SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
Annual Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the fiscal year ended December 31, 1998 Commission file number: 1-12162
Borg-Warner Automotive, Inc.
(Exact name of registrant as specified in its charter)
Delaware 13-3404508
(State of Incorporation) (I.R.S. Employer Identification No.)
200 South Michigan Avenue
Chicago, Illinois 60604
(312) 322-8500
(Address and telephone number of principal executive offices)
Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which registered
Common Stock, par value $.01 per share New York Stock Exchange
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check-mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes /X/ No
The aggregate market value of the voting stock of the registrant held by
stockholders (not including voting stock held by directors and executive
officers of the registrant) on March 15, 1999 was approximately $1.1 billion. As
of March 15, 1999, the registrant had 25,861,968 shares of Common Stock
outstanding.
Indicate by check-mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the following documents are incorporated herein by reference
into the Part of the Form 10-K indicated.
Part of Form 10-K
into which
Document incorporated
Borg-Warner Automotive, Inc. 1998
Annual Report to Stockholders Parts I, II and IV
Borg-Warner Automotive, Inc. Proxy Statement for the
1999 Annual Meeting of Stockholders Part III<PAGE>
BORG-WARNER AUTOMOTIVE, INC.
FORM 10-K
YEAR ENDED DECEMBER 31, 1998
INDEX
Item
Number Page
PART I
1. Business 3
2. Properties 9
3. Legal Proceedings
4. Submission of Matters to a Vote of
Security Holders 10
PART II
5. Market for the Registrant's Common
Equity and Related Stockholder Matters 11
6. Selected Financial Data 11
7. Management's Discussion and Analysis of
Financial Condition and Results
of Operations 11
7a. Market Risk Disclosure 11
8. Financial Statements and
Supplementary Data 12
9. Changes in and Disagreements with
Accountants on Accounting
and Financial Disclosure 12
PART III
10. Directors and Executive Officers
of the Registrant 12
11. Executive Compensation
12. Security Ownership of Certain Beneficial
Owners and Management 12
13. Certain Relationships and Related
Transactions 12
PART IV
14. Exhibits, Financial Statement Schedules,
and Reports on Form 8-K 13<PAGE>
PART I
Item 1. Business
Borg-Warner Automotive, Inc. (the "Company"), a Delaware corporation, was
incorporated in 1987. The Company is a leading, global Tier I supplier of
highly engineered systems and components, primarily for automotive powertrain
applications. These products are manufactured and sold worldwide, primarily to
original equipment manufacturers ("OEMs") of passenger cars, sport utility
vehicles and light trucks. The Company, which operates 35 manufacturing
facilities in 12 countries serving auto makers in North America, Europe and
Asia, is an original equipment supplier to every major OEM in the world.
Financial Information About Segments
Incorporated herein by reference is Note 13 of the Notes to the
Consolidated Financial Statements on pages 43 and 44 of the Company's Annual
Report for the year ended December 31, 1998 (the "1998 Annual Report") filed as
an exhibit to this report.
Narrative Description of Operating Segments
The Company's products fall into four operating segments: Powertrain
Systems, Automatic Transmission Systems, Morse TEC and Air/Fluid Systems. During
1998, the Company completed its purchase of the European turbocharger business
of AG Kuhnle, Kopp & Kausch ("AG Kuhnle"). The results of the European
turbocharger business, previously presented as a separate business group, have
been integrated into the Morse TEC operating segment. Net revenues by segment
for the three years ended December 31, 1998, 1997 and 1996, are as follows (in
millions of dollars):
<TABLE>
<CAPTION>
Year ended December 31,
-----------------------
1998 1997 1996
------ ------- -----
<S> <C> <C> <C>
Powertrain Systems $ 518.8 $ 613.6 $ 476.8
Automatic Transmission Systems 402.6 418.2 392.2
Morse TEC 536.2 349.0 276.6
Air/Fluid Systems 351.4 342.4 242.7
Divested operations 73.5 101.4 189.2
Interbusiness eliminations (45.7) (57.6) (37.4)
-------- --------- -------
Net sales $ 1,836.8 $1,767.0 $1,540.1
========= ========== ==========
</TABLE>
The sales information presented above excludes the sales by the Company's
unconsolidated joint ventures. See "Joint Ventures." Such sales totaled
approximately $247 million in 1998, $336 million in 1997 and $348 million in
1996.
Powertrain Systems
Powertrain Systems products include four-wheel drive ("4WD") and all-wheel
drive transfer cases.
Transfer cases are installed primarily on light trucks and sport-utility
vehicles. A transfer case attaches to the transmission and distributes torque to
the front and rear axles for 4WD, improving vehicle control during off-road use
and in a variety of road conditions. The Company has designed and developed an
exclusive 4WD Torque-on-Demand(R) ("TOD") transfer case system, which allows
vehicles to automatically shift from two-wheel drive to 4WD when electronic
sensors indicate it is necessary. The TOD transfer case is available on the Ford
Explorer, the best selling sport-utility vehicle in the United States in 1997
and 1998, the Ford Expedition, the Lincoln Navigator, the Isuzu Trooper and the
SsangYong Musso.
Sales of 4WD transfer cases represented 27%, 34% and 30% of the Company's
total revenues for 1998, 1997, and 1996, respectively. The Company believes that
it is the world's leading independent manufacturer of 4WD transfer cases,
producing approximately one million transfer cases in 1998. The Company's
largest customer of 4WD transfer cases is Ford Motor Company ("Ford"). The
Company supplies the majority of the 4WD transfer cases for Ford, including
those installed in the Ford Explorer, the Ford Expedition, the Ford F-150
pick-up truck, the Mercury Mountaineer and the Lincoln Navigator.
The Company supplies transfer cases for the Mercedes-Benz 4WD vehicle,
which was first made available to consumers in 1997 and is manufactured at
Mercedes-Benz's United States passenger-vehicle manufacturing facility. Under a
five-year agreement, which has a three-year extension provision, the Company
developed and supplies Mercedes-Benz with two-speed, electronically controlled,
all-wheel drive transfer cases that are compatible with its anti-skid braking
system.
Automatic Transmission Systems
The Company engineers and manufactures components for automatic
transmissions and the systems which combine such components around the world.
Principal product lines include friction plates, one-way clutches, transmission
bands, and races for automatic transmissions. The Company is a supplier to
virtually every major automatic transmission manufacturer in the world. The
Company's 50%-owned joint venture in Japan, NSK-Warner Kabushiki Kaisha ("NSK
Warner") is a leading producer of friction plates and one-way clutches in Japan.
Morse TEC
Morse TEC manufactures chain and chain systems, including HY-VO (R)
front-wheel drive transmission chain ("FWD") and 4WD chain, MORSE GEMINI(TM)
Chain Systems, timing chain and timing chain systems, crankshaft and camshaft
sprockets, chain tensioners and snubbers.
HY-VO(R) chain is used in transmissions and for 4WD transfer case
applications. Transmission chain is used to transfer power from the engine to
the transmission. The Company's MORSE GEMINI(TM) Chain System, which is used on
Chrysler's LH models, emits significantly less chain pitch frequency noise than
conventional transmission chain systems. In the 1997 model year, beginning in
the third quarter of 1996, GM began incorporating this system in its FWD
vehicles. The chain in a transfer case distributes power between the front and
rear output shafts which, in turn, drive the front and rear wheels. The Company
believes it is the world's leading manufacturer of chain for FWD transmissions
and 4WD transfer cases. The Company is an original equipment supplier to every
major manufacturer that uses chain for such applications.
The Company's timing chain system is used on Ford's new family of overhead
cam engines, including the Duratech and Triton engines, as well as Chrysler's
2.7 liter overhead cam engine. The Company has been selected to design and
produce complete timing chain systems for Chrysler's 3.7 liter and 4.7 liter
overhead cam engines, introduced in 1998. The Company believes that it is the
world's leading manufacturer of timing chain.
In December 1998, the Company announced the completion of its purchase of
the European turbocharger business of AG Kuhnle, renaming it 3K-Warner
Turbosystems GmbH ("3K-Warner"). 3K-Warner supplies turbochargers to European
diesel and spark ignition engine manufacturers for use in the passenger car and
commercial vehicle markets as well as for industrial locomotive and marine
engines. 3K-Warner's sales of turbochargers included in the Company's 1998
results of operations were $182.9 million.
The Company continues to own approximately 63% of AG Kuhnle, which
continues to manufacture compressors and turbines for use in the energy and
environmental support markets. As soon as practicable, the Company intends to
realize its 63% investment in AG Kuhnle.
Air/Fluid Systems
Air/Fluid Systems designs and manufactures sophisticated mechanical,
electro-mechanical and electronic components and systems used for engine air
intake and exhaust management, fuel and vapor management, electronically
controlled automatic transmissions and steering and suspension systems. Key
products for engine air intake management produced by the Company include
throttle bodies, intake manifolds, throttle position sensors, and complete
engine induction systems. The Company's products for emissions control and
improved gas mileage include mechanical and electrical air pumps,
air control valves and pressure feedback exhaust gas re-circulation valves. The
fuel management and vapor recovery products include roll valves, canister purge
solenoids and complete vapor recovery systems. The Company also produces oil
pumps.
Acquisition of Kuhlman Corporation
On March 1, 1999, the Company acquired Kuhlman Corporation ("Kuhlman").
Kuhlman became a wholly-owned subsidiary of the Company. The total value of
consideration the Company paid in the merger was approximately $683 million.
Approximately $533 million of this amount was in cash, with the remaining in the
Company's common stock.
Kuhlman is a diversified, industrial manufacturing company that currently
operates in two product segments: industrial products and electrical products.
Through its Schwitzer Group, which includes Kuhlman's industrial products
business, Kuhlman is a leading worldwide manufacturer of proprietary engine
components, including turbochargers, fans and fan drives, fuel tanks,
instrumentation, heating/ventilation/air conditioning systems, and other
products used primarily in commercial transportation products and industrial
equipment. Kuhlman's electrical products businesses include the manufacture of
transformers and other products for electrical utilities and industrial users,
as well as electrical and electronic wire and cable products for use in
consumer, commercial and industrial applications. The Company intends to sell
the electrical products businesses. Kuhlman's products are sold to over 5,000
domestic and international customers operating in more than 60 countries
worldwide.
Joint Ventures
The Company has four joint ventures in which it has a less-than-100%
ownership interest. Results from two of these ventures, in which the Company is
the majority owner, are consolidated as part of the Company's results. The
Company's ownership interest in the two unconsolidated joint ventures,
NSK-Warner and Beijing Warner Gear Co., Ltd. are 49% and 50%, respectively.
These investments are reported using the equity method. During 1998, the Company
sold its ownership interest in Warner-Ishi Corporation and Warner-Ishi Europe
S.p.A. to its joint venture partner, Ishikawajima-Harima Heavy Industries Co.,
Ltd.
Management of the unconsolidated joint ventures is shared with the
Company's respective joint venture partners. Certain information concerning the
Company's joint ventures is set forth below:<PAGE>
<TABLE>
<CAPTION> Percentage Fiscal
Owned by Location 1998 Sales
Year the of Joint Venture ($ in
Joint Venture Products Organized Company Operation Partner millions)
<S> <C> <C> <C> <C> <C>
Unconsolidated
NSK-Warner K.K. Friction products 1964 50% Japan Nippon Seiko K.K. $230
Beijing Warner
Gear Co., Ltd.Manual
transmissions 1992 49% China Beijing Gear Works $13
Consolidated
Borg-Warner Automotive
Korea, Inc. Friction products 1987 80% Korea NSK Warner K.K. $20
Divgi-Warner
Limited Transfer cases,
manual transmissions
and automatic locking
hubs 1995 60% India Divgi Metalwares,Ltd.$5
</TABLE>
<PAGE>
See Note 13 of the Notes to Consolidated Financial Statements on pages 43 and 44
of the Company's Annual Report for geographic information.
Sales and Marketing
Each of the Company's four operating segments has its own sales function
headed by a Vice President of Sales. Account executives for each group are
assigned to serve specific OEM customers for one or more of a business group's
products. Such account executives spend the majority of their time in direct
contact with OEM purchasing and engineering employees and are responsible for
servicing existing business and for identifying and obtaining new business.
Because of their close relationship with the OEMs, account executives are able
to identify and meet customers' needs based upon their knowledge of the
Company's products and design and manufacturing capabilities. Upon securing a
new order, account executives participate in product launch team activities as a
key interface to the customers.
Research and Development
Each of the Company's operating segments has its own research and
development ("R&D") organization. Over 400 employees, including engineers,
mechanics and technicians, are engaged in R&D activities at Company facilities
worldwide. The Company also operates testing facilities such as prototype,
measurement and calibration, life testing and dynamometer laboratories.
By working closely with the OEMs and anticipating their future product
needs, the Company's R&D personnel conceive, design, develop and manufacture new
proprietary automotive components and systems. R&D personnel also work to
improve current products and production processes. The Company believes its
commitment to R&D will allow it to obtain new orders from its OEM customers.
Consistent with its strategy of developing technologically innovative
products, the Company spent approximately $65.1 million, $59.0 million and $54.4
million in 1998, 1997 and 1996, respectively, on R&D activities. Not included in
the reported R&D activities were customer-sponsored R&D activities that were
approximately $8.4 million, $8.0 million and $10.0 million in 1998, 1997 and
1996, respectively.
Patents and Licenses
The Company has approximately 2,000 active domestic and foreign patents and
patent applications pending or under preparation, and receives royalties from
licensing patent rights to others. While it considers its patents on the whole
to be important, the Company does not consider any single patent, group of
related patents or any single license essential to its operations in the
aggregate or to the operations of any of the Company's business groups
individually. The expiration of the patents individually and in the aggregate
is not expected to have a material effect on the Company's financial position or
future operating results. The Company owns numerous trademarks, some of which
are valuable but none of which are essential to its business in the aggregate.
The Company owns the "Borg-Warner Automotive" trade name and housemark,
which are material to the Company's business.
Competition
Each of the Company's operating segments competes worldwide with a number
of other manufacturers and distributors which produce and sell similar products.
Price, quality and technological innovation are the primary elements of
competition. Competitors include vertically integrated units of the Company's
major OEM customers, as well as a large number of independent domestic and
international suppliers. Many of these companies are larger and have greater
resources than the Company.
A number of the Company's major OEM customers manufacture, for their own
use and for others, products which compete with the Company's products. Although
these OEM customers have indicated that they will continue to rely on outside
suppliers, the OEMs could elect to manufacture products to meet their own
requirements or to compete with the Company. There can be no assurance that the
Company's business will not be adversely affected by increased competition in
the markets in which it operates.
The competitive environment has changed dramatically over the past few
years as the Company's traditional United States OEM customers, faced with
intense international competition, have expanded their worldwide sourcing of
components with the stated objective of better competing with lower-cost
imports. As a result, the Company has experienced competition from suppliers in
other parts of the world enjoying economic advantages such as lower labor costs,
lower health care costs and, in some cases, export subsidies and/or raw
materials subsidies.
Employees
As of December 31, 1998, the Company and its consolidated subsidiaries had
approximately 10,100 salaried and hourly employees (as compared with
approximately 10,400 employees at December 31, 1997), of which approximately
7,300 were U.S. employees. Approximately 32% of the Company's domestic hourly
workers are unionized. The collective bargaining agreement covering the Muncie
Plant was renewed in March 1998 and the collective bargaining agreement covering
the Ithaca plant was renewed in October 1998. The hourly workers at the
Company's European facilities are also unionized. The Company believes its
present relations with employees to be satisfactory.
Raw Materials
Each of the Company's operating segments believes that its supplies of raw
materials for manufacturing requirements in 1999 are adequate and are available
from multiple sources. It is common, however, for customers to require their
prior approval before certain raw materials or components can be used, thereby
reducing sources of supply that would otherwise be available. Manufacturing
operations for each of the Company's operating segments are dependent upon
natural gas, fuel oil, propane and electricity.
Environmental Regulation and Proceedings
The Company's operations are subject to federal, state, local and foreign
laws and regulations governing, among other things, emissions to air, discharge
to waters and the generation, handling, storage, transportation, treatment and
disposal of waste and other materials. The Company believes that its business,
operations and facilities have been and are being operated in compliance in all
material respects with applicable environmental and health and safety laws and
regulations, many of which provide for substantial fines and criminal sanctions
for violations. However, the operation of automotive parts manufacturing plants
entails risks in these areas, and there can be no assurance that the Company
will not incur material costs or liabilities. In addition, potentially
significant expenditures could be required in order to comply with evolving
environmental and health and safety laws, regulations or requirements that may
be adopted or imposed in the future.
The Company believes that the overall impact of compliance with regulations
and legislation protecting the environment will not have a material effect on
its financial position or future operating results, although no assurance can be
given in this regard. Capital expenditures and expenses in 1998 attributable to
compliance with such legislation were not material.
The Company and certain of its current and former direct and indirect
corporate predecessors, subsidiaries and divisions have been identified by the
United States Environmental Protection Agency and certain state environmental
agencies and private parties as potentially responsible parties ("PRPs") at
various hazardous waste disposal sites under the Comprehensive Environmental
Response, Compensation and Liability Act ("Superfund") and equivalent state laws
and, as such, may presently be liable for the cost of cleanup and other remedial
activities at 26 such sites. Responsibility for cleanup and other remedial
activities at a Superfund site is typically shared among PRPs based on an
allocation formula.
Based on information available to the Company which, in most cases,
includes: an estimate of allocation of liability among PRPs; the probability
that other PRPs, many of whom are large, solvent public companies, will fully
pay the costs apportioned to them; currently available information from PRPs
and/or federal or state environmental agencies concerning the scope of
contamination and estimated remediation costs; remediation alternatives;
estimated legal fees; and other factors, the Company has established a reserve
for indicated environmental liabilities in the aggregate amount of approximately
$7.9 million at December 31, 1998. The Company expects this amount to be
expended over the next three to five years.
The Company entered into a Settlement Agreement and Specific Mutual Release
dated as of May 31, 1998 (the "Settlement Agreement") with Borg-Warner Security
Corporation ("BWSC"), the successor corporation to its former parent. The
previously-reported dispute involved whether BWSC was entitled to
indemnification from the Company for certain environmental liabilities under a
Distribution and Indemnity Agreement dated January 27, 1993.
Pursuant to the Settlement Agreement, the Company and BWSC agreed to
dismiss and vacate any and all arbitration awards resulting from the arbitration
proceeding and to dismiss with prejudice the lawsuit filed by the Company in the
Circuit Court of Cook County, Illinois on January 27, 1998. Under the
Settlement Agreement, the Company agreed to indemnify BWSC for the first $2.9
million BWSC pays in environmental costs after April 30, 1998 and 50% of any
amounts in excess of $2.9 million. At present, the Company does not have
sufficient information to determine the extent of its liability under the
Settlement Agreement, but does not anticipate that such amount will have a
material adverse effect on its financial position or future operating results.
It is expected that indemnification payments will be made by the Company over
the course of several years as the environmental costs are incurred.
The Company believes that none of these matters, individually or in the
aggregate, will have a material adverse effect on its financial position or
future operating results, generally either because estimates of the maximum
potential liability at a site are not large or because liability will be shared
with other PRPs, although no assurance can be given with respect to the ultimate
outcome of any such matter.
Executive Officers
Set forth below are the names, ages, positions and certain other
information concerning the executive officers of the Company as of March 15,
1999.
<TABLE>
<CAPTION>
Name Age Position with Company
<S> <C> <C>
John F. Fiedler 60 Chairman and Chief Executive Officer
Robin J. Adams 45 Vice President and Treasurer
William C. Cline 49 Vice President and Controller
Gary P. Fukayama 51 Executive Vice President
Christopher A. Gebelein 52 Vice President--Business Development
Laurene H. Horiszny 43 Vice President, Secretary and General Counsel
John A. Kalina 53 Vice President, Chief Information Officer
Geraldine Kinsella 51 Vice President--Human Resources
Timothy Manganello 49 Vice President
Ronald M. Ruzic 60 Executive Vice President
Robert D. Welding 50 Executive Vice President
</TABLE>
Mr. Fiedler has been Chairman of the Board of Directors since March 1996
and has been Chief Executive Officer of the Company since January 1995. He was
President from June 1994 to March 1996. He was Chief Operating Officer from June
1994 to December 1994. Mr. Fiedler was Executive Vice President of Goodyear Tire
& Rubber Company, in charge of the North American Tire division, from 1991 to
1994.
Mr. Adams has been Vice President and Treasurer of the Company since May
1993. He was Assistant Treasurer of the Company from 1991 to 1993.
Mr. Cline has been Vice President and Controller of the Company since May
1993. He was Assistant Controller of Borg-Warner Security Corporation from 1987
to 1993.
Mr. Fukayama has been Executive Vice President of the Company since
November 1992 and is Group President and General Manager of Borg-Warner
Automotive Air/Fluid Systems Corporation. He was President and General Manager
of Borg-Warner Automotive Automatic Transmission Systems Corporation from
January 1995 to April 1996. He was President and General Manager of Borg-Warner
Automotive Transmission & Engine Components Corporation, Automatic Transmission
Systems from November 1992 to December 1994.
Mr. Gebelein has been Vice President-Business Development of the Company
since January 1995. He was General Manager of Corporate Development of Inland
Steel Industries from 1987 to 1994.
Ms. Horiszny has been Vice President, Secretary and General Counsel of the
Company since May 1993. She was Assistant General Counsel of the Company from
December 1991 to 1993, and Senior Attorney from 1988 to December 1991.
Mr. Kalina has been Vice President, Chief Information Officer of the
Company since January 1999. He was an Executive IT Consultant for IBM from
August 1997 until January 1999 and was Chief Information Officer for Walbro
Corporation from September 1995 until December 1996. He was Chief Information
Officer of Robert Bosch Corporation from October 1985 until December 1994.
Ms. Kinsella has been Vice President-Human Resources of the Company since
May 1993. She was Vice President-Human Resources of Borg-Warner Automotive
Transmission & Engine Components Corporation, Automatic Transmission Systems
from November 1990 to 1993.
Mr. Manganello has been Vice President of the Company and President and
General Manager of Borg-Warner Automotive Powertrain Systems Corporation since
February 1999. He was Vice President, Operations of Borg-Warner Automotive
Powertrain Systems Corporation, Muncie Plant from December 1995 until January
1999. He was Vice President, Business Development of Borg-Warner Automotive
Powertrain Systems Corporation, from October 1994 until November 1995. He was
Vice President of Sales of Borg-Warner Automotive Morse Chain Systems from
January 1989 to October 1994.
Mr. Ruzic has been Executive Vice President of the Company and Group
President of Borg-Warner Automotive Morse TEC Corporation since October 1992,
Chairman of 3K-Warner Turbosystems GmbH since September 1998 and Vice Chairman
of AG Kuhnle, Kopp & Kausch since September 1997.
Mr. Welding has been Executive Vice President of the Company since November
1998 and has been President of Borg-Warner Automotive Automatic Transmission
Systems Corporation since May 1996. He was Vice President of the Company from
May 1996 until October 1998 and was Vice President-Operations of Borg-Warner
Automotive Automatic Transmission Systems Corporation, Bellwood Plant, from
November 1993 to May 1996.
Item 2. Properties
As of December 31, 1998, the Company had 35 manufacturing facilities
strategically located throughout the United States and worldwide. In addition
to its domestic manufacturing facilities, the Company has three facilities in
Germany, two facilities in Japan and India, and one facility in each of Canada,
Italy, Mexico, China, France, Korea, Taiwan and Wales. The Company also has
numerous sales offices, warehouses and technical centers. The Company's
executive offices, which are leased, are located in Chicago, Illinois. In
general, the Company believes that its properties are in good condition and are
adequate to meet its current and reasonably anticipated needs.
The following is additional information concerning the headquarters and the
major manufacturing plants operated by the Company and its consolidated
subsidiaries. Unless otherwise noted, these plants are owned by the Company.
1998
Percent of
Capacity
Utilization
Locations (1)(2)
Air/Fluid Systems 77.9%
Headquarters: Warren, Michigan
Blytheville, Arkansas (leased)
Dixon, Illinois
Sallisaw, Oklahoma
Tulle, France
Water Valley, Mississippi
Automatic Transmission Systems 130.7%
Headquarters: Lombard, Illinois
Bellwood, Illinois
Coldwater, Michigan
Eumsung, Korea (80% JV)
Frankfort, Illinois
Gallipolis, Ohio
Heidelberg, Germany
Ketsch, Germany
Lombard, Illinois (aftermarket)
Margam, Wales
Morse TEC 120.7%
Headquarters: Ithaca, New York
Arcore, Italy
Guadalajara, Mexico
Ithaca, New York
Nabari City, Japan
Simcoe, Ontario, Canada
Tainan Shien, Taiwan
Frankenthal, Germany
Kirchheimbolanden, Germany
Powertrain Systems 105.1%
Headquarters: Sterling Heights, Michigan
Cary, North Carolina
Livonia, Michigan
Longview, Texas (leased)
Margam, Wales
Muncie, Indiana
Pune, India (60% JV)
Seneca, South Carolina
Sirsi, India (60% JV)
(1) The figure shown in each case is a weighted average of the percentage
utilization of each major plant within the category, with an individual plant
weighted in proportion to the number of employees employed when such plant runs
at 100% capacity. Capacity utilization at the 100% level is defined as operating
five days per week, with two eight-hour shifts per day and normal vacation
schedules. Excluded from this figure is the Sterling Heights facility which the
Company is in the process of selling.
(2) The table excludes joint ventures owned 50% or less.
Item 3. Legal Proceedings
The Company is presently, and is from time to time, subject to claims and
suits arising in the ordinary course of its business. In certain such actions,
plaintiffs request punitive or other damages that may not be covered by
insurance. The Company believes that it has established adequate provisions for
litigation liabilities in its financial statements in accordance with generally
accepted accounting principles. These provisions include both legal fees and
possible outcomes of legal proceedings.
It is the opinion of the Company that the various asserted claims and
litigation in which the Company is currently involved will not materially affect
its financial position or future operating results, although no assurance can be
given with respect to the ultimate outcome for any such claim or litigation.
Item 4. Submission of Matters to a Vote of Security Holders
There were no matters submitted to the security holders of the Company
during the fourth quarter of 1998.
PART II
Item 5. Market for the Registrant's Common Equity and Related Stockholder
Matters
The Company's Common Stock is listed for trading on the New York Stock
Exchange. As of March 15, 1999, there were approximately 1,682 holders of record
of Common Stock.
The Company has paid cash dividends of $.15 per share on its Common Stock
and Non-Voting Common Stock during each quarter for the last two fiscal years.
While the Company currently expects that comparable quarterly cash dividends
will continue to be paid in the future, the dividend policy is subject to review
and change at the discretion of the Board of Directors.
High and low sales prices (as reported on the New York Stock Exchange
composite tape) for the Common Stock for each quarter in 1997 and 1998 were:
Quarter ended High Low
March 31, 1997 $42.625 $38.375
June 30, 1997 $53.250 $42.000
September 30, 1997 $57.750 $50.438
December 31, 1997 $60.875 $46.125
March 31, 1998 $64.500 $49.625
June 30, 1998 $68.125 $43.688
September 30, 1998 $51.563 $37.063
December 31, 1998 $55.813 $33.313
Item 6. Selected Financial Data
The Selected Financial Data for the five years ended December 31, 1998 with
respect to the following line items set forth on page 45 of the Company's Annual
Report is incorporated herein by reference and made a part of this report: net
sales; net earnings; net earnings per share; total assets; total debt; and cash
dividend declared per share. See the material incorporated herein by reference
in response to Item 7 of this report for a discussion of the factors that
materially affect the comparability of the information contained in such data.
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations
The Management's Discussion and Analysis of Financial Condition and Results
of Operations set forth on pages 21 through 26 in the Company's Annual Report
are incorporated herein by reference and made a part of this report.
Item 7a. Market Risk Disclosure
Information with respect to the levels of indebtedness subject to interest
rate fluctuation is contained in Note 5 of the Notes to Consolidated Financial
Statements on pages 35 or 36 of the Company's Annual Report and is incorporated
herein by reference and made a part of this report. Information with respect to
the Company's level of business outside the United States which is subject to
foreign currency exchange rate market risk is contained in Note 13 of the Notes
to Consolidated Financial Statements on page 44 under the caption "Geographic
Information."
The Company is subject to market risk associated with adverse changes in
interest rates and foreign currency exchange rates, but does not hold any market
risk sensitive instruments for trading purposes. Principal exposed to interest
rate risk at December 31, 1998 is limited to $237 million in variable rate debt.
The Company measures its interest rate risk by estimating the net amount by
which potential future net earnings would be impacted by hypothetical changes in
market interest rates related to all interest rate sensitive assets and
liabilities. Assuming a hypothetical 20% increase in interest rates as of
December 31, 1998, the estimated reduction in future earnings, net of tax, would
be approximately $2 million.
The Company mitigates its foreign currency exchange rate risk principally
by establishing local production facilities in the markets it serves, by
invoicing customers in the same currency as the source of the products and by
funding its investments in foreign markets through local currency loans. The
Company also monitors its foreign currency exposure in each country and
implements strategies to respond to changing economic and political
environments. In the aggregate, the Company's exposure related to such
transactions is not material to the Company's financial position, results of
operations or cash flows.
Item 8. Financial Statements and Supplementary Data
The consolidated financial statements (including the notes thereto) of the
Company and the Independent Auditors' Report as set forth on pages 27 through 44
in the Company's Annual Report are incorporated herein by reference and made a
part of this report. Supplementary financial information regarding quarterly
results of operations (unaudited) for the years ended December 31, 1998 and 1997
is set forth in Note 9 of the Notes to Consolidated Financial Statements on page
40 of the Company's Annual Report. For a list of financial statements filed as
part of this report, see Item 14, "Exhibits, Financial Statement Schedules, and
Reports on Form 8-K" beginning on page 13.
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
Not applicable.
PART III
Item 10. Directors and Executive Officers of the Registrant
Information with respect to directors and nominees for election as
directors of the Company under the caption "Election of Directors" on pages 1
through 3 of the Company's Proxy Statement and information under the caption
"Section 16(a) Beneficial Ownership Reporting Compliance" on page 6 of the
Company's Proxy Statement is incorporated herein by reference and made a part of
this report. Information with respect to executive officers of the Company is
set forth in Part I of this report.
Item 11. Executive Compensation
Information with respect to compensation of executive officers and
directors of the Company under the captions "Compensation of Directors" on
page 4 of the Company's Proxy Statement and "Executive Compensation," "Stock
Options," "Long-Term Incentive Plans," and "Employment Agreements" on pages 7
through 10 of the Company's Proxy Statement is incorporated herein by reference
and made a part of this report.
Item 12. Security Ownership of Certain Beneficial Owners and Management
Information with respect to security ownership by persons known to the
Company to beneficially own more than five percent of the Company's Common
Stock, by directors and nominees for directors of the Company and by all
directors and executive officers of the Company as a group under the caption
"Stock Ownership" on page 5 of the Company's Proxy Statement is incorporated
herein by reference and made a part of this report.
Item 13. Certain Relationships and Related Transactions
Information with respect to certain relationships and related transactions
under the caption "Certain Relationships and Related Transactions" on page 16 of
the Company's Proxy Statement is incorporated herein by reference and made a
part of this report.
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
(a) 1. The following consolidated financial statements of the Company on
pages 27 through 44 of the Company's Annual Report are incorporated herein by
reference:
Independent Auditors' Report
Consolidated Statements of Operations--years ended December 31, 1998, 1997
and 1996
Consolidated Balance Sheets--December 31, 1998 and 1997
Consolidated Statements of Cash Flows--years ended December 31, 1998, 1997
and 1996
Consolidated Statements of Stockholders' Equity--years ended December 31,
1998, 1997 and 1996
Notes to Consolidated Financial Statements
2. Certain schedules for which provisions are made in the applicable
accounting regulations of the Securities and Exchange Commission are not
required under the related instructions or are inapplicable, and therefore have
been omitted.
3. The exhibits filed in response to Item 601 of Regulation S-K are listed
in the Exhibit Index on page A-1.
(b) Reports on Form 8-K.
(1) On December 11, 1998, the Company filed a report on Form 8-K
announcing that it had completed the purchase of the turbocharger systems
division of AG Kuhnle, Kopp & Kausch.
(2) On December 21, 1998, the Company announced that it had entered into
an Agreement and Plan of Merger with Kuhlman Corporation, pursuant to which BWA
Merger Corp., a newly formed wholly-owned subsidiary of the Company, will be
merged with and into Kuhlman.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
BORG-WARNER AUTOMOTIVE, INC.
/s/ John F. Fiedler
By:---------------------------
John F. Fiedler
Chairman and Chief Executive Officer
Date: March 19, 1999
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities indicated on this 19th day of March, 1999.
Signature Title
/s/ John F. Fiedler
------------------------- Chairman of the Board of Directors and
John F. Fiedler Chief Executive Officer (Principal
Executive Officer)
/s/ Robin J. Adams
------------------------- Vice President and Treasurer (Principal
Robin J. Adams Financial Officer)
/s/ William C. Cline
------------------------- Vice President and Controller
William C. Cline (Principal Accounting Officer)
*
-------------------------
Andrew F. Brimmer Director
*
-------------------------
William E. Butler Director
*
-------------------------
Jere A. Drummond Director
*
-------------------------
Paul E. Glaske Director
*
-------------------------
Ivan W. Gorr Director
*
-------------------------
James J. Kerley Director
*
-------------------------
Alexis P. Michas Director
*
-------------------------
John Rau Director
/s/ John F. Fiedler
--------------------------
John F. Fiedler As attorney-in-fact for the directors
marked by an asterisk.<PAGE>
EXHIBIT INDEX
Exhibit
Number Document Description
- ------- -------------------------
*3.1 Restated Certificate of Incorporation of the Company (incorporated by
reference to Exhibit No. 3.1 of the Company's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1993).
*3.2 By-laws of the Company (incorporated by reference to Exhibit No. 3.2
of the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1993).
3.3 Certificate of Designation, Preferences and Rights of Series A Junior
Participating Preferred Stock.
*4.1 Indenture, dated as of November 1, 1996, between Borg-Warner
Automotive, Inc. and The First National Bank of Chicago (incorporated
by reference to Exhibit No. 4.1 to Registration Statement
No. 333-14717).
*4.2 Indenture, dated as of February __, 1999, between Borg-Warner
Automotive, Inc. and The First National Bank of Chicago (incorporated
by reference to Exhibit No. 4.1 to Amendment No. 1 to Registration
Statement No. 333-66879).
*4.3 Rights Agreement, dated as of July 22, 1998, between Borg-Warner
Automotive, Inc. and ChaseMellon Shareholder Services,
L.L.C.(incorporated by reference to Exhibit 4.1 to the Registration
Statement on Form 8-A filed on July 24, 1998).
*10.1 Credit Agreement dated as of December 7, 1994 among Borg-Warner
Automotive, Inc., as Borrower, the Lenders listed therein, as Lenders,
Chemical Bank and the Bank of Nova Scotia, as Co-Arrangers, Chemical
Bank, as Administrative Agent and The Bank of Nova Scotia as
Documentation Agent (incorporated by reference to Exhibit No. 10.1 to
the Company's Annual Report on Form 10-K for the year ended
December 31, 1994).
*10.2 First Amendment of Credit Agreement dated as of December 15, 1995
(incorporated by reference to Exhibit 10.2 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1995).
*10.3 Second Amendment of Credit Agreement dated as of January 16, 1996
(incorporated by reference to Exhibit 10.3 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1996).
*10.4 Replacement and Restatement Agreement dated as of October 10, 1996 to
the Credit Agreement dated as of December 7, 1994 (incorporated by
reference to Exhibit 10.1 on Form 10-Q for the quarter ended
September 30, 1996).
10.5 Amendment to Credit Agreement dated as of February 2, 1999 to the
Credit Agreement dated as of December 7, 1994.
*10.6 Distribution and Indemnity Agreement dated January 27, 1993 between
Borg-Warner Automotive, Inc. and Borg-Warner Security Corporation
(incorporated by reference to Exhibit No. 10.2 to Registration
Statement No. 33-64934).
*10.7 Tax Sharing Agreement dated January 27, 1993 between Borg-Warner
Automotive, Inc. and Borg-Warner Security Corporation (incorporated by
reference to Exhibit No. 10.3 to Registration Statement No. 33-64934).
Exhibit
Number Document Description
- ------- -------------------------
+*10.8 Borg-Warner Automotive, Inc. Management Stock Option Plan, as amended
(incorporated by reference to Exhibit No. 10.6 to Registration
Statement No. 33-64934).
+*10.9 Borg-Warner Automotive, Inc. 1993 Stock Incentive Plan as amended
effective November 8, 1995 (incorporated by reference to Appendix A of
the Company's Proxy Statement dated March 21, 1997).
*10.10 Receivables Transfer Agreement dated as of January 28, 1994 among BWA
Receivables Corporation, ABN AMRO Bank N.V. as Agent and the Program
LOC Provider and Windmill Funding Corporation (incorporated by
reference to Exhibit No. 10.12 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1993).
10.11 Amended and Restated Receivables Loan Agreement dated as of December
23, 1998 among BWA Receivables Corporation, as Borrower, Borg-Warner
Automotive, Inc., as Collection Agent, ABN AMRO Bank N.V., as Agent,
the Banks from time to time party hereto, ABN AMRO Bank N.V., as the
Program LOC Provider and the Program LOC Provider and Windmill Funding
Corporation.
*10.12 Service Agreement, dated as of December 31, 1992, by and between
Borg-Warner Security Corporation and Borg-Warner Automotive, Inc.
(incorporated by reference to Exhibit No. 10.10 to Registration
Statement No. 33-64934).
+*10.13 Borg-Warner Automotive, Inc. Transitional Income Guidelines for
Executive Officers amended as of May 1, 1989 (incorporated by
reference to Exhibit 10.16 to the Company's Annual Report on Form 10-K
for the year ended December 31, 1993).
+*10.14 Borg-Warner Automotive, Inc. Management Incentive Bonus Plan dated
January 1, 1994 (incorporated by reference to Exhibit No. 10.18 to the
Company's Annual Report on Form 10-K for the year ended December 31,
1993).
+*10.15 Borg-Warner Automotive, Inc. Retirement Savings Excess Benefit Plan
dated January 27, 1993 (incorporated by reference to Exhibit No. 10.20
of the Company's Annual Report on Form 10-K for the year ended
December 31, 1993).
+*10.16 Borg-Warner Automotive, Inc. Retirement Savings Plan dated January 27,
1993 as further amended and restated effective as of April 1, 1994
(incorporated by reference to Exhibit 10.18 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1995).
+*10.17 Borg-Warner Automotive, Inc. Deferred Compensation Plan dated
January 1, 1994 (incorporated by reference to Exhibit No. 10.24 of the
Company's Annual Report on Form 10-K for the year ended December 31,
1993).
+*10.18 Form of Employment Agreement for John F. Fiedler (incorporated by
reference to Exhibit No. 10.0 of the Company's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1994).
+*10.19 Amended Form of Employment Agreement for John F. Fiedler dated January
27, 1998 (incorporated by reference to Exhibit 10.21 of the Company's
Annual Report on Form 10-K for the year ended December 31, 1997).
Exhibit
Number Document Description
- ------- -------------------------
+*10.20 Form of Change of Control Employment Agreement for Executive Officers
(incorporated by reference to Exhibit No. 10.1 to the Company's
Quarterly Report on Form 10-Q for the Quarter ended September 30,
1997).
+*10.21 Amendment to the Change of Control Employment Agreement between the
Company and John F. Fiedler dated effective January 30, 1998
(incorporated by reference to Exhibit 10.23 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1997).
*10.22 Assignment of Trademarks and License Agreement (incorporated by
reference to Exhibit No. 10.0 of the Company's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1994).
10.23 Amendment to Assignment of Trademarks and License Agreement.
+*10.24 Borg-Warner Automotive, Inc. Executive Stock Performance Plan
(incorporated by reference to Exhibit No. 10.23 of the Company's
Annual Report on Form 10-K for the year ended December 31, 1995).
*10.25 Agreement of Purchase and Sale dated as of May 31, 1996 by and among
Coltec Industries Inc., Holley Automotive Group, Ltd., Holley
Automotive Inc., Coltec Automotive Inc., and Holley Automotive Systems
GmbH and Borg-Warner Automotive, Inc., Borg-Warner Automotive
Air/Fluid Systems Corporation and Borg-Warner Automotive Air/Fluid
Systems Corporation of Michigan (incorporated by reference to
Exhibit 10.1 of the Company's Current Report on Form 8-K dated as of
June 17, 1996).
*10.26 Agreement and Plan of Merger dated as of December 17, 1998 by and
between Borg-Warner Automotive, Inc., BWA Merger Corp. and Kuhlman
Corporation (incorporated by reference to Exhibit 2 of the Company's
Current Report on Form 8-K dated as of December 21, 1998).
13.1 Annual Report to Stockholders for the year ended December 31, 1998
with manually signed Independent Auditors' Report. (The Annual Report,
except for those portions which are expressly incorporated by
reference in the Form 10-K, is furnished for the information of the
Commission and is not deemed filed as part of the Form 10-K).
21.1 Subsidiaries of the Company.
23.1 Independent Auditors' Consent.
24.1 Power of Attorney.
27.1 Financial Data Schedule.
99.1 Cautionary Statements.
* Incorporated by reference.
+Indicates a management contract or compensatory plan or arrangement required to
be filed pursuant to Item 14(c).
AMENDMENT TO CREDIT AGREEMENT
Amendment dated as of February 2, 1999 to the Credit Agreement dated as of
December 7, 1994 (as amended and restated by the Replacement and Restatement
Amendment, dated as of October 10, 1996 and as may be amended, restated,
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, N.A., THE SUMITOMO BANK, LIMITED, CHICAGO BRANCH,
BANK OF AMERICA NT&SA, AND THE FUJI BANK, LIMITED, as lead managers thereunder
(the "Lead Managers");
(iv) THE CHASE MANHATTAN BANK, a New York banking corporation ("Chase"),
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) CHASE, as administrative agent for the Lenders thereunder (in such
capacity, the "Administrative Agent").
WITNESSETH:
WHEREAS, the parties hereto desire to amend the Credit Agreement.
NOW, THEREFORE, for and in consideration of the premises and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree, on the terms and subject to the conditions set forth
herein, as follows:
1. Amendment to Subsection 10.1. Subsection 10.1 of the Credit Agreement
is hereby amended by deleting paragraph (b) thereof in its entirety and
substituting therefor the following:
(b) Leverage Ratio. Permit the ratio (the "Leverage Ratio") of (i)
Consolidated Funded Debt on the last day of any fiscal quarter of the Borrower
ending during any period set forth below to (ii) Consolidated Capitalization as
at such date to exceed:
Period Ratio
09/30/98 - 12/31/99 0.58 to 1.00
01/01/00 - 12/31/00 0.52 to 1.00
Thereafter 0.50 to 1.00
2. Amendment to Subsection 10.6. Subsection 10.6 of the Credit Agreement
is hereby amended by deleting it in its entirety and substituting in lieu
thereof the following:
10.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of all or any substantial part of its property,
business or assets, whether now owned or hereafter acquired.
3. Amendment to Subsection 10.12. Subsection 10.12 of the Credit
Agreement is hereby amended by adding the following clause immediately before
the period at the end of such subsection:
; provided that (i) the Borrower's $150,000,000 7% senior unsecured notes
due 2006, the terms of which are no more restrictive than the terms of this
Agreement, may contain a prohibition or limitation on the creation of Liens
substantially similar to that in subsection 10.3 of this Agreement and (ii) the
Borrower's proposed $400,000,000 senior unsecured notes to be issued in
connection with its acquisition of Kuhlman Corporation, the terms of which will
be no more restrictive than the terms of this Agreement, may contain a
prohibition or limitation on the creation of Liens substantially similar to that
in subsection 10.3 of this Agreement.
4. Amendment to Subsection 10.13. Subsection 10.13 of the Credit
Agreement is hereby amended by deleting it in its entirety and substituting in
lieu thereof the phrase "10.13 ["Reserved]".
5. Replacement of Pricing Grid. Annex A to Schedule 1A of the Credit
Agreement is hereby amended by deleting such Annex A to Schedule 1A in its
entirety and substituting in lieu thereof the Pricing Grid attached as Annex A
to Schedule 1A hereto.
6. Conditions to Effectiveness. This Amendment shall become effective on
and as of the date (the "Amendment Effective Date") that both (a) 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 and (b) Kuhlman Corporation shall
have been acquired by the Borrower pursuant to a merger transaction.
7. Representations and Warranties. (a) The Borrower hereby represents and
warrants as of the date hereof and as of the Amendment Effective Date that each
of the representations and warranties made by it in the Credit Agreement, as
amended by this Amendment, is true and correct in all material respects on and
as of each such date as if made on and as of each such date (except to the
extent such representations and warranties specifically relate to an earlier
date, in which case such representations and warranties shall have been true and
correct in all material respects on and as of such earlier date), with all
references therein to "this Agreement" being deemed to refer to the Credit
Agreement, as amended by this Amendment; and (b) the Borrower hereby represents
and warrants as of the date hereof and as of the Amendment Effective Date that
no Default or Event of Default has occurred or is continuing.
8. Scope. This Amendment is to be narrowly construed. Except as
expressly amended herein, all of the covenants and provisions of the Credit
Agreement are and shall continue to be in full force and effect, except as
amended by this Amendment.
9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
10. Counterparts. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts (including telecopied
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 duly
executed and delivered as of the date first above written.
BORG-WARNER AUTOMOTIVE, INC.
By:----------------------------------------------
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent, as a Co-Arranger and as a Lender
By:----------------------------------------------
Title:
BANK OF AMERICA NT&SA, as a Lead Manager
and as a Lender
By:----------------------------------------------
Title:
BANK OF MONTREAL, as a Lead Manager
and as a Lender
By:----------------------------------------------
Title:
CREDIT LYONNAIS, CHICAGO BRANCH, as a Lead
Manager and as a Lender
By:----------------------------------------------
Title:
THE FIRST NATIONAL BANK OF CHICAGO, as
Lead Manager and as a Lender
By:----------------------------------------------
Title:
THE FUJI BANK, LIMITED, as a Lead Manager and as
a Lender
By:----------------------------------------------
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED, as
a Lead Manager and as a Lender
By:----------------------------------------------
Title:
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
as a Lead Manager and as a Lender
By:----------------------------------------------
Title:
NATIONSBANK, N.A., as a Lead Manager and
as a Lender
By:----------------------------------------------
Title:
THE SUMITOMO BANK, LIMITED, CHICAGO
BRANCH, as a Lead Manager and as a Lender
By:----------------------------------------------
Title:
BANK OF HAWAII
By:----------------------------------------------
Title:
THE BANK OF NEW YORK
By:----------------------------------------------
Title:
THE BANK OF TOKYO-MITSUBISHI LTD.,
CHICAGO BRANCH
By:----------------------------------------------
Title:
CREDIT AGRICOLE INDOSUEZ
By:----------------------------------------------
Title:
ISTITUTO BANCARIO SAN PAOLO DI TORINO,
SPA NEW YORK
By:----------------------------------------------
Title:
MELLON BANK, N.A.
By:----------------------------------------------
Title:
THE NORTHERN TRUST COMPANY
THE SANWA BANK, LIMITED, CHICAGO BRANCH
By:----------------------------------------------
Title:
BARCLAYS BANK PLC
By:----------------------------------------------
Title:
Amended and Restated Receivables Loan Agreement
Dated as of December 23, 1998
Among
BWA Receivables Corporation,
as Borrower,
Borg-Warner Automotive, Inc.,
as Collection Agent,
ABN AMRO Bank N.V.,
as Agent,
The Banks from time to time party hereto,
ABN AMRO Bank N.V.,
as the Program LOC Provider,
and
Windmill Funding Corporation
<PAGE>
Table of Contents
Section Heading Page
Article I Definitions
Section 1.1. Certain Defined Terms
Section 1.2. Other Terms
Section 1.3. Computation of Time Periods
Article II Loans to Borrower and Settlements
Section 2.1. Loans
Section 2.2. Optional Liquidations.
Section 2.3. Selection of Interest Rates and Tranche Periods.
Section 2.4. Fees and Other Costs and Expenses
Section 2.5. Maintenance of Secured Interest; Deemed Collection
Section 2.6. Reduction in Commitments
Section 2.7. Optional Prepayments.
Section 2.8. Assignment of Purchase Agreement.
Article III Sales to and from Windmill; Allocations
Section 3.1. Required Loans from Windmill
Section 3.2. Loans by Windmill
Section 3.3. Allocations and Distributions
Article IV Representations and Warranties
Section 4.1. Representations and Warranties
Section 4.2. Reaffirmation of Representations and Warranties
Article V Conditions Precedent and Subsequent
Section 5.1. Conditions to Closing
Section 5.2. Conditions Subsequent.
Section 5.3. Condition to Each Loan
Article VI Covenants
Section 6.1. Affirmative Covenants of the Borrower
Section 6.2. Negative Covenants of the Borrower
Article VII Administration and Collections
Section 7.1. Appointment of Collection Agent.
Section 7.2. Duties of Collection Agent
Section 7.3. Lock-Box Arrangements.
Section 7.4. Enforcement Rights
Section 7.5. Responsibilities of the Borrower
Section 7.6. Collection Agent Fee
Section 7.7. Indemnities by the Collection Agent.
Article VIII Termination Events
Section 8.1. Termination Events
Article IX Indemnification
Section 9.1. Indemnities by the Borrower
Section 9.2. Tax Indemnification and Characterization
Section 9.3. Increased Cost and Reduced Return
Section 9.4. Other Costs and Expenses
Section 9.5. Withholding Taxes
Section 9.6. Allocations
Article X The Agent
Section 10.1. Appointment.
Section 10.2. Delegation of Duties.
Section 10.3. Exculpatory Provisions
Section 10.4. Reliance by Agent
Section 10.5. Notice of Termination.
Section 10.6. Non-Reliance on Agent and Other Lenders.
Section 10.7. Indemnification.
Section 10.8. Agent in Its Individual Capacity
Section 10.9. Successor Agent
Section 10.10. ABN AMRO Conflict Waiver
Section 10.11. Certain Actions
Article XI Miscellaneous
Section 11.1. Term of Agreement.
Section 11.2. Waivers; Amendments
Section 11.3. Notices.
Section 11.4. Governing Law; Submission to Jurisdiction; Integration
Section 11.5. Severability; Counterparts
Section 11.6. Successors and Assigns; Participations; Assignments
Section 11.7. Further Assurances
Section 11.8. Right of Setoff.
Section 11.9. Waiver of Confidentiality
Section 11.10. Confidentiality of Agreement
Section 11.11. Bankruptcy Petition Against Windmill
Section 11.12. Limitation of Liability
Section 11.13. Headings.
Section 11.14. Waiver of Trial by Jury.
Section 11.15. Administrator
Section 11.16. No Recourse
Section 11.17. Reliance on Information Obtained from Third Parties
Section 11.18. Excess Funds
Section 11.19. Enforceability of Receivables
Section 11.20. Integration
Signature
Exhibits
Exhibit A Credit and Collection Policy
Exhibit B-1 Form of Contract
Exhibit B-2 Contract Terms
Exhibit C Lock-Boxes and Lock-Box Banks
Exhibit D Form of Lock-Box Letter
Exhibit E Form of Periodic Report
Exhibit F-1 Form of Assignment-From Windmill to a Bank or the Program LOC
Provider
Exhibit F-2 Form of Assignment-From a Bank or the Program LOC Provider to
Windmill
Exhibit G Addresses of Borrower and Originators
Exhibit H Borrowers and Borg-Warner Entities Corporate Names;
Trade Names; Assumed Names
Exhibit I Form of Opinion for Borg-Warner Entities
Exhibit J Form of Compliance Certificate
Exhibit K Form of Loan Request
Exhibit L Activities to Maintain Separate Corporate Existence of Borg-Warner
Entities
Exhibit M Form of Transfer Supplement for Bank Commitment
Exhibit N Form of Transfer Supplement for Program LOC Provider
Exhibit O Form of Transfer Supplement for Windmill
Schedules
Schedule I Banks and Bank Commitments
<PAGE>
AMENDED AND RESTATED RECEIVABLES LOAN AGREEMENT
Amended and Restated Receivables Loan Agreement, dated as of December 23,
1998, among the banks which are or may become a party to this Agreement (the
"Banks"), Windmill Funding Corporation, a Delaware corporation ("Windmill"); ABN
AMRO Bank N.V., as provider of the Program LOC (the "Program LOC Provider"); ABN
AMRO Bank N.V., as agent for the Lenders (the "Agent"), BWA Receivables
Corporation, a Delaware corporation (the "Borrower") and Borg-Warner Automotive,
Inc., a Delaware corporation (the "Collection Agent").
Preliminary Statements
The parties hereto are currently parties to that certain Receivables
Transfer Agreement (the "Receivables Transfer Agreement") dated as of January
28, 1994 among the Borrower, the Agent, the Banks from time to time party
thereto, the Program LOC Provider and Windmill. The Borrower desires to borrow
money from the Lenders and to secure such borrowings with Receivables, and the
Borrower has requested that necessary amendments be made to the Receivables Sale
Agreement, the Lenders desire to make Loans to the Borrower subject to the terms
and conditions of this Amended and Restated Receivables Loan Agreement, and, for
the sake of clarity and convenience, that the Receivables Transfer Agreement be
restated in its entirety as so amended. This Amended and Restated Receivables
Loan Agreement amends and replaces in its entirety the Receivables Transfer
Agreement. All references to the Receivables Transfer Agreement in any
Transaction Document or in any other instrument or document shall, without
notice, be deemed to refer to this Amended and Restated Receivables Loan
Agreement.
The parties hereto agree as follows:
Article I
Definitions
Section 1.1. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"ABN AMRO" shall mean ABN AMRO Bank N.V., in its individual capacity and
not in its capacity as the Agent.
"ABN AMRO Prime Rate" shall mean at the time any determination thereof is
to be made, a rate per annum equal to the greater (redetermined daily) of: (i)
the floating commercial loan rate of ABN AMRO for Dollars announced from time to
time, changing as and when said rate changes, and (ii) the Federal Funds
Effective Rate plus three fourths of one percent (0.75%). The ABN AMRO Prime
Rate is a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer by ABN AMRO. ABN AMRO may make commercial
loans or other loans at rates of interest at, above or below the ABN AMRO Prime
Rate.
"ABN AMRO Roles" shall have the meaning ascribed to such term in Section
10.10.
"Administration Agreement" shall mean that certain Amended and Restated
Administration Agreement by and between the Management Company and the
Administrator, dated as of November 15, 1994.
"Administrator" shall mean ABN AMRO, in its capacity as Administrator under
the Administration Agreement.
"Adverse Claim" shall mean a lien, security interest, charge, mortgage,
pledge, hypothecation, assignment or encumbrance, or any other right or claim,
in, of or on any Persons assets or properties in favor of any other Person.
"Affected Assets" shall mean each and every Receivable, Related Account and
Related Security, if any, with respect thereto, each and every Collection, with
respect thereto, and proceeds of any of the foregoing.
"Affected Bank" shall have the meaning ascribed to such term in Section
11.6(d).
"Affiliate" shall mean, with respect to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person or a Subsidiary of such Person. For purposes of this
definition, a Person shall be deemed to be "controlled by" another Person if
such other Person possesses, directly or indirectly, power to either (i) vote
ten percent (10%) or more of the securities having ordinary voting power for the
election of directors of such Person or (ii) direct or cause the direction of
the management and policies of such Person whether by contract or otherwise.
"Agent" shall have the meaning ascribed to such term in the first paragraph
of this Agreement.
"Agent's Account" means the account designated to the Borrower and the
Lenders by the Agent.
"Aggregate Bank Commitment" shall mean an amount equal to One Hundred
Fourteen Million Seven Hundred Fifty Thousand Dollars ($114,750,000), as such
amount may be reduced pursuant to Section 2.6.
"Aggregate Bank Commitment Percentage" shall mean ninety percent (90%).
"Aggregate Commitment" shall mean an amount equal to One Hundred Twenty
Seven Million Five Hundred Thousand Dollars ($127,500,000), as such amount may
be reduced pursuant to Section 2.6.
"Aggregate Loan Amount" means the sum of the Loan Amounts of all Lenders.
"Aggregate Unpaids" shall mean, at any time, an amount equal to the sum of
(i) the aggregate accrued and unpaid Interest with respect to all Tranche
Periods at such time, plus (ii) the Aggregate Loan Amount at such time, plus
(iii) all other amounts owed (whether due or accrued) hereunder by the Borrower
to the Agent, Windmill, the Program LOC Provider, any Bank, the Collection Agent
or any other Person at such time.
"Agreement" shall mean this Receivables Loan Agreement.
"Approved Obligor" shall mean each of Ford Motor Company, General Motors
Corporation, Daimler Chrysler Corporation, New Venture Gear, and the wholly-
owned Subsidiaries of each of the foregoing.
"Approved Obligor Limit" shall mean, (a) with respect to Ford Motor
Company, $67,000,000; (b) with respect to General Motors Corporation,
$40,000,000, (c) with respect to Daimler Chrysler Corporation, $42,000,000 and
(d) with respect to New Venture Gear, $10,000,000; 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.
"Assigned Windmill Settlement" means, for each Committed Lender for any
Put, the product of such Committed Lender's Purchased Percentage and the amount
of the Windmill Settlement being transferred pursuant to such Put.
"Average Collection Period" shall mean, at any time, a period of days equal
to the product of (a) a fraction (i) the numerator of which shall be the amount
set forth in the most recent Periodic Report with respect to the preceding month
as the "Beginning Balance" (ii) and the denominator of which shall be the
Collections received during such preceding month as set forth in such Periodic
Report, multiplied by (b) thirty (30).
"Bank Commitment" shall mean at any time, for any Bank, the amount set
forth opposite such Bank's name on Schedule I under the heading "Bank
Commitment" and adjusted in accordance with Section 11.6(c), as such amount may
be reduced pursuant to Section 2.6.
"Bank Termination Date" shall mean the earliest to occur of (i) the date of
the occurrence of a Termination Event described in Section 8.1(f), (ii) the date
that the Agent designates as the Bank Termination Date in a written notice to
the Borrower given at any time after the occurrence of any other Termination
Event, (iii) that Business Day designated by the Borrower as the Bank
Termination Date with no less than five (5) Business Days prior written notice
to the Agent, and (iv) December 22, 1999.
"Bankruptcy Event" means, for any Person, that (a) such Person makes a
general assignment for the benefit of creditors or any proceeding is instituted
by or against such Person seeking to adjudicate it bankrupt or insolvent, or
seeking the liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee or other
similar official for it or any substantial part of its property or (b) such
Person takes any corporate action to authorize any such action.
"Banks" shall have the meaning ascribed to such term in the first paragraph
of this Agreement.
"Borg-Warner Entities" shall mean the Parent, each Originator and the
Borrower.
"Borrower" shall have the meaning ascribed to such term in the first
paragraph of this Agreement.
"Borrower Account" shall mean the Borrower's account number 92-35671 at The
First National Bank of Chicago or such other account designated by the Borrower
in writing to the Agent with at least ten (10) days prior notice.
"Borrowing" shall mean the incurrence by the Borrower of a Loan.
"Business Day" shall mean generally any day excluding Saturday, Sunday and
any day which is a day on which banking institutions located in New York, New
York or Chicago, Illinois are authorized or required by law or other
governmental action to close and excluding any day which is a holiday on the
Federal Reserve calendar and with respect to any matters relating to the
Eurodollar Rate or a Eurodollar Tranche Period, a Business Day on which dealings
in Dollars are carried on in the London interbank market.
"Capitalized Lease" shall mean any lease of property, real or personal, by
a Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with GAAP.
"Charge-Off" shall mean any Receivable that has been (in accordance with
the objective criteria of the Credit and Collection Policy then in effect) or
should have been charged-off or written-off by the Borrower.
"Collection" shall mean, with respect to each Receivable, any cash
collections or other cash proceeds of such Receivable, including any Finance
Charges paid thereon and any cash proceeds received from the Related Security
with respect to such Receivable and any amount deemed to have been received by
the Borrower or the Collection Agent with respect to such Receivable pursuant to
Section 2.5(b) or otherwise.
"Collection Agent" shall have the meaning ascribed to such term in Section
7.1.
"Collection Agent Fee" shall mean a fee equal to Two Thousand Dollars
($2,000) per month payable in accordance with Section 7.6.
"Collection Reserve Percentage" shall mean, at any time, two percent (2%).
"Commitment" means, for each Bank, its Bank Commitment and for the Program
LOC Provider, the Program LOC Provider Commitment.
"Committed Lenders" is defined in Section 2.1(b).
"Concentration Factor" shall mean, at any time, an amount equal to three
and thirty three hundredths of one percent (3.33%) of the Aggregate Loan Amount
at such time.
"Contract" shall mean, with respect to any Receivable, any and all
contracts, understandings, instruments, agreements, leases, invoices, notes, or
other writings pursuant to which such Receivable arises or which evidences such
Receivable or under which an Obligor becomes or is obligated to make payment in
respect of such Receivable.
"Coverage Percentage" shall mean at any time a percentage equal to the sum
of (i) one hundred percent (100%), plus (ii) the Reserve Percentage,
redetermined each time the Aggregate Loan Amount is redetermined.
"CP Dealers" shall mean each Person which Windmill elects to hire as a
placement agent or commercial paper dealer as of and after the effective date of
such hiring.
"CP Rate" shall mean, with respect to any CP Tranche Period, the rate
equivalent to the rate per annum (or if more than one rate, the weighted average
of the rates) at which commercial paper having a term equal to such CP Tranche
Period may be sold by any CP Dealer selected by Windmill, as agreed between each
such CP Dealer and Windmill; provided, however, that if the rate (or rates) as
agreed between any such CP Dealer and Windmill is a discount rate (or rates),
the "CP Rate" for such CP Tranche Period shall be the rate (or, if more than one
rate, the weighted average of the rates) resulting from Windmill's converting
such discount rate (or rates) to an interest-bearing equivalent rate per annum.
The CP Rate shall be calculated in a manner which includes the costs and
expenses to Windmill of issuing the related commercial paper notes, including
all dealer commissions thereon and note issuance costs in connection therewith.
"CP Tranche" shall mean a Tranche as to which Interest is calculated at, or
by reference to, a CP Rate.
"CP Tranche Period" shall mean, with respect to a CP Tranche, a period of
days commencing on a Business Day as selected by the Borrower or the Agent (but
not to exceed two hundred seventy (270) days).
"Credit and Collection Policy" shall mean the Borrower's credit and
collection policy and practices relating to Contracts and Receivables existing
on the date hereof and attached as Exhibit A, as modified in writing from time
to time in accordance with the terms of this Agreement.
"Deemed Collections" is defined in Section 2.5(c).
"Default Ratio" shall mean, at any time of determination, the ratio
(expressed as a percentage) of (i) the aggregate Outstanding Balance of all
Defaulted Receivables (other than Charge-Offs and Excluded Receivables) at such
time, to (ii) the aggregate Outstanding Balance of all Receivables (other than
Charge-Offs and Excluded Receivables) at such time.
"Defaulted Receivable" shall mean any Receivable (i) as to which all or any
portion of any amount payable thereon remains unpaid for more than ninety (90)
days from the original due date for such payment, or (ii) as to which the
Obligor thereof has taken any action, or suffered any event to occur, of the
type described in Section 8.1(f) (as if references to any Borg-Warner Entity
therein referred to such Obligor).
"Delinquency Ratio" shall mean, at any time of determination, the ratio
(expressed as a percentage) of (i) the aggregate Outstanding Balance of all
Delinquent Receivables (other than Excluded Receivables) at such time, to (ii)
the aggregate Outstanding Balance of all Receivables (other than Charge-Offs and
Excluded Receivables) at such time.
"Delinquent Receivable" shall mean a Receivable as to which any payment, or
part thereof, remains unpaid for more than thirty (30) days but no more than
ninety (90) days from the original due date for such payment.
"Depositary" shall mean The Chase Manhattan Bank, in its capacity as
Depositary under that certain Amended and Restated Depositary Agreement between
Windmill and the Depositary, dated as of November 14, 1994.
"Designated Financial Officer" shall mean, with respect to any Person, the
controller, assistant controller, treasurer, assistant treasurer or chief
financial officer of such Person.
"Designated Obligor" shall mean, at any time, each Obligor other than any
Obligor that the Agent (upon the direction of the Required Banks or the Program
LOC Provider) has notified the Borrower in writing at least three (3) Business
Days prior to such time shall not be considered a Designated Obligor, which
writing shall describe the basis for such determination.
"Desired Increase" shall have the meaning ascribed to such term in Section
3.2.
"Dilution Ratio" shall mean, for any period of determination, the ratio
(expressed as a percentage) of (a) the aggregate amount of payments owed by the
Borrower pursuant to Section 2.5 (other than amounts owed with respect to
Tooling Receivables and Retroactive Pricing Adjustment Receivables) during such
period, to (b) the aggregate amount of Collections (other than Collections from
Tooling Receivables or Retroactive Pricing Adjustment Receivables) received
during such period.
"Dilution Reserve Percentage" shall mean, at any time, the Dilution Ratio
at such time measured for the three (3) month period ending on the last day of
the month covered by the most recent Periodic Report delivered by the Borrower
hereunder.
"Dollar" and "$" shall mean lawful money of the United States of America.
"Downgrading Event" shall mean, with respect to any Person, that any one of
the following has occurred with respect to such Person: (a) any long-term
unsecured indebtedness of such Person (that is not subordinated to the general
indebtedness of such Person) is rated less than BBB by S&P or Baa2 by Moody's or
BBB by D&P, (b) any short-term indebtedness of such Person is rated less than A-
2 by S&P or P-2 by Moody's or (c) such Person does not have indebtedness of the
type described in clauses (a) and (b) above respectively rated by each of the
rating agencies specified in such clauses (a) and (b).
"D&P" shall mean Duff and Phelps Credit Rating Co.
"Early Collection Fee" shall mean, for each Lender and each CP Tranche
Period or Eurodollar Tranche Period during which any Loan Amount allocated to
such Tranche Period is reduced, or which is terminated prior to the end of the
period for which it was originally scheduled to last (the amount of such
reduction or, in the case of a termination of a Tranche Period, the amount of
the Loan Amount allocated to such Tranche Period being referred to as the
"Allocated Amount"), the excess, if any, of (i) the Interest that would have
accrued during the remainder of such Tranche Period subsequent to the date of
such reduction or termination on the Allocated Amount if such reduction or
termination had not occurred, over (ii) the sum of (a) to the extent the
Allocated Amount is allocated to another Tranche Period, the Interest actually
accrued on the portion of the Allocated Amount so allocated during the remainder
of such Tranche Period, plus (b) to the extent the Allocated Amount is not
allocated to another Tranche Period, the income, if any, actually received by
such Lender from investing the portion of the Allocated Amount not so allocated.
"Effective Date" shall have the meaning ascribed to such term in Section
5.1.
"Eligible Receivable" means, at any time, any Receivable:
(i) the Obligor of which: (a) if a natural person, is a resident of the
USA or, if a corporation or other business organization, is organized under the
laws of the USA and has its chief executive office in the USA; (b) is not an
Affiliate of any of the parties hereto; (c) is a Designated Obligor; and (d) is
not a government or governmental subdivision or agency,
(ii) the Obligor of which is not the Obligor of any Charge-Off,
(iii) the Obligor of which is not the Obligor of Receivables (other
than Retroactive Pricing Adjustment Receivables) for which any payment, or part
thereof, remains unpaid for more than sixty (60) days from the original due date
for such payment, which Receivables have an aggregate Outstanding Balance in
excess of ten percent (10%) of the aggregate Outstanding Balance of all such
Obligor's Receivables (other than Retroactive Pricing Adjustment Receivables),
(iv) which is not a Tooling Receivable, a Retroactive Pricing Adjustment
Receivable, a Defaulted Receivable, a Charge-Off, or a Receivable for which any
payment, or part thereof, remains unpaid for more than sixty (60) days from the
original due date for such payment,
(v) which, according to the Contract related thereto, requires a payment
within sixty (60) days of the original billing date (which shall not be later
than the date on which the goods giving rise to such Receivable are shipped or
delivered to the related Obligor or the services giving rise to such Receivable
are rendered to the related Obligor) therefor,
(vi) which is an (account) within the meaning of Section 9-106 of the UCC
of all applicable jurisdictions,
(vii) which is denominated and payable only in Dollars in the USA,
(viii) which arises under a duly authorized Contract which either is in
substantially the form of one of the forms of contract set forth on Exhibit B-1
or complies with the Contract terms set forth on Exhibit B-2 or is otherwise
approved by the Agent in writing, and, in any case, which Contract has not been
modified or restructured and is in full force and effect and constitutes the
legal, valid and binding obligation of the related Obligor enforceable against
such Obligor in accordance with its terms subject to no offset, counterclaim or
other defense,
(ix) which arises under a Contract which (A) does not require the Obligor
under such Contract to consent to the transfer, sale or assignment of the rights
of the applicable Originator under such Contract and (B) does not contain a
confidentiality provision that purports to restrict the ability of the Agent or
any Lender to exercise its rights under this Agreement, including its right to
review the Contract,
(x) which arises under a Contract that contains an obligation of the
related Obligor to pay a specified sum of money, which obligation has been fully
earned by the sale of goods or the provision of services by an Originator and is
subject to no contingencies, and which Contract is not an executory contract or
unexpired lease, in each case, within the meaning of Section 365 of the Federal
Bankruptcy Code,
(xi) which, together with the Contract related thereto, does not contravene
any laws, rules or regulations applicable thereto (including laws, rules and
regulations relating to truth in lending, fair credit billing, fair credit
reporting, equal credit opportunity, fair debt collection practices and privacy)
and with respect to which no part of the Contract related thereto is in
violation of any such law, rule or regulation,
(xii) which (A) satisfies all applicable objective requirements of the
Credit and Collection Policy, and (B) complies with such other objective
criteria and requirements that the Agent deems necessary, as the Agent may from
time to time specify to the Borrower in a written notice at least five (5) days
prior to the effectiveness of such other objective criteria and requirements,
(xiii) which arises in the ordinary course of business of an Originator,
(xiv) which was validly purchased by the Borrower from an Originator
pursuant to a Purchase Agreement, which purchase is not voidable, including
pursuant to Section 548 of the Federal Bankruptcy Code or similar laws regarding
fraudulent conveyances or fraudulent transfers, and which purchase vests in the
Borrower a valid and perfected first priority ownership interest therein,
(xv) which arises solely from the sale of goods or the rendering of
services to the related Obligor by an Originator and not by any other Person (in
whole or in part),
(xvi) as to which the Agent has not notified the Borrower in writing
that the Agent, Windmill, the Program LOC Provider or the Required Banks have
determined, in its or their reasonable business judgment, that such Receivable
or class of Receivables of which such Receivable is a part is not acceptable as
an Eligible Receivable, including because such Receivable arises under a
Contract that is not acceptable to the Agent, Windmill, the Program LOC Provider
or such Required Banks but excluding any determination based upon the credit
quality of an Approved Obligor if a Downgrading Event has not occurred with
respect to such Approved Obligor or any Subsidiary of such Approved Obligor,
(xvii) which is an account receivable representing all or part of the
sales price of merchandise, insurance and services within the meaning of Section
3(c)(5) of the Investment Company Act of 1940, as amended, and
(xviii) a purchase of which with the proceeds of notes would constitute a
"current transaction" within the meaning of Section 3(a)(3) of the Securities
Act of 1933, as amended.
"Eurodollar Rate" shall mean, with respect to any Eurodollar Tranche
Period, the sum of (i) the quotient of (a) the rate determined by the Agent to
be the rate at which deposits in Dollars are offered by ABN AMRO to first-class
banks in the London interbank market at approximately 11:00 a.m. (London time)
two (2) Business Days prior to the first day of such Eurodollar Tranche Period,
such deposits being in the approximate amount of ABN AMRO's Pro Rata Share of
the Bank Loan Amount allocated to such Eurodollar Tranche Period or the Program
LOC Provider Loan Amount allocated to such Eurodollar Tranche Period, whichever
Loan Amount is greater, and having a maturity approximately equal to such
Eurodollar Tranche Period, divided by (b) one (1) minus the Reserve Requirement
(expressed as a decimal), as defined below, applicable to such Eurodollar
Tranche Period, plus (ii) as to all applications affecting the Banks, one and
one quarter percent (1.25%) per annum and as to all applications affecting the
Program LOC Provider, the amount specified in the Fee Letter. The Eurodollar
Rate shall be rounded up, if necessary, to the next higher one sixteenth of one
percent (0.0625%). The "Reserve Requirement" means the maximum aggregate
reserve requirement (including all basic, supplemental, marginal and other
reserves) which may be imposed in respect of Eurocurrency liabilities, under and
as defined in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Tranche" shall mean a Tranche as to which Interest is
calculated at, or by reference to, a Eurodollar Rate.
"Eurodollar Tranche Period" shall mean, with respect to a Eurodollar
Tranche, a period of one (1) month, two (2) months or three (3) months, or such
other period as may be mutually agreeable to the parties hereto, commencing on a
Business Day selected by the Borrower or the Agent pursuant to the terms hereof.
Such Eurodollar Tranche Period shall end on the day in the succeeding calendar
month which corresponds numerically to the beginning day of such Eurodollar
Tranche Period, provided, however, that if there is no such numerically
corresponding day in such succeeding month, such Eurodollar Tranche Period shall
end on the last Business Day of such succeeding month. If a Eurodollar Tranche
Period would otherwise end on a day which is not a Business Day, such Eurodollar
Tranche Period shall end on the next succeeding Business Day, provided, however,
that if said next succeeding Business Day falls in a new month, such Eurodollar
Tranche Period shall end on the immediately preceding Business Day.
"Excess Funds" shall have the meaning ascribed to such term in Section
11.18.
"Excluded Receivable" shall mean all Tooling Receivables, Retroactive
Pricing Adjustment Receivables, Intercompany Receivables and Foreign
Receivables.
"Face Amount" shall mean the face amount of a Windmill commercial paper
note issued on a discount basis or, with respect to any Windmill commercial
paper note not issued at a discount, the principal amount of such note together
with interest thereon to stated maturity.
"Federal Bankruptcy Code" shall mean the bankruptcy code of the United
States of America codified in Title 11 of the United States Code.
"Federal Funds Effective Rate" shall mean for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations at
approximately 10:00 a.m. (Chicago time) for such day on transactions received by
ABN AMRO from three (3) federal funds brokers of recognized standing selected by
it.
"Fee Letter" means the letter agreement dated as of the date hereof among
the Borrower, the Agent, Windmill and the Program LOC Provider.
"Filing Assets" shall have the meaning ascribed to such term in Section
5.1(e).
"Finance Charges" shall mean, with respect to a Contract, any finance,
interest, late or similar or other charges owing by an Obligor pursuant to such
Contract.
"Financial Investment" shall mean, with respect to any Person, any direct
or indirect investment by such Person in any other Person, whether by means of
share purchase, capital contribution, loan or otherwise, excluding the
incurrence of receivables arising from sales or services rendered in the
ordinary course of business.
"Foreign Receivable" shall mean any Receivable the Obligor of which, if a
natural person, is not a resident of the USA or, if a corporation or other
business organization, is not organized under the laws of the USA or does not
have its chief executive office or principal place of business in the USA.
"Funding Agreement" shall mean any agreement or instrument executed by
Windmill and executed by or in favor of any Windmill Funding Source.
"GAAP" shall mean generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other Person as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of the date of
determination; provided, however, that for purposes of those certain financial
covenants set forth in Exhibit A to the Indemnity Agreement, the term GAAP shall
be GAAP as applicable on September 30, 1992.
"Governmental Authority" shall mean any Federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
or any court, in each case whether in the USA or foreign.
"Guaranty" shall mean any agreement, undertaking or arrangement by which a
Person assumes, guarantees, endorses, contingently agrees to purchase or provide
funds for the payment of, or otherwise becomes liable upon, the obligation,
Indebtedness or liability of any other Person, or agrees to maintain the net
worth or working capital or other financial condition (including dividends or
other distributions) of any other Person or otherwise assures any creditor of
such other Person against loss, including any comfort letter, operating
agreement or take-or-pay contract and shall include the contingent liability of
such Person in connection with any application for a letter of credit.
"IMF" shall have the meaning ascribed to such term in Section 11.6(c).
"Income Taxes" shall have the meaning ascribed to such term in Section
9.2(a).
"Indebtedness" shall mean a Person's (i) obligations for borrowed money,
(ii) obligations representing the deferred purchase price of property other than
accounts payable arising in the ordinary course of such Person's business on
terms customary in the trade, (iii) obligations (including leases), whether or
not assumed, secured by a lien on, or payable out of the proceeds or production
from, property now or hereafter owned or acquired by such Person, (iv)
obligations which are evidenced by bonds, debentures, notes, acceptances, or
other instruments, (v) Capitalized Lease obligations and (vi) obligations for
which such Person is obligated pursuant to a Guaranty.
"Indemnity Agreement" shall mean that certain Indemnity Agreement dated as
of the date hereof among, the Parent, each Originator and the Agent for the
benefit of the Agent, the Lenders and each Person to whom any of the Aggregate
Unpaids is owed.
"Indemnified Losses" shall have the meaning ascribed to such term in
Section 9.1.
"Indemnified Party" shall have the meaning ascribed to such term in Section
9.1.
"Insufficiency" shall have the meaning ascribed to such term in Section
11.18.
"Intended Characterization" shall have the meaning ascribed to such term in
Section 9.2(c).
"Intercompany Receivable" shall mean a Receivable the Obligor of which is
an Affiliate of the Borrower or any Originator.
"Interest" shall mean, with respect to any Tranche Period:
TR x TA x ADaa
Year
Where: is equal to the Tranche Rate applicable to such Tranche Period;
"TA" is equal to the portion of the Loan Amount allocated to such Tranche
Period;
"AD" is equal to the actual number of days elapsed during such Tranche
Period; and
"Year" is equal to the number three hundred sixty (360); provided, however,
that no provision of this Agreement shall require the payment or permit the
collection of Interest in excess of the maximum permitted by applicable law; and
provided, further, however, that Interest shall not be considered paid by any
payment if at any time such payment is rescinded or must be returned for any
reason.
"Interest Rate" means, for any Tranche Period or Interest Period, the CP
Rate, the Eurodollar Rate or the Prime Rate.
"Interest Reserve" shall mean, at any time, the sum of (a) the accrued and
unpaid Interest for all Tranche Periods at such time, plus (b) the product of
(i) a percentage equal to the highest Tranche Rate, for any Tranche Period
outstanding at such time (or, if greater, the Eurodollar Rate) plus five percent
(5%), multiplied by (ii) the Aggregate Loan Amount at such time, multiplied by
(iii) a fraction (A) the numerator of which is the product of the Average
Collection Period multiplied by one and one half (1.5), and (B) the denominator
of which is three hundred sixty (360).
"Interest Reserve Percentage" shall mean, at any time, the quotient of (i)
the Interest Reserve at such time, divided by (ii) the Aggregate Loan Amount at
such time.
"Interim Liquidation" means any time before the Loan Amortization Date
during which Collections shall be used to pay Loan Amounts as described in
Section 3.3, as established pursuant to Section 2.2.
"Interim Liquidation Period" shall mean any period beginning and ending on
any day designated by the Borrower in a written notice to the Agent in each case
given on or prior to, respectively, such beginning and ending day.
"Lenders" means the Committed Lenders and Windmill.
"Letter of Credit Agreement" shall mean that certain Amended and Restated
Master Letter of Credit Agreement between Windmill and ABN AMRO, dated as of
November 15, 1994.
"Limited Guaranty" shall mean that certain Amended and Restated Limited
Guaranty dated the date hereof from the Parent and each of the Originators for
the benefit of the Borrower.
"Liquidation Period" means, for Windmill only, all times when Windmill is
not making Loans pursuant to Article II and, for all Lenders, all times (x)
during an Interim Liquidation and (y) on and after the Loan Amortization.
"Loan" is defined in Section 2.1(a).
"Loan Amortization Date" means the earlier to occur of (i) December 23,
2001 or (ii) the date on which a Termination Event occurs.
"Loan Amount" means, for each Lender, (a) the sum of (i) all Loans by such
Lender and (ii) the aggregate amount of any payments or exchanges made by, or on
behalf of, such Lender to any other Lender under Article III minus (b) all
Collections, amounts received from any Lenders under Article III, and other
amounts received or exchanged and, in each case, applied by the Agent or such
Lender to reduce such Lender's Loan Amount. A Lender's Loan Amount shall be
restored to the extent any amounts so received or exchanged and applied are
rescinded or must be returned for any reason.
"Loan Interest" is defined in Section 2.1(a).
"Loan Limit" means $125,000,000.
"Loan Price" means, for each Committed Lender for any Put, such Committed
Lender's Purchased Percentage for such Put multiplied by the sum of (a) (i) for
the Program LOC Provider, the amount of Windmill's Loan Amount being transferred
pursuant to such Put (the "Put Loan Amount") and (ii) for each Bank, the lesser
of (A), the Put Loan Amount and (B) the sum of (I) the product of (1) the amount
of Windmill Loan Amount being transferred pursuant to such Put divided by the
Windmill Loan Amount (before giving effect to such Put), (2) Windmills Loan
Interest at such time, (3) the Net Receivables Balance as most recently
calculated, provided, however, that Collections used to reduce such most
recently computed Net Receivables Balance but not yet received by the Agent
shall be added back to the Net Receivables Balance, and (II) the amount of
Windmill Settlement being transferred pursuant to such Put plus (b) (i) all
unpaid Interest owed to Windmill (whether or not then due) to the end of each
applicable Tranche Period to which any Loan Amount being Put has been allocated,
(ii) all accrued but unpaid fees (whether or not then due) payable to Windmill
in connection herewith at the time of such purchase and (iii) all accrued and
unpaid costs, expenses and indemnities due to Windmill from the Borrower in
connection herewith. Windmill shall calculate the Loan Price on the date of
such Put based on the information then available to it, and, regardless of
whether such information is complete, such calculation shall be conclusive and
binding absent manifest error; provided, however, that if such purchase occurs
due to the occurrence of a Termination Event, the Loan Price shall be determined
as of the date such Termination Event first occurred (without regard to any
grace periods), adjusted to reflect amounts received by Windmill. In making any
such calculation, Windmill shall be entitled to rely on information provided to
it by the Borrower without any obligation to investigate the accuracy or
completeness of such information.
"Loans" shall mean advances made to the Borrower hereunder secured by the
Receivables.
"Loans Supplement" shall have the meaning ascribed to such term in Sections
11.6(c), 11.6(e)(ii) and 11.6(f).
"Lenders" shall mean the Banks, the Program LOC Provider and Windmill.
"Lock-Box" shall mean each post office box or bank box listed on Exhibit C
and such other boxes as such boxes may be added or deleted pursuant to the terms
hereof.
"Lock-Box Account" shall mean an account maintained by the Collection Agent
at a Lock-Box Bank for the purpose of receiving, collecting or concentrating
Collections from Receivables.
"Lock-Box Agreement" shall mean each agreement between the Borrower and a
Lock-Box Bank with respect to the Lock-Box Accounts.
"Lock-Box Bank" shall mean each of the banks set forth in Exhibit C and
such other banks as may be added hereto or deleted herefrom as a LockBox Bank
pursuant to the terms hereof.
"Lock-Box Letter" shall mean a letter in substantially the form of Exhibit
D (with such changes therein as are acceptable to the Agent) from the Borrower
to each Lock-Box Bank, acknowledged and accepted by such Lock-Box Bank and the
Agent.
"Loss Reserve Percentage" shall mean, at any time, the product of (a) three
multiplied by (b) the average Loss-to-Liquidation Ratio for each of the last
three calendar months.
"Loss-to-Liquidation Ratio" shall mean, for any period of determination,
the ratio (expressed as a percentage) of (i) the Outstanding Balance of Charge-
Offs which became Charge-Offs during such period, to (ii) the aggregate amount
of Collections during such period.
"Management Company" shall mean Securitization Services, LLC, a Delaware
limited liability company.
"Mandatory Put Event" shall mean the occurrence of any one or more of the
following: (a) a Termination Event; (b) the Windmill Termination Date; or (c) a
Windmill Event.
"Matured Aggregate Loan Amount" means, at any time, the Matured Value of
Windmill's Loan Amount plus the total Loan Amounts of all other Lenders then
outstanding.
"Matured Value" means, for any Loan Amount, the sum of such Loan Amount and
all unpaid Interest, fees and other amounts scheduled to become due (whether or
not then due) on such Loan Amount during all Tranche Periods to which any
portion of such Loan Amount has been allocated.
"Maximum Incremental Loan Amount" means, at any time, the lesser of (a) the
difference between the Loan Limit and the Aggregate Loan Amount then outstanding
and (b) the difference between the Aggregate Commitment and the Matured
Aggregate Loan Amount then outstanding.
"Moody's" shall mean Moody's Investors Service, Inc.
"Net Receivables Balance" shall mean, at any time, the Outstanding Balance
of all Eligible Receivables at such time reduced by the sum of (a) the amount by
which the Outstanding Balance of all Eligible Receivables of any Obligor (other
than an Approved Obligor) and its Affiliates exceeds the Concentration Factor at
such time, plus (b)the amount by which the Outstanding Balance of all Eligible
Receivables of any Approved Obligor and its Affiliates exceeds its Approved
Obligor Limit.
"Non-Excluded Taxes" shall have the meaning ascribed to such term in
Section 9.5.
"Obligor" shall mean, with respect to any Receivable, the Person obligated
to make payments on such Receivable or any guarantor of such obligation.
"OECD Country" shall have the meaning ascribed to such term in Section
11.6(c).
"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.
"Other Costs" shall have the meaning ascribed to such term in Section 9.4.
"Other Borrowers" shall have the meaning ascribed to such term in Section
9.1.
"Outstanding Balance" of any Receivable shall mean, at any time, the
aggregate of all amounts required to be paid by the related Obligor and not then
paid, whether or not then due, including any accrued and unpaid Finance Charges
but excluding any unaccrued Finance Charges.
"Parent" shall mean Borg-Warner Automotive, Inc., a Delaware corporation.
"Participant" shall have the meaning ascribed to such term in Section
11.6(b).
"Payment" shall mean any payment of funds hereunder by or on behalf of any
Lender to the Borrower.
"Payment Date" shall mean, with respect to each Payment, the Business Day
on which such Payment is made.
"Periodic Report" shall mean a monthly report, substantially in the form of
Exhibit E or in such other form as mutually agreed to by the Collection Agent
and the Agent.
"Permitted Investments" shall mean (a) evidences of indebtedness, maturing
not more than thirty (30) days after the date of purchase thereof, issued by, or
guaranteed by the full faith and credit of, the federal government of the USA,
(b) repurchase agreements with banking institutions or broker-dealers registered
under the Securities Exchange Act of 1934, as amended, fully secured by
obligations of the kind specified in (a) above, or (c) money market funds rated
not lower than the highest rating category from Moody's and AAAm or AAAm-g from
S&P or otherwise acceptable to the Rating Agencies or (d) commercial paper
issued by any corporation incorporated under the laws of the USA, provided that
such commercial paper is rated at least A-1+ or the equivalent thereof by S&P
and at least P-1 or the equivalent thereof by Moody's.
"Person" shall mean individuals, partnerships, corporations, business
trusts, joint stock companies, trusts, unincorporated associations, joint
ventures, Governmental Authorities, or any other entity of whatever nature.
"Potential Termination Event" shall mean any event or condition which but
for the lapse of time or the giving of notice, or both, would constitute a
Termination Event.
"Prime Rate" shall mean (a) prior to the occurrence of a Termination Event
except with respect to any Tranche Period to which all or any portion of the
Loan Amount of the Banks has been allocated, a rate per annum equal to the ABN
AMRO Prime Rate, (b) prior to the occurrence of a Termination Event with respect
to any Tranche Period to which all or any portion of the Loan Amount of the
Program LOC Provider has been allocated, the ABN AMRO Prime Rate plus one
percent (1%) per annum and (c) on or after the occurrence of a Termination
Event, the ABN AMRO Prime Rate plus two percent (2%) per annum.
"Prime Tranche" shall mean a Tranche as to which Interest is calculated at,
or by reference to, the Prime Rate.
"Prime Tranche Period " shall mean, with respect to a Prime Tranche a
period of one (1) day or any other period selected by the Borrower or otherwise
determined, and approved by the Agent and commencing on a Business Day.
"Pro Rata Share" shall mean, as to any Bank, a fraction (expressed as a
percentage) (a) the numerator of which shall be the amount of its Bank
Commitment, and (b) the denominator of which shall be the Aggregate Bank
Commitment.
"Probable Loss Determination Notice" shall mean the notice given by the
Administrator to the Depositary in which the Administrator states that the
Administrator has determined that Windmill may not have sufficient monies to pay
the Face Amount to any holder of a Windmill commercial paper note.
"Program Documents" shall mean each of the placement agreements between
Windmill and the CP Dealers; that certain Amended and Restated Depositary
Agreement, dated as of November 15, 1994, between Windmill and the Depositary;
that certain Amended and Restated Management Agreement, dated as of November 15,
1994, between the Management Company and Windmill; the Letter of Credit
Agreement; that certain Amended and Restated Referral Agreement, dated as of
November 15, 1994, among Windmill, ABN AMRO, as a referral agent, and the other
Persons who become referral agents thereunder; the Swingline and Backup Purchase
Agreement; and the Administration Agreement.
"Program LOC" shall mean that certain irrevocable transferable letter of
credit issued by the Program LOC Provider pursuant to the Letter of Credit
Agreement, and each letter of credit issued in substitution or replacement
therefore.
"Program LOC Provider" shall have the meaning ascribed to such term in the
first paragraph of this Agreement.
"Program LOC Provider Commitment" shall mean an amount equal to Twelve
Million Seven Hundred Fifty Thousand Dollars ($12,750,000), as such amount may
be reduced pursuant to Section 2.6.
"Program LOC Provider Commitment Percentage" shall mean ten percent (10%).
"Program LOC Provider Termination Date" shall mean the earliest to occur of
(a) the third (3rd) Business Day following the Bank Termination Date, (b) that
Business Day designated by the Borrower as the Program LOC Provider Termination
Date in a written notice to the Agent effectively given at least five (5)
Business Days prior to such designated Business Day (which may not occur prior
to three (3) Business Days following the Bank Termination Date), and (c)
December 22, 1999.
"Program LOC Provider Unused Commitment" shall mean, in each case as of the
date of the determination thereof, the excess, if any, of (a) the Program LOC
Provider Commitment, minus (b) the sum of (i) that portion of the Program LOC
Provider Windmill Exposure determined by the Administrator (in accordance with
the Program Documents) to be attributable to the Borrower under this Agreement,
plus (ii) the Program LOC Provider Loan Amount.
"Program LOC Provider Windmill Exposure" shall mean, as of the date of any
determination, the sum of (a) the amount available to the Depositary under the
Program LOC, plus (b) the Program Unreimbursed Draw Amount, plus (c) the
outstanding principal amount of all Swingline Advances (as that term is used and
defined in the Swingline and Backup Purchase Agreement), together with all
unpaid, accrued interest thereon (whether or not then due and payable).
"Program Unreimbursed Draw Amount" shall mean, as of the date of any
determination, the sum of all draws under the Program LOC in connection with
this Agreement which have not been reimbursed (whether through the payment of
cash or the exchange of assets) by, or on behalf of, Windmill, together with all
interest thereon and all other amounts, if any, payable in connection therewith.
"Purchase Agreement" shall mean that certain Purchase Agreement, dated as
of December 23, 1998, among the Borrower and each Originator.
"Purchased Asset" shall have the meaning ascribed to such term in the
Purchase Agreement.
"Purchased Percentage" means, for any Put, for each Committed Lender, its
Ratable Share or such lesser percentage as is necessary to prevent the Loan
Price of such Committed Lender from exceeding its Unused Commitment (unless, in
the case of the Program LOC Provider, it elects not to reduce its Purchased
Percentage in whole or in part).
"Purchasing Banks" shall have the meaning ascribed to such term in Section
11.6(c).
"Put" is defined in Section 3.l(a).
"Ratable Share" means, for each Committed Lender, such Committed Lender's
Commitment divided by the Aggregate Commitment. If, however, on the date any
Loan or payment for any Put is to be made by the Committed Lenders, the Program
LOC Provider has outstanding Loan Amount plus Program Unreimbursed Draw Amount
in excess of its Ratable Share of the outstanding Loan Amount and Program
Unreimbursed Draw Amount of all Committed Lenders, then for purposes of such
Loan or Put the Ratable Share of each Committed Lender shall be replaced with a
percentage equal for each Committed Lender to (a) its Commitment minus its Loan
Amount and Program Unreimbursed Draw Amount before such Loan or Put (its
"Existing Loan Amount") divided by (b) the Aggregate Commitment minus the sum of
the Existing Loan Amounts of all Committed Lenders.
"Rating" shall mean the ratings by a Rating Agency of the commercial paper
notes issued by Windmill.
"Rating Agency" shall mean (i) if Windmill's commercial paper notes are
then rated by Moody's, Moody's, (ii) if Windmill's commercial paper notes are
then rated by S&P, S&P, and (iii) if Windmill's commercial paper notes are then
rated by any other rating agency, such rating agency.
"Receivable" shall mean any indebtedness and other obligations owed to an
Originator (without giving effect to any sale or conveyance to the Borrower
pursuant to the Purchase Agreement or to the Agent for the benefit of the
Lenders hereunder) or any right of such an Originator to payment from or on
behalf of an Obligor whether constituting an account, chattel paper, instrument
or general intangible, arising in connection with the sale or lease of goods or
the rendering of services by such Originator (and conveyed by such Originator to
the Borrower), including the obligation to pay any Finance Charges with respect
thereto. Indebtedness and other rights and obligations arising from any one
transaction, including indebtedness and other rights and obligations represented
by an individual invoice or agreement, shall constitute a receivable separate
from a receivable consisting of the indebtedness and other rights and
obligations arising from any other transaction.
"Records" shall mean, with respect to any Receivable, all Contracts and
other documents, books, records and other information (including computer
programs, tapes, disks, punch cards, media, data processing software and related
property and rights) relating to such Receivable and the related Obligor.
"Referral Agent" shall mean ABN AMRO, in its capacity as a referral agent,
and the other Persons who become referral agents under that certain Amended and
Restated Referral Agreement, dated as of November 15, 1994, between Windmill and
the Referral Agent.
"Register" shall have the meaning ascribed to in such term Section 11.6(g).
"Regulatory Change" shall have the meaning ascribed to such term in
Section 9.3(a).
"Related Accounts" shall mean, with respect to any Receivable, all deposit
accounts and investment accounts into which any Collections or other proceeds of
such Receivable are deposited, including all Lock-Box Accounts, and all monies
and other funds, certificates, securities, other instruments, general
intangibles and other items credited thereto from time to time.
"Related Security" shall mean, with respect to any Receivable: (i) all of
the Borrower's right, title and interest in goods (including returned goods), if
any, the sale or lease of which by an Originator gave rise to such Receivable,
and all insurance contracts with respect thereto; (ii) all other security
interests or liens and property subject thereto from time to time, if any,
purporting to secure payment of such Receivable, whether pursuant to the
Contract related to such Receivable or otherwise, together with all financing
statements signed by an Obligor describing any collateral securing such
Receivable; (iii)all Guaranties, letters of credit, insurance and other
agreements or arrangements of whatever character from time to time supporting or
securing payment of such Receivable whether pursuant to the Contract related to
such Receivable or otherwise; (iv) all service contracts and other contracts and
agreements related to such Receivable; and (v)all Records related to such
Receivable.
"Replacement Bank" shall have the meaning ascribed to such term in Section
11.6(d).
"Required Banks" shall mean, at any time, Banks having an aggregate Bank
Commitment in excess of sixty-six and two-thirds percent (66-2/3%) of the
Aggregate Bank Commitment then in effect or, if the Aggregate Bank Commitments
shall then have been terminated, such Banks as together shall then own in excess
of sixty-six and two-thirds percent (66-2/3%) of the Bank Loan Amount at such
time.
"Reserve" shall for each Lender mean, at any time that such Lender's Loan
Amount is greater than zero, an amount equal to the product of (a) the Reserve
Percentage at such time, multiplied by (b) such Lender's Loan Amount at such
time, and otherwise zero.
"Reserve Percentage" shall mean the greater of (a) ten percent (10%), or
(b) the sum of (i) the Loss Reserve Percentage, plus (ii) the Interest Reserve
Percentage, plus (iii) the Collection Reserve Percentage, plus (iv) the Dilution
Reserve Percentage.
"Retroactive Pricing Adjustment Receivable" shall mean any Receivable owed
in connection with a price adjustment for the goods giving rise to such
Receivable subsequent to the original invoice sent in respect of such goods.
"Section 9.3 Costs" shall have the meaning ascribed to such term in Section
9.3(c).
"Secured Interest" is defined in Section 2.1(a).
"Special Borrower Subaccount" shall mean the special Borrower subaccount
for the Borrower established pursuant to that certain Amended and Restated
Depositary Agreement between Windmill and the Depositary, dated as of November
15, 1994.
"S&P" shall mean Standard & Poor's Corporation.
"Subordination Agreement" shall mean that certain Subordination Agreement
dated as of the date hereof among each Originator and the Agent for the benefit
of the Lenders.
"Subsidiary" shall mean, for any Person, any corporation or other business
organization fifty percent (50%) or more of the outstanding voting securities of
which shall at the time be owned or controlled, directly or indirectly, by such
Person or by one or more such corporations or organizations or by such Person
and one or more such corporations or organizations, and any partnership of which
such Person or any such corporation or organization is a general partner;
provided, however, NSK-Warner K.K. shall not be considered a Subsidiary of any
Person unless such Person shall own or control, directly or indirectly, more
than fifty percent (50%) of the outstanding voting securities of NSK-Warner K.K.
For purposes of this definition, the term "voting securities" shall mean capital
stock or other ownership interests having ordinary voting power under ordinary
circumstances for the election of directors (or the equivalent of such corporate
association, business organization or other entity).
"Successor Program LOC Provider" shall have the meaning ascribed to such
term in Section 11.6(f).
"Swingline and Backup Purchase Agreement" shall mean that certain Amended
and Restated Swingline and Backup Purchase Agreement, dated as of November 15,
1994, between Windmill and ABN AMRO.
"Taxes" shall mean all taxes, charges, fees, levies or other assessments
including income, gross receipts, profits, withholding, excise, property, sales,
use, license, occupation and franchise taxes (including, in each such case, any
interest, penalties or additions attributable to or imposed on or with respect
to any such taxes, charges, fees or other assessments) imposed by the USA or any
foreign government or any other jurisdiction or taxing authority.
"Termination Date" shall mean (a) with respect to Windmill, the Windmill
Termination Date, (b) with respect to the Banks, the Bank Termination Date and
(c) with respect to the Program LOC Provider, the Program LOC Provider
Termination Date.
"Termination Event" shall mean an event or condition described in Section
8.1.
"Tooling Receivable" shall mean any Receivable arising in connection with
the tooling of equipment utilized to manufacture the related goods (the sale of
which gave rise to such Receivable) or other start-up costs or items related
thereto which the Obligor must reimburse the Originator therefor.
"Tranche" shall mean a portion of the Aggregate Loan Amount allocated to a
Tranche Period.
"Tranche Maturity Date" shall mean the last day of a Tranche Period,
whether such date is the originally scheduled last day of such Tranche Period or
occurs by reason of early termination of such Tranche Period or otherwise;
provided, however, that, if any Tranche Maturity Date shall occur on any day
which is not a Business Day, such Tranche Maturity Date shall be extended to the
next following Business Day and all applicable Interest, interest and fees shall
give effect to such extension of such Tranche Maturity Date.
"Tranche Period" shall mean a CP Tranche Period, a Eurodollar Tranche
Period or a Prime Tranche Period.
"Tranche Rate" shall mean the CP Rate, the Eurodollar Rate or the Prime
Rate.
"Transaction Documents" shall mean this Agreement, the Fee Letter, the
Purchase Agreement, the Indemnity Agreement, the Limited Guaranty, the
Subordination Agreement, and all other documents, instruments and agreements
executed in connection herewith and therewith.
"UCC" shall mean, with respect to any state, the Uniform Commercial Code as
from time to time in effect in such state.
"Unpaid Amount" shall have the meaning ascribed to such term in Section
3.1(b).
"Unused Commitment" means, for any Committed Lender at any time, the
difference between its Commitment and its Loan Amount then outstanding.
"USA" shall mean the United States of America, including all states and
political subdivisions thereof.
"Windmill" shall have the meaning ascribed to such term in the first
paragraph of this Agreement.
"Windmill Event" shall mean the occurrence of any one or more of the
following: (a) Windmill becomes an "investment company" within the meaning of
the Investment Company Act of 1940, as amended; (b) the Depositary has received
a Probable Loss Determination Notice that has not been revoked; (c) either (i)
Windmill's commercial paper notes have been (A) rated by S&P less than A-1, or
(B) rated by Moody's less than P-1, or (ii) S&P or Moody's has withdrawn or
suspended its Rating; or (d) the Program LOC shall fail to be the binding and
enforceable obligation of the Program LOC Provider.
"Windmill Funding Source" shall mean any insurance company, bank or other
financial institution providing liquidity, back-up purchase or credit support
for Windmill.
"Windmill Settlement" means the sum of all claims and rights to payment
pursuant to Section 2.5 or 2.7 or any other provision owed to Windmill (or owed
to the Agent or the Collection Agent for the benefit of Windmill) by the
Borrower that, if paid, would be applied to reduce Windmill's Loan Amount.
"Windmill Termination Date" means the earliest of (a) the Business Day
designated by the Borrower with no less than five (5) Business Days prior notice
to the Agent, (b) the Business Day designated by Windmill at any time to the
Borrower and (c) the Bank Termination Date.
Section 1.2. Other Terms. Except as otherwise specified in this
Agreement, all references in this Agreement (i) to any Person (other than the
Parent, any Originator or the Borrower) shall be deemed to include such Person's
successors and assigns, and (ii) to any law, agreement, statute or contract
specifically defined or referred to in this Agreement shall be deemed references
to such law, agreement, statute or contract as the same may be supplemented,
amended, waived, consolidated, replaced or modified from time to time, but only
to the extent permitted by, and effected in accordance with, the terms thereof.
The words "herein", "hereof" and "hereunder" and words of similar import, when
used in this Agreement, shall refer to this Agreement as a whole and not to any
provision of this Agreement, and references to "Article," "Section,"
"paragraph," "Exhibit," "Schedule" and "Appendix" are references to this
Agreement unless otherwise specified. Whenever the context so requires, words
importing any gender include the other gender. Any of the defined terms may,
unless the context otherwise requires, be used in the singular or the plural
depending on the reference; the singular includes the plural and the plural
includes the singular. The word "or" shall not be exclusive.
All defined terms shall have the defined meanings when used in the
Transaction Documents or, except as otherwise expressly stated therein, any
certificate, opinion or other document delivered pursuant to a Transaction
Document. In the event of a conflict in the defined meanings in a Transaction
Document and this Agreement, this Agreement shall govern.
For purposes of the Transaction Documents, all accounting terms not
otherwise defined in this Agreement or in the relevant Transaction Document
shall have the meanings assigned them in conformity with GAAP.
For purposes of the Transaction Documents, all terms used in Article 9 of
the UCC and not specifically defined in this Agreement or in the relevant
Transaction Document shall be defined herein and in the Transaction Documents as
such terms are defined in the UCC as in effect in the State of Illinois.
For purposes of the Transaction Documents, each reference to this
Agreement, any other Transaction Document, the Program LOC, any Program Document
or any other agreement shall be a reference to such agreement together with all
exhibits, schedules, attachments and appendices thereto, in each case as
amended, restated, supplemented or otherwise modified from time to time in
accordance with the terms thereof and hereof.
References to "writing" include telecopying, printing, typing, lithography
and other means of reproducing words in a tangible visible form including
computer generated information accessible in tangible visible form. References
to "written" include faxed, printed, typed, lithographed and other means of
reproducing words or symbols in a tangible visible form consistent with the
preceding sentence. The words "including," "includes " and "include" shall be
deemed to be followed by the words "without limitation."
Section 1.3. Computation of Time Periods. Unless otherwise expressly
provided herein, any period of time (including each Tranche Period) ending on a
day which is not a Business Day shall end on the next succeeding Business Day.
Unless otherwise stated in this Agreement or the other Transaction Documents, in
the computation of a period of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each means "to but excluding."
Article II
Loans to Borrower and Settlements
Section 2.1. Loans.
(a) The Secured Interest. Subject to the terms and conditions hereof, the
Borrower may, from time to time before the Bank Termination Date, request
Windmill or, only if Windmill denies such request, ratably request that the
Committed Lenders make loans secured by an undivided percentage ownership
interest in the Receivables and all related Collections. Any such loan made by
Windmill or the Committed Lenders (a "Loan") shall be made by each relevant
Lender remitting funds to the Borrower, through the Agent, pursuant to Section
2.1(c) or by the Collection Agent remitting Collections to the Borrower pursuant
to Section 2.1(d). The aggregate percentage security interest so acquired by a
Lender in the Receivables and related Collections (its "Loan Interest") shall
equal at any time the following quotient:
aaaaaaaaaLA + Raaaaaaaaa
aaaaaaaaaNRB
where:
LA = the outstanding Loan Amount of such Lender at such time;
R = the Reserve for such Lender at such time; and
NRB = the Net Receivables Balance at such time.
Except during a Liquidation Period for a Lender, such Lender's Loan Interest
will change whenever its Loan Amount, its Reserve or the Net Receivables Balance
changes. During a Liquidation Period for a Lender its Loan Interest shall
remain constant, except for redeterminations of the Loan Interests of Lenders to
reflect Loan Amounts acquired from or transferred to another Lender under
Article III. The sum of all Loan Interests of the Lenders at any time is
referred to herein as the "Secured Interest", which at any time is the aggregate
percentage ownership interest then held by such Lenders in the Receivables and
Collections.
(b) Windmill Loan Option and Committed Lenders' Commitments. At no time
will Windmill have any obligation to make a Loan. Each Bank and the Program LOC
Provider (together the "Committed Lenders" and each a "Committed Lender")
severally hereby agrees, subject to the terms and conditions hereof, to make
Loans before the Bank Termination Date, based on its Ratable Share of each Loan
by the Committed Lenders, to the extent its Loan Amount would not thereby exceed
its Commitment, the Aggregate Loan Amount would not thereby exceed the Loan
Limit, and the Matured Aggregate Loan Amount would not thereby exceed the
Aggregate Commitments.
(c) Loans. In order to request a Loan from a Lender, the Borrower must
provide to the Agent an irrevocable written request (including by telecopier or
other facsimile communication) substantially in the form of Exhibit K, by 10:00
a.m. (Chicago time) three Business Days before the requested date (the "Loan
Date") of such Loan, the requested Loan Date (which must be a Business Day) and
the requested amount of such Loan, which must be in a minimum amount of
$1,000,000 and multiples thereof (or, if less, an amount equal to the Maximum
Incremental Loan Amount). A Loan may only be requested from Windmill unless
Windmill, in its sole discretion, determines not to make such Loan (and the
Borrower shall be notified of such determination by not later than 10:45 a.m. on
the date of such request), in which case the Borrower may request such Loan from
the Committed Lenders. The Agent shall promptly notify the contents of any such
request to each Lender from which the Loan is requested. If the Loan is
requested from Windmill and Windmill determines, in its sole discretion, to make
the requested Loan, Windmill shall transfer to the Agent's Account the amount of
such Loan on the requested Loan Date. If the Loan is requested from the
Committed Lenders, subject to the terms and conditions hereof, each Committed
Lender shall transfer its Ratable Share of the requested Loan Amount into the
Agent's Account by no later than 12:00 noon (Chicago time) on the Loan Date.
The Agent shall transfer to the Borrower Account the proceeds of any Loan
delivered into the Agent's Account.
(d) Security Interest. To secure all of the Borrower's obligations under
the Transaction Documents, the Borrower hereby grants to the Agent (for the
benefit of the Lenders) a security interest in all of the Borrower's rights in
the Receivables, the Collections, and the Lock-Box Accounts.
Section 2.2. Optional Liquidations. The Borrower may at any time direct
that an Interim Liquidation commence for all Lenders by giving the Agent and the
Collection Agent at least three Business Days' written (including telecopy or
other facsimile communication) notice specifying the date on which the Interim
Liquidation shall commence and, if desired, when such Interim Liquidation shall
cease before the Loan Amortization Date (identified as a specific date or as
when the Aggregate Loan Amount is reduced to a specified amount). If the
Borrower does not so specify the date on which an Interim Liquidation shall
cease, it may cause such Interim Liquidation to cease at any time before the
Loan Amortization Date by notifying the Agent and the Collection Agent in
writing (including by telecopy or other facsimile communication) at least three
Business Days before the date on which it desires such Interim Liquidation to
cease.
Section 2.3. Selection of Interest Rates and Tranche Periods. (a) Each
Loan Amount shall be allocated to one or more Tranches reflecting the Interest
Rates at which such Loan Amount accrues Interest and the Tranche Periods for
which such Interest Rates apply. In each request for a Loan and three Business
Days before the expiration of any Tranche Period applicable to any Loan Amount
of any Lender, the Borrower may request the Interest Rate(s) and Tranche
Period(s) to be applicable to such Loan Amount. All Loan Amounts (i) of
Windmill shall accrue Interest at the CPRate and (ii) of the Committed Lenders
may accrue Interest at either the Eurodollar Rate or the Prime Rate, in all
cases as established for each Tranche Period applicable to such Loan Amount.
