Third Amendment and Waiver Dated as of April 27, 2007 to Second Amended and Restated Receivables Loan Agreement
Dated as of April 27, 2007
to
Second Amended and Restated Receivables Loan Agreement
This Third Amendment and Waiver (the “Amendment”), dated as of
April 27, 2007, is entered into among BWA Receivables Corporation (the “Borrower”), BorgWarner Inc.
(“BWI” and in its
capacity as Collection Agent, the “Collection Agent”), Windmill
Funding Corporation, a Delaware corporation (“Windmill”), the Bank listed
on the signature page hereof (the “Bank”) and ABN AMRO Bank
N.V., as agent for Windmill, and the Bank (the “Agent”).
Reference is hereby made to that certain Second
Amended and Restated Receivables Loan Agreement, dated as of December 6, 2004
(as amended, supplemented or otherwise modified through the date hereof, the
“Loan Agreement”),
among the Borrower, the Collection Agent, Windmill, the Bank and the
Agent. Terms used herein and not otherwise defined herein which are
defined in each Amended Agreement or 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. 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 date “April 27, 2007” appearing in
clause (iv) of the defined term “Bank Termination Date”
appearing in Article I to the Loan Agreement is deleted and replaced with the
date “April 25,
2008”.
(b) The date “April 27, 2007” appearing in
the clause (i) of the defined term “Loan Amortization Date”
appearing in Article I of the Loan Agreement is deleted and replaced with the
date “April 25,
2008”.
Section
2. The Agent, Windmill and the Bank hereby waive the
right of the Agent in the last sentence of Section 6.1(e) of the Loan Agreement
to conduct an annual audit of the Records of the Borrower and/or make test audit
of verifications of the Receivables for the fiscal year ended December 31,
2007. Such waiver shall only be effective for such fiscal year, and
shall not be construed to be a waiver of any right of the Agent under Section
6.1(e) of the Loan Agreement for any other period.
Section
3. This Amendment shall become effective as of the date
first stated above once the Agent has received executed counterparts hereof from
each of the parties hereto.
Section
4. The Loan 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 (as defined in the Loan
Agreement) and all other documents executed in connection therewith, are in all
respects ratified and confirmed. From and after the date hereof, the
Loan Agreement shall be amended and supplemented as herein provided, and, except
as so amended and supplemented, the Loan Agreement, each of the other
Transaction Documents and all other documents executed in connection therewith
shall remain in full force and effect.
Section 5. 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 6. 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 and as a Bank
By: /s/ ABN AMRO
BANK N.V.
Title:
WINDMILL FUNDING
CORPORATION
By: /s/ WINDMILL
FUNDING CORPORATION
Title:
BWA RECEIVABLES
CORPORATION
By: /s/ BWA
RECEIVABLES CORPORATION
Title:
By: /s/ BORGWARNER
INC.
Title:
