AMENDMENT NO. 2
Exhibit 10.10
EXECUTION COPY
AMENDMENT NO. 2
This Amendment No. 2 (this “Amendment”) dated as of August 11, 2009 is entered into by
and among BORGWARNER INC., a Delaware corporation (the “Borrower”), the Guarantors, the
Lenders and BANK OF AMERICA, N.A., as the administrative agent under the Credit Agreement (in such
capacity, the “Administrative Agent”), Issuing Bank and Swingline Lender. Capitalized
terms used but not otherwise defined herein shall have the meanings ascribed thereto in the Credit
Agreement.
STATEMENT OF PURPOSE
WHEREAS, the Borrower, the Lenders and the Administrative Agent are all parties to that
certain Credit Agreement dated as of July 22, 2004 (as amended by that certain Amendment No. 1 and
Consent Agreement dated as of April 30, 2009, as amended hereby and as further amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”).
WHEREAS, the Borrower, the Guarantors, certain other Subsidiaries of the Borrower and the
Administrative Agent are all parties to that certain Unlimited Pledge Agreement dated as of June 1,
2009 (as amended hereby and as further amended, restated, supplemented or otherwise modified from
time to time, the “Unlimited Pledge Agreement”).
WHEREAS, the parties hereto have agreed to amend the Credit Agreement and the Unlimited Pledge
Agreement as provided herein.
NOW, THEREFORE, in consideration of the agreements hereinafter set forth, and for other good
and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
1. Amendments.
(a) Section 1.1 of the Credit Agreement is hereby amended by adding the following new
definition in appropriate alphabetical order:
“Law” means, collectively, all international, foreign,
Federal, state and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes and administrative or judicial
precedents or authorities, including the interpretation or
administration thereof by any Governmental Authority charged with
the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authority, in each case whether or not having the force
of law.
(b) The first sentence of each of the definitions of “Euro Commitment”, “Sterling Commitment”
and “Yen Commitment” are hereby amended by deleting such sentence in its entirety and replacing it
with the following, respectively:
“Euro Commitment” means, with respect to each Lender,
the commitment of such Lender to make Euro Revolving Loans, as such
commitment may be (a) reduced from time to time pursuant to Section
2.10 or (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.4.
“Sterling Commitment” means, with respect to each
Lender, the commitment of such Lender to make Sterling Revolving
Loans, as such commitment may be (a) reduced from time to time
pursuant to Section 2.10 or (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to
Section 9.4.
“Yen Commitment” means, with respect to each Lender,
the commitment of such Lender to make Yen Revolving Loans, as such
commitment may be (a) reduced from time to time pursuant to Section
2.10 or (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.4.
(c) Each of the cross-references in the definition of “Dollar Commitment” and in Section
9.2(b) of the Credit Agreement to “Section 2.1(e)” is hereby amended to read “Section 2.21”.
(d) Section 2.1(e) of the Credit Agreement is hereby amended by deleting such subsection in
its entirety and replacing it with the following:
(e) [RESERVED]
(e) Section 2.19(b) of the Credit Agreement is hereby amended by deleting such subsection in
its entirety and replacing it with the following:
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of
principal, unreimbursed LC Disbursements, interest, fees and other
Obligations then due hereunder and under the other Loan Documents,
such funds shall be applied:
First, to payment of that portion of the
Obligations constituting fees, indemnities, expenses and
other amounts (including fees, charges and disbursements of
counsel to the Administrative Agent) payable to the
Administrative Agent in its capacity as such;
Second, to payment of that portion of the
Obligations arising under the Loan Documents constituting
fees, indemnities and other amounts (other than principal,
interest and Letter of Credit fees under Section
2.13(b)) payable to the Lenders and the Issuing Bank
(including fees, charges and disbursements of counsel to the
respective Lenders and the Issuing Bank arising under the
Loan Documents and amounts payable under Sections
2.16, 2.17 and 2.18), ratably among them
in proportion to the respective amounts described in this
clause Second payable to them;
Third, to payment of that portion of the
Obligations constituting accrued and unpaid Letter of Credit
fees under
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Section 2.13(b) and interest on the Loans, LC
Borrowings and other Obligations arising under the Loan
Documents, ratably among the Lenders and the Issuing Bank in
proportion to the respective amounts described in this
clause Third payable to them;
Fourth, to payment of that portion of the
Obligations constituting unpaid principal of the Loans, LC
Borrowings and Obligations then owing under Secured Hedge
Agreements and Secured Cash Management Agreements, ratably
among the Lenders, the Issuing Bank, the Hedge Banks and the
Cash Management Banks in proportion to the respective
amounts described in this clause Fourth held by
them;
Fifth, to the Administrative Agent for the
account of the Issuing Bank, to Cash Collateralize that
portion of LC Exposures comprised of the aggregate undrawn
amount of Letters of Credit; and
Last, the balance, if any, after all of the
Obligations have been indefeasibly paid in full, to the
Borrower or as otherwise required by Law.