Each Tranche shall be in the minimum amount of $1,000,000 and in multiples
thereof or, in the case of Interest accruing at the Prime Rate, in any amount of
the Loan Amount that otherwise has not been allocated to another Tranche Period.
Any Loan Amount not allocated to a Tranche Period shall be a Prime Tranche.
During the pendency of a Termination Event, the Agent may reallocate any
outstanding Loans to a Prime Tranche. All Interest accrued during a Tranche
Period shall be payable by the Borrower on the last day of such Tranche Period
or, for a Eurodollar Tranche with a Tranche Period of more than three months, 90
days after the commencement, and on the last day, of such Tranche Period.
(b) If, by the time required in Section 2.3(a), the Borrower fails to
select a Tranche Period for any Loan Amount of Windmill, the Agent may, in its
sole discretion, select such Tranche Period. If, by the time required in
Section 2.3(a), the Borrower fails to select a Interest Rate or Tranche Period
for any Loan Amount of the Committed Lenders, such Loan Amount shall
automatically accrue Interest at the Prime Rate for a three Business Day Tranche
Period. Any Loan Amounts purchased from Windmill pursuant to Section 3.1 shall
have a Prime Tranche Period of three Business Days.
(c) If the Agent or any Committed Lender determines (i) that maintenance
of any Eurodollar Tranche would violate any applicable law or regulation or (ii)
that deposits of a type and maturity appropriate to match fund any of such
Committed Lender's Eurodollar Tranches are not available, then the Agent, upon
the direction of such Committed Lender shall suspend the availability of, and
terminate any outstanding, Eurodollar Tranche so affected. All Loan Amounts
allocated to any such terminated Eurodollar Tranche shall be reallocated to a
Prime Tranche.
Section 2.4. Fees and Other Costs and Expenses. (a) The Borrower shall
pay to the Agent for the account of the Program LOC Provider and the Agent, such
amounts as agreed to with the Program LOC Provider and the Agent in the Fee
Letter.
(b) If any Loan Amount allocated to any CP or Eurodollar Tranche is
reduced before the last day of its Tranche Period, or if a requested Loan at the
Eurodollar Rate does not take place on its scheduled Loan Date, the Borrower
shall pay the Early Collection Fee to each Lender that had its Loan Amount so
reduced or scheduled Loan not made.
(c) Each Loan Amount shall be payable solely from Collections and from
amounts payable under Sections 2.5 and 2.7 (to the extent amounts paid under
Section 7.1 indemnify against reductions in or nonpayment of Receivables). The
Borrower shall pay, as a full recourse obligation, all other amounts payable
hereunder, including, without limitation, all Interest, fees described in
clauses (a) and (b) above and amounts payable under Article IX.
Section 2.5. Maintenance of Secured Interest; Deemed Collection. (a)
General. If at any time before the Loan Amortization Date the Net Receivables
Balance is less than the sum of 100% plus the Reserve Percentage multiplied by
the Aggregate Loan Amount (or, if a Termination Event exists, the Matured
Aggregate Loan Amount), the Borrower shall pay to the Agent an amount equal to
such deficiency for application to reduce the Loan Amounts of the Lenders
ratably in accordance with the principal amount of their respective Loan
Amounts, applied first to Prime Tranches and second to the other Tranches with
the shortest remaining maturities unless otherwise specified by the Borrower.
Any amount so applied to reduce Windmill's Loan Amount shall be deposited in the
Special Borrower Subaccount.
(b) Deemed Collections. If on any day the outstanding balance of a
Receivable is reduced or cancelled as a result of any defective or rejected
goods or services, any cash discount or adjustment (including any adjustment
resulting from the application of any special refund or other discounts or any
reconciliation), any setoff or credit (whether such claim or credit arises out
of the same, a related, or an unrelated transaction) or other similar reason not
arising from the financial inability of the Obligor to pay undisputed
indebtedness, the Borrower shall be deemed to have received on such day a
Collection on such Receivable in the amount of such reduction or cancellation.
If on any day any representation, warranty, covenant or other agreement of the
Borrower related to a Receivable is not true or is not satisfied, the Borrower
shall be deemed to have received on such day a Collection in the amount of the
outstanding balance of such Receivable. All such Collections deemed received by
the Borrower under this Section 2.5(b) shall be remitted by the Borrower to the
Collection Agent in accordance with Section 3.3.
(c) Adjustment to Secured Interest. At any time before the Loan
Amortization Date that the Borrower is deemed to have received any Collection
under Section 2.5(b) ("Deemed Collections") that derive from a Receivable that
is otherwise reported as an Eligible Receivable, so long as no Liquidation
Period then exists, the Borrower may satisfy its obligation to deliver such
amount to the Collection Agent by instead notifying the Agent that the Secured
Interest should be recalculated by decreasing the Net Receivables Balance by the
amount of such Deemed Collections, so long as such adjustment does not cause the
Secured Interest to exceed 100%.
(d) Payment Assumption. Unless an Obligor otherwise specifies or another
application is required by contract or law, any payment received by the Borrower
from any Obligor shall be applied as a Collection of Receivables of such Obligor
(starting with the oldest such Receivable) and remitted to the Collection Agent
as such.
Section 2.6. Reduction in Commitments. The Borrower may, upon 30 days'
notice to the Agent, reduce the Aggregate Commitment in increments of
$1,000,000, so long as the Aggregate Commitment at all times equals at least the
outstanding Matured Aggregate Loan Amount. Each such reduction in the Aggregate
Commitment shall reduce the Commitment of each Committed Lender in accordance
with its Ratable Share and shall ratably reduce the Loan Limit so that the
Aggregate Commitment remains equal to 102% of the Loan Limit.
Section 2.7. Optional Prepayments. At any time that the Aggregate Loan
Amount is less than 10% of the Aggregate Commitment in effect on the date
hereof, the Borrower may, upon thirty days' notice to the Agent, prepay the
entire Loan Amount at a price equal to the outstanding Matured Aggregate Loan
Amount and all other amounts then owed to the Lenders hereunder.
Section 2.8. Assignment of Purchase Agreement. The Borrower hereby
assigns and otherwise transfers to the Agent (for the benefit of the Agent, each
Lender and any other Person to whom any amount is owed hereunder), all of the
Borrowers right, title and interest in, to and under the Purchase Agreement.
The Borrower shall execute, file and record all financing statements,
continuation statements and other documents required to perfect or protect such
assignment. This assignment includes (a) all monies due and to become due to
the Borrower from the Originators under or in connection with the Purchase
Agreement (including fees, expenses, costs, indemnities and damages for the
breach of any obligation or representation related to such agreement) and (b)
all rights, remedies, powers, privileges and claims of the Borrower against the
Originators under or in connection with the Purchase Agreement. All provisions
of the Purchase Agreement shall inure to the benefit of, and may be relied upon
by, the Agent, each Lender and each such other Person. At any time that a
Termination Event has occurred and is continuing, the Agent shall have the sole
right to enforce the Borrower's rights and remedies under the Purchase Agreement
to the same extent as the Borrower could absent this assignment, but without any
obligation on the part of the Agent, any Lender or any other such Person to
perform any of the obligations of the Borrower under the Purchase Agreement (or
any of the promissory notes executed thereunder). All amounts distributed to
the Borrower under the Purchase Agreement from Receivables sold to the Borrower
thereunder shall constitute Collections hereunder and shall be applied in
accordance herewith.
Article III
Sales to and from Windmill; Allocations
Section 3.1. Required Loans from Windmill. (a) Windmill may, at any
time, and on the earlier of the Windmill Termination Date and 10 Business Days
following the Agent and Windmill learning of a continuing Termination Event,
Windmill shall, sell to the Committed Lenders any percentage designated by
Windmill of Windmill's Loan Amount and its related Windmill Settlement (each, a
"Put"). If the Put occurs due to the Windmill Termination Date or a Termination
Event, the designated percentage shall be 100% or such lesser percentage as is
necessary to obtain the maximum available Loan Price from each Committed Lender.
Immediately upon notice of a Put from Windmill to the Agent, the Agent shall
deliver to each Lender a notification of assignment in substantially the form of
Exhibit F-1, and each Committed Lender shall purchase from Windmill its Pro Rata
Share of Windmill's Loan Amount and related Windmill Settlement by transferring
to the Agent's Account an amount equal to such Committed Lender's Loan Price by
not later than 1:00 p.m. (Chicago time) on the date such funds are requested;
provided, however, that the Program LOC Provider may exchange for part or all of
the Loan Price payable by it an equal amount of the Program Unreimbursed Draw
Amount.
(b) If a Bank fails to transfer to the Agent its full Loan Price when
required by Section 3.1(a) (the aggregate amount not made available to the Agent
by each such Bank being the "Unpaid Amount"), then, upon notice from the Agent
by not later than 1:15 p.m. (Chicago time), each Bank not owing an Unpaid Amount
shall transfer to the Agent's Account, by not later than 1:45 p.m. (Chicago
time), an amount equal to the lesser of such Bank's proportionate share (based
on its Commitment divided by the Commitments of all Banks that have not so
failed to pay their full Loan Price) of the Unpaid Amount and its Unused
Commitment. If the Agent does not then receive the Unpaid Amount in full, upon
notice from the Agent by not later than 2:00 p.m. (Chicago time) on such day,
each Bank that has not failed to fund any part of its obligations on such day
under this Section 3.1 shall pay to the Agent, by not later than 2:30 p.m.
(Chicago time), its proportionate share (determined as described above) of the
amount of such remaining deficiency up to the amount of its Unused Commitment.
Any Bank that fails to make a payment under this Section 3.1 on the date of a
Put shall pay on demand to each other Bank that makes a payment under this
subsection (b) the amount paid by it to cover such failure, together with
interest thereon, for each day from the date such payment was made until the
date such other Bank has been paid such amount in full, at a rate per annum
equal to the Federal Funds Rate plus two percent (2%) per annum. In addition,
without prejudice to any other rights Windmill may have under applicable law,
any Bank that has failed to transfer to the Agent under Section 3.1(a) its full
Loan Price shall pay on demand to Windmill the difference between such unpaid
Loan Price and the amount paid by other Banks or the Agent to cover such
failure, together with interest thereon, for each day from the date such Loan
Price was due until the date paid, at a rate per annum equal to the Federal
Funds Rate plus two percent (2%) per annum.
(c) Any portion of Windmill's Loan Amount and related Windmill Settlement
purchased by a Committed Lender (including any purchased under Section 3.1(b) in
fulfillment of another Bank's obligation unless such purchase is reimbursed in
full, with interest, by such other Bank under Section 3.1(b)) shall be
considered part of such Lender's Loan Amount and related Windmill Settlement
from the date of the relevant Put. Each such sale by Windmill to a Committed
Lender shall be without recourse, representation or warranty except for the
representation and warranty that such Loan Amount and related amounts are being
sold by Windmill free and clear of any Adverse Claim created or granted by
Windmill. Immediately upon any purchase by the Committed Lenders of any portion
of Windmill's Loan Amount, the Borrower shall pay to the Agent (for the ratable
benefit of such Lenders) an amount equal to the sum of the Assigned Windmill
Settlement and the amount calculated for all such Lenders pursuant to clause (b)
of the definition of Loan Price.
(d) The proceeds from each Put received by Windmill (other than amounts
described in clauses (b)(ii) and (iii) of the definition of Loan Price), shall
be transferred into the Special Borrower Subaccount and used solely to pay that
portion of the outstanding commercial paper of Windmill issued to fund or
maintain the Loan Amount of Windmill so transferred. Until used to pay
commercial paper notes, all proceeds of any Put pursuant to this Section shall
be invested in Permitted Investments. All earnings on such Permitted
Investments shall be promptly remitted to the Borrower.
(e) The obligation of each Committed Lender to make any purchase from
Windmill pursuant to this Section 3.1 shall be several, not joint, and shall be
absolute and unconditional; provided, however, that no Committed Lender shall
have any obligation to make such a purchase at a time that (i) Windmill shall
have voluntarily commenced any proceeding or filed any petition under any
bankruptcy, insolvency or similar law seeking the dissolution, liquidation or
reorganization of Windmill or (ii) involuntary proceedings or an involuntary
petition shall have been commenced or filed against Windmill under any
bankruptcy, insolvency or similar law seeking the dissolution, liquidation or
reorganization of Windmill and such proceeding or petition shall not have been
dismissed or stayed for a period of thirty (30) days, or any of the actions
sought in such proceeding or petition (including the entry of an order for
relief against, or the appointment of a receiver, trustee, custodian or other
similar official for, Windmill or for any substantial part of Windmill's
property) shall occur.
Section 3.2. Loans by Windmill. If the Borrower requests an increase in
Windmill's Loan Amount when any Committed Lender has any outstanding Loan
Amount, Windmill shall determine the amount, if any, by which it desires to
increase its Loan Amount (the "Desired Increase") and shall so notify the Agent.
If Windmill has a Desired Increase, the Agent shall deliver to the Committed
Lenders a notification of assignment in substantially the form of Exhibit F-2
and, before purchasing any additional Loan Amount from the Borrower, Windmill
shall purchase in full the Loan Amount of the Committed Lenders, at a purchase
price equal to such Loan Amount plus accrued and unpaid Interest thereon. If
the Desired Increase is less than the sum of the total Loan Amount of the
Committed Lenders and accrued Interest, Windmill shall purchase a ratable
portion of each Bank's Loan Amount and only after all such Loan Amount and
accrued Interest thereon is purchased may Windmill purchase Loan Amount of the
Program LOC Provider and Interest thereon. As a condition to any such sale of
Loan Amount by Committed Lenders to Windmill, the Borrower must pay the Early
Collection Fee then owed to such Committed Lenders. Any sale from any Committed
Lender to Windmill pursuant to this Section 3.2 shall be without recourse,
representation or warranty except for the representation and warranty that the
Loan Amount sold by such Committed Lender is free and clear of any Adverse Claim
created or granted by such Committed Lender and that such Lender has not
suffered a Bankruptcy Event.
Section 3.3. Allocations and Distributions.
(a) Windmill Termination and Liquidation Periods. Before the Bank
Termination Date unless an Interim Liquidation is in effect and at all times on
and after the Windmill Termination Date, the Collection Agent (i) shall set
aside and hold solely for the benefit of Windmill, Windmill's Loan Interest in
all Collections received on such day and (ii) shall distribute on the last day
of each CP Tranche Period to the Agent (for the benefit of Windmill) the amounts
so set aside up to the amount of Windmill's Loan Amount allocated to such
Tranche Period and, to the extent not already paid in full, all Interest thereon
and all other amounts then due from the Borrower in connection with such Loan
Amount and Tranche Period. The Secured Interest, and the Loan Interest of the
Lenders, shall be recalculated to give effect to any application of any portion
of the Secured Interest in Collections to pay Interest or other amounts (except
Loan Amount) under this Section 3.3(a), and the Borrower shall comply with
Section 2.5(a) after such recalculation.
(b) Loan Amortization Date and Interim Liquidations. On each day on and
after the Bank Termination Date, and during any Interim Liquidation, the
Collection Agent shall set aside and hold solely for the account of the Agent,
for the benefit of the Lenders, all Collections received on such day as follows:
(i) first, only so long as (A) the sum of the Matured Value of the
Windmill Loan Amount, the Matured Value of each Bank's Loan Amount, and the
Program LOC Provider Loan Amount is less than (B) the product of the Secured
Interest (or, if less, 100%) multiplied by the Net Receivables Balance, to the
payment of all Interest then due and not paid to the Program LOC Provider;
(ii) second, to Windmill and to the Banks (ratably, based on the Matured
Value of their Loan Amounts) until all Loan Amounts of, and Interest due but not
already paid to, the Banks and Windmill has been paid in full;
(iii) third, to the Program LOC Provider until all Loan Amounts of, and
Interest due but not already paid to, the Program LOC Provider has been paid in
full;
(iv) fourth, to the Lenders until all other amounts owed to the Lenders
have been paid in full;
(v) fifth, to the Agent until all amounts owed to the Agent have been paid
in full;
(vi) sixth, to any other Person to whom any amounts are owed under the
Transaction Documents until all such amounts have been paid in full; and
(vii)seventh, to the Borrower (or as otherwise required by applicable law).
Unless an Interim Liquidation has ended by such date, the Collection Agent shall
deposit into the Agent's Account, from such set aside Collections, all amounts
allocated to such Tranche Period and all Tranche Periods that ended before such
date, due in accordance with the priorities in clauses (i)-(iii) above. No
distributions shall be made to pay amounts under clauses (iv) - (vii) until
sufficient Collections have been set aside to pay all amounts described in
clauses (i) - (iii) that may become payable for all outstanding Tranche Periods.
All distributions by the Agent shall be made ratably within each priority level
in accordance with the respective amounts then due each Person included in such
level unless otherwise agreed by the Agent and all Lenders. As provided in
Section 2.4(c) all Interest and other amounts payable hereunder other than Loan
Amounts are payable by the Borrower. If any part of the Secured Interest in any
Collections is applied to pay any such amounts pursuant to this Section 3.3(b),
the Borrower shall pay to the Collection Agent the amount so applied for
distribution as part of the Secured Interest in Collections.
Article IV
Representations and Warranties
Section 4.1. Representations and Warranties. The Borrower represents and
warrants to the Agent and each Lender that:
(a) Corporate Existence and Power. Each of the Borg-Warner Entities is a
corporation duly organized, validly existing and in good standing under the laws
of its state of incorporation and has all corporate power and all governmental
licenses, authorizations, consent and approvals required to carry on its
business in each jurisdiction in which its business is now conducted except
where failure to obtain such licenses, authorizations, consents and approvals
would not have (i) an adverse effect on its ability to perform its obligations
under each of the Transaction Documents to which it is a party, (ii) an adverse
effect on the enforceability of any of the Transaction Documents, (iii) a
material adverse effect on its business or financial condition, (iv) a material
adverse effect on the interests of the Agent or any Lender hereunder or under
any of the other Transaction Documents, or (v) a material adverse effect on the
enforceability or collectibility of any Receivable.
(b) Corporate and Governmental Authorization; Contravention. The
execution, delivery and performance by each of the Borg-Warner Entities of each
Transaction Document to which it is (or is stated to be) a party are within its
corporate powers, have been duly authorized by all necessary corporate action,
require no action by or in respect of, or filing with, any Governmental
Authority, and do not contravene, or constitute a default under, any provision
of applicable law or regulation or of the certificate of incorporation or by-
laws of any such Borg-Warner Entity or of any agreement, judgment, injunction,
order, decree or other instrument binding upon it or result in the creation or
imposition of any lien on assets of any Borg-Warner Entity or any of its
Subsidiaries.
(c) Binding Effect. Each of the Transaction Documents constitutes the
legal, valid and binding obligation of each Borg-Warner Entity which is (or is
stated to be) a party thereto enforceable against each such Borg-Warner Entity
in accordance with its terms, except to the extent that such enforcement may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
(d) Perfection. Immediately preceding the Loans hereunder, each
Originator shall have been the owner and shall have effectively sold all
receivables and other property that constitute Purchase Assets to the Borrower,
free of any Adverse Claim, and the Borrower shall be the owner of all of the
receivables purported to be transferred as Receivables hereunder. On or prior
to the date hereof and prior to the Borrower's acquisition of any new receivable
from an Originator, all financing statements and other documents required to be
recorded or filed in order to perfect and maintain the Agent's (for the benefit
of the Lender's) interest in the Secured Interest and in any additional property
conveyed pursuant to ArticleII against all creditors of and purchasers from the
Borrower and all creditors of and purchasers from any Originator will have been
duly filed in each filing office necessary for such purpose and all filing fees
and Taxes, if any, payable in connection with such filings shall have been paid
in full. Notwithstanding the foregoing, nothing in this Section 4.1(d) shall
constitute a representation with respect to any Receivable the Obligor of which
is a government or governmental subdivision or agency to the extent that such
representation requires compliance with any federal laws of the USA relating to
the transfer or perfection of such Receivable.
(e) Accuracy of Information. All information heretofore furnished by any
Borg-Warner Entity to Windmill, the Program LOC Provider, the Agent or any Bank
for purposes of or in connection with this Agreement, any of the other
Transaction Documents or any transaction contemplated hereby or thereby is, and
all such information hereafter furnished by any Borg-Warner Entity to Windmill,
the Program LOC Provider, the Agent or any Bank will be, true and accurate in
every material respect and will not omit any information necessary to make the
statements therein not materially misleading, on the date such information is
stated or certified.
(f) Eligible Receivables. Each Receivable at any time included in the Net
Receivables Balance as an Eligible Receivable at the time of any computation
hereunder shall in fact be an Eligible Receivable at such time.
(g) Actions, Suits. There are no actions, suits or proceedings pending,
or to the knowledge of the Borrower threatened, against or affecting the
Borrower or any other Borg-Warner Entity or any Subsidiary of any Borg-Warner
Entity or any of their respective properties, in or before any Governmental
Authority, arbitrator or other body, which may materially adversely affect the
financial condition of the Borrower or any other Borg-Warner Entity or the
collectibility of the Receivables or materially adversely affect the ability of
any Borg-Warner Entity to perform its obligations under each of the Transaction
Documents to which it is (or is stated to be) a party; the Borrower is not in
default with respect to any contractual obligation or any order of any court,
arbitrator or Governmental Authority; and no Borg-Warner Entity nor any
Subsidiary of any Borg-Warner Entity is in material default with respect to any
material contractual obligation or any order of any court, arbitrator or
Governmental Authority.
(h) No Material Adverse Change. Since September 30, 1998, there has been
no material adverse change in the financial condition, business, operations or
prospects of any Borg-Warner Entity, or in the ability of any Borg-Warner Entity
to perform its obligations hereunder or under any other Transaction Document or
in the collectibility of the Receivables.
(i) Credit and Collection Policy. The Borrower and each Originator has
complied in all material respects with the Credit and Collection Policy in
regard to each Receivable and related Contract and since September 30, 1998,
there has been no material change in such Credit and Collection Policy.
(j) Use of Proceeds. No proceeds of the Loans will be used by any Borg-
Warner Entity to acquire any security in any transaction which is subject to
Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(k) Place of Business. The chief place of business and chief executive
office of the Borrower and each Originator are located at the respective
addresses of each such Person set forth on Exhibit G and such offices have been
so located for six months prior to the date hereof.
(l) Lock-Box Arrangements. All Lock-Box Banks, Lock-Box numbers and Lock
Box Account numbers are listed on Exhibit C or described in a notice provided by
the Borrower to the Agent. The Borrower has sent a copy of all Lock-Box
Agreements to the Agent.
(m) Payments on Receivables. Each Obligor is required to send all
payments with respect to each Receivable (other than Tooling Receivables) to a
Lock-Box in the exclusive control of the Lock-Box Bank for deposit in a Lock-Box
Account, and no funds other than payments with respect to the Receivables (which
may be Tooling Receivables) are deposited in any such Lock-Box Account.
(n) Good Title. Upon the Loans and upon each Payment, the Agent shall
have, for the benefit of the Lenders, a valid and perfected first priority
interest in each item comprising the Secured Interest as it exists at the time
of the Loans or such Payment and in any additional property conveyed pursuant to
Article II, free and clear at all such times of any Adverse Claim.
(o) Names. Except as described in Exhibit H, the Borrower has not used
any corporate names, tradenames or assumed names other than its name set forth
on the signature pages of this Agreement.
(p) Coverage Requirement. The product of the Secured Interest
(expressed as a percentage) multiplied by the Net Receivables Balance equals or
exceeds the Coverage Amount.
(q) Net Worth. The Borrower has a positive tangible net worth of at least
One Million Dollars ($1,000,000) as determined in accordance with GAAP.
(r) Subsidiaries. The Borrower has no Subsidiaries and does not own or
hold, directly or indirectly, any capital stock or equity security of, or equity
interest in, any Person.
(s) Termination Event. No Termination Event or Potential Termination
Event has occurred and is continuing.
(t) 1933 and 1940 Acts. Each Receivable is an account receivable
representing all or part of the sale prices of merchandise, insurance and
services within the meaning of Section 3(c)(5) of the Investment Company Act of
1940, as amended, and a purchase price of each Receivable with the proceeds of
notes would constitute a "current transaction" within the meaning of Section
3(a)(3) of the Securities Act of 1933, as amended.
Section 4.2. Reaffirmation of Representations and Warranties. On each
day that a Payment is made hereunder, the Borrower, by accepting such Payment,
shall be deemed to have certified that (i) all representations and warranties
described in Section 4.1 are correct in all material respects on and as of such
day as though made on and as of such day and (ii) no event has occurred or is
continuing, or would result from any such Payment, which constitutes a
Termination Event or a Potential Termination Event.
Article V
Conditions Precedent and Subsequent
Section 5.1. Conditions to Closing. This Agreement shall become
effective on the first date (the "Effective Date") on which all of the
conditions set forth in this Section 5.1 shall have been satisfied. On or prior
to the Effective Date, the Borrower shall deliver to the Agent, with a copy to
each Lender, the following documents, instruments and opinions, all of which
shall be in form and substance acceptable to the Agent and each Lender:
(a) Originals of proper financing statements, if any, necessary to release
all Adverse Claims of any Person in the Filing Assets previously granted by the
Borrower or any Originator.
(b) Certified copies of requests for information or copies (Form UCC-11)
(or a similar search report certified by parties acceptable to the Agent) dated
a date reasonably near the date of the Loans listing all effective financing
statements which name the Borrower or any Originator (under its present name and
any previous name) as seller, Borrower or debtor and which are filed in
jurisdictions in which the filings were made pursuant to Section 5.1(e) together
with copies of such financing statements (none of which shall cover any Filing
Assets).
(c) A certificate in the form of Exhibit J executed by a Designated
Financial Officer of the Borrower.
(d) Any fee payable on the date hereof pursuant to the Fee Letter in
accordance with Section 2.4.
(e) A Periodic Report for November, 1998 (prepared as if this Agreement
and the Purchase Agreement had been in effect during such month).
(f) An executed copy of the Fee Letter.
(g) An executed copy of each of the other Transaction Documents.
(h) Executed copies of (i) all consents from and authorizations by any
Persons and (ii) all waivers and amendments to existing credit facilities, that
are necessary in connection with this Agreement.
(i) Such other approvals, opinions or documents as the Agent may
reasonably request.
Section 5.2. Conditions Subsequent. Within 30 days after the Effective
Date, the Borrower shall deliver to the Agent, with a copy to each Lender, the
following documents, instruments and opinions, all of which shall be in a form
and substance acceptable to the Agent and each Lender:
(a) Originals of proper UCC continuation statements with respect to each
Originator and the Borrower.
(b) Copy of the resolutions of the board of directors of each of the Borg-
Warner Entities, 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.
(c) Certificate of incorporation of each of the Borg-Warner Entities
certified by the Secretary of State of its state of incorporation.
(d) Good standing certificates for each of the Borg-Warner Entities issued
by the Secretaries of State of each jurisdiction where it has material
operations.
(e) A certificate of the secretary or any assistant secretary of each of
the Borg-Warner Entities 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 (on which certificate the Agent and each Lender may
conclusively rely until such time as the Agent and each Lender shall receive
from it a revised certificate meeting the requirements of this Section 5.1(d))
and (ii) a copy of its by-laws.
(f) Favorable opinions of counsel to each of the Borg-Warner Entities in
substantially the form of Exhibit I, and as to such other matters as the Agent
may reasonably request.
Section 5.3. Condition to Each Loan. Neither the Agent nor Windmill
shall have any obligation to make a Loan hereunder. Neither the Program LOC
Provider nor any Bank shall have any obligation to make any Loan, if at the time
of such Loan and after giving effect thereto, there shall exist a Termination
Event or Potential Termination Event. Nothing in this Section 5.2 shall be
construed as a condition to or a limitation of the obligation to Windmill of the
Program LOC Provider to pay, or exchange any Program Unreimbursed Draw Amount in
connection with, its Loan Price, or of each Bank to pay its respective Loan
Price, pursuant to Article III.
Article VI
Covenants
Section 6.1. Affirmative Covenants of the Borrower. The Borrower hereby
covenants, undertakes and agrees that at all times from the date hereof until
the termination of this Agreement pursuant to Section 11.1, unless the Agent,
with the consent of Windmill (at any time that the Windmill Loan Amount is
greater than zero), the Program LOC Provider and the Required Banks, shall
otherwise consent in writing:
(a) Financial Reporting. The Borrower will maintain, and will cause each
Borg-Warner Entity to maintain, for itself and each of its Subsidiaries, a
system of account established and administered in accordance with GAAP, and the
Borrower will furnish to the Agent and to each Lender:
(i) Annual Financial Statements. Within one hundred twenty (120) days
after each fiscal year of the Parent (beginning with the fiscal year ending
December 31, 1997), copies of the annual audited financial statement of the
Parent certified by an independent certified public accountant satisfactory to
the Agent and prepared on a consolidated basis in conformity with GAAP, together
with the certificate described in clause (iii) below. Within one hundred twenty
(120) days after each fiscal year of each of the Borg-Warner Entities (other
than the Parent), copies of the annual balance sheet for such Borg-Warner Entity
and, in the case of the Borrower, an annual profit and loss statement, in each
case certified by a Designated Financial Officer of such Borg-Warner Entity and
prepared on a consolidated basis, together with the certificate described in
clause (iii) below.
(ii) Quarterly Financial Statement. Within forty-five (45) days after each
quarter (except the last quarter) of each fiscal year of the Parent, copies of
the unaudited financial statement of the Parent prepared in the same manner as
the report referred to in preceding clause (i), signed by a Designated Financial
Officer of the Parent and consisting of at least a balance sheet as at the close
of such quarter and statements of earnings and source and application of funds
for the period from the beginning of such fiscal year to the close of such
quarter, together with the certificate described in clause (iii) below. Within
forty-five (45) days after each quarter (except the last quarter) of each fiscal
year of the Borrower, a quarterly balance sheet and profit and loss statement of
the Borrower for the period from the beginning of such fiscal year to the close
of such quarter certified by a Designated Financial Officer of the Borrower,
together with the certificate described in clause (iii) below.
(iii) Officer's Certificate. Together with the balance sheet or
financial statements furnished with respect to the Borrower and the Parent under
preceding clauses (i) and (ii), a compliance certificate in substantially the
form of Exhibit J, signed by a Designated Financial Officer of the Borrower or
the Parent, as the case may be, and dated the date of such annual balance sheet
or financial statement or such quarterly balance sheet or financial statement,
as the case may be, to the effect that no Termination Event or Potential
Termination Event has occurred and is continuing, or, if there is any such
event, describing it and the steps, if any, being taken to cure it, and
containing a computation of, and showing compliance with, each of the financial
ratios and restrictions contained in this Agreement and the Indemnity Agreement
respectively.
(iv) Other Information. Such other information (including non-financial
information) as the Agent or any Lender may from time to time reasonably
request.
(b) Notices. The Borrower will notify the Agent in writing of any of the
following immediately upon learning of the occurrence thereof, describing the
same and, if applicable, the steps being taken by the Person(s) affected with
respect thereto:
(i) Termination Events or Potential Termination Events. The occurrence of
any Termination Event or Potential Termination Event, and such notice shall
include a statement of a Designated Financial Officer of the Borrower, setting
forth the date of such occurrence and the nature thereof.
(ii) Representations and Warranties. The failure of any representation or
warranty to be true (when made or at any time thereafter) in any material
respect with respect to any Receivable.
(iii) Downgrading. Any lowering in the rating of any indebtedness
below the rating that it has on the date hereof of any Approved Obligor or any
Borg-Warner Entity or any Subsidiary of any of the foregoing by any rating
agency, setting forth the indebtedness affected and the nature of such change.
(iv) Litigation. The institution of any litigation, arbitration proceeding
or governmental proceeding which is reasonably likely to be material to any
Borg-Warner Entity.
(v) Judgment. The entry of any judgment or decree against any Borg-Warner
Entity or any of their respective Subsidiaries if the aggregate amount of all
judgments and decrees then outstanding against the Borg-Warner Entities and
their Subsidiaries exceeds Ten Million Dollars ($10,000,000) after deducting (a)
the amount with respect to which any Borg-Warner Entity or any such Subsidiary
is insured and with respect to which the insurer has assumed responsibility in
writing, and (b) the amount for which any Borg-Warner Entity or any such
Subsidiary is otherwise indemnified if the terms of such indemnification are
satisfactory to the Agent.Promptly upon receipt of any such notice, the Agent
will deliver copies thereof to each of the Lenders.
(c) Conduct of Business. The Borrower will, and will cause each other
Borg-Warner Entity to, do all things necessary to remain duly incorporated,
validly existing and in good standing as domestic corporations in its
jurisdiction of incorporation and maintain all requisite authority to conduct
its business in each jurisdiction in which its business is conducted.
(d) Compliance with Laws. The Borrower will, and will cause each other
Borg-Warner Entity (in all material respects and in all respects that could have
an effect on the enforceability of any Transaction Document) to, comply with all
laws, rules, regulations, orders, writs, judgments, injunctions, decrees or
awards to which it may be subject.
(e) Furnishing of Information and Inspection of Records. The Borrower
will furnish to the Agent and the Lenders from time to time such information
with respect to the Receivables as the Agent or any Lender shall reasonably
request, including listings identifying the Obligor and the Outstanding Balance
for each Receivable. The Borrower will permit, at any time and from time to
time either (i) upon two (2) days prior notice or (ii) after the occurrence of a
Potential Termination Event or a Termination Event, during regular business
hours, the Agent or any Lender, or any of their respective agents or
representatives, (i) to examine and make copies of and abstracts from all
Records and (ii) to visit the offices and properties of the Borrower for the
purpose of examining such Records, and to discuss matters relating to
Receivables or the Borrower's performance hereunder with any of the officers or
employees of the Borrower having knowledge of such matters. The agent will,
within sixty (60) days of the receipt of the annual balance sheet of the
Borrower delivered pursuant to Section 6.1(a), utilize the services of an
independent certified public accounting firm or auditing firm to conduct an
annual audit of the Records of the Borrower and/or to make test verifications of
the Receivables (at the expense of the Borrower pursuant to Section 9.4).
(f) Keeping of Records and Books.
(i) The Borrower will, and will cause each Originator as sub-collection
agent to, maintain and implement administrative and operating procedures
(including an ability to recreate records evidencing Receivables in the event of
the destruction of the originals thereof), and keep and maintain all documents,
books, records and other information reasonably necessary or advisable for the
collection of all Receivables (including records adequate to permit the
immediate identification of each new Receivable and all Collections of and
adjustments to each existing Receivable). The Borrower will give the Agent
notice of any material change in the administrative and operating procedures
referred to in the previous sentence.
(ii) The Borrower will, and will cause each other Borg-Warner Entity to,
keep true books of record and account of itself and its Subsidiaries in which
full, true and correct entries in accordance with GAAP will be made of all
dealings or transactions in relation to its business and activities, including
the setting up on its books, from income, reserves which, on a consolidated
basis, are adequate in the judgment of such Person for obsolescence,
depreciation, depletion and amortization of its properties during each year.
(g) Separate Corporate Existence. The Borrower will take all actions
necessary to maintain its identity as a separate legal entity from each other
Borg-Warner Entity, including each of the activities listed on Exhibit L.
(h) Performance and Compliance with Receivables and Contracts. The
Borrower will, and will cause each Originator to, at its expense timely and
fully perform and comply in all material respects with all provisions, covenants
and other promises required to be observed by it under the Contracts related to
the Receivables.
(i) Credit and Collection Policy. The Borrower will, and will cause each
Originator to, comply in all material respects with the Credit and Collection
Policy in regard to each Receivable and the related Contract.
Section 6.2. Negative Covenants of the Borrower. Until the termination
of this Agreement pursuant to Section 11.1, unless the Agent, with the consent
of Windmill (at any time that the Windmill Loan Amount is greater than zero),
the Program LOC Provider and the Required Banks, shall otherwise consent in
writing:
(a) Sales and Liens Relating to Receivables. Except as otherwise provided
herein, the Borrower will not transfer, convey, sell, assign (by operation of
law or otherwise) or otherwise dispose of, or create or suffer to exist any
Adverse Claim upon (including the filing of any financing statement) or with
respect to (i) any inventory or goods (other than sales in the ordinary course
of business), the sale of which may give rise to a Receivable, (ii) any
Receivable or (iii) any related Contract, Related Security, Collection or
Related Account with respect to any Receivable, or assign any right to receive
income in respect to any of the foregoing.
(b) Extension or Amendment of Receivables. Except as otherwise permitted
in Section 7.2, the Borrower will not extend, amend or otherwise modify the
terms of any Receivable, or amend, modify or waive any term or condition of any
Contract related thereto.
