automatic Transmission Systems Corporation
By:
Title:
Borg-Warner Automotive Powertrain Systems Corporation
By:
Title:
By its execution below, each of the undersigned hereby elects to become
(i) a Seller under the Purchase Agreement, (ii) an Indemnifier under the
Indemnity Agreement, (iii) an Originator and a Guarantor under the Guaranty and
(iv) a Subordinated Creditor under the Subordination Agreement. Upon the
effectiveness of this Agreement, each of the undersigned shall have all the
rights and obligations under each relevant Transaction Document as held by each
of the other Originators prior to giving effect this Amendment.
Borg-Warner Automotive Turbo Systems Corporation
By:
Title:
Address:
Attention:
Telephone:
Telecopy:
Borg-Warner Automotive Fuel Systems Corporation
By:
Title:
Address:
Attention:
Telephone:
Telecopy:
Annex I
Exhibit C
To
Receivables Loan Agreement
Lockboxes and Lockbox Banks
Exhibit G
To
Receivables Loan Agreement
Addresses of Borrower And Originator
Exhibit H
to
Receivables Loan Agreement
Borrower's and Borg-Warner Entities' Corporate Names; Trade Names; Assumed Names
1.) Borg-Warner Automotive, Inc.
2.) Borg-Warner Automotive Powertrain Systems Corporation
-Borg-Warner Powertrain Assemblies
3.) Borg-Warner Automotive Diversified Transmission Products Corporation
-Borg-Warner Powertrain Assemblies
4.) Borg-Warner Automotive Air/Fluid Systems Corporation
Borg-Warner Automotive Electronic & Mechanical Systems Corporation
-Borg-Warner Control Systems
5.) Borg-Warner Automotive Morse TEC Corporation
-Borg-Warner Automotive Transmission & Engine Components Corporation
-Morse Chain Systems
6.) Borg-Warner Automotive Automatic Transmission Systems Corporation
-Borg-Warner Automotive Transmission & Engine Components Corporation
-Borg-Warner Automotive Automatic Transmission Systems (ATS)
-Borg & Beck
7.) BWA Receivables Corporation
8.) Borg-Warner Automotive Turbo Systems Corporation
9.) Borg-Warner Automotive Fuel Systems Corporation
Schedule I
To
Receivables Loan Agreement
Banks and Bank Commitments
Name of Bank Bank Commitment
ABN AMRO Bank N.V. $137,700,000
Annex II
Exhibit D
To
Receivables Purchase Agreement
List of Principal Places of Business and Location of Records
Exhibit E
to
Receivables Purchase Agreement
Corporate Names; Trade Names; Assumed Names; Assumed Names
1.) Borg-Warner Automotive, Inc.
2.) Borg-Warner Automotive Powertrain Systems Corporation
-Borg-Warner Powertrain Assemblies
3.) Borg-Warner Automotive Diversified Transmission Products Corporation
-Borg-Warner Powertrain Assemblies
4.) Borg-Warner Automotive Air/Fluid Systems Corporation
Borg-Warner Automotive Electronic & Mechanical Systems Corporation
-Borg-Warner Control Systems
5.) Borg-Warner Automotive Morse TEC Corporation
-Borg-Warner Automotive Transmission & Engine Components Corporation
-Morse Chain Systems
6.) Borg-Warner Automotive Automatic Transmission Systems Corporation
-Borg-Warner Automotive Transmission & Engine Components Corporation
-Borg-Warner Automotive Automatic Transmission Systems (ATS)
-Borg & Beck
7.) Borg-Warner Automotive Turbo Systems Corporation
8.) Borg-Warner Automotive Fuel Systems Corporation