Subject to Section 2.6(c), amounts used to Cash
Collateralize the aggregate undrawn amount of Letters of Credit
pursuant to clause Fifth above shall be applied to satisfy
drawings under such Letters of Credit as they occur. If any amount
remains on deposit as Cash Collateral after all Letters of Credit
have either been fully drawn or expired, such remaining amount shall
be applied to the other Obligations, if any, in the order set forth
above.
Notwithstanding the foregoing, Obligations arising under
Secured Cash Management Agreements and Secured Hedge Agreements
shall be excluded from the application described above if either (a)
no Default has occurred and is continuing at such time or (b) the
Administrative Agent has not received written notice thereof,
together with such supporting documentation as the Administrative
Agent may request, from the applicable Cash Management Bank or Hedge
Bank, as the case may be. Each Cash Management Bank or Hedge Bank
not a party to the Credit Agreement that has given the notice
contemplated by the preceding sentence shall, by such notice, be
deemed to have acknowledged and accepted the appointment of the
Administrative Agent pursuant to the terms of Article VIII
hereof for itself and its Affiliates as if a “Lender” party hereto.
(f) The first sentence of Section 2.21(a) of the Credit Agreement is hereby amended by
deleting it in its entirety and replacing it with the following:
(a) Request for Increase. Provided there exists no
Default, upon notice to the Administrative Agent (which shall
promptly notify the Lenders), the Borrower may from time to time on
or after July 23, 2009.
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2009, request an increase in the Dollar Commitments by an
amount (for all such requests) not exceeding $75,000,000;
provided that (x) any such request for an increase shall be
in a minimum amount of $5,000,000 and (y) in no event shall the
aggregate Commitments after giving effect to any such increase
exceed $325,000,000.
(g) Section 1(a) of the Unlimited Pledge Agreement is hereby amended by (i) adding a new
defined term in a new clause (i) set forth below, (ii) re-numbering clauses (i), (ii) (iii) and
(iv) as (ii), (iii), (iv) and (v), respectively and (iii) deleting the words “organization
documents” and adding the words “Divgi Warner Formation Documents” before the period in the
definition of “Xxxxx-Xxxxxx Right of First Refusal”:
(i) “Divgi Warner Formation Documents” means the
collective reference to (a) that certain Formation Agreement dated
as of January 17, 1995 by and between Xxxx-Xxxxxx Automotive South
Asia Corporation and Divgi Metalwares Private, Ltd. and (b) that
certain Memorandum of Association of Divgi Warner Transmissions
Private Limited filed in the office of the registrar of companies in
Maharashtra Bombay on or about September 18, 1995 (as amended by
that certain Fresh Certificate of Incorporation on Consequence on
Change of Name changing the name to Divgi Warner Private Limited and
filed in the office of the registrar of companies in Maharashtra
Bombay on November 18, 1995), in each case as in effect on April 30,
2009.
(h) Section 1(g) of the Unlimited Pledge Agreement is hereby amended by deleting such
subsection in its entirety and replacing it with the following:
(g) The applicable Pledgors agree to deliver to the
Administrative Agent all certificates representing the Pledged
Equity issued by BorgWarner Cooling Systems (India) Private Limited
and BorgWarner Xxxxx TEC Murugappa Pvt. Ltd.
(i) A new Section 2(k) is added to the Unlimited Pledge Agreement to read as follows:
(k) With respect to any Pledged Equity of a Foreign Subsidiary
that is (i) uncertificated and (ii) the Law of the jurisdiction of
formation of such Foreign Subsidiary requires each Lender to be
named as pledgee in any public registry (or equivalent) or any
member’s registry (or equivalent) of such Foreign Subsidiary in
order to grant or perfect a security interest in such Pledge Equity,
the Pledgor(s) shall (A) promptly notify the Administrative Agent of
such circumstances and (B) upon each assignment to a new Lender
pursuant to Section 9.4 of the Credit Agreement (x) add such new
Lender to such registry (or equivalent) as a new pledgee within 45
days after receipt of notice of such assignment from such new Lender
(it being agreed that the Borrower’s consent to any such assignment
shall be deemed notice) and to take such other actions as are
reasonably requested by such new Lender to evidence the new Lender
on such registry (or equivalent) and (y) upon the request of such
new Lender, use commercially reasonable efforts to obtain a legal
opinion addressed to such new Lender within 60 days after receipt of
notice of such assignment from such Lender (it being agreed that the
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Borrower’s consent to any such assignment shall be deemed
notice) ascertaining the legality, effectiveness and validity of the
addition of such new Lender as a new pledgee and the entry thereof
in the registry (or equivalent). As of the date hereof, the only
Pledged Equity subject to this subsection (k) are those issued by
Subsidiaries formed under the Laws of Korea.