(c) Change in Business or Credit and Collection Policy. The Borrower will
not, and will not permit any Originator to, make any change in the character of
its business or in its Credit and Collection Policy, which change would, in
either case, impair the collectibility of any Receivable.
(d) Merger, etc. The Borrower will not merge with or into or consolidate
with or into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions), any of its assets (whether now
owned or hereafter acquired), or acquire any of the assets or capital stock or
other ownership interest of, any Person (other than in connection with asset
dispositions and acquisitions contemplated hereunder or in connection herewith
or under or in connection with any of the other Transaction Documents), or
otherwise enter into any partnership or joint venture arrangement with any other
Person.
(e) Accounting of Sales under the Purchase Agreement. The Borrower will
not, nor will it permit any Originator to, prepare any financial statements
which shall account for the transactions contemplated by the Purchase Agreement
in any manner other than as a sale of Receivables by the Originators to the
Borrower, and will not in any other respect account for or treat the
transactions contemplated thereby (including but not limited to for accounting
and tax purposes) in any manner other than as a sale of Receivables by the
Originators to the Borrower.
(f) Change in Purchase Agreement. The Borrower will not amend, modify,
waive or terminate any terms or conditions of the Purchase Agreement, which
right to amend, modify, waive or terminate has been assigned to the Agent for
the benefit of the Agent and the Lenders.
(g) Contingent Liabilities. The Borrower will not guarantee, endorse or
otherwise be or become contingently liable (including by agreement to maintain
balance sheet tests) in connection with the obligations of any other Person,
except endorsements of negotiable instruments for collection in the ordinary
course of business and reimbursement or indemnification obligations in favor of
the Agent or the Lenders as provided for under this Agreement.
(h) Limitation on Investments. The Borrower will not make any Financial
Investment in any person, including any of its Affiliates, except for:
(i) Permitted Investments; and
(ii) endorsements of instruments or items of payment for deposit to the
Borrower's bank accounts.
(i) Limitation on Transactions with Affiliates. The Borrower will not
enter into, or be a party to, any transaction with any Affiliate of the
Borrower, except for:
(i) the transactions contemplated by the Transaction Documents; and
(ii) other transactions upon fair and reasonable terms materially no less
favorable to the Borrower than would be obtained in a comparable arm's-length
transaction with a Person not an Affiliate.
(j) Bank Accounts. The Borrower will not maintain any bank accounts other
than the Lock-Box Accounts and the Borrower Account.
(k) Expenditures. The Borrower will not make any expenditure (by long-
term or operating lease or otherwise) for capital assets (both realty and
personalty) or any other assets if such expenditure, when added to other such
expenditures made by the Borrower during the same calendar year (including as
contemplated by Section 6.2(n)) would, in the aggregate, exceed Ten Thousand
Dollars ($10,000).
(l) Incurrence of Indebtedness. The Borrower shall not incur, assume,
suffer to exist or otherwise become or remain directly or indirectly liable with
respect to any Indebtedness other than (i) Indebtedness to the Agent or any
Lender pursuant to the terms and provisions of this Agreement, (ii) Indebtedness
to the Collection Agent hereunder or, if it is then serving as Collection Agent,
to any Originator in its capacity as sub-collection agent for the amount of any
reasonable collection agency fee, (iii) Indebtedness to each Originator (that is
payable solely to the extent that the Borrower has funds that are not necessary
to satisfy any obligation hereunder) in connection with the purchase of such
Originator's receivables pursuant to the terms and provisions of the Purchase
Agreement and (iv) Indebtedness to any Borg-Warner Entity that is expressly
subordinated to Indebtedness to the Agent and the Lenders on terms satisfactory
to the Agent.
(m) Prohibition of Dividends. The Borrower will not declare any dividends
on, or make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, retirement or other
acquisition of any shares of stock of the Borrower, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower.
(n) Business Activities. The Borrower will not carry on any business or
engage in any business transactions other than the business and transactions
contemplated by or related to this Agreement or the other Transaction Documents
or incidental to the purposes hereof. The Borrower will not be a party to any
documents, agreements or instruments other than the Transaction Documents and
any office or equipment leases necessary in connection herewith or incidental to
the purposes hereof which office or equipment leases shall not create or
evidence an obligation of the Borrower that, when added to the other
expenditures made by the Borrower during the same calendar year (including as
contemplated by Section 6.2(k)) would, in the aggregate, exceed Ten Thousand
Dollars ($10,000).
(o) Net Worth. The Borrower shall, at all times, have a tangible net
worth of not less than One Million Dollars ($1,000,000) determined in accordance
with GAAP.
Article VII
Administration and Collections
Section 7.1. Appointment of Collection Agent. (a) The servicing,
administering and collection of the Receivables shall be conducted by the Person
(the "Collection Agent") so designated from time to time in accordance with this
Section 7.1. Initially, Borg-Warner Automotive Inc., shall be the Collection
Agent. Until the Agent gives notice to the Borrower (in accordance with this
Section 7.1) of the designation of a new Collection Agent, the Parent is hereby
designated as, and hereby agrees to perform the duties and obligations of, the
Collection Agent pursuant to the terms hereof. Either (i) upon thirty (30) days
prior written notice to the Borrower or (ii) upon the occurrence and during the
continuance of a Termination Event, the Agent may designate as Collection Agent
any Person (including itself, any Bank or the Program LOC Provider) to succeed
the Parent or any successor Collection Agent, on the condition in each case that
any such Person so designated shall agree to perform the duties and obligations
of the Collection Agent. Whether or not it is then serving as Collection Agent,
upon the occurrence and during the continuance of a Termination Event, the Agent
may notify any Obligor of the transfer to the Agent of the Secured Interest.
(b) In the case of Receivables arising out of the sale or lease of goods
or the rendering of services by any Originator, the Parent may, and if requested
by the Agent shall, delegate its duties and obligations as Collection Agent with
respect to such Receivables to such Originator (acting as sub-collection agent),
on the condition in each case that such Originator shall agree in writing to
perform the duties and obligations of the Collection Agent; provided, however,
that notwithstanding such delegation, the Parent shall remain primarily liable
to the Agent and the Lenders for the performance of the duties and obligations
so delegated and the Agent and each Lender shall have the right to look solely
to the Parent for such performance; provided, further, however, that either (i)
upon thirty (30) days prior written notice to the Parent or (ii) upon the
occurrence and during the continuance of a Termination Event, the Agent may
replace an Originator as sub-collection agent.
(c) The Parent agrees that it will terminate its activities as Collection
Agent and cause each Originator to terminate such Originator's activities as
sub-collection agent in a manner which the Agent determines will facilitate the
transition of the performance of such activities to the new Collection Agent,
and the Parent shall cooperate with and assist such new Collection Agent. Such
cooperation shall include access to, and transfer of, all Records and use by the
new Collection Agent of all licenses, hardware or software necessary or
desirable to collect the Affected Assets if permitted or not prohibited by the
applicable contract. The Parent hereby agrees that if at any time it shall
cease to be the Collection Agent, it shall act (if the then current Collection
Agent so requests) as the data-processing agent of the Collection Agent and, in
such capacity, the Parent shall conduct the data-processing functions of the
administration of the Receivables and the Collections in substantially the same
way that the Parent conducted such data-processing functions while it acted as
the Collection Agent.
(d) The Parent acknowledges that the Agent and each Lender have relied on
the Borrower's agreement to act as Collection Agent and on each Originator's
agreement to act as sub-collection agent with respect to Receivables originated
by each such Originator in making their decision to execute and deliver this
Agreement. Accordingly, the Parent agrees that it will not voluntarily resign
as Collection Agent nor will it permit any Originator to voluntarily resign as a
sub-collection agent.
Section 7.2. Duties of Collection Agent. (a) The Collection Agent shall
take or cause to be taken all such action as may be necessary or advisable to
collect each Receivable from time to time, all in accordance with this Agreement
and all applicable laws, rules and regulations, with reasonable care and
diligence, and in accordance with the Credit and Collection Policy. Each of the
Borrower, the Agent and each Lender hereby appoints as its agent the Collection
Agent, from time to time designated pursuant to Section 7.1, to enforce its
respective rights and interests in and under the Affected Assets. The
Collection Agent shall set aside for the accounts of the Borrower, the Agent,
the Lenders and any other Person entitled thereto the amount of the Collections
to which each is entitled in accordance with Article III. If the amount of the
Collections held by the Collection Agent is not sufficient to pay the amount to
which a group or class of the Lenders are entitled hereunder, the Collection
Agent shall distribute such Collections as provided in Article III on a pro rata
basis according to the respective claims of each of the members of such class or
group. If instructed by the Agent, the Collection Agent shall segregate and
deposit with the Agent the amount of Collections to which all Lenders are
entitled pursuant to Article III, on the first (1st) Business Day following
receipt by the Collection Agent of such Collections and the Agent shall
distribute such amounts in accordance with Article III. So long as no
Termination Event shall have occurred and be continuing, the Parent, while it is
the Collection Agent may, in accordance with the Credit and Collection Policy,
extend the maturity of any Receivable (but not beyond thirty (30) days) and
extend the maturity or adjust the Outstanding Balance of any Defaulted
Receivable as the Collection Agent may determine to be appropriate to maximize
Collections thereof; provided, however, that such extension or adjustment shall
not alter the status of such Receivable as a Delinquent Receivable or a
Defaulted Receivable or limit the rights of the Agent or the Lenders under any
other provision of this Agreement. If a Termination Event has occurred and the
Parent is still serving as Collection Agent, the Parent may make such extension
or adjustment only upon the prior written approval of the Agent and the Lenders.
The Borrower shall deliver to the Collection Agent and the Collection Agent
shall hold in trust for the benefit of the Borrower, the Agent and the Lenders
in accordance with their respective interests, all Records with respect to each
Receivable. Notwithstanding anything to the contrary contained herein, the
Agent shall have the absolute, unlimited and unconditional right to, and may,
direct the Collection Agent (whether the Collection Agent is the Parent or any
other Person) to commence or settle any legal action to enforce collection of
any Receivable or to foreclose upon or repossess any Related Security; provided,
however, that no such direction may be given unless either (i) a Potential
Termination Event or a Termination Event has occurred and is continuing
hereunder or (ii) such legal action, foreclosure or repossession shall affect a
material portion of the Receivables.
(b) The Collection Agent shall, as soon as practicable following receipt,
turn over to the Borrower (i) that portion of all Collections which is not part
of the Secured Interest, less, in the event the Parent is not the Collection
Agent, all reasonable and appropriate out-of-pocket costs and expenses of such
Collection Agent of servicing, collecting and administering the Receivables and
(ii) the collections of any indebtedness that is not a Receivable; provided,
however, that if the Parent is not the Collection Agent, the Collection Agent
shall not be under any obligation to remit any such funds to the Borrower unless
and until the Collection Agent has received from the Borrower evidence
satisfactory to the Agent and the Collection Agent that the Borrower is entitled
to such funds hereunder and under applicable law. The Collection Agent, if
other than the Parent, shall as soon as practicable upon demand, deliver to the
Borrower all records in its possession which evidence or relate to any
indebtedness that is not a Receivable, and copies of Records in its possession
which evidence or relate to any indebtedness that is a Receivable.
(c) Notwithstanding anything to the contrary contained in this Article
VII, the Collection Agent, if not the Parent, shall have no obligation to
collect, enforce or take any other action described in this Article VII with
respect to any indebtedness that is not a Receivable other than to deliver to
the Borrower the collections and records with respect to any such indebtedness
as described in Section 7.2(b).
Section 7.3. Lock-Box Arrangements. The Agent is hereby authorized by
all of the other parties hereto, and it is hereby agreed to by such other
parties that the Agent shall be entitled, whether or not it is then serving as
Collection Agent, to, at any time, do any or all of the following: (i) give
notice to each Lock-Box Bank that the Agent is exercising its rights under the
Lock-Box Letters, (ii) have the exclusive ownership and control of the Lock-Box
Accounts (and all funds deposited, or to be deposited, therein) transferred to
the Agent and to exercise exclusive dominion and control over the funds
deposited therein, (iii) have the proceeds that are sent to the respective Lock-
Boxes be redirected pursuant to its instructions rather than deposited in the
applicable Lock-Box Account, and (iv) take all other actions permitted under
such Lock-Box Letter. If the Agent, at any time, takes the actions set forth in
the preceding sentence, the Agent shall have exclusive ownership and control of
the accounts and post office boxes to which the Obligors shall make payments and
in which Collections may be concentrated and control of the proceeds (including
Collections) of all Receivables and the Borrower agrees to take any action that
the Agent may reasonably request to transfer such control. In case any
authorized signatory of the Borrower whose signature shall appear on any Lock-
Box Letter shall cease to have such authority before the delivery of such Lock-
Box Letter, such signature shall nevertheless be valid and sufficient for all
purposes as if such authority had remained in force at the time of such
delivery. Any proceeds of Receivables received by the Borrower thereafter shall
be sent immediately to the Agent. The parties hereto acknowledge that if at any
time the Agent takes control of any Lock-Box Account, the Agent shall not have
any rights to the funds therein in excess of the Aggregate Unpaids and the Agent
shall distribute or cause to be distributed such funds in accordance with
Section 7.2(b) and Article II; provided, however, that the Agent shall not be
under any obligation to remit any such funds to the Borrower or any other Person
unless and until the Agent has received from the Borrower or such Person
evidence satisfactory to the Agent that the Borrower or such Person is entitled
to such funds hereunder and under applicable law. In the event that the Agent
shall then be receiving disbursements from a Lock-Box Account, whether because
it is then the Collection Agent or because it has submitted Lock-Box Letters or
for any other reason, the Agent shall promptly remit to the Borrower any amounts
received by it from a Lock-Box Bank (i) upon its receipt of evidence reasonably
satisfactory to it that such amounts do not constitute Collections with respect
to Receivables or the proceeds of other Affected Assets and (ii) to the extent
of the Borrower's residual interest, if any, therein after accounting for each
Interest. In determining whether the Borrower has, in any instance, presented
reasonably satisfactory evidence of its ownership of items that do not
constitute Collections or the proceeds of other Affected Assets, the Agent shall
be entitled to the presumption that, in respect of any collections or other
items for which the remitting Obligor has not expressly indicated its intended
application on the face of the payment item or the accompanying documentation,
the appropriate application thereof shall be to Receivables of such Obligor, and
thus subject to the Secured Interest hereunder, and, if there shall be more than
one Receivable of such Obligor, to the oldest first.
Section 7.4. Enforcement Rights. (a) At any time following the
designation of a Collection Agent (other than the Borrower or any of the
Borrower's Affiliates) pursuant to Section 7.1:
(i) Upon the occurrence and during the continuance of a Termination Event,
the Agent may direct the Obligors and the Lock-Box Banks that payment of all
amounts payable under any Receivable be made directly to the Agent or its
designee. The Agent may, and the Borrower shall at the Agent's request,
withhold the identity of the Lenders from any Lock-Box Bank or Obligor.
(ii) Upon the occurrence and during the continuance of a Termination Event,
the Agent may instruct the Borrower to give, and upon such request the Borrower
shall give, at the Borrower's expense notice of the Agent's ownership of the
Secured Interest, to each Obligor and direct that payments be made directly to
the Agent or its designee. The Borrower shall, at the Agent's request, withhold
the identity of the Lenders in any such notification.
(iii) The Agent may request the Borrower to, and upon such request the
Borrower shall, (A) assemble all of the Records, the Related Security and
transfer, or license the use of, to the new Collection Agent all software
necessary or desirable to collect the Receivables and the Related Security, and
shall make the same available to the Agent or its designee at a place selected
by the Agent, and (B) segregate all cash, checks and other instruments received
by it from time to time constituting Collections with respect to the Receivables
in a manner acceptable to the Agent and shall, promptly upon receipt, remit all
such cash, checks and instruments, duly endorsed or with duly executed
instruments of transfer, to the Agent or its designee.
(b) The Borrower hereby authorizes, and irrevocably appoints, the Agent as
its attorney-in-fact coupled with an interest, with full power of substitution
and with full authority in the place and stead of the Borrower, to take any and
all steps in the name of the Borrower and on behalf of the Borrower necessary or
desirable, in the determination of the Agent, (i) to collect any and all amounts
or portions thereof due under any and all Receivables or Related Security,
including endorsing the name of the Borrower on checks and other instruments
representing Collections and enforcing such Receivables, Related Security and
the related Contracts and (ii) upon the occurrence and during the continuance of
a Termination Event, to exercise any and all of the Borrower's rights and
remedies under the Purchase Agreement and the Limited Guaranty. The Borrower's
conferring of powers upon the Agent under this Section 7.4(b) shall not subject
the Agent to any liability if any action taken by it shall prove to be
inadequate or invalid, nor shall they confer any obligations upon the Agent in
any manner whatsoever.
(c) Neither the Agent nor the Lenders shall have any obligation to take
any action or commence any proceedings to realize upon any Receivable (including
any Defaulted Receivables) or to enforce any of their respective rights, powers,
privileges or remedies with respect thereto.
Section 7.5. Responsibilities of the Borrower. (a) Anything herein to
the contrary notwithstanding, the Borrower shall, and shall cause each
Originator to, (i) perform all of its obligations under the Contracts related to
the Receivables to the same extent as if interests in such Receivables had not
been transferred hereunder and the exercise by the Agent or any Lender of its
rights hereunder shall not relieve the Borrower from such obligations, and (ii)
pay when due any and all Taxes, including any and all sales Taxes payable in
connection with the Receivables and their creation and satisfaction. The Agent
and the Lenders shall not have any obligation or liability with respect to any
Receivable, any Related Security or any related Contract, nor shall any of them
be obligated to perform any of the obligations of the Borrower under any of the
foregoing.
(b) The Borrower irrevocably agrees that if at any time it shall cease to
be the Collection Agent, it shall act (if the then current Collection Agent so
requests) as the data-processing agent of the Collection Agent and, in such
capacity, the Borrower shall conduct the data-processing functions of the
administration of the Receivables and the Collections in substantially the same
way that the Borrower conducted such data-processing functions while it acted as
the Collection Agent.
Section 7.6. Collection Agent Fee. On or prior to the twenty-fifth
(25th) day of each month, the Borrower shall pay to the Collection Agent the
Collection Agent Fee with respect to the immediately preceding month as
compensation for its services. The Collection Agent may apply only Collections
that are not part of the Secured Interest (or that have been reinvested pursuant
to Section 2.1(d)) to the payment of the Collection Agent Fee. The Agent may,
in its sole and absolute discretion with the prior written consent of the
Required Banks, Windmill and the Program LOC Provider, pay all or any portion of
the Collection Agent Fee to the Collection Agent from Collections that are part
of the Secured Interest. Any Collections so applied by the Agent pursuant to
the immediately preceding sentence shall not be distributed to the Lenders or to
any other Person pursuant to Section 3.3.
Section 7.7. Indemnities by the Collection Agent. Without limiting any
other rights any Person may have hereunder or under applicable law, the
Collection Agent hereby indemnifies and holds harmless the Agent and each Lender
and their respective officers, directors, agents and employees (each an
"Indemnified Party") from and against any and all damages, losses, claims,
liabilities, penalties, Taxes, costs and expenses (including attorneys' fees and
court costs) (all of the foregoing collectively, the "Indemnified Losses") at
any time imposed on or incurred by any Indemnified Party arising out of or
otherwise relating to:
(i) any written representation or warranty made by the Collection Agent
(or any employee or agent of the Collection Agent) in this Agreement, any other
Transaction Document, any Periodic Report or any other information or report
delivered by the Collection Agent pursuant hereto, which shall have been false
or incorrect in any material respect when made;
(ii) the failure by the Collection Agent to comply with any applicable law,
rule or regulation related to any Receivable, or the nonconformity of any
Receivable with any such applicable law, rule or regulation;
(iii) any loss of a perfected security interest (or in the priority of
such security interest) as a result of any commingling by the Collection Agent
of funds to which the Agent or any Lender is entitled hereunder with any other
funds; or
(iv) any failure of the Collection Agent, to perform its duties or
obligations in accordance with the provisions of this Agreement or any other
Transaction Document to which the Collection Agent is a party; whether arising
by reason of the acts to be performed by the Collection Agent hereunder or
otherwise, excluding only Indemnified Losses to the extent (a) such Indemnified
Losses resulted solely from negligence or willful misconduct of the Indemnified
Party seeking indemnification, (b) solely due to the credit risk of the Obligor
and for which reimbursement would constitute recourse to the Collection Agent
for uncollectible Receivables, (c) such Indemnified Losses include Taxes on, or
measured by, the overall net income of the Agent or any Lender computed in
accordance with the Intended Characterization, (d) the applicable Originator is
the plaintiff and the Indemnified Party is the defendant unless such Indemnified
Party prevails in such legal action or (e) such Indemnified Losses arise from
events occurring after another Person has been designated as a successor
Collection Agent; provided, however, that nothing contained in this sentence
shall limit the liability of the Collection Agent or limit the recourse of the
Agent and each Lender to the Collection Agent for any amounts otherwise
specifically provided to be paid by the Collection Agent hereunder.
Article VIII
Termination Events
Section 8.1. Termination Events. The occurrence of any one or more of
the following events shall constitute a Termination Event:
(a) (i) the Collection Agent (or any sub-collection agent) shall fail to
perform or observe any term, covenant or agreement hereunder (other than as
referred to in clause (ii) of this Section 8.1(a)) and such failure shall remain
unremedied for three (3) Business Days or (ii) either the Collection Agent or
the Borrower shall fail to make any payment or deposit to be made by it
hereunder when due; or
(b) the Borrower shall default in the observance or performance of any
agreement contained in Sections 5.2 or 6.2 or the Parent shall default in the
observance or performance of any financial covenant set forth in the Indemnity
Agreement; or
(c) any representation, warranty, certification or statement made by any
Borg-Warner Entity in this Agreement or in any other Transaction Document shall
prove to have been incorrect in any material respect when made or deemed made;
provided, however, that, with respect to any representation, warranty,
certification or statement made pursuant to Section 4.1(p) which shall prove to
have been incorrect in any material respect when made or deemed made, a
Termination Event shall only occur if such incorrect representation, warranty,
certification or statement remains incorrect for more than one (1) day; or
(d) any Borg-Warner Entity shall default in the performance of any
undertaking hereunder or under any other Transaction Document (other than those
covered by Section 7.1(a) or 7.1(b)) and such default shall continue for ten
(10) days; or
(e) failure of any Borg-Warner Entity or any of their respective
Subsidiaries to pay any Indebtedness when due (except for any such payments on
account of any such Indebtedness in any aggregate principal amount at any one
time outstanding of up to Ten Million Dollars ($10,000,000)); or the default by
any Borg-Warner Entity or any of their respective Subsidiaries in the
performance of any term, provision or condition contained in any agreement under
which any Indebtedness (except for any such Indebtedness in an aggregate
principal amount at any one time outstanding of up to Ten Million Dollars
($10,000,000)) was created or is governed, the effect of which is to cause such
Indebtedness to become due prior to its stated maturity; or any Indebtedness
shall be declared to be due and payable or required to be prepaid (other than by
a regularly scheduled payment) prior to the date of maturity thereof; or there
shall occur a default, termination event or similar event by or with respect to
any Borg-Warner Entity or any of their respective Subsidiaries under any
agreement providing for the sale, transfer or conveyance by any Borg-Warner
Entity or any of their respective Subsidiaries of any of its financial assets;
or
(f) (i) any Borg-Warner Entity or any of their respective Subsidiaries
shall make a general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against any Borg-Warner Entity or any of their
respective Subsidiaries seeking to adjudicate it bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee or other
similar official for it or any substantial part of its property which remains
unvacated or unstayed for a period of 30 days or (ii) any Borg-Warner Entity or
any of their respective Subsidiaries shall take any corporate action to
authorize any of the actions set forth in clause (i) above in this Section
8.1(f); or
(g) any Borg-Warner Entity or any of their respective Subsidiaries shall
generally not pay its debts as such debts become due or shall admit in writing
its inability to pay its debts generally; or
(h) the Delinquency Ratio at any time shall exceed six and one half
percent (6.5%), the Default Ratio at any time shall exceed four percent (4%), or
the Loss-to-Liquidation Ratio at the end of any calendar month measured for the
three (3) month period then ending shall exceed one percent (1%); or
(i) the product of the Secured Interest (expressed as a percentage)
multiplied by the Net Receivables Balance at any time shall fail to be greater
than or equal to the Coverage Amount at such time and such failure shall
continue for one (1) day after the Borrower has knowledge thereof; or
(j) there shall occur a material adverse change in the financial
condition, business, operations or prospects of the Parent and its Subsidiaries
taken as a whole or in the Borrower, or in the ability of any Borg-Warner Entity
to perform its obligations under any Transaction Document to which it is (or is
stated to be) a party, including, but not limited to, the collection of the
Receivables or in the collectibility of the Receivables; or
(k) any Borg-Warner Entity shall, directly or indirectly, disaffirm or
contest in any manner the effectiveness, validity, binding nature or
enforceability of any of the Transaction Documents, or any of the Transaction
Documents shall fail to be the binding and enforceable obligation of any Borg-
Warner Entity that is (or is stated to be) a party thereto; or
(l) the Parent shall cease to own or control, directly or indirectly, one
hundred percent (100%) of the issued and outstanding voting stock of the
Borrower and each Originator or the Parent shall enter into any agreement or
take any action that would result in such event; or
(m) individuals who constitute the board of directors of the Parent on the
Effective Date (or individuals whose election or nomination for election was
approved by a vote of at least seventy-five percent (75%) of the directors then
in office who either were directors on the Effective Date or whose election was
previously so approved) cease for any reason to constitute at least a majority
of the board of directors of the Parent at any time; or
(n) any Borg-Warner Entity shall (i) sell, convey, transfer or otherwise
dispose of all or any substantial part of its assets in a single transaction or
in a series of related transactions or (ii) enter into any transaction of merger
or consolidation (other than a merger or consolidation with respect to any
Originator in which such Originator is the surviving Person); or
(o) the financial condition of the Parent shall be materially different
than the most-recent written projections of the financial condition of the
Parent given by any Borg-Warner Entity to the Agent on or prior to the date
hereof; or
(p) there shall be any amendment to the certificate of incorporation of
the Borrower without the prior written consent of the Agent, the Program LOC
Provider and the Required Banks; or
(q) the Purchase Agreement shall fail to vest and maintain vested in the
Borrower a valid first priority perfected ownership interest in the receivables
(other than receivables the Obligor of which is a government or governmental
subdivision or agency to the extent that the transfer thereof requires
compliance with any federal laws of the USA) and other assets purported to be
sold thereunder; or
(r) this Agreement shall fail to vest and maintain vested in the Agent for
the benefit of the Lenders a valid first priority perfected interest in the
Secured Interest.
If (x) such event is a Termination Event described in Section 8.1(f) with
respect to any Borg-Warner Entity or any of their respective Subsidiaries, then
automatically all of the Bank Commitments to purchase Bank Interests shall
thereupon terminate without notice of any kind, which is hereby waived by the
Borrower, and (y) such event is any other Termination Event, then the Agent may,
and at the direction of the Required Banks or the Program LOC Provider shall, by
notice to the Borrower terminate all of the Bank Commitments to purchase Bank
Interests. Upon the termination of all of the Bank Commitments to purchase Bank
Interests, whether pursuant to this Article VIII or otherwise, and the
collection or other final resolution of the Secured Interest such that the
Aggregate Unpaids and the Loan Amount in respect of each Lender shall have been
reduced to zero, the Agent shall, at the expense of the Borrower, execute such
UCC termination statements and such other documents as the Borrower may
reasonably request to evidence the termination of the Secured Interest. It is
expressly understood that the termination of the Bank Commitments under this
Section 8.1 shall relate solely to the commitment of the Banks to make purchases
from the Borrower. No termination of the Bank Commitments under this Section
8.1 shall waive, release or otherwise affect the commitment of the Banks to make
purchases from Windmill under Article III.
Article IX
Indemnification
Section 9.1. Indemnities by the Borrower. Without limiting any other
rights that the Agent or any Lender may have hereunder or under applicable law,
the Borrower hereby agrees to indemnify the Agent and each Lender and its
respective officers, directors, agents and employees (each an "Indemnified
Party") from and against any and all damages, losses, claims, liabilities, costs
and expenses, including reasonable attorneys' fees (which such attorneys may be
employees of the Agent, any Lender, or any assignee, if any) and disbursements
(all of the foregoing being collectively referred to as "Indemnified Losses")
awarded against or incurred by any of them arising out of or as a result of this
Agreement or any other Transaction Document or the acquisition, either directly
or indirectly, by the Agent, for the benefit of the Lenders, of the Secured
Interest or in respect of any action taken by the Borrower or any Originator
(whether acting as Collection Agent or otherwise) relative to any Receivable,
excluding, however, (i) Indemnified Losses to the extent final judgment of a
court of competent jurisdiction holds such Indemnified Losses resulted solely
from gross negligence or willful misconduct on the part of the Indemnified Party
seeking indemnification or (ii) Indemnified Losses to the extent the same
include losses in respect of uncollectible Receivables solely due to the credit
risk of the Obligor and reimbursement therefor would constitute recourse to the
Borrower or the Collection Agent for the amount of uncollectible Receivables;
provided, however, that nothing contained in this sentence shall limit the
liability of the Borrower or the Collection Agent or limit the recourse of the
Agent and each Lender to the Borrower or the Collection Agent for any amounts
otherwise specifically provided to be paid by the Borrower or the Collection
Agent under the terms of this Agreement, including under the terms of the next
succeeding sentence. Without limiting the generality of the foregoing
indemnification, the Borrower shall indemnify the Agent and each Lender for
Indemnified Losses (including losses in respect of uncollectible Receivables,
regardless of whether reimbursement therefor would constitute recourse to the
Borrower or the Collection Agent) relating to or resulting from:
(a) the transfer to the Agent, for the benefit of the Lenders, of an
undivided percentage interest in any Receivable other than an Eligible
Receivable, if, on the date of the most recent transfer of any interest in a
Receivable or a transfer of an Interest from one Lender to another Lender, the
product of the Secured Interest multiplied by the Net Receivables Balance was
less than the Coverage Amount;
(b) any representation or warranty made by any Borg-Warner Entity or the
Collection Agent (or any officers of any Borg-Warner Entity or the Collection
Agent) under or in connection with any of the Transaction Documents, including
any Periodic Report or any other information or report delivered by any Borg-
Warner Entity or the Collection Agent pursuant hereto or thereto, that shall
have been false or incorrect in any material respect when made or deemed made;
(c) any alleged failure by the Borrower, the Collection Agent (if the
Collection Agent is the Borrower or any Affiliate of the Borrower), any
Originator or any other Person (acting for, on behalf of, or together with, the
Borrower or the Collection Agent (if the Collection Agent is the Borrower or any
Affiliate of the Borrower)) to comply with any applicable law, rule or
regulation with respect to any Receivable, or the collectability thereof, or any
Contract related thereto, or imposed by any governmental or regulatory body,
including any requirements of licensing, registration, authorizations, consents
and approvals necessary or desirable to enter into any Contract or create any
Receivable or the transfer to the Agent for the benefit of the Lenders hereunder
and including laws, rules and regulations relating to usury, disclosures, truth
in lending, fair credit billing, fair credit reporting, equal credit
opportunity, fair debt collection practices, trade practices, consumer
protection and privacy, or any of the foregoing which may affect the
enforceability of any Receivable, or the nonconformity of any Receivable or
Contract included therein or transfer to the Agent, for the benefit of the
Lenders, with any such applicable law, rule or regulation;
(d) the failure of the Borrower to vest and maintain vested in the Agent,
for the benefit of the Lenders, a perfected interest in the Secured Interest and
the property conveyed pursuant to Section 2.8, free and clear of any Adverse
Claim;
(e) the failure of the Borrower to vest and maintain vested in the Agent,
for the benefit of the Lenders, a perfected security interest in all of the
property listed in Sections 2.1(d) and 2.8, free and clear of any Adverse Claim;
(f) the failure of any Originator to vest and maintain vested in the
Borrower a perfected ownership interest in and to the Purchased Assets free and
clear of any Adverse Claim;
(g) the failure of the Borrower, the Collection Agent, any Originator or
any sub-collection agent to file, or any delay in filing, financing statements
or other similar instruments or documents under the UCC of any applicable
jurisdiction or other applicable laws with respect to the Filing Assets;
(h) any commingling of funds to which the Agent or any Lender is entitled
hereunder with any other funds;
(i) failure of any Lock-Box Bank to comply with the terms of the
applicable Lock-Box Letter;
(j) any dispute, claim, offset or defense (other than discharge in
bankruptcy of the Obligor) of the Obligor to the payment of any Receivable
included in the Affected Assets (including a defense based on such Receivable or
the Contract relating to such Receivable not being a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with its terms),
or any other claim resulting from the sale or lease of goods or the rendering of
services related to such Receivable or the furnishing or failure to furnish any
such goods or services;
(k) any failure of any Borg-Warner Entity to perform its duties or
obligations in accordance with the provisions of this Agreement and each of the
other Transaction Documents to which such Borg-Warner Entity is (or is stated to
be) a party;
(1) any action taken by the Agent as attorney-in-fact for the Borrower
pursuant to Section 7.4(b); or
(m) any environmental liability claim, products liability claim or
personal injury or property damage suit or other similar or related claim or
action of whatever sort, whether sounding in tort, contract or other legal
theory, arising out of or in connection with any Receivable or the Related
Security therefor or any other suit, claim or action of whatever sort relating
to any of the Transaction Documents; provided, however, that if any Lender
enters into agreements for the transfer of interests in receivables from one or
more other Persons ("Other Borrowers"), such Lender shall allocate such
Indemnified Losses that are attributable to the Borrower and to the Other
Borrowers to the Borrower and to each Other Borrower; and provided, further,
that if such Indemnified Losses are attributable to the Borrower and not
attributable to any Other Borrower, the Borrower shall be solely liable for such
Indemnified Losses, or if such Indemnified Losses are attributable to Other
Borrowers and not attributable to the Borrower, such Other Borrowers shall be
solely liable for such Indemnified Losses.
Section 9.2. Tax Indemnification and Characterization. (a) The Borrower
hereby agrees to pay, and to indemnify, protect, save and hold harmless, on an
after-Tax basis, the Agent and each Lender from and against any and all (i)
Taxes that may at any time be imposed or asserted by reason of, in connection
with or in respect of the Receivables or any transactions contemplated hereby or
by any of the Transaction Documents or the receipt of payment under this Section
9.2, whether imposed on the Agent, any Lender, the Borrower, the Receivables,
any other corporation or entity or otherwise, and whether arising by reason of
the acts to be performed by the Borrower hereunder or otherwise and (ii)
damages, losses, claims, liabilities and related costs and expenses of the Agent
and each Lender in connection with the imposition or assertion of any Tax
described in clause (i) above; provided, however, this Section 9.2(a) shall not
apply with respect to Taxes on or measured by the overall net income of the
Agent or any Lender ("Income Taxes") to the extent that the computation of such
Income Taxes is consistent with the Intended Characterization.
(b) In addition to and not in limitation of the indemnifications contained
in Section 9.2(a), the Borrower hereby agrees to pay to, and to indemnify,
protect, save and hold harmless, the Agent and each Lender, on an after-Tax
basis from and against, (i) the excess of (x) the aggregate state and local
Taxes on or measured by net income or profits (and Taxes in lieu thereof)
payable by the Agent and any Lender in connection with or in respect of the
Receivables or any transactions contemplated hereby or the receipt of payment
under this Section 9.2, over (y) the amount of such state and local Income Taxes
that would have been payable on the Agent's and any Lender's net income in
connection with or in respect of the Receivables or any transactions
contemplated hereby, had the entire amount of such income been subject to Tax in
the jurisdiction in which the Agent's and any Lender's respective principal
executive office is located, and only in such jurisdiction and (ii) any and all
damages, losses, claims, liabilities and related costs and expenses of the Agent
and each Lender in connection with clause (i) above.
(c) It is the intention of the parties hereto that for the purposes of all
Taxes, the transactions with respect to the Borrower, the Agent and the Lenders
contemplated hereby shall be treated as a loan by the Agent (on behalf of the
Lenders) or the Lenders to the Borrower that is secured by the Receivables (the
"Intended Characterization"). The parties hereby agree to report such
transactions for the purposes of all Taxes, and otherwise to act for the
purposes of all Taxes, in a manner consistent with the Intended
Characterization.
(d) All payments due pursuant to this Section 9.2 shall be paid no later
than ten (10) days after demand for such payment has been made by the Agent or
any Lender. Without in any way limiting the Agent's and any Lender's remedies,
any such amount not paid when due shall bear interest at a rate equal to the ABN
AMRO Prime Rate plus two percent (2%) per annum. Any claim that the Agent or
any Lender makes for payment pursuant to this Section 9.2 shall be accompanied
by a statement of the Agent's or such Lender's accountants which attests that
the claim has been computed in conformity with the requirements of this Section
9.2.
Section 9.3. Increased Cost and Reduced Return. (a) If after the date
hereof, the adoption of any applicable law, rule or regulation, or any change
therein, or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Windmill Funding
Source, the Agent or any Lender with any request or directive (whether or not
having the force of law) of any such Governmental Authority, central bank or
comparable agency (a "Regulatory Change"): (i) shall subject any Windmill
Funding Source, the Agent or any Lender to any charge or withholding on or with
respect to the applicable Funding Agreement or this Agreement in connection with
the Secured Interest or other property conveyed hereunder or funds advanced in
connection therewith, or such Person's obligations under the applicable Funding
Agreement or this Agreement, as the case may be, or shall change the basis of
taxation of payments to any Windmill Funding Source, the Agent or any Lender of
any amounts payable under the applicable Funding Agreement or this Agreement, as
the case may be (except for changes in the rate of Tax on the overall net income
of such Windmill Funding Source, the Agent or any Lender), (ii) shall impose,
modify or deem applicable any reserve, assessment, insurance charge, special
deposit or similar requirement against assets of, deposits with or for the
account of any Windmill Funding Source, the Agent or any Lender, or credit
extended by such Person or (iii) shall impose any other condition, and the
result of any of the foregoing is to impose a cost on or increase the cost to
any Windmill Funding Source, the Agent or any Lender of its commitment under the
applicable Funding Agreement or hereunder, as the case may be, or purchasing,
maintaining or funding of any property interests under the applicable Funding
Agreement or of the Secured Interest or other property interests hereunder, as
the case may be, or to reduce the amount of any sum received or receivable by
any Windmill Funding Source, the Agent or any Lender under this Agreement or
under the applicable Funding Agreement, as the case may be, or to require any
payment calculated by reference to the amount of interests or loans held or
interest received by it, then, upon demand by the Agent or any Lender, the
Borrower shall pay to the Agent or such Lender such additional amount or amounts
as will compensate the Agent or such Lender for such increased cost or reduction
or, in the case of Windmill, will enable Windmill to compensate any Windmill
Funding Source for such increased cost or reduction.
(b) If after the date hereof, any Windmill Funding Source, the Agent or
any Lender shall have determined that any Regulatory Change, including any such
Regulatory Change that results in or results from or otherwise relates to any
transaction in connection with any Funding Agreement or this Agreement or any
commitment thereunder or hereunder being classified as a highly leveraged
transaction for regulatory or other purposes, has or would have the effect of
reducing the rate of return on such Windmill Funding Source's, the Agent's or
such Lender's capital as a consequence of such Windmill Funding Source's, the
Agent's or such Lender's obligations or commitment under the applicable Funding
Agreement or this Agreement, to a level below that which such Windmill Funding
Source, the Agent or such Lender could have achieved but for such Regulatory
Change (taking into consideration such Windmill Funding Source's, the Agent's or
such Lender's policies with respect to capital adequacy), then from time to
time, upon demand by the Agent or any Lender, the Borrower shall pay to the
Agent or such Lender such additional amount or amounts as will compensate the
Agent or such Lender for such reduction or, in the case of Windmill, will enable
Windmill to compensate any Windmill Funding Source for such reduction.
(c) Anything in this Section 9.3 to the contrary notwithstanding, if the
Agent or any Lender enters into agreements with Other Borrowers, the Agent (upon
consultation with any applicable Lender) shall allocate the liability for any
amounts under this Section 9.3 ("Section 9.3 Costs") to the Borrower and to each
Other Borrower; provided, however, that if such Section 9.3 Costs are
attributable to the Borrower and not attributable to any Other Borrower, the
Borrower shall be solely liable for such Section 9.3 Costs or if such Section
9.3 Costs are attributable to Other Borrowers and not attributable to the
Borrower, such Other Borrowers shall be solely liable for such Section 9.3
Costs.
Section 9.4. Other Costs and Expenses. The Borrower shall pay to the
Agent and Windmill on demand all costs and expenses in connection with the
preparation, execution, delivery and administration of this Agreement and the
other Transaction Documents, including reasonable fees and out-of-pocket
expenses of legal counsel for the Agent and Windmill (which such counsel may be
employees of the Agent or Windmill) with respect thereto and with respect to
advising the Agent, Windmill and any financial institution providing funding to
Windmill as to its rights and remedies under this Agreement, any other
Transaction Document or any related funding agreement and all costs and
expenses, if any, including reasonable counsel fees and expenses of the Agent,
each Lender and each such financial institution in connection with the
enforcement of this Agreement, the other Transaction Documents and any such
funding agreement and in connection with any restructuring or workout of this
Agreement or such other Transaction Documents or the administration of this
Agreement and the other Transaction Documents following a Termination Event;
provided, however, that the Borrower shall have no obligation to pay any such
amounts to the extent such amounts are expressly stated in the Fee Letter not to
be payable by the Borrower. The Borrower shall reimburse the Agent for the cost
of the Agent's auditors (which such auditors may be employees of the Agent)
auditing the books, records and procedures of the Borrower. The Borrower shall
reimburse Windmill for any amounts Windmill must pay to any Windmill Funding
Source pursuant to any Funding Agreement on account of any Tax described in
Section 9.2 and applicable to such Windmill Funding Source. The Borrower shall
reimburse Windmill on demand for any and all issuing and paying agents' agent
fees and rating agency fees and commissions of placement agents and commercial
paper dealers in respect of commercial paper notes issued by Windmill to fund
any CP Tranche hereunder. The Borrower shall reimburse Windmill on demand for
all other reasonable costs and expenses incurred by Windmill or any shareholder
of Windmill ("Other Costs") including the cost of auditing Windmill's books by
certified public accountants, the cost of the Ratings, and the reasonable fees
and out-of-pocket expenses of counsel for Windmill or any counsel for any
shareholder of Windmill with respect to advising Windmill or such shareholder as
to matters relating to Windmill's operation; provided, however, that if Windmill
enters into agreement with Other Borrowers, Windmill shall allocate the
liability for such Other Costs to the Borrower and to each Other Borrower; and
provided, further, that if such Other Costs are attributable to the Borrower and
not attributable to any Other Borrower, the Borrower shall be solely liable for
such Other Costs, or if such Other Costs are attributable to Other Borrowers and
not attributable to the Borrower, such Other Borrowers shall be solely liable
for such Other Costs.
Section 9.5. Withholding Taxes. (a) All payments made by the Borrower
under this Agreement shall be made free and clear of, and without reduction or
withholding for or on account of, any present or future Taxes, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental Authority
or other taxing authority excluding, in the case of the Agent and each Lender,
net income taxes imposed on the Agent or such Lender by the jurisdiction under
the laws of which the Agent or such Lender is organized or any political
subdivision or taxing authority thereof or therein (such non-excluded Taxes
being hereinafter called "Non-Excluded Taxes"). If any Non-Excluded Taxes are
required to be withheld from any amounts payable to the Agent or any Lender
hereunder, the amounts so payable to the Agent or such Lender shall be increased
to the extent necessary to yield to the Agent or such Lender (after payment of
all Taxes) all such amounts payable hereunder at the rates or in the amounts
specified in this Agreement. Whenever any NonExcluded Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to the
Agent for its own account or for the account of such Lender, as the case may be,
a certified copy of an original official receipt received by the Borrower
showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes
when due to the appropriate taxing authority or fails to remit to the Agent the
required documentary evidence, the Borrower shall indemnify the Agent and the
Lenders for such Non-Excluded Taxes and any incremental Taxes that may become
payable by the Agent or any Lender as a result of any such failure. The
agreements in this Section 9.5(a) shall survive the termination of this
Agreement.
(b) At least five (5) Business Days prior to the first (1st) date on which
any payments, including Interest or fees, are payable under this Agreement for
the account of any Lender, each Lender (including each Purchasing Bank that
becomes party to this Agreement pursuant to Section 11.6(c)) that is not
incorporated under the laws of the United states of America, or a state thereof,
agrees that it will deliver to each of the Borrower and the Agent two (2) duly
completed copies of (i) United States Internal Revenue Service Form 1001 or
4224, certifying in either case that such Lender is entitled to receive payments
under this Agreement without deduction or withholding of any United States
federal income taxes, and (ii) United States Internal Revenue Service Form W-8
or W-9 or successor applicable form, as the case may be, to establish an
exemption from United States backup withholding tax. Each Lender which so
delivers a Form 1001 or 4224 and Form W-8 or W-9 further undertakes to deliver
to each of the Borrower and the Agent two (2) additional copies of such form (or
a successor form) on or before the date that such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent forms so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by the Borrower or the Agent, in
each case certifying that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes, unless an event (including any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender advises the Borrower and the Agent that it is not capable of
receiving payments without any deduction or withholding of United States federal
income tax, and in the case of Form W-8 or W-9, establish an exemption from
United States backup withholding tax. If a Lender that is not incorporated
under the laws of the United States of America, or a state thereof, does not
deliver the forms described in this Section 9.5(b), the Borrower or the Agent
shall withhold United States federal income taxes from any payments made under
this Agreement at the applicable statutory rate. Each Lender agrees to
indemnify and hold the Borrower and the Agent harmless for any United States
federal income taxes, penalties, interest and other costs and losses incurred or
payable by the Borrower or the Agent as a result of either (i) such Lender's
failure to submit any form that it is required to provide pursuant to this
Section 9.5(b) or (ii) the Borrower's or Agent's reliance on any such form that
such Lender has provided pursuant to this Section 9.5(b).
Section 9.6. Allocations. All allocations to be made pursuant to the
foregoing provisions of this Article IX shall be made by the Agent in its
reasonable discretion and shall be binding on the Borrower and each Lender.
Upon the reasonable request of the Borrower, the Agent shall provide the
Borrower with the basis of any calculations made pursuant to the foregoing
provisions of this Article IX (or, to the extent that the Agent determines in
its sole discretion that such calculations do not contain proprietary
information, such calculations) which, in the absence of manifest error, shall
be conclusive and binding for all purposes.
Article X
The Agent
Section 10.1. Appointment. Each Lender hereby irrevocably designates and
appoints ABN AMRO Bank N.V. as Agent hereunder, and authorizes the Agent to take
such action on its behalf under the provisions of this Agreement and to exercise
such powers and perform such duties as are expressly delegated to the Agent by
the terms of this Agreement, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Agent shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities on the part of the Agent shall be read into this Agreement or
otherwise exist against the Agent. The provisions of this Article X are solely
for the benefit of the Agent and the Lenders and the Borrower shall not have any
rights as a third-party beneficiary or otherwise under this Article X. In
performing its functions and duties, the Agent shall act solely as the agent of
the Lenders and does not assume nor shall be deemed to have assumed any
obligation or relationship of trust or agency with or for the Borrower or any of
its respective successors and assigns. The Agent shall not be required to
expend its funds if repayment or adequate indemnity is not assured to it under
terms and conditions acceptable to the Agent. The Agent shall hold that portion
of the Secured Interest consisting of the Interest of a Lender for the benefit
of such Lender.
Section 10.2. Delegation of Duties. The Agent may execute any of its
duties under this Agreement by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or misconduct of
any agents or attorneys-in-fact selected by it with reasonable care.
Section 10.3. Exculpatory Provisions. Neither the Agent nor any of its
directors, officers, agents or employees shall be (i) liable for any action
lawfully taken or omitted to be taken by it or them or any Person described in
Section 10.2 under, or in connection with, this Agreement (except for its, their
or such Person's own gross negligence or willful misconduct), or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower contained in this Agreement,
any other Transaction Document or in any certificate, report, statement or other
document referred to or provided for in, or received under or in connection
with, this Agreement or any other Transaction Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement, any other Transaction Document or any other document furnished in
connection herewith or for any failure of the Borrower to perform its
obligations or for the satisfaction of any condition specified in Article V,
except receipt of items required to be delivered to the Agent. The Agent shall
not be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements or covenants contained in, or
conditions of, this Agreement, or to inspect the properties, books or records of
the Borrower. This Section 10.3 is intended solely to govern the relationship
between the Agent, on the one hand, and the Lenders, on the other.
Section 10.4. Reliance by Agent. The Agent shall in all cases be entitled
to rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, facsimile, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person and upon advice and
statements of legal counsel (including counsel to the Borrower), independent
accountants and other experts selected by the Agent. The Agent shall in all
cases be fully justified in failing or refusing to take any action under this
Agreement or any other document furnished in connection herewith unless it shall
first receive such advice or concurrence of Windmill, the Program LOC Provider,
any Bank, the Required Banks or all of the Lenders, as applicable, as it deems
appropriate or it shall first be indemnified to its satisfaction by the Program
LOC Provider and the Banks against any and all liability, cost and expense which
may be incurred by it by reason of taking or continuing to take any such action
(excluding any such liability, cost or expense which shall have been incurred by
the Agent as a result of its own gross negligence or willful misconduct in the
taking of any such action). The Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement in accordance with a
request of Windmill, any Bank, the Program LOC Provider, the Required Banks or
all of the Lenders, as applicable, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders.
Section 10.5. Notice of Termination. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Termination Event or Potential
Termination Event unless the Agent has received notice from any Lender or the
Borrower referring to this Agreement, stating that a Termination Event or
Potential Termination Event has occurred hereunder and describing such
Termination Event or Potential Termination Event. In the event that the Agent
receives such a notice, the Agent shall promptly give notice thereof to each
Lender and at all times prior to the Windmill Termination Date and thereafter
until the Windmill Interest is reduced to zero, to each CP Dealer and each
Rating Agency. The Agent shall take such action with respect to such
Termination Event or Potential Termination Event as shall be directed by
Windmill, the Program LOC Provider and the Required Banks (or, if applicable,
all of the Lenders); provided, however, that unless and until the Agent shall
have received such directions, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Termination Event or Potential Termination Event as the Agent shall deem
advisable and in the best interests of the Lenders.
Section 10.6. Non-Reliance on Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Agent, nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates has made any
representations or warranties to it and that no act by the Agent hereafter
taken, including any review of the affairs of the Borrower, shall be deemed to
constitute any representation or warranty by the Agent. Each Lender represents
and warrants to the Agent that it has, independently and without reliance upon
the Agent or any other Lender and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, prospects, financial and other conditions and
creditworthiness of the Borrower, the other Borg-Warner Entities and the
Affected Assets and made its own decision to enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under any Transaction
Document, and to make such investigation as it deems necessary to inform itself
as to the business, operations, property, prospects, financial and other
condition and creditworthiness of the Borg-Warner Entities. The Agent shall not
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, prospects, financial
and other condition or creditworthiness of the Borrower or any other Person
which may come into the possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates other than the
Periodic Reports provided by the Borrower or the Collection Agent, information
received by the Agent pursuant to Section 6.1(a) or 6.1(b) and such additional
information as a Lender may reasonably request and which the Agent has obtained
on any inspection conducted under Section 6.1(e).
Section 10.7. Indemnification. The Program LOC Provider and the Banks
agree to indemnify, defend, protect, save and hold harmless the Agent and its
officers, directors, employees, representatives and agents (to the extent not
reimbursed by the Borrower and without limiting the obligation of the Borrower),
ratably according to the percentage its Program LOC Provider Commitment or Bank
Commitment is of the Aggregate Commitment, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, court costs, settlements, expenses or disbursements of any kind or nature
whatsoever (including the fees and disbursements of counsel for the Agent or
such Person in connection with any investigative, administrative or judicial
proceeding commenced or threatened, whether or not the Agent or such Person
shall be designated a party thereto, which counsel may include employees of the
Agent or such Person) that may at any time be imposed on, incurred by or
asserted against the Agent or such Person as a result of, or arising out of, or
in any way related to or by reason of, any of the transactions contemplated
under any of the Transaction Documents or the execution, delivery or performance
of the Transaction Documents or any other document furnished in connection
herewith (but excluding any such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, court costs, settlements, expenses
or disbursements resulting solely from the gross negligence or willful
misconduct of the Agent or such Person as finally determined by a court of
competent jurisdiction). The obligations of the Banks and the Program LOC
Provider under this Section 10.7 shall survive the termination of this
Agreement.
Section 10.8. Agent in Its Individual Capacity. The Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Borrower or any Affiliate of the Borrower as though
the Agent were not the Agent. With respect to the acquisition of the Secured
Interest, the Agent shall have the same rights and powers under this Agreement
as any Bank and the Program LOC Provider, as the case may be, and may exercise
the same as though it were not the Agent, and the terms Bank, Program LOC
Provider and Lender (as the case may be) shall include the Agent in its
individual capacity. Moreover, the Agent, in its capacity as Agent, shall be
considered a Lender for all purposes and benefits hereunder to the extent that
it has advanced funds pursuant to Article II on behalf of any Lender and has not
been reimbursed therefor by the Borrower or such Lender.
Section 10.9. Successor Agent. The Agent may, upon at least five (5) days
written notice to the Borrower and each of the Lenders, and the Agent will, upon
the direction of all of the Lenders (for purposes of this reference to Lenders,
Lenders shall not include the Agent, in its individual capacity, nor any Lender
that is an Affiliate of the then Agent) and with the consent of the Borrower
(which consent shall not be unreasonably withheld) resign as Agent; provided,
however, that the resignation of the Agent may not become effective until a
successor agent is appointed and has succeeded to the rights, powers and duties
of the Agent as provided in this Section 10.9. If the Agent shall resign as
Agent, then Windmill, the Program LOC Provider and the Required Banks, during
such notice period, shall, with the consent of the Borrower (which consent shall
be unreasonably withheld), appoint from among the Program LOC Provider and the
Banks a successor agent, whereupon such successor agent shall succeed to the
rights, powers and duties of the Agent and the term "Agent" shall mean such
successor agent, effective upon its appointment, and the former Agent's rights,
powers and duties as Agent shall be terminated, without any other or further act
or deed on the part of such former Agent or any of the parties to this
Agreement. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article X and Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent.
Section 10.10. ABN AMRO Conflict Waiver. ABN AMRO, as agent for Windmill
and subagent of the Management Company, acts as Administrator for Windmill, acts
as the Program LOC Provider, acts as Referral Agent, provides other backup
credit facilities for Windmill, and may provide other services or facilities
from time to time (the "ABN AMRO Roles "). Without limiting the generality of
Section 10.8, each Lender acknowledges and consents to any and all ABN AMRO
Roles, waives any objections it may have to any actual or potential conflict of
interest caused by ABN AMRO's acting as Agent and acting as or maintaining any
of the ABN AMRO Roles, and agrees that in connection with any ABN AMRO Role, ABN
AMRO may take, or refrain from taking, any action which it in its discretion
deems appropriate, including in its role as administrative agent for Windmill
the giving of notice to the Agent of mandatory or voluntary purchases pursuant
to Article III. Nothing contained in this Article X shall limit or alter the
duties and obligations that ABN AMRO otherwise owes to Windmill in its role as
agent for Windmill under any other agreement or arrangement.
Section 10.11. Certain Actions. Upon the direction of Windmill (at any
time the Windmill Loan Amount is greater than zero), the Program LOC Provider or
the Required Banks, the Agent shall make or give any requests, designations,
instructions, directions or notices or exercise any other rights it is otherwise
entitled to make, give or exercise; provided, however, that the Agent, unless it
has obtained the written consent of the Program LOC Provider and the Required
Banks, shall not give its consent under Section 6.1, 4.1(i) or 6.2(b). Upon the
request of any Lender, the Agent shall (i) request information pursuant to
Section 6.1(a) or 6.1(e) and (ii) exercise the rights described in Section
6.1(e) (and give any notice required to exercise the same). Following a
Termination Event, the Agent promptly shall give a written notice to the
Borrower specifying the Bank Termination Date if requested to do so by the
Required Banks, whereupon the Bank Commitments shall terminate. Promptly upon
receipt of any notice or information received by the Agent pursuant to Section
6.1(b) or 6.1(e), the Agent will deliver copies thereof to each of the Lenders
and at all times prior to the Windmill Termination Date and at all times
thereafter until the Windmill Interest is reduced to zero, to each CP Dealer and
each Rating Agency.
Article XI
Miscellaneous
Section 11.1. Term of Agreement. Windmill shall cease to be a party to
this Agreement on the first (1st) Business Day following the Windmill
Termination Date on which the Matured Value of the Windmill Loan Amount has been
reduced to zero and all Aggregate Unpaids payable to Windmill have been paid in
full. This Agreement shall terminate following the Loan Amortization Date when
all amounts payable hereunder have been indefeasibly paid in full.
Notwithstanding the foregoing, (i) the rights and remedies of the Agent and each
Lender with respect to any representation and warranty made, or deemed to be
made, by the Borrower, (ii) the indemnification and payment provisions of
Article IX and Article X, and (iii) any other provision which by its own terms
survives the termination of this Agreement (including Sections 11.11, 11.16,
11.17 and 11.18), shall be continuing and shall survive any termination of this
Agreement.
Section 11.2. Waivers; Amendments. (a) No failure or delay on the part of
the Agent or any Lender in exercising any power, right, privilege or remedy
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right, privilege or remedy preclude any
other or further exercise thereof or the exercise of any other power, right,
privilege or remedy. The rights, powers, privileges and remedies herein
provided shall be cumulative and not exclusive of any rights, powers, privileges
or remedies provided by law. Any waiver of this Agreement shall be effective
only in the specific instance and for the specific purpose for which given.
(b) This Agreement may not be amended, supplemented, modified or waived
except in accordance with the provisions of Section 11.2(b), 11.6(c), 11.6(e) or
11.6(f). No amendment, supplement or other modification to this Agreement shall
be effective unless the Borrower, the Required Banks and the Program LOC
Provider are parties thereto and it is signed by the other required parties.
Notwithstanding the foregoing, no amendment, supplement, modification or waiver
shall without the written consent of: (i) all the Banks, (A) extend the Bank
Termination Date, the Program LOC Provider Termination Date or the date of any
payment or deposit of Collections by the Borrower to the Collection Agent or by
the Collection Agent to the Agent for the benefit of the Lenders, (B) reduce the
rate or extend the time of payment of Interest (or any component thereof) for
any Tranche other than a CP Tranche, (C) reduce or extend the time of payment of
any fee payable to the Agent for the benefit of the Lenders, (D) release or
transfer all or any portion of, or otherwise change (other than as provided
herein) the amount of, the Bank Interest or the Program LOC Provider Interest,
(E) change the amount of any Bank Commitment or the Program LOC Provider
Commitment or increase the Aggregate Commitment, other than as provided herein,
(F) amend, modify or waive any provision of the definition of Required Banks or
Termination Event or Sections 2.1, 5.2, 9.1, 9.2, 9.3 or 11.2(b) or any
provision of the Indemnity Agreement or any obligation of any Borg-Warner Entity
thereunder, (G) consent to or permit the assignment or transfer by the Borrower
of any of its rights and obligations under this Agreement or of any of its
right, title or interest in or to the Receivables, (H) amend, modify or waive
any defined term (or any defined term used directly or indirectly in such
defined term) used in clauses (A) through (G) above in a manner which would
circumvent the intention of the restrictions set forth in such clauses; or (ii)
the Agent, amend, modify or waive any provision of this Agreement if the effect
thereof is to affect the indemnities to, or the rights or duties of, such Agent
or reduce any fee payable to the Agent's own account; or (iii) Windmill, amend,
supplement or otherwise modify (A) Sections 11.2(b)(iii), or 11.3 or Articles II
or IX or (B) any other provision if the effect of such modification in such
other provision shall be to limit the discretion of, or impose any new
commitment or obligation on, Windmill. Notwithstanding the foregoing, without
the prior consent of the Program LOC Provider or any of the Banks (but only with
the prior written consent of the Borrower), the Agent or Windmill, as the case
may be, may change the amount of any fee or other payment due and payable to
either the Agent (solely in its capacity as Agent) or Windmill, as the case may
be, from the Borrower under this Agreement, the Fee Letter or any other
agreement in connection herewith or therewith. Windmill shall not knowingly
issue any waiver of any condition precedent set forth in Article V in respect of
any purchase then being made by it without the prior written consent of the
Required Banks and the Program LOC Provider. Any amendment, supplement,
modification or waiver entered into in accordance with this Section 11.2(b)
shall apply to each of the Lenders equally and shall be binding upon the
Borrower, the Lenders and the Agent. In the case of any waiver, the Borrower,
the Lenders and the Agent shall be restored to their former position and rights
and any Potential Termination Event or Termination Event waived shall be deemed
to be cured and not continuing, but no such waiver shall extend to any
subsequent or other Potential Termination Event or Termination Event, or impair
any right consequent upon such subsequent or other Potential Termination Event
or Termination Event. Notwithstanding the foregoing, any additional Interest
that has accrued after a Termination Event prior to the execution of a waiver
thereof, solely as a result of the occurrence of such Termination Event, may be
waived by the Agent at the direction of Windmill or the Program LOC Provider or
the Required Banks (in each case, to the extent such additional Interest is
payable to such Lender or the Banks, as the case may be). Notwithstanding the
foregoing, at all times prior to the Windmill Termination Date and thereafter
until the Windmill Interest is reduced to zero, no (a) material amendment,
waiver, alteration, modification or supplement of or to any provision of this
Agreement, (b) assignment contemplated by Section 11.6, or (c) termination,
resignation or removal contemplated by Article V, Section 11.1 or Article X
shall be effective unless a written statement is obtained from each Rating
Agency that the Rating will not be downgraded or withdrawn or suspended as a
result of such amendment, waiver, alteration, modification, supplement,
assignment, termination, resignation or removal. At all times prior to the
Windmill Termination Date and thereafter until the Windmill Interest is reduced
to zero, Windmill shall provide each CP Dealer and each Rating Agency with at
least ten (10) Business Days prior notice of each event described in clauses
(a), (b) and (c) of the prior sentence, together with a copy of the form of the
proposed amendment, waiver, alteration, modification or supplement (other than
the Fee Letter).
Section 11.3. Notices. Except as provided below, all communications,
demands and notices provided for hereunder shall be in writing (including bank
wire, telex, telecopy or electronic facsimile transmission or similar writing)
and shall be given to each other party at its address, telecopy number or telex
number set forth on the signature page hereof or at such other address, telecopy
number or telex number as such party may hereafter specify for the purposes of
notice to such party. Each such notice or other communication shall be
effective (i) if given by telecopy, upon the receipt thereof, (ii) if given by
telex, when such telex is transmitted to the telex number specified in this
Section 11.3 and the appropriate answerback is received, (iii) if given by mail,
three (3) Business Days after the time such communication is deposited in the
mails with first-class postage prepaid or (iv) if given by any other means, when
received at the address specified in this Section 11.3; provided, however, that,
in the case of any notice to be given under Article III, such notice shall not
be effective until receipt thereof by the Person to whom such notice is to be
given. However, anything in this Section 11.3 to the contrary notwithstanding,
the Borrower hereby authorizes the Agent to effect Loans, Payments and Tranche
Period and Tranche Rate selections based on telephonic notices made by any
Person which the Agent in good faith believes to be acting on behalf of the
Borrower. The Borrower agrees to deliver promptly to the Agent a written
confirmation of each telephonic notice signed by an authorized officer of the
Borrower. However, anything in this Section 11.3 to the contrary
notwithstanding, each Lender hereby authorizes the Agent to effect the purchases
described in Article II based on telephonic notices made by any Person which the
Agent in good faith believes to be acting on behalf of the Lenders. The
Borrower and each of the Lenders hereby authorize the Agent, at the Agent's
option, to tape record all or any part of telephonic notices and any other
related conversations. The Agent's records as to all such matters shall be
deemed correct. Each Lender agrees to deliver promptly to the Agent a written
confirmation of each telephonic notice signed by an authorized office of said
Lender. The absence of any written confirmation shall not affect the validity
of the notice. If the written confirmation differs in any material respect from
the action taken by the Agent, the records of the Agent shall govern absent
manifest error.
Section 11.4. Governing Law; Submission to Jurisdiction; Integration.
This Agreement shall be governed by and construed in accordance with the
internal laws (and not the law of conflicts) of the State of Illinois. Each
Person party hereto hereby submits to the nonexclusive jurisdiction of any
United States District Court for the Northern District of Illinois and of any
Illinois state court sitting in Chicago, Illinois for purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. Each Person party hereto hereby irrevocably waives, to the
fullest extent it may effectively do so, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
Section 11.5. Severability; Counterparts. Any provisions of this
Agreement which are prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. This Agreement
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
Agreement.
Section 11.6. Successors and Assigns; Participations; Assignments. (a)
Successors and Assigns. This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns,
provided, however, that, except as otherwise provided herein, the Borrower may
not assign or transfer any of its rights or delegate any of its duties without
the prior written consent of the Agent and all the Lenders. The Banks and the
Program LOC Provider may not participate, assign, transfer or sell any of its
Bank Commitment or Program LOC Provider Commitment, as the case may be, except
as required by operation of law, in connection with the merger, consolidation or
dissolution of such Person or as provided in this Section 11.6.
(b) Participations. Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time sell to one or more
Persons (each a "Participant") participating interests in the interests of such
Lender hereunder. Notwithstanding any such sale by a Lender of participating
interests to a Participant, such Lender's rights and obligations under this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, and the Borrower and the Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. The Borrower hereby agrees that if
any of the Aggregate Unpaids are due and unpaid, or shall have been declared or
shall have become due and payable upon the occurrence and during the continuance
of a Termination Event, each Participant shall be deemed to have the right of
setoff in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement; provided, however, that
such right of setoff shall be subject to the obligations of such Participant to
share with the Lenders, and the Lenders agree to share with such Participant.
The Borrower also agrees that each Participant shall be entitled to the benefits
of Article IX. Each Lender agrees that any agreement between such Lender and
any such Participant in respect of such participating interest shall not
restrict such Lender's right to agree to any amendment, supplement, waiver or
modification to this Agreement, except for any amendment, supplement, waiver or
modification described in subclauses (A), (B), (C), (D), (F), (G) or (H) of
clause (i) in the third sentence of Section 11.2(b).
(c) Assignments to Purchasing Banks. Any Bank may at any time and from
time to time, (i) without the consent of the Borrower or the Agent, to any
Person that at such time is a Lender or that is an Affiliate of such Lender and
(ii) with the prior written consent of the Borrower, which consent shall not be
unreasonably withheld, and the prior written consent of the Agent, assign to one
or more Persons ("Purchasing Banks") all or any part of its Bank Commitment and
all or any portion of the Bank Interest of such Bank relating to such Bank
Commitment pursuant to a supplement to this Agreement, substantially in the form
of Exhibit M with any changes as have been approved by the parties thereto (a
"Loans Supplement"), executed by such Purchasing Bank, such selling Bank and the
Agent. If required in connection with the maintenance of the Rating, each such
Loans Supplement must be accompanied by an opinion of counsel of the Purchasing
Bank as to such matters as Windmill and the Agent may reasonably request. Any
such assignment of the Bank Commitment cannot be for an amount less than Five
Million Dollars ($5,000,000). Such Purchasing Bank must be a depository
institution organized under the laws of a country (each an "OECD Country") which
is a full member of the Organization of Economic Cooperation and Development, or
which has concluded special lending arrangements with the International Monetary
Fund (the "IMF") associated with the IMF's General Arrangements to Borrow. Each
such Purchasing Bank shall pay a fee of Two Thousand Five Hundred Dollars
($2,500) to the Agent. Any such partial assignment shall be an assignment of an
identical percentage of such selling Bank's Interest and its Bank Commitment.
Upon (i) such execution of such Loans Supplement, (ii) delivery of an executed
copy thereof to the Borrower and the Agent and (iii) payment by such Purchasing
Bank to such selling Bank of an amount equal to the purchase price agreed
between such selling Bank and such Purchasing Bank, such selling Bank shall be
released from its obligations hereunder to the extent of such assignment and
such Purchasing Bank shall for all purposes be a Bank party to this Agreement
and shall have all the rights and obligations of a Bank under this Agreement to
the same extent as if it were an original party hereto, and no further consent
or action by the Borrower, the Lenders or the Agent shall be required. The
amount of the Bank Interest allocable to such Purchasing Bank shall be equal to
the amount of the Bank Interest transferred regardless of the purchase price
paid therefor. Such Loans Supplement shall be an amendment of this Agreement to
the extent, and only to the extent, necessary to reflect the addition of such
Purchasing Bank as a Bank and the resulting adjustment of the Bank Commitments,
if any, arising from the purchase by such Purchasing Bank of all or a portion of
the Bank Commitment of such selling Bank.
(d) Affected Bank. In the event that any Bank or the Program LOC Provider
shall cease to have a short-term debt rating of A-1+ or better by S&P and P-1 or
better by Moody's (an "Affected Bank"), Windmill may direct the Agent to obtain
a replacement Bank (a "Replacement Bank") or a replacement Program LOC Provider
(as the case may be) acceptable to Windmill for such Affected Bank. Upon notice
to an Affected Bank by the Agent of the identification of a Replacement Bank
willing to accept such assignment, the Affected Bank shall promptly assign all
of its rights and obligations hereunder to such Replacement Bank in accordance
with Section 11.6(c) or 11.6(f), as the case may be.
(e) Windmill. (i) General. Windmill may assign, participate, grant
security interests in, or otherwise transfer all or any portion of its
beneficial interest in the Windmill Interest, including any such transfer
pursuant to Article III. The Borrower, the Agent, the Program LOC Provider and
each of the Banks further agree and consent to the complete assignment by
Windmill of all of its rights under, interest in, title to and obligations under
this Agreement to ABN AMRO or any other Person, and upon such assignment
Windmill shall be released from all obligations and duties under this Agreement.
(ii) Assignment. Except as provided in Article III and 11.6(e)(i),
Windmill may, without the consent of the Borrower, assign to any other Person
all or any portion of the Windmill Interest. As between Windmill and any such
assignee, each such assignment shall be upon such terms and conditions as
Windmill and such assignee may mutually agree. Windmill may not, without the
prior written consent of the Required Banks and the Program LOC Provider,
transfer any of its rights under Article III to cause the Banks or the Program
LOC Provider to purchase the Windmill Interest unless the Lender (A) is a
corporation the principal business of which is the purchase of assets of a type
like the receivables with the proceeds of commercial paper issued by such
corporation, (B) has requested that ABN AMRO agree, and ABN AMRO has agreed, to
act as the administrative agent therefor and (C) issues commercial paper with
credit ratings assigned by nationally recognized rating agencies in respect
thereof which are substantially comparable to the ratings assigned by such
rating agencies to the commercial paper issued by Windmill. Windmill shall
deliver to the assignee a supplement to this Agreement, substantially in the
form of Exhibit O with any changes as have been approved by the parties thereto
(also, a "Loans Supplement"), duly executed by Windmill, assigning any such
Windmill Interest, or portion thereof, to the assignee, and Windmill shall
promptly execute and deliver all further instruments and documents, and take all
further action, that the assignee may reasonably request, in order to perfect,
protect or more fully evidence the assignee's right, title and interest in and
to such Windmill Interest (or portion thereof) and to enable the assignee to
exercise or enforce any rights hereunder. Upon the assignment of any Windmill
Interest (or portion thereof) from Windmill as described above, the respective
assignee receiving such assignment shall have all of the rights of Windmill
hereunder with respect to such Windmill Interest, except that the Interest
therefor shall thereafter accrue at the rate, or shall be in the amount,
determined in accordance with Article II unless the Borrower and the assignee
shall have agreed in writing upon a different Interest. Windmill shall promptly
notify the Agent of any such assignment by Windmill and the Agent shall in turn
give prompt notice thereof to the Borrower. Windmill authorizes the Agent to,
and the Agent agrees that it shall, enter an appropriate entry on the Register
to reflect any assignments.