(j) Section 27 of the Unlimited Pledge Agreement is hereby amended by adding the following
sentence at the end of such section:
In the event that any of the requirements of Sections 15 or 27
would require the Borrower or any of its Subsidiaries to take any
action that would (a) be in conflict with the Divgi Warner Formation
Documents or (b) require the consent of Divgi Metalwares Private,
Ltd., or (c) require the approval of any member of the board of
directors of Xxxxx-Xxxxxx Private Limited who is a nominee or
representative of Divgi Metalwares Private, Ltd., such requirements
shall be deemed to be satisfied upon the exercise of commercially
reasonable efforts by the Borrower and its Subsidiaries to (i) in
the event clause (a) above is applicable, amend the applicable Divgi
Warner Formation Documents to eliminate any conflict with the Divgi
Warner Formation Documents and the requirements hereunder and/or
(ii) in the event clause (b) above is applicable, obtain the consent
of Divgi Metalwares Private, Ltd. to the actions required hereunder
and/or (iii) in the event clause (c) above is applicable, obtain the
consent of each applicable member of the board of directors of
Xxxxx-Xxxxxx Private Limited who is nominee or representative of
Divgi Metalwares Private, Ltd. to the actions hereunder.
(k) Schedule 1(a)(iv) (Pledged Interests) to the Unlimited Pledge Agreement is amended by
deleting such schedule in its entirety and replacing it with a new Schedule 1(a)(iv), in the form
of Annex A attached hereto.
2. Conditions to Effectiveness. This Amendment shall be effective as of the date
hereof upon (a) receipt by the Administrative Agent of copies of this Amendment duly executed by
each Loan Party, the Administrative Agent, the Issuing Bank, the Swingline Lender and each of the
Lenders and (b) payment of all fees and expenses required to be paid pursuant to any Loan Document
on or before the date hereof by any Loan Party.
3. Effect of the Agreement. Except as expressly provided herein, the Credit Agreement
and the other Loan Documents shall remain unmodified and in full force and effect. Except as
expressly set forth herein, this Amendment shall not be deemed (a) to be a waiver of, or consent
to, a modification or amendment of, any other term or condition of the Credit Agreement or any
other Loan Document, (b) to prejudice any other right or rights which the Administrative Agent or
the Lenders may now have or may have in the future under or in connection with the Credit Agreement
or the other Loan Documents or any of the instruments or agreements referred to therein, as the
same may be amended, restated, supplemented or otherwise modified from time to time, (c) to be a
commitment or any other undertaking or expression of any willingness to engage in any further
discussion with the Borrower or any other Person with respect to any waiver, amendment,
modification or any other change to the Credit Agreement or the Loan Documents or any rights or
remedies arising in favor of the Lenders or the Administrative Agent, or any of them, under or with
respect to any such documents or (d) to be a waiver of, or consent to or a modification or
amendment of, any other term or condition of any other agreement by and among the
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Borrower, on the one hand, and the Administrative Agent or any other Lender, on the other
hand. References in the Credit Agreement to “this Agreement” (and indirect references such as
“hereunder”, “hereby”, “herein”, and “hereof”) and in any Loan Document to the Credit Agreement
shall be deemed to be references to the Credit Agreement as modified hereby.
4. Representations and Warranties/No Default. By its execution hereof the Borrower
and each of the Guarantors hereby certifies, represents and warrants to the Administrative Agent
and the Lenders that:
(a) After giving effect to this Amendment and the modifications set forth in paragraph 1
above, each of the representations and warranties set forth in the Credit Agreement and the other
Loan Documents is true and correct as of the date hereof, except that for purposes of this
paragraph 6(a)(i), the representations and warranties contained in Section 3.4(a) of the
Credit Agreement shall be deemed to refer to the most recent annual and quarterly financial
statements furnished pursuant to Sections 5.1(a) and (b) of the Credit Agreement,
respectively;
(b) After giving effect to this Amendment and the modifications set forth herein, no Default
or Event of Default has occurred or is continuing;
(c) It has the right, power and authority and has taken all necessary corporate and other
action to authorize the execution, delivery and performance of this Amendment and each of the other
documents executed in connection herewith to which it is a party, in accordance with their
respective terms and the modifications contemplated hereby;
(d) This Amendment and each of the other documents executed in connection herewith to which it
is a party, including the Guaranty Agreement, has been duly executed and delivered by the duly
authorized officers of the Borrower and each Guarantor, as applicable, and each such document
constitutes the legal, valid and binding obligation of the Borrower or such Guarantor, as
applicable, enforceable in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to
time in effect which affect the enforcement of creditors’ rights in general and the availability of
equitable remedies; and
(e) No consent, license or approval is required in connection with the execution, delivery and
performance by such Loan Party and the validity against such Loan Party of this Amendment and each
of the other documents executed in connection herewith to which it is a party.