(f) Assignments to Successor Program LOC Provider. The Program LOC
Provider may at any time and from time to time, upon the prior written consent
of the Borrower, which consent shall not be unreasonably withheld, the Agent and
all of the Banks and the Agent's receipt of written confirmation from each
Rating Agency that its Rating shall not be adversely affected thereby, assign to
one Person (the "Successor Program LOC Provider") all (but not part) of its
Program LOC Provider Commitment and all (but not part) of the Program LOC
Provider Interest pursuant to a supplement to this Agreement, substantially in
the form of Exhibit N with any changes as have been approved by the parties
thereto (also, a "Loans Supplement"), executed by the Successor Program LOC
Provider, the Program LOC Provider and the Agent. If required in connection
with the maintenance of the Rating, any such Loans Supplement must be
accompanied by an opinion of counsel of the Successor Program LOC Provider as to
such matters as Windmill, the Agent and the Required Banks may reasonably
request. The Successor Program LOC Provider must be a depository institution
organized under the laws of an OECD Country. Upon (i) such execution of such
Loans Supplement, (ii) delivery of an executed copy thereof to the Borrower and
the Agent and (iii) payment by the Successor Program LOC Provider to the Program
LOC Provider of an amount equal to the purchase price agreed between the
Successor Program LOC Provider and the Program LOC Provider, the Program LOC
Provider shall be released from its obligations hereunder to the extent of such
assignment and the Successor Program LOC Provider shall for all purposes be the
Program LOC Provider party to this Agreement and shall have all the rights and
obligations of the Program LOC Provider under this Agreement to the same extent
as if it were an original party hereto, and no further consent or action by the
Borrower, the Lenders or the Agent shall be required. The amount of the Program
LOC Provider Interest allocable to the Successor Program LOC Provider shall be
equal to the amount of the Program LOC Provider Interest transferred hereunder
regardless of the purchase price paid therefor. Such Loans Supplement shall
amend this Agreement to the extent, and only to the extent, necessary to reflect
the addition of the Successor Program LOC Provider as the Program LOC Provider,
arising from the purchase by the Successor Program LOC Provider of all of the
Program LOC Provider Commitment.
(g) The parties to each assignment permitted under Section 11.6 shall
execute and deliver a Loans Supplement in respect thereof to the Agent, for its
acceptance and recording in its books and records (the "Register"). The Agent
shall not be required to deliver any payment hereunder to any Person that is not
known by the Agent to be a party hereto unless the Agent shall have received a
Loans Supplement reflecting the assignment to such Person hereunder. From and
after its receipt of a Loans Supplement that purports on its face to be
permitted and to have been duly executed and delivered in accordance with the
terms of this Agreement, the Agent shall be entitled to rely on the directions
set forth therein as to the appropriate allocation of payments as between the
assignee and assignor thereunder. The Agent shall maintain at its address at
Suite 611, 135 South LaSalle Street, Chicago, Illinois 60603 a copy of each
Loans Supplement delivered to and accepted by it. The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and
each of the parties hereto may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Borrower and each Lender at any
reasonable time and from time to time upon reasonable prior notice.
Section 11.7. Further Assurances. The Borrower agrees, from time to time,
to do and perform any and all acts and to execute any and all further
instruments required or reasonably requested by the Agent to more fully effect
the purposes of this Agreement and the transfer of the Secured Interest,
including the execution of any financing statements or continuation statements
relating to the Affected Assets for filing under the provisions of the UCC of
any applicable jurisdiction.
Section 11.8. Right of Setoff. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of any Termination
Event, each Lender is hereby authorized at any time or from time to time,
without presentment, demand, protest or other notice of any kind to the Borrower
or to any other Person, any such notice being hereby expressly waived, to setoff
and to appropriate and apply any and all deposits (general or special, time or
demand, provisional or final, and in whatever currency denominated) and any
other indebtedness at any time held or owing by such Lender (including by
branches and agencies of such Lender wherever located) to or for the credit or
the account of the Borrower against and on account of the Aggregate Unpaids of
the Borrower to such Lender under this Agreement, including all interests in
Aggregate Unpaids purchased by such Lender pursuant to Section 2.6(j), and all
other claims of any nature or description arising out of or connected with this
Agreement, irrespective of whether or not such Lender shall have made any demand
hereunder and although said Aggregate Unpaids, liabilities or claims, or any of
them, shall be contingent or unmatured.
Section 11.9. Waiver of Confidentiality. Anything herein to the contrary
notwithstanding, the Borrower hereby consents to the disclosure of any nonpublic
information with respect to it (i) to the Agent or the Lenders by the other, and
(ii) by the Agent or the Lenders to any prospective or actual assignee or
participant of any of them (only if such nonpublic information is accompanied by
a statement that such prospective or actual assignee or participant agrees, by
receipt of such information, to maintain the confidentiality of such
information) or any rating agency or provider of a surety, guaranty or credit or
liquidity enhancement to any of them or any entity organized for the purpose of
purchasing, or making loans secured by, financial assets for which ABN AMRO
provides managerial services or acts as the administrative agent, or the
Administrator, the Management Company, the Referral Agent, the Depositary, any
commercial paper dealer or placement agent, or any officers, directors,
employees, outside accountants, auditors, Governmental Authorities having
jurisdiction over them or lawyers of any of the foregoing. In addition, the
Agent and/or the Lenders may disclose any such nonpublic information pursuant to
any law, rule, regulation, direction, request or order of any judicial,
administrative or regulatory authority or proceedings (whether or not having the
force and effect of law).
Section 11.10. Confidentiality of Agreement. Unless otherwise agreed to in
writing by the Agent, the Borrower hereby agrees that it will not disclose the
contents of this Agreement, or any other confidential or proprietary information
furnished by the Agent or any Lender to any other Person except (i) its auditors
and attorneys or (ii) as otherwise required by applicable law or order of a
court of competent jurisdiction.
Section 11.11. Bankruptcy Petition Against Windmill. Each of the Lenders,
(excluding Windmill), the Agent, the Borrower and the Collection Agent hereby
covenants and agrees that, prior to the date which is one (1) year and one (1)
day after the payment in full of all outstanding commercial paper of Windmill,
such party will not institute against, or join any other Person in instituting
against, Windmill any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the laws of the USA.
The provisions of this Section 11.11 shall survive the termination of this
Agreement.
Section 11.12. Limitation of Liability. No claim may be made by the
Borrower, the Collection Agent or any other Person against the Agent or any
Lender or their respective Affiliates, directors, officers, employees, attorneys
or agents for any special, indirect, consequential or punitive damages in
respect of any claim for breach of contract or any other theory of liability
arising out of or related to the transactions contemplated by this Agreement, or
any act, omission or event occurring in connection therewith; and the Borrower,
for itself, the Collection Agent and all other Persons claiming by or through
the Borrower, hereby waives, releases and agrees not to sue upon any claim for
any such damages, whether or not accrued and whether or not known or suspected
to exist in its favor.
Section 11.13. Headings. Article and Section headings used herein are for
convenience and reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting
this Agreement.
Section 11.14. Waiver of Trial by Jury. To the extent permitted by
applicable law, each of the parties hereto irrevocably waives all right of trial
by jury in any action, proceeding or counterclaim arising out of or in
connection with this Agreement or any matter arising hereunder.
Section 11.15. Administrator. Each of the parties hereto acknowledges and
agrees that each and every responsibility, function, duty and agreement of
Windmill may be performed by the Administrator for, in the name of and on behalf
of Windmill, as Windmill's agent. It is further acknowledged and agreed that
notwithstanding the Administrator's undertaking to so perform Windmill's
responsibilities, functions, duties and agreements for, in the name of and on
behalf of Windmill, as Windmill's agent, Windmill's responsibilities, functions,
duties and agreements shall remain obligations of Windmill and shall not
constitute obligations of the Administrator.
Section 11.16. No Recourse. The obligations of each of the Management
Company, the Administrator, Windmill and the Referral Agent are solely the
corporate obligations of such Person. No recourse shall be had with respect to
this Agreement, any of the Program Documents or any of the other Transaction
Documents, including the enforcement of the obligations of the Management
Company, the Administrator, Windmill or the Referral Agent thereunder or for the
payment of any fee or other amount payable thereunder for any claim based on,
arising out of or relating to any provision of this Agreement, any of the
Program Documents or any of the other Transaction Documents, against any
stockholder, employee, officer, director, incorporator, affiliate, agent or
servant of any of the Management Company, the Administrator, Windmill or the
Referral Agent. Each of the parties hereto agrees to look solely to the
Management Company, the Administrator, Windmill or the Referral Agent for
payment or performance of all obligations of such Person and claims against the
Management Company, the Administrator, Windmill or the Referral Agent based on,
arising out of or relating to this Agreement, any Program Document to which such
Person is (or is intended to be) a party or any other Transaction Document. The
provisions of this Section 11.16 shall survive the termination of this
Agreement.
Section 11.17. Reliance on Information Obtained from Third Parties. Each
of the parties hereto recognizes that the accuracy and completeness of the
records maintained and the information supplied by Windmill and supplied by the
Referral Agent, the Management Company and the Administrator, for, in the name
of and on behalf of Windmill as Windmill's agent is dependent upon the accuracy
and completeness of the information obtained by Windmill, the Referral Agent,
the Management Company and the Administrator from other Persons and other
sources and neither Windmill, the Referral Agent, the Management Company nor the
Administrator shall be responsible for any inaccuracy in the information so
obtained or for any inaccuracy in the records maintained by Windmill, the
Referral Agent, the Management Company or the Administrator which may result
therefrom. All calculations and determinations made by Windmill or by the
Referral Agent, the Management Company or the Administrator for, in the name of
or on behalf of Windmill, are based on the most recent information provided to
Windmill, the Referral Agent, the Management Company and the Administrator and
entered into the Administrator's or the Referral Agent's computerized
information system. Consequently, some of the information relied upon in making
such calculations and determinations may not reflect the actual current facts
and neither Windmill, the Referral Agent, the Management Company nor the
Administrator shall be liable for any loss, cost or expense arising, directly or
indirectly, as a result of or in connection with any discrepancy attributable to
such timing differential. The provisions of this Section 11.17 shall survive
the termination of the Agreement.
Section 11.18. Excess Funds. Other than amounts Windmill has become
obligated to pay pursuant to Section 3.2 (other than interest becoming due from
Windmill in connection with its failure to timely make the purchase price
available to the Agent), Windmill shall be required to make payment of the
amounts required to be paid pursuant to this Agreement only if Windmill has
Excess Funds. In the event that Windmill does not have Excess Funds, the excess
of the amount due hereunder over the amount paid (the "Insufficiency") shall not
constitute a "claim" against Windmill as defined in Section 101(5) of the
Federal Bankruptcy Code until such time, if any, as Windmill shall have Excess
Funds. If at any time Windmill does not have sufficient funds to make any
payment due under this Agreement other than amounts Windmill has become
obligated to pay pursuant to Section 3.2 (other than interest becoming due from
Windmill in connection with its failure to timely make the purchase price
available to the Agent), then Windmill may pay a lesser amount and make an
additional payment (or payments) in the amount of deficiency as soon as possible
thereafter. No party to this Agreement shall cause or require any fees, costs,
expenses or any other amount, the amount of which is not expressly provided for
herein, to be paid out of Windmill's funds, or require Windmill to reimburse it
for any fees, costs, expenses or any other amount paid by it, without prior
review by the Administrator to determine the reasonableness of such fees, costs,
expenses and other amounts. For purposes of this Section 11.18, "Excess Funds"
shall mean the excess (redetermined daily based on the most current available
information) of (a) the sum of (i) the funds on deposit in, or otherwise
credited to, the commercial paper account or the special account established and
maintained pursuant to that certain Amended and Restated Depositary Agreement,
dated as of November 15, 1994, between Windmill and the Depositary, plus (ii)
the projected value of Windmill's assets (other than cash and cash equivalents)
(determined by the Administrator in accordance with the Administration
Agreement), plus (iii) all other cash and cash equivalents then owned by
Windmill, minus (b) the sum of (i) the sum of the Face Amount of all commercial
paper notes of Windmill that have been properly authorized, issued,
authenticated and delivered in accordance with that certain Amended and Restated
Depositary Agreement, dated as of November 15, 1994, between Windmill and the
Depositary which have not been paid in full, plus (ii) the Program Unreimbursed
Draw Amount, together with all unpaid interest then accrued thereon, plus (iii)
the Backup Purchase Facility Usage (as that term is used and defined in the
Swingline and Backup Purchase Agreement), together with all unpaid interest then
accrued thereon, plus (iv) all outstanding Swingline Advances (as that term is
used and defined in the Swingline and Backup Purchase Agreement), together with
all unpaid interest then accrued thereon, plus (v) all taxes payable by Windmill
to the Internal Revenue Service, plus (vi) all other unpaid indebtedness,
liabilities, and obligations of Windmill then due and payable. A determination
of Excess Funds will be made by the Administrator once each Business Day. So
long as there is any Excess Funds, then all amounts reflected in such
calculation may be paid on such Business Day if then due and payable. If there
are no Excess Funds, then the payment of any amount limited to an Excess Funds
test shall not be paid until there are Excess Funds. The provisions of this
Section 11.18 shall survive the termination of this Agreement.
Section 11.19. Enforceability of Receivables. The obligations of the
Borrower under this Agreement shall not be affected by reason of any invalidity,
illegality or irregularity of any Receivable or any transfer of a Secured
Interest.
Section 11.20. Integration. This Agreement contains the final and complete
integration of all prior expressions by the parties hereto with respect to the
subject matter hereof and shall constitute the entire agreement among the
parties hereto with respect to the subject matter hereof superseding all prior
oral or written understandings.
[the remainder of this page intentionally left blank]
In Witness Whereof, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date hereof.
ABN AMRO Bank N.V., as a Bank
By:
Title:
By:
Title:
Address: Suite 725
135 South LaSalle Street
Chicago, Illinois 60674
Attention: Lender Agent-
Windmill
Telephone: (312) 904-6263
Telecopy: (312) 904-6376
ABN AMRO Bank N.V., as the Agent
By:
Title:
By:
Title:
Address: Structured Finance, Asset
Securitization
Suite 725
135 South LaSalle Street
Chicago, Illinois 60674
Attention: Lender Agent-
Windmill
Telephone: (312) 904-6263
Telecopy: (312) 904-6376
BWA Receivables Corporation
By:
Title:
Address: 200 South Michigan Avenue
Chicago, Illinois 60604
Attention: Vice President and
Treasurer
Telephone: (312) 322-8500
Telecopy: (312) 322-8712
Borg-Warner Automotive, Inc.
By:
Title:
Address: 200 South Michigan Avenue
Chicago, Illinois 60604
Attention: Vice President and
Treasurer
Telephone: (312) 322-8500
Telecopy: (312) 322-8712
<PAGE>
ABN AMRO Bank N.V., as the Program LOC Provider
By:
Title:
By:
Title:
Address: Structured Finance, Asset
Securitization
Suite 725
135 South LaSalle Street
Chicago, Illinois 60674
Attention: Program LOC
Provider - Windmill
Telephone: (312) 904-6263
Telecopy: (312) 904-6376
Windmill Funding Corporation
By:
Title:
Address: c/o Global Securitization
Services, LLC
25 West 43rd Street,
Suite 704
New York, New York 10036
Attention: Andrew L. Stidd
Telephone: (212) 302-8330
Telecopy: (212) 302-8767
With a copy to:
ABN AMRO Bank N.V.
Structured Finance, Asset
Securitization
Suite 725
135 South LaSalle Street
Chicago, Illinois 60674
Attention: Administrator -
Windmill
Telephone: (312) 904-6263
Telecopy: (312) 904-6376
<PAGE>
Exhibit A
To
Receivables Loan Agreement
BWA Receivables Corporation
Credit and Collection Policy
<PAGE>
Exhibit B-1
To
Receivables Loan Agreement
Form of Contract
<PAGE>
Exhibit B-2
To
Receivables Loan Agreement
Contract Terms
<PAGE>
Exhibit C
To
Receivables Loan Agreement
Lockboxes and Lockbox Banks
<PAGE>
Exhibit D
to
Receivables Loan Agreement
Form of Lock-Box Letter
[Lock-Box Bank]
Ladies and Gentlemen:
Reference is made to the lockbox numbers ---------- and -----------in -------
- ------ and the lockbox account numbers ----------- and --------------respec-
tively maintained with you (such lockboxes and lockbox accounts being collec-
tively referred to herein as the "Accounts"), each in the name of [Originator].
[Originator] hereby unconditionally transfers exclusive ownership of the
Accounts to BWA Receivables Corporation and confirms that [Originator] has sold
all Receivables (as defined below) to BWA Receivables Corporation. [Originator]
hereby authorizes and directs you to endorse all checks, drafts and other
payments remitted to the Accounts to BWA Receivables Corporation. [Originator]
shall have control of and access to the Accounts prior to delivery of the
Agent's Notice (defined below) solely in its role as collection agent.
In connection with a receivables transaction entered into by BWA
Receivables Corporation pursuant to a Receivables Loan Agreement, dated as of
December 23, 1998, among BWA Receivables Corporation (the "Borrower"), Borg-
Warner Automotive, Inc., as Collection Agent, the banks from time to time party
thereto (collectively, the "Banks"), Windmill Funding Corporation ("Windmill"),
ABN AMRO Bank N.V., as provider of the program letter of credit (the "Program
LOC Provider"), and ABN AMRO Bank N.V., as agent (the "Agent") for Windmill, the
Banks and the Program LOC Provider (collectively, the "Lenders"), as amended or
otherwise modified from time to time (the "Receivables Loan Agreement"), BWA
Receivables Corporation has assigned to the Agent for the benefit of the Lenders
an undivided percentage interest in the accounts, chattel paper, instruments or
general intangibles (collectively, the "Receivables") with respect to which
payments are or may hereafter be made to the Accounts, and has granted to the
Agent for the benefit of the Lenders a security interest in its retained
interest in such Receivables, and as is the customary practice in this type of
transaction, we hereby request that you execute this letter agreement. All
references herein to "we" and "us" refer to [Originator] and BWA Receivables
Corporation. Your execution hereof is a condition precedent to our continued
maintenance of the Accounts with you.
We hereby transfer exclusive ownership and control of the Accounts to the
Agent, subject only to the condition subsequent that the Agent shall have given
you notice of its election to assume such ownership and control, which notice
may be in the form attached hereto as Annex A or in any other form that gives
you reasonable notice of such election (the "Agent's Notice").
We hereby irrevocably instruct you, at all times from and after the date of
your receipt of the Agent's Notice as described above, to make all payments to
be made by you out of or in connection with the Accounts directly to the Agent,
at its address set forth below its signature hereto or as the Agent otherwise
notifies you, or otherwise in accordance with the instructions of the Agent.
We also hereby notify you that, at all times from and after the date of
your receipt of the Agent's Notice as described above, the Agent shall be
irrevocably entitled to exercise in our place and stead any and all rights in
respect of or in connection with the Accounts, including, without limitation,
(a) the right to specify, when payments are to be made out of or in connection
with the Accounts and (b) the right to require preparation of duplicate monthly
bank statements on the Accounts for the Agent's audit purposes and mailing of
such statements directly to an address specified by the Agent. At all times
from and after the date of your receipt of the Agent's notice, neither we nor
any of our affiliates shall be given any access to the Accounts.
The Agent's Notice may be personally served or sent by Telex, facsimile or
U.S. mail, certified return receipt requested, to the address, Telex or
facsimile number set forth under your signature to this letter agreement (or to
such other address, Telex or facsimile number as to which you shall notify the
Agent in writing). If the Agent's Notice is given by Telex or facsimile, it
will be deemed to have been received when the Agent's Notice is sent and the
answerback is received (in the case of Telex) or receipt is confirmed by
telephone or other electronic means (in the case of facsimile). All other
notices will be deemed to have been received when actually received or, in the
case of personal delivery, delivered.
By executing this letter agreement, you acknowledge the existence of the
Agent's right to ownership and control of the Accounts and its ownership of and
security interest in the amounts from time to time on deposit therein and agree
that from the date hereof the Accounts shall be maintained by you for the
benefit of, and amounts from time to time therein held by you as agent for, the
Agent on the terms provided herein. The Accounts are to be entitled "BWA
Receivables Corporation and ABN AMRO Bank N.V., as Agent for the Lenders."
Except as otherwise provided in this letter agreement, payments to the Accounts
are to be processed in accordance with the standard procedures currently in
effect. All service charges and fees with respect to the Accounts shall
continue to be payable by us as under the arrangements currently in effect.
By executing this letter agreement, you irrevocably waive and agree not to
assert, claim or endeavor to exercise, irrevocably bar and estop yourself from
asserting, claiming or exercising, and acknowledge that you have not heretofore
received a notice, writ, order or any form of legal process from any other party
asserting, claiming or exercising, any right of set-off, banker's lien or other
purported form of claim with respect to the Accounts or any funds from time to
time therein. Except for your right to payment of your service charges and fees
and to make deductions for returned items, you shall have no rights in the
Accounts or funds therein. To the extent you may ever have such rights, you
hereby expressly subordinate all such rights to all rights of the Agent. To the
extent that the Agent actually receives funds from you relating directly to a
returned item, the Agent agrees to remit such funds to you up to the actual
returned amount relating to such returned item (the provisions of this sentence
shall survive the termination of the Accounts and this letter agreement).
Notwithstanding any other provision of this letter agreement, unless you
are grossly negligent or engaged in willful misconduct in performance or
nonperformance in connection with this letter agreement and the Accounts, we and
the Agent agree to hold you harmless and we and the Agent agree not to assert a
claim against you for any claims, damages, losses or expenses incurred by any
party in connection herewith; in the event you breach the standard of care set
forth herein, we and the Agent expressly agree that your liability shall be
limited to damages directly caused by such breach and in no event shall you be
liable for any incidental, indirect, punitive or consequential damages
whatsoever. In performing your functions and duties under this letter agreement,
you shall not be deemed to have assumed any fiduciary obligation towards or
relationship of trust with or for us or the Agent.
You may terminate this letter agreement by canceling the Accounts
maintained with you, which cancellation and termination shall become effective
only upon thirty (30) days prior written notice thereof from you to the Agent.
Incoming mail addressed to the Accounts (including, without limitation, any
direct funds transfer to the Accounts) received after such cancellation shall be
forwarded in accordance with the Agent's instructions. This letter agreement
may also be terminated upon written notice to you by the Agent stating that the
Receivables Loan Agreement is no longer in effect. Except as otherwise provided
in this paragraph, this letter agreement may not be terminated without the prior
written consent of the Agent.
This letter agreement contains the entire agreement between the parties
with respect to the subject matter hereof, and may not be altered, modified or
amended in any respect, nor may any right, power or privilege of any party
hereunder be waived or released or discharged, except upon execution by you, us
and the Agent of a written instrument so providing. The terms and conditions of
any agreement between us and you (a "LockBox Service Agreement") (whether now
existing or executed hereafter) with respect to the lockbox arrangements, to the
extent not inconsistent with this letter agreement, are made part of this letter
agreement with respect to matters not explicitly covered in this letter
agreement. In the event that any provision in this letter agreement is in
conflict with, or inconsistent with, any provision of any such LockBox Service
Agreement, this letter agreement will exclusively govern and control. Each
party agrees to take all actions reasonably requested by any other party to
carry out the purposes of this letter agreement or to preserve and protect the
rights of each party hereunder.
This letter agreement and the rights and obligations of the parties
hereunder will be governed by and construed and interpreted in accordance with
the laws of State of Illinois. This letter agreement may be executed in any
number of counterparts and all of such counterparts taken together will be
deemed to constitute one and the same instrument.
Please indicate your agreement to the terms of this letter agreement by
signing in the space provided below. This letter agreement will become
effective immediately upon execution of a counterpart of this letter agreement
by all parties hereto.
Very truly yours,
[Originator]
By:
Title:
BWA Receivables Corporation
By:
Title:
Accepted and confirmed as of
the date first written above:
By: ABN AMRO Bank N.V., as Agent
By:---------------------------------
Title:-------------------------
By:---------------------------------
Title:-------------------------
Address of notice:
ABN AMRO Bank N.V.
Structured Finance, Asset Securitization
Suite 725
135 South LaSalle Street
Chicago, Illinois 60674
Attention: Lender Agent-Windmill
Telephone Number: (312) 904-6263
Telecopy Number: (312) 904-6376
Acknowledged and agreed to as of
the date first written above:
[Lock-Box Bank]
By-----------------------------
Title:--------------------
Address for notice:
<PAGE>
Annex A to
LockBox Letter
[Lock-Box Bank]
Re: BWA Receivables Corporation
Lock-Box Numbers ------------ and ---------------
and Lock-Box Account Numbers -----------------
and ------------------
Ladies and Gentlemen:
Reference is made to the letter agreement dated ----------------- (the
"Letter Agreement") among [Originator], BWA Receivables Corporation, the
undersigned, as Agent, and you concerning the above-described lockboxes, and
lockbox accounts (collectively, the "Accounts"). We hereby give you notice of
our assumption of ownership and control of the Accounts as provided in the
Letter Agreement.
We hereby instruct you not to permit any other party to have access to the
Accounts and to make all payments to be made by you out of or in connection with
the Accounts directly to the undersigned upon our instructions, at our address
set forth above.
Very truly yours,
ABN AMRO Bank N.V., as Agent
By:
Title:
By:
Title:
<PAGE>
Exhibit E
To
Receivables Loan Agreement
Form of Periodic Report
<PAGE>
Exhibit F-1
to
Receivables Loan Agreement
Form of Assignment
[Windmill to a Bank or The Program LOC Provider]
This Assignment (this "Assignment"), dated ------------, 19--, is by and
between [insert name of Bank or Program LOC Provider] (the "Assignee") and
Windmill Funding Corporation ("Windmill"). Reference is hereby made to that
certain Amended and Restated Receivables Loan Agreement (as amended,
supplemented or otherwise modified through the date hereof, the "Loan
Agreement"), dated as of December 23, 1998, by and among Windmill, BWA
Receivables Corporation (the "Borrower"), Borg-Warner Automotive, Inc., as
Collection Agent, the banks from time to time party thereto (collectively, the
"Banks"), ABN AMRO Bank N.V., as provider of the program letter of credit (the
"Program LOC Provider"), and ABN AMRO Bank N.V., as agent (the "Agent") for the
Banks, the Program LOC Provider and Windmill. Unless otherwise defined herein,
capitalized terms used herein shall have the meaning ascribed to such term in
the Loan Agreement.
W i t n e s s e t h T h a t:
Whereas, this Assignment is being executed and delivered in accordance with
Section 3.1(a) of the Loan Agreement,
Now, Therefore, the parties hereto hereby agree as follows:
1. On the terms and subject to the conditions of this Assignment and the Loan
Agreement, Windmill hereby sells, transfers, assigns, sets over and otherwise
conveys to the Assignee, and the Assignee hereby acquires from Windmill, all of
Windmill's right, title and interest in and to the Interest and related Assigned
Windmill Settlement with respect thereto designated in the Windmill Notice
attached hereto after giving effect to the payment (or exchange) of the Windmill
Loan Price (the "Purchased Interest"), all without recourse, representation or
warranty (except as explicitly described below).
2. Each of the parties to this Assignment agrees that at any time and
from time to time upon the written request of any other party it will execute
and deliver such further documents and do such further acts and things as such
other party may reasonably request in order to effect the purposes of this
Assignment.
3. By executing and delivering this Assignment, each of Windmill and the
Assignee confirms and agrees with the other as follows: other than the
representation and warranty that Windmill is transferring the Purchased Interest
free and clear of any Adverse Claim created or granted by Windmill, Windmill
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
the Purchased Interest or the Loan Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Purchased
Interest or the Loan Agreement or any other instrument or document furnished
pursuant thereto or in connection therewith.
4. This assignment shall be governed by, and construed in accordance
with, the laws of the State of Illinois.
In Witness Whereof, the parties hereto have caused this Assignment to be
executed by their respective duly authorized officers.
Windmill Funding Corporation
By:
Title:
[Insert Name of Assignee]
By:
Title:
[By:
Title: ]
Acknowledged:
ABN AMRO Bank N.V., as
Agent under the Loan Agreement
By:
Title:
By:
Title:
<PAGE>
Form of Section 3.1(a) Windmill Notice
Dated ------------, 199-
ABN AMRO Bank N.V.,
as Agent for the Lenders
Asset Securitization, Structured Finance
Suite 725
135 South LaSalle Street
Chicago, Illinois 60674
Attention: Lender Agent - Windmill
BWA Receivables Corporation
200 South Michigan Avenue
Chicago, Illinois 60604
Attention: Vice President and Treasurer
Ladies and Gentlemen:
Reference is made to the Amended and Restated Receivables Loan Agreement, dated
as of December 23, 1998 (as amended, the "Loan Agreement"), among BWA
Receivables Corporation, a Delaware corporation (the "Borrower"), Borg-Warner
Automotive, Inc., a Delaware corporation, as Collection Agent, Windmill Funding
Corporation, a Delaware corporation ("Windmill"), the banks from time to time
party thereto (collectively, the "Banks"), ABN AMRO Bank N.V., as provider of
the program letter of credit (the "Program LOC Provider"), and ABN AMRO Bank
N.V., as agent (the "Agent") for Windmill, the Program LOC Provider and the
Banks. Unless expressly otherwise defined herein, terms defined in the Loan
Agreement are used herein with the same meaning.
This notice constitutes a "Windmill Notice." Windmill hereby advises the
Agent and the Borrower that it intends to exercise its right under Section 3.1
of the Loan Agreement to transfer the portion of Windmill's Interest identified
below on -----------, 199-- (the "Windmill Put Date"). The Windmill Loan Price
in the amount of -------- Dollars ($------------) shall be payable in full to
the Agent, for the account of Windmill, on such Windmill Put Date. Such
Windmill Loan Price has been calculated in the manner described on Schedule I
attached hereto and made a part hereof.
In connection with the transfer of the Interest described above (the
"Assigned Interest"), Windmill agrees as follows:
1. Windmill hereby assigns to the Agent for the account of [insert name of
appropriate Lenders], effective as of the Windmill Put Date specified above, all
right, title and interest of Windmill in the Assigned Interest in consideration
of the payment to Windmill of the Windmill Loan Price specified above.
2. Windmill (i) represents and warrants that it is the legal and
beneficial owner of the Assigned Interest and that such interest is free and
clear of any Adverse Claim created by Windmill; (ii) represents and warrants
that, on and as of the Windmill Put Date, it is not the subject of any
bankruptcy, insolvency or other similar proceeding, (iii) makes no
representation and warranty and assumes no responsibility with respect to any
statements, warranties, or representations made in or in connection with the
Loan Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Agreement, any Interest (whether
the Assigned Interest or otherwise), any Receivables, or Related Security or any
other instrument or document or other Affected Asset related to the foregoing;
and (iv) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, the Parent, any Originator
or any Obligor, the collectibility of any Receivable or the performance or
observance by the Borrower of any of its obligations under the Loan Agreement or
any other instrument or document related thereto.
3. This Windmill Notice is delivered to the Agent for, among other purposes,
recording by the Agent. From and after the later to occur of the Windmill Put
Date specified above, the date Windmill shall receive payment in full of the
Windmill Loan Price specified above, and the execution and delivery of an
Assignment in the form of Exhibit F-1 of the Loan Agreement, the Agent shall
make all payments under the Loan Agreement in respect of the Assigned Interest
(including, without limitation, all payments on account of the Receivables and
of Interest with respect thereto) to [insert name of appropriate Lender].
4. This Windmill Notice shall be governed by, and construed in accordance
with, the laws of the State of Illinois.
In Witness Whereof, Windmill has caused this Windmill Notice to be executed
by an authorized signatory as of the date first above written.
Windmill Funding Corporation
By:
Title:
<PAGE>
Schedule I
to
Windmill Notice
Dated -----------, 199-
Calculation of Windmill Loan Price
(as defined in Section 1.1 of the Loan Agreement)
(To be attached at the time Windmill Notice is submitted, demonstrating
compliance with the requirements for calculation set forth in the Loan
Agreement)
<PAGE>
Exhibit F-2
to
Receivables Loan Agreement
Form of Assignment
[From a Bank or The Program LOC Provider to Windmill]
This Assignment (this "Assignment"), dated ------------, 19--, is by and
between [insert name of Bank or Program LOC Provider] (the "Assignor") and
Windmill Funding Corporation ("Windmill"). Reference is hereby made to that
certain Amended and Restated Receivables Loan Agreement (as amended,
supplemented or otherwise modified through the date hereof, the "Loan
Agreement"), dated as of December 23, 1998, by and among Windmill, BWA
Receivables Corporation (the "Borrower"), Borg-Warner Automotive, Inc., as
Collection Agent, the banks from time to time party thereto (collectively, the
"Banks"), ABN AMRO Bank N.V., as provider of the program letter of credit (the
"Program LOC Provider"), and ABN AMRO Bank N.V., as agent (the "Agent") for the
Banks, the Program LOC Provider and Windmill. Unless otherwise defined herein,
capitalized terms used herein shall have the meaning ascribed to such term in
the Loan Agreement.
W i t n e s s e t h T h a t:
Whereas, this Assignment is being executed and delivered in accordance with
Section 3.2 of the Loan Agreement,
Now, Therefore, the parties hereto hereby agree as follows:
1. On the terms and subject to the conditions of this Assignment and the
Loan Agreement, the Assignor hereby sells, transfers, assigns, sets over and
otherwise conveys to Windmill, and Windmill hereby acquires from the Assignor,
all of the Assignor's right, title and interest in and to the Interest
designated in the Notice attached hereto (the "Purchased Interest"), after
giving effect to the payment (or exchange) of the purchase price as calculated
in accordance with Section 3.2 of the Loan Agreement (the "Loan Price"), all
without recourse, representation or warranty (except as explicitly described
below).
2. Each of the parties to this Assignment agrees that at any time and
from time to time upon the written request of any other party it will execute
and deliver such further documents and do such further acts and things as such
other party may reasonably request in order to effect the purposes of this
Assignment.
3. By executing and delivering this Assignment, each of Windmill and the
Assignor confirms and agrees with the other as follows: other than the
representation and warranty that the Assignor is transferring the Purchased
Interest free and clear of any Adverse Claim created or granted by the Assignor,
the Assignor makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with the Purchased Interest or the Loan Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Purchased Interest or the Loan Agreement or any other instrument or document
furnished pursuant thereto or in connection therewith.
4. This assignment shall be governed by, and construed in accordance
with, the laws of the State of Illinois.
In Witness Whereof, the parties hereto have caused this Assignment to be
executed by their respective duly authorized officers.
Windmill Funding Corporation
By:
Title:
[Insert Name of Assignor]
By:
Title:
[By:
Title: ]
Acknowledged:
ABN AMRO Bank N.V., as
Agent under the Loan Agreement
By:
Title:
By:
Title:
<PAGE>
Form of Section 3.2 Windmill Purchase Notice
Dated -----------, 199--
ABN AMRO Bank N.V.,
as Agent for the Lenders
Asset Securitization, Structured Finance
Suite 725
135 South LaSalle Street
Chicago, Illinois 60674
Attention: Lender Agent - Windmill
BWA Receivables Corporation
200 South Michigan Avenue
Chicago, Illinois 60604
Attention: Vice President and Treasurer
Ladies and Gentlemen:
Reference is made to the Amended and Restated Receivables Loan Agreement,
dated as of December 23, 1998 (as amended, the "Loan Agreement"), among BWA
Receivables Corporation, a Delaware corporation (the "Borrower"), Borg-Warner
Automotive, Inc., a Delaware corporation, as Collection Agent, Windmill Funding
Corporation, a Delaware corporation ("Windmill"), the banks from time to time
party thereto (collectively, the "Banks"), ABN AMRO Bank N.V., as provider of
the program letter of credit (the "Program LOC Provider"), and ABN AMRO Bank
N.V., as agent (the "Agent") for Windmill, the Program LOC Provider and the
Banks. Unless expressly otherwise defined herein, terms defined in the Loan
Agreement are used herein with the same meaning.
Windmill hereby advises the Agent that, at the request of the Borrower, it
intends to exercise its right under Section 3.2 of the Loan Agreement to acquire
the portion of the other Lenders' Interest identified below on ---------------,
199-- (the "Windmill Purchase Date"). The purchase price as calculated in
accordance with Section 3.2 of the Loan Agreement (the "Loan Price") in the
amount of ------------ Dollars ($------------) shall be payable in full to the
Agent, for the account of the applicable Lender, on such Windmill Purchase
Date.The Loan Price has been calculated in the manner described on Schedule I
attached hereto and made a part hereof.
In connection with the transfer of the Interest described above (the
"Assigned Interest"), the undersigned Assignor agrees as follows:
1. The Assignor hereby assigns to the Agent for the account of Windmill,
effective as of the Windmill Purchase Date specified above, all right, title and
interest of the Assignor in the Assigned Interest in consideration of the
payment to the Assignor of the Loan Price specified above.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the Assigned Interest and that such interest is free and
clear of any Adverse Claim created by the Assignor; (ii) represents and warrants
that, on and as of the Windmill Purchase Date, it is not the subject of any
bankruptcy, insolvency or other similar proceeding, (iii) makes no
representation and warranty and assumes no responsibility with respect to any
statements, warranties, or representations made in or in connection with the
Loan Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Agreement, any Interest (whether
the Assigned Interest or otherwise), any Receivables, or Related Security or any
other instrument or document or other Affected Asset related to the foregoing;
and (iv) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, the Parent, any Originator
or any Obligor, the collectibility of any Receivable or the performance or
observance by the Borrower (whether as the Borrower, in its capacity as
Collection Agent or otherwise) of any of its obligations under the Loan
Agreement or any other instrument or document related thereto.