5. Reaffirmations. Each Loan Party (a) agrees that the modifications contemplated by
this Amendment shall not limit or diminish the obligations of such Person under, or release such
Person from any obligations under, the Credit Agreement, the Guaranty Agreement or any other Loan
Document to which it is a party, (b) confirms and reaffirms its obligations under the Credit
Agreement, the Guaranty Agreement and each other Loan Document to which it is a party and (c)
agrees that the Credit Agreement, the Guaranty Agreement and each other Loan Document to which it
is a party remain in full force and effect and are hereby ratified and confirmed.
6. Miscellaneous.
(a) Governing Law and Waiver of Jury Trial. THE PROVISIONS OF SECTIONS 9.9
AND 9.10 OF THE CREDIT AGREEMENT ARE INCORPORATED HEREIN BY REFERENCE, MUTATIS
MUTANDIS, AS IF FULLY REPRODUCED HEREIN.
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(b) Counterparts. This Amendment may be executed by one or more of the parties hereto
in any number of separate counterparts and all of said counterparts taken together shall be deemed
to constitute one and the same instrument.
(c) Electronic Transmission. A facsimile, telecopy, pdf or other reproduction of this
Amendment may be executed by one or more parties hereto, and an executed copy of this Amendment may
be delivered by one or more parties hereto by facsimile or similar instantaneous electronic
transmission device pursuant to which the signature of or on behalf of such party can be seen, and
such execution and delivery shall be considered valid, binding and effective for all purposes. At
the request of any party hereto, all parties hereto agree to execute an original of this Amendment
as well as any facsimile, telecopy, pdf or other reproduction hereof.
(d) Costs and Expenses. The Borrower agrees to pay to the Administrative Agent on
demand all fees and out-of-pocket charges and other expenses incurred in connection with this
Amendment, including, without limitation, the reasonable fees and disbursements of counsel for the
Administrative Agent.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the date and year first above written.
| BORGWARNER INC., as Borrower | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BORGWARNER DIVERSIFIED TRANSMISSION PRODUCTS INC., as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BORGWARNER DIVERSIFIED TRANSMISSION PRODUCTS SERVICES INC., as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BORGWARNER EMISSIONS SYSTEMS HOLDING INC., as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BORGWARNER EMISSIONS SYSTEMS INC., as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BORGWARNER EMISSIONS SYSTEMS OF MICHIGAN INC., as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BORGWARNER EUROPE INC., as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
[Signature Pages Continue]
[Amendment No. 2]
| BORGWARNER HOLDING INC., as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BORGWARNER INVESTMENT HOLDING INC., as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BORGWARNER JAPAN INC., as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BORGWARNER XXXXX TEC INC., as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BORGWARNER NW INC., as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BORGWARNER POWDERED METALS INC., as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BORGWARNER SOUTH ASIA INC., as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BORGWARNER THERMAL SYSTEMS INC., as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
[Signature Pages Continue]
[Amendment No. 2]
| BORGWARNER THERMAL SYSTEMS OF MICHIGAN INC., as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BORGWARNER TORQTRANSFER SYSTEMS INC., as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BORGWARNER TRANSMISSION SYSTEMS INC., as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BORGWARNER TURBO SYSTEMS INC., as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| XXXXXXX SPECIALTIES INC., as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BWA TURBO SYSTEMS HOLDING CORPORATION, as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| XXXXXXX CORPORATION, as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
[Signature Pages Continue]
[Amendment No. 2]
| BWA RECEIVABLES CORPORATION, as Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
[Amendment No. 2]
| BANK OF AMERICA, N.A., as Administrative Agent | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| BANK OF AMERICA, N.A., as Lender, Issuing Bank and Swing Line Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| CITIBANK, N.A., as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| XXXXXX XXXXXXX BANK, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| KEYBA NK NATIONAL ASSOCIATION, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
[Signature Pages Continue]
[Amendment No. 2]
| NORTHERN TRUST COMPANY, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| SANPAOLO IMI S.P.A., as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| XXXXXXX XXXXX BANK USA, as a Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
[Amendment No. 2]
Annex A
Schedule 1(a)(iv) to the Unlimited Pledge Agreement
(Pledged Interests)