3. This notice is delivered to the Agent for, among other purposes,
recording by the Agent. From and after the later to occur of the Windmill
Purchase Date specified above, the date the Assignor shall receive payment in
full of the Loan Price specified above, and the execution and delivery of an
Assignment in the form of Exhibit F2 of the Loan Agreement, the Agent shall make
all payments under the Loan Agreement in respect of the Assigned Interest
(including, without limitation, all payments on account of the Receivables and
of Interest with respect thereto) to Windmill.
4. This notice shall be governed by, and construed in accordance with,
the laws of the State of Illinois.
In Witness Whereof, the Assignor and Windmill have caused this notice to be
executed by an authorized signatory as of the date first above written.
Windmill Funding Corporation
By:
Title:
Assignor:
[Insert Name of Assignor]
By:
Title:
[By:
Title: ]
<PAGE>
Schedule I
to
Notice
Dated--------------, 199-
Calculation of the Loan Price
(as specified in Section 3.2 of the Loan Agreement)
(To be attached at the time the notice is submitted, demonstrating compliance
with the requirements for calculation set forth in the Loan Agreement)
<PAGE>
Exhibit G
To
Receivables Loan Agreement
Addresses of Borrower And Originator
<PAGE>
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
<PAGE>
Exhibit I
to
Receivables Loan Agreement
Form of Opinion for Borg-Warner Entities
[To Be Provided By Borrower at a Later Date]
<PAGE>
Exhibit J
Form of Compliance Certificate
To: ABN AMRO Bank N.V., as Agent, and
each Lender
This Compliance Certificate is furnished pursuant to Section [5.1(d)],
[6.1(a)(iii)] of 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 BWA Receivables
Corporation (the "Borrower"), Borg-Warner Automotive, Inc., as Collection Agent,
the banks from time to time party thereto (collectively, the "Banks"), Windmill
Funding Corporation ("Windmill") and ABN AMRO Bank N.V., as the provider of the
program letter of credit (the "Program LOC Provider" and together with the Banks
and Windmill, the "Lenders"), and ABN AMRO Bank N.V. as agent for the Lenders
(in such capacity, the "Agent"). Terms used in this Compliance Certificate and
not otherwise defined herein shall have the respective meanings ascribed thereto
in the Loan Agreement.
The undersigned hereby represents, warrants, certifies and confirms that:
1. I am a duly elected Designated Financial Officer of -------------.
2. Attached hereto is a copy of the [balance sheet] [financial
statements] described in Section 6.1(a)(i) or 6.1(a)(ii) of the Loan Agreement.
3. I have reviewed the terms of the Transaction Documents and I have
made, or have caused to be made under my supervision, a detailed review of the
transactions and the conditions of the Borrower and each other Borg-Warner
Entity during and at the end of the accounting period covered by the attached
[balance sheet] [financial statements].
4. The examinations described in paragraph 3 hereof did not disclose, and
I have no knowledge of, the existence of any condition or event which
constitutes a Termination Event or Potential Termination Event, during or at the
end of the accounting period covered by the attached [balance sheet] [financial
statements] or as of the date of this Compliance Certificate, except as set
forth below.
[5. Schedule I attached hereto sets forth data and computations with
respect to the financial covenants set forth in the Loan Agreement and/or in
Section 4.2 of the Indemnity Agreement, evidencing the compliance with each such
financial covenant, all of which data and computations are true, complete and
correct, and all information which is based on estimates has been calculated
using methods of estimation on a consistent basis and without any intent to
change or distort such information to show compliance with such financial
covenants.]
Described below are the exceptions, if any, to paragraph 4 listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which ----------------------------- has taken, is taking
or proposes to take with respect to each such condition or event:
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the [balance sheet] [financial statements] delivered with
this Compliance Certificate in support hereof, are made and delivered this ____
day of -----------, 19--.
[Name of Borrower or Parent]
By:
Designated Financial Officer
<PAGE>
Exhibit K
to
Receivables Loan Agreement
Form of Loan Request
- ------------ ---, 199-
ABN AMRO Bank N.V., as Agent
Asset Securitization, Structured Finance
Suite 725
135 South LaSalle Street
Chicago, Illinois 60674
Attn: Lender Agent Windmill
re: BWA Receivables Corporation
- -------------------------------
Ladies and Gentlemen:
The undersigned, BWA Receivables Corporation, a Delaware corporation (the
"Borrower"), hereby refers to the Amended and Restated Receivables Loan
Agreement, dated as of December 23, 1998 (the "Loan Agreement"; capitalized
terms used and not otherwise defined herein shall have the meanings ascribed to
such terms in the Loan Agreement), among the Borrower, Borg-Warner Automotive,
Inc., a Delaware corporation, as Collection Agent, the banks from time to time
party thereto (collectively, the "Banks"), Windmill Funding Corporation, a
Delaware corporation ("Windmill"), ABN AMRO Bank N.V., as provider of the
program letter of credit (the "Program LOC Provider"), and ABN AMRO Bank N.V.,
as agent (the "Agent") for the Banks, the Program LOC Provider and Windmill, and
hereby gives the Agent notice, irrevocably, pursuant to Section 2.1(c) of the
Loan Agreement, of a proposed (the "Proposed Loan(s)"). In connection
therewith, please find attached hereto as Exhibit A, the information relating to
the Proposed Loan(s) required by Section 2.1(c) of the Loan Agreement. In the
event that, on the date of this Loan Request ("Notice"), any Interim Liquidation
shall then be in effect, this Notice shall be revoked, effective immediately,
and Collections shall be set aside in accordance with Section 3.3(b) of the Loan
Agreement.
The Borrower hereby certifies that the following statements are true on the
date hereof, and will be true on [each of] the proposed Loan Date(s) referenced
on Exhibit A:
(i) Both before and after giving effect to [each of] the Proposed Loan[s]
contemplated hereby and the use of the proceeds therefrom, the representations
and warranties contained in Section 4.1 of the Loan Agreement are true and
correct in all material respects on and as of such Loan Date as though made on
and as of such Loan Date;
(ii) Both before and after giving effect to [each of] the Proposed Loan[s]
contemplated hereby, no Termination Event or Potential Termination Event has
occurred and is continuing, or would result in connection with such Proposed
Loan or the use of the proceeds therefrom; and
(iii) All of the requirements of Section 5.2 of the Loan Agreement have
been satisfied in connection with each Loan.
Very truly yours,
BWA Receivables Corporation
By:
Title:
<PAGE>
Exhibit A
to
Loan Requests
Summary of Information Relating to Proposed Loan(s)
1. Dates, Amounts, Lender(s), Proposed Tranche Periods
A1 Date of Notice ---------
A2 Measurement Date (the last Business Day of
the week immediately preceding the week in which the Date of Notice
occurs) ---------
A3 Proposed Loan Dates --------- --------- ---------- ---------
(each of which is a Business Day)
A4 Respective Proposed Loan on each such Loan Date
$--------- $---------$--------- $---------
(A4A) (A4B) (A4C) (A4D)
A5 Proposed Allocation among Lenders
Windmill $--------- $---------$--------- $---------
Banks $--------- $--------- $----------$--------
Program LOC Provider $--------- $--------- $---------$---------
A6 Tranche Period
Starting Date --------- --------- ------------------
Ending Date --------- --------- ------------------
Number of Days --------- --------- ------------------
Notes:
(i) Each proposed Loan Date must be a Business Day, and must occur no later
than two (2) weeks after the Measurement Date set forth above. The choice of
Measurement Date is a risk undertaken by the Borrower. If a selected
Measurement Date is other than the applicable Loan Date, notwithstanding the
disclosure of such choice herein, such choice shall not in any manner diminish,
waive, reduce or otherwise affect the obligation of the Borrower to assure the
Lenders that, after giving effect to the Proposed Loan, the actual Percentage
Factor (including the aggregate for all Lenders) as of the date of such Proposed
Transfer shall not exceed one hundred percent (100%), such assurance being a
fundamental condition on which the willingness of any Lender to make the related
purchase shall be based.
(ii) Except as set forth in Section 2.1(c) of the Loan Agreement, each Loan
shall not be less than One Million Dollars ($1,000,000).
<PAGE>
Exhibit L
To
Receivables Loan Agreement
Activities to Maintain Separate Corporate
Existence of Borg-Warner Entities
The Borrower shall:
1. compensate all employees, consultants and agents directly, from the
Borrower's bank accounts, for services provided to the Borrower by such
employees, consultants and agents and, to the extent any employee, consultant or
agent of the Borrower is also an employee, consultant or agent of any other
BorgWarner Entity, allocate the compensation of such employee, consultant or
agent between the Borrower and such BorgWarner Entity on a basis which reflects
the services rendered to the Borrower and such BorgWarner Entity;
2. clearly identify and occupy space that is separate and distinct from any
space occupied by any other BorgWarner Entity even if such space is leased or
subleased from, or is on or near premises occupied by, any other BorgWarner
Entity;
3. have separate stationery and other business forms;
4. conduct its business solely in its own name through its duly authorized
officers or agents including, without limitation, in all oral and written
communications such as letters, invoices, purchase orders, contracts, statements
and applications;
5. make independent decisions with respect to its daily business and affairs
and not be controlled in making such decisions by any other BorgWarner Entity;
6. allocate all overhead expenses (including, without limitation, telephone
and other utility charges) for items shared between the Borrower and any other
BorgWarner Entity on the basis of actual use to the extent practicable and, to
the extent such allocation is not practicable, on a basis reasonably related to
actual use;
7. at all times have at least two member of its board of directors (each, an
"Independent Director") (which Independent Director shall have a fiduciary duty
to creditors of the Borrower) who is not (A) a director, officer or employee of
any other BorgWarner Entity, (B) a person related to any officer or director of
any BorgWarner Entity, (C) a holder (directly or indirectly) of more than one
percent (1%) of any voting securities of any BorgWarner Entity, or (D) a person
related to a holder (directly or indirectly) of more than one percent (1%) of
any voting securities of any other BorgWarner Entity;
8. ensure that all corporate actions with respect to (i) the filing for any
petition of bankruptcy of the Borrower, (ii) transactions with Affiliates of the
Borrower and (iii) compensation of officers of the Borrower, are duly authorized
by unanimous vote of its board of directors (and duly authorized by its
stockholders when necessary);
9. maintain complete and correct books and records of account and minutes of
meetings and other proceedings of its stockholder and board of directors;
10. maintain its financial, corporate and other books and records separate from
those of any other BorgWarner Entity;
11. prepare its financial statements separately from those of other BorgWarner
Entities and insure that any consolidated financial statements of any other
BorgWarner Entity that include the Borrower have detailed notes clearly stating
that the Borrower is a separate corporate entity;
12. maintain a cash management system separate from any other BorgWarner Entity
and not commingle funds or other assets of Borrower with those of any other
BorgWarner Entity and not maintain bank accounts or other depository accounts to
which any other BorgWarner Entity is an account party, into which any other
BorgWarner Entity makes deposits or from which any other BorgWarner Entity has
the power to make withdrawals (except as agent to the special purpose
corporation as specifically contemplated by any servicing agreement between such
parties approved by Windmill);
13. pay operating expenses and liabilities from its own funds and not permit
any other BorgWarner Entity to pay any of the Borrower's operating expenses or
liabilities (except pursuant to allocation arrangements that comply with the
requirements of paragraph 2 above);
14. maintain adequate capitalization in light of its business and purpose;
15. not hold itself out or permit itself to be held out as having agreed to pay
or as being liable for the debts of any other BorgWarner Entity nor will it hold
any other BorgWarner Entity out or permit any other BorgWarner Entity to be held
out as having agreed to pay or as being liable for the debts of the Borrower
(except as contemplated by the Receivables Loan Agreement) nor will it fail to
correct any known misrepresentation with respect to the foregoing;
16. not operate or purport to operate as an integrated, single economic unit
with one or more of the other BorgWarner Entities;
17. not seek or obtain credit or incur any obligation to any third party based
upon the assets of one or more of the other BorgWarner Entities or induce any
such third party to reasonably rely on the creditworthiness of one or more of
the other BorgWarner Entities;
18. not guaranty or otherwise become liable with respect to indebtedness of any
other BorgWarner Entity nor permit guaranties or liability by any other Borg-
Warner Entity of the indebtedness of the Borrower (except as contemplated by the
Receivables Loan Agreement);
19. maintain an arm's-length relationship with each other BorgWarner Entity,
including, without limitation, payment of an arm's-length servicing fee for any
receivables-servicing functions performed by any other BorgWarner Entity on
behalf of the Borrower; and
20. not, directly or indirectly, be named and shall not enter into any
agreement to be named as a direct or contingent beneficiary or loss payee on any
insurance policy covering the property of any other BorgWarner Entity.
<PAGE>
Exhibit M
to
Receivables Loan Agreement
Loans Supplement
[Form of Assignment for Bank Commitment]
Loans Supplement, dated as of the date set forth in Item 1 of Schedule I hereto,
between the Selling Bank set forth in Item 2 of Schedule I hereto (the "Selling
Bank"), and the Purchasing Bank set forth in Item 3 of Schedule I hereto (the
"Purchasing Bank").
W i t n e s s e t h:
Whereas, this Loans Supplement is being executed and delivered in accordance
with Section 11.6(c) of the Amended and Restated Receivables Loan Agreement,
dated as of December 23, 1998, among BWA Receivables Corporation, a Delaware
corporation (the "Borrower"), Borg-Warner Automotive, Inc., a Delaware
corporation, as Collection Agent, ABN AMRO Bank N.V., as agent for the Lenders
(in such capacity on behalf of the Lenders, the "Agent"), and the banks from
time to time party thereto (collectively the "Banks"), ABN AMRO Bank N.V., as
provider of the program letter of credit (the "Program LOC Provider"), and
Windmill Funding Corporation, a Delaware corporation ("Windmill") (Windmill
together with the Program LOC Provider and the Banks, the "Lenders") (as
amended, supplemented or otherwise modified from time to time, the "Loan
Agreement"). Terms defined therein being used herein (and in the Schedules
hereto) have the same meaning as defined in the Loan Agreement).
Whereas, the Purchasing Bank wishes to become a Bank party to the Loan
Agreement; and
Whereas, the Selling Bank is selling and assigning to the Purchasing Bank
certain rights and obligations under the Loan Agreement as set forth herein;
Now, Therefore, the parties hereto hereby agree as follows:
1. Upon receipt by the Agent of ten (10) counterparts of this Loans
Supplement, to each of which is attached a fully completed Schedule I and
Schedule II, and each of which has been executed by the Selling Bank, the
Purchasing Bank, the Agent and the Borrower, and upon the satisfaction of all of
the requirements set forth in clauses (i) through (iii) of Section 11.6(c) of
the Loan Agreement and delivery of an opinion of counsel of the Purchasing Bank
as described therein, the Agent will transmit to the Borrower, the Selling Bank
and the Purchasing Bank a Transfer Effective Notice, substantially in the form
of Schedule III to this Loans Supplement (a "Transfer Effective Notice"). Such
Transfer Effective Notice shall set forth, inter alia, the date on which the
transfer effected by this Loans Supplement shall become effective (the "Transfer
Effective Date"), which date shall be two (2) Business Days following the date
of such Transfer Effective Notice (or such other date selected by the Agent in
its sole discretion). From and after the Transfer Effective Date, the
Purchasing Bank shall be a Bank party to the Loan Agreement for all purposes
thereof as if the Purchasing Bank were an original party thereto and the
Purchasing Bank agrees to be bound by all of the terms and provisions contained
therein.
2. At or before 12:00 noon, local time of the Selling Bank, on the
Transfer Effective Date, if the Selling Bank owns any Loan Amount under the Loan
Agreement, the Purchasing Bank shall pay to the Selling Bank, in immediately
available funds, an amount equal to the sum of (i) that portion of the Selling
Bank's Loan Amount based upon that portion of its Bank Commitment hereby
transferred (the "Purchasing Bank Investment"), plus (ii) all accrued but unpaid
(whether or not then due) Interest attributable to such Purchasing Bank
Investment, plus (iii) all accrued but unpaid fees and other costs and expenses
(whether or not then due) payable in respect of the Bank Commitment hereby
transferred, plus (iv) any breakfunding cost incurred by the Selling Bank as a
result of any reduction in such Selling Bank's Loan Amount in a Eurodollar
Tranche due to the reduction of such Selling Bank's allocable portion of the
Bank Loan Amount pursuant hereto (the "Loan Price"). Effective upon receipt by
the Selling Bank of the Loan Price from the Purchasing Bank, the Selling Bank
hereby transfers and assigns to the Purchasing Bank, without recourse,
representation or warranty (except as explicitly set forth below), and the
Purchasing Bank hereby irrevocably takes, receives and assumes from the Selling
Bank, that portion of the Selling Bank's beneficial interest in the Secured
Interest held by the Agent on its behalf, if any, allocable to the portion of
the Bank Commitment hereby transferred.
3. Concurrently with the execution and delivery hereof, the Selling Bank
will provide to the Purchasing Bank copies of all documents requested by such
Purchasing Bank which were delivered to such Selling Bank pursuant to the
conditions precedent set forth in Article V of the Loan Agreement.
4. Each of the parties to this Loans Supplement agrees that at any time
and from time to time upon the written request of any other party, it will
execute and deliver such further documents and do such further acts and things
as such other party may reasonably request in order to effect the purposes of
this Loans Supplement.
5. By executing and delivering this Loans Supplement, the Selling Bank
and the Purchasing Bank confirm to and agree with each other and the Agent and
the other Lenders as follows: (i) other than the representation and warranty
that it has not created any Adverse Claim upon any interest being transferred
hereunder, the Selling Bank makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Loan Agreement or any other Transaction
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Agreement, any other Transaction Document, any
Interest, any Receivable, or any other Affected Asset or any other instrument or
document furnished pursuant thereto or the perfection, priority, condition,
value or sufficiency of any collateral; (ii) the Selling Bank makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any other Borg-Warner Entity or any other
Affiliate of the Borrower or any other Borg-Warner Entity or any Obligor or the
performance or observance by the Borrower or any other Borg-Warner Entity or any
other Affiliate of the Borrower or any other Borg-Warner Entity of any of its
obligations under the Loan Agreement, any other Transaction Document or any
other instrument or document furnished pursuant thereto or the collectibility of
any Receivable; (iii) the Purchasing Bank confirms that it has received a copy
of the Loan Agreement (other than the Fee Letter), together with such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Loans Supplement; (iv) the Purchasing
Bank will, independently and without reliance upon the Agent, the Selling Bank
or any other and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under, or in connection with, the Loan Agreement; (v) the
Purchasing Bank appoints and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers under, or in connection with, the Loan
Agreement as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto, all in accordance with Article X of
the Loan Agreement; (vi) the Purchasing Bank agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Agreement are required to be performed by it as a Bank; and (vii) the
Purchasing Bank specifies as its address for notices the address set forth in
Schedule II hereto.
6. Each party hereto represents and warrants to and agrees with the Agent
that each party hereto is aware of and will comply with all of the provisions of
the Loan Agreement.
7. Schedule II hereto sets forth the revised Bank Commitment of the
Selling Bank and the Purchasing Bank, respectively, as well as administrative
information with respect to the Purchasing Bank.
8. Following the execution of this Loans Supplement by the Selling Bank
and the Purchasing Bank, it will be delivered to the Agent for acceptance and
recording by the Agent. This Loans Supplement shall be effective as of the
Transfer Effective Date but only after it has been accepted and recorded by the
Agent.
9. Upon acceptance and recording of this Loans Supplement by the Agent,
as of the Transfer Effective Date, (i) the Purchasing Bank shall be a party to
the Loan Agreement and, to the extent provided in this Loans Supplement and in
the Loan Agreement and to the extent transferred hereunder, have the rights and
obligations of the Selling Bank thereunder and (ii) the Selling Bank shall, to
the extent provided in this Loans Supplement and the Loan Agreement, relinquish
its rights and be released from its obligations under the Loan Agreement.
10. From and after the later of the Transfer Effective Date and the date
of acceptance and recording of this Loans Supplement by the Agent, the Agent
shall make all payments under the Loan Agreement in respect of the interest
assigned hereby (including, without limitation, all payments on account of the
Purchasing Bank Investment and of Interest with respect thereto) to the
Purchasing Bank. The Selling Bank and the Purchasing Bank shall make directly
between themselves all appropriate adjustments in payments under the Transfer
Agreement for periods, if any, prior to the later of the dates specified in the
preceding sentence.
11. The Selling Bank and the Purchasing Bank hereby advise the Agent that,
to the extent the consent of the Borrower or any other Person is required for
the transfer contemplated herein, such consent has been duly obtained and
remains in full force and effect.
12. This Loans Supplement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same Loans Supplement.
13. This Loans Supplement shall be governed by, and construed in
accordance with, the laws of the State of Illinois.
In Witness Whereof, the parties hereto have caused this Loans Supplement to be
executed by their respective duly authorized officers on Schedule I hereto as of
the date set forth in Item 1 of Schedule I hereto.<PAGE>
Schedule I
to Loans
Supplement
Completion of Information
and Signatures for
Loans Supplement
Re: Amended and Restated Receivables Loan Agreement, dated as of December
23, 1998, with BWA Receivables Corporation
Item 1 Date of Loans Supplement:
Item 2 Selling Bank:
Item 3 Purchasing Bank:
-----------------------------------, as
Selling Bank
By:
Title:
[By:
Title: ]
- -----------------------------------, as
Purchasing Bank
By:
Title:
Consented To and Acknowledged:
ABN AMRO Bank N.V.,
as Agent
By:
Title:
By:
Title:
BWA Receivables Corporation
By:
Title:<PAGE>
Schedule II
to Loans
Supplement
List of Offices and Addresses
for Notices and Commitment Amounts
Selling Bank: Revised Bank Commitment:
Purchasing Bank: Bank Commitment:
Address for Notices for Purchasing Bank:
Attention:
Telephone:
Telecopy:
<PAGE>
Schedule III
to Loans
Supplement
Transfer Effective Notice
To: The Purchasing Bank Listed
on Schedule I Hereto
The undersigned, as Agent under the Amended and Restated Receivables Loan
Agreement, dated as of December 23, 1998, among BWA Receivables Corporation,
Borg-Warner Automotive, Inc., as Collection Agent, ABN AMRO Bank N.V., as Agent
and Program LOC Provider, the banks from time to time party thereto and Windmill
Funding Corporation (as amended, supplemented, or otherwise modified from time
to time, the "Loan Agreement") acknowledges receipt of ten (10) executed
counterparts of a completed Loans Supplement, dated as of the date set forth in
Item 1 of Schedule I hereto, between the Selling Bank set forth in Item 2 of
Schedule I hereto and the Purchasing Bank set forth in Item 3 of Schedule I
hereto, and schedules thereto. Terms defined in such Loans Supplement are used
herein as therein defined.
1. Pursuant to such Loans Supplement, you are advised that the Transfer
Effective Date will be ------------------.
2. Pursuant to such Loans Supplement the Purchasing Bank is required to
pay its Loan Price, if any, to the Selling Bank at or before 12:00 noon, local
time of the Selling Bank, on the Transfer Effective Date in immediately
available funds.
Very truly yours,
ABN AMRO Bank N.V., as
Agent
By:
Title:
By:
Title:
<PAGE>
Exhibit N
to
Receivables Loan Agreement
Loans Supplement
[Form of Assignment for Program LOC Provider]
Loans Supplement, dated as of the date set forth in Item 1 of Schedule I
hereto, between the Program LOC Provider set forth in Item 2 of Schedule I
hereto (the "Program LOC Provider"), and the Successor Program LOC Provider set
forth in Item 3 of Schedule I hereto (the "Successor Program LOC Provider").
W i t n e s s e t h:
Whereas, this Loans Supplement is being executed and delivered in
accordance with Section 11.6(f) of the Amended and Restated Receivables Loan
Agreement, dated as of December 23, 1998, among BWA Receivables Corporation, a
Delaware corporation (the "Borrower"), Borg-Warner Automotive, Inc., a Delaware
corporation, as Collection Agent, ABN AMRO Bank N.V., as agent for the Lenders
(in such capacity on behalf of the Lenders, the "Agent"), and the banks from
time to time party thereto (collectively the "Banks"), ABN AMRO Bank N.V., as
provider of the program letter of credit, and Windmill Funding Corporation, a
Delaware corporation ("Windmill") (Windmill together with the Program LOC
Provider and the Banks, the "Lenders") (as amended, supplemented or otherwise
modified from time to time, the "Loan Agreement"). Terms defined therein being
used herein (and in the Schedules hereto) have the same meaning as defined in
the Loan Agreement).
Whereas, the Successor Program LOC Provider wishes to become a party to the
Loan Agreement; and
Whereas, the Program LOC Provider is selling and assigning to the Successor
Program LOC Provider all of its Program LOC Provider Commitment, Loan Amount and
Interest and all rights and obligations related thereto under the Loan Agreement
as set forth herein;
Now, Therefore, the parties hereto hereby agree as follows:
1. Upon receipt by the Agent of ten (10) counterparts of this Loans
Supplement, to each of which is attached a fully completed Schedule I and
Schedule II, and each of which has been executed by the Program LOC Provider,
the Successor Program LOC Provider, the Agent and the Borrower, and upon the
satisfaction of all of the requirements set forth in Section 11.6(f) of the Loan
Agreement, including delivery of an opinion of counsel of the Successor Program
LOC Provider as described therein, the Agent will transmit to the Borrower, the
Program LOC Provider and the Successor Program LOC Provider a Transfer Effective
Notice, substantially in the form of Schedule III to this Loans Supplement (a
"Transfer Effective Notice"). Such Transfer Effective Notice shall set forth,
inter alia, the date on which the transfer effected by this Loans Supplement
shall become effective (the "Transfer Effective Date"), which date shall be two
(2) Business Days following the date of such Transfer Effective Notice (or such
other date selected by the Agent in its sole discretion). From and after the
Transfer Effective Date, (i) the Successor Program LOC Provider shall be a party
to the Loan Agreement for all purposes thereof as if the Successor Program LOC
Provider were an original party thereto and the Successor Program LOC Provider
agrees to be bound by all of the terms and provisions contained therein, and the
Program LOC Provider shall be substituted, released and discharged from any
further obligations under the Loan Agreement.
2. At or before 12:00 noon, local time of the Program LOC Provider, on
the Transfer Effective Date, if the Program LOC Provider owns any Loan Amount
under the Loan Agreement, the Successor Program LOC Provider shall pay to the
Program LOC Provider, in immediately available funds, an amount equal to the sum
of (i) the Program LOC Provider Investment hereby transferred, plus (ii) all
accrued but unpaid (whether or not then due) Interest attributable to such
Program LOC Provider Loan Amount, plus (iii) all accrued but unpaid fees and
other costs and expenses (whether or not then due) payable in respect of the
Program LOC Provider Commitment hereby transferred, plus (iv) any breakfunding
cost incurred by the Program LOC Provider as a result of any reduction in such
Program LOC Provider's Loan Amount in a Eurodollar Tranche due to the reduction
of such Program LOC Provider's Loan Amount pursuant hereto (the Loan Price").
Effective upon receipt by the Program LOC Provider of the Loan Price from the
Successor Program LOC Provider, the Program LOC Provider hereby transfers and
assigns to the Successor Program LOC Provider, without recourse, representation
or warranty (except as explicitly set forth below), and the Successor Program
LOC Provider hereby irrevocably takes, receives and assumes from the Program LOC
Provider, all of the Program LOC Provider's beneficial interest in the Secured
Interest held by the Agent on its behalf, if any, allocable to the Program LOC
Provider Commitment.
3. Concurrently with the execution and delivery hereof, the Program LOC
Provider will provide to the Successor Program LOC Provider copies of all
documents requested by such Successor Program LOC Provider which were delivered
to such Program LOC Provider pursuant to the conditions precedent set forth in
Article V of the Loan Agreement.
4. Each of the parties to this Loans Supplement agrees that at any time
and from time to time upon the written request of any other party, it will
execute and deliver such further documents and do such further acts and things
as such other party may reasonably request in order to effect the purposes of
this Loans Supplement.
5. By executing and delivering this Loans Supplement, the Program LOC
Provider and the Successor Program LOC Provider confirm to and agree with each
other and the Agent and the other Lenders as follows: (i) other than the
representation and warranty that it has not created any Adverse Claim upon any
interest being transferred hereunder, the Program LOC Provider makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Loan
Agreement or any other Transaction Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Agreement, any other Transaction Document, any Interest, any Receivable, or any
other Affected Asset or any other instrument or document furnished pursuant
thereto or the perfection, priority, condition, value or sufficiency of any
collateral; (ii) the Program LOC Provider makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrower or any other Borg-Warner Entity or any other Affiliate of the Borrower
or any other Borg-Warner Entity or any Obligor or the performance or observance
by the Borrower or any other Borg-Warner Entity or any other Affiliate of the
Borrower or any Borg-Warner Entity of any of its obligations under the Loan
Agreement, any other Transaction Document or any other instrument or document
furnished pursuant thereto or the collectibility of any Receivable; (iii) the
Successor Program LOC Provider confirms that it has received a copy of the Loan
Agreement (other than the Fee Letter), together with such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Loans Supplement; (iv) the Successor Program LOC
Provider will, independently and without reliance upon the Agent, the Program
LOC Provider or any other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under, or in connection with, the Loan Agreement;
(v) the Successor Program LOC Provider appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under, or in
connection with, the Loan Agreement as are delegated to the Agent by the terms
thereof, together with such powers as are reasonably incidental thereto, all in
accordance with Article X of the Loan Agreement; (vi) the Successor Program LOC
Provider agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Agreement are required to be
performed by it as the "Program LOC Provider" under the Loan Agreement; and
(vii) the Successor Program LOC Provider specifies as its address for notices
the address set forth in Schedule II hereto.
6. Each party hereto represents and warrants to and agrees with the Agent
that each party hereto is aware of and will comply with all of the provisions of
the Loan Agreement.
7. Schedule II hereto sets forth administrative information with respect
to the Successor Program LOC Provider.
8. Following the execution of this Loans Supplement by the Program LOC
Provider and the Successor Program LOC Provider, it will be delivered to the
Agent for acceptance and recording by the Agent. This Loans Supplement shall be
effective as of the Transfer Effective Date but only after it has been accepted
and recorded by the Agent.
9. Upon acceptance and recording of this Loans Supplement by the Agent,
as of the Transfer Effective Date, (i) the Successor Program LOC Provider shall
be a party to the Loan Agreement and, to the extent provided in this Loans
Supplement and in the Loan Agreement and to the extent transferred hereunder,
have the rights and obligations of the "Program LOC Provider" thereunder and
(ii) the Program LOC Provider shall, to the extent provided in this Loans
Supplement and the Loan Agreement, relinquish its rights and be released from
its obligations under the Loan Agreement.
10. From and after the later of the Transfer Effective Date and the date
of acceptance and recording of this Loans Supplement by the Agent, the Agent
shall make all payments under the Loan Agreement in respect of the interest
assigned hereby (including, without limitation, all payments on account of the
Program LOC Provider and of Interest with respect thereto) to the Successor
Program LOC Provider. The Program LOC Provider and the Successor Program LOC
Provider shall make directly between themselves all appropriate adjustments in
payments under the Loan Agreement for periods, if any, prior to the later of the
dates specified in the preceding sentence.
11. The Program LOC Provider and the Successor Program LOC Provider hereby
advise the Agent that, to the extent the consent of the Borrower or any other
Person is required for the transfer contemplated herein, such consent has been
duly obtained and remains in full force and effect.
12. This Loans Supplement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same Loans Supplement.
13. This Loans Supplement shall be governed by, and construed in
accordance with, the laws of the State of Illinois.
In Witness Whereof, the parties hereto have caused this Loans Supplement to
be executed by their respective duly authorized officers on Schedule I hereto as
of the date set forth in Item 1 of Schedule I hereto.<PAGE>
Schedule to Loans Supplement
Completion of Information
and Signatures for
Loans Supplement
Re:Amended and Restated Receivables Loan Agreement, dated as of December 23,
1998, with BWA Receivables Corporation
Item 1 Date of Loans Supplement:
Item 2 Program LOC Provider:
Item 3 Successor Program LOC Provider:
--------------------------------------------, as
Program LOC Provider
By:
Title:
[By:
Title: ]
- -----------------------------------, as
Successor Program LOC Provider
By:
Title:
Consented To and Acknowledged:
ABN AMRO Bank N.V.,
as Agent
By:
Title:
By:
Title:
BWA Receivables Corporation
By:
Title:<PAGE>
Schedule II
to Loans
Supplement
List of Offices and Addresses
for Notices
Address for Notices:
Attention:
Telephone:
Telecopy:<PAGE>
Schedule III
to Loans
Supplement
Transfer Effective Notice
To: The Successor Program LOC Provider Listed
on Schedule I Hereto
The undersigned, as Agent under the Amended and Restated Receivables Loan
Agreement, dated as of December 23, 1998, among BWA Receivables Corporation,
BorgWarner Automotive, Inc., as Collection Agent, ABN AMRO Bank N.V., as Agent
and Program LOC Provider, the banks from time to time party thereto and Windmill
Funding Corporation (as amended, supplemented, or otherwise modified from time
to time, the "Loan Agreement"), acknowledges receipt of ten (10) executed
counterparts of a completed Loans Supplement, dated as of the date set forth in
Item 1 of Schedule I hereto, between the Program LOC Provider set forth in Item
2 of Schedule I hereto, and the Successor Program LOC Provider set forth in Item
3 of Schedule I hereto, and schedules thereto. Terms defined in such Loans
Supplement are used herein as therein defined.
1. Pursuant to such Loans Supplement, you are advised that the Transfer
Effective Date will be --------.
2. Pursuant to such Loans Supplement the Successor Program LOC Provider
is required to pay its Loan Price, if any, to the Program LOC Provider at or
before 12:00 noon, local time of the Program LOC Provider, on the Transfer
Effective Date in immediately available funds.
Very truly yours,
ABN AMRO Bank N.V., as
Agent
By:
Title:
By:
Title:
<PAGE>
Exhibit O
To
Receivables Loan Agreement
Loans Supplement
[Form of Assignment for Windmill]
Loans Supplement, dated as of the date set forth in Item 1 of Schedule I
hereto, between the Assignor set forth in Item 2 of Schedule I hereto (the
"Assignor"), and the Assignee set forth in Item 3 of Schedule I hereto (the
"Assignee").
W i t n e s s e t h:
Whereas, this Loans Supplement is being executed and delivered in
accordance with Section 11.6(e)(ii) of the Amended and Restated Receivables Loan
Agreement, dated as of December 23, 1998, among BWA Receivables Corporation, a
Delaware corporation (the "Borrower"), BorgWarner Automotive, Inc., a Delaware
corporation, as Collection Agent, ABN AMRO Bank N.V., as agent for the Lenders
(in such capacity on behalf of the Lenders, the "Agent"), and the banks from
time to time party thereto (collectively the "Banks"), ABN AMRO Bank N.V., as
provider of the program letter of credit (the "Program LOC Provider"), and
Windmill Funding Corporation, a Delaware corporation ("Windmill") (Windmill
together with the Program LOC Provider and the Banks, the "Lenders") (as
amended, supplemented or otherwise modified from time to time, the "Loan
Agreement"). Terms defined therein being used herein (and in the Schedules
hereto) have the same meaning as defined in the Loan Agreement).
Whereas, the Assignee wishes to become a party to the Loan Agreement; and
Whereas, the Assignor is selling and assigning to the Assignee all of its
Loan Amount and Interest and all rights and obligations related thereto under
the Loan Agreement as set forth herein;
Now, Therefore, the parties hereto hereby agree as follows:
1. Upon receipt by the Agent of ten (10) counterparts of this Loans
Supplement, to each of which is attached a fully completed Schedule I and
Schedule II, and each of which has been executed by the Assignor, the Assignee,
the Agent and the Borrower, and upon the satisfaction of all of the requirements
set forth in Section 11.6(e)(ii) of the Loan Agreement, including delivery of an
opinion of counsel of the Assignee as described therein, the Agent will transmit
to the Borrower, the Assignor and the Assignee a Transfer Effective Notice,
substantially in the form of Schedule III to this Loans Supplement (a "Transfer
Effective Notice"). Such Transfer Effective Notice shall set forth, inter alia,
the date on which the transfer effected by this Loans Supplement shall become
effective (the "Transfer Effective Date"), which date shall be two (2) Business
Days following the date of such Transfer Effective Notice (or such other date
selected by the Agent in its sole discretion). From and after the Transfer
Effective Date, (i) the Assignee shall be a party to the Loan Agreement for all
purposes thereof as if the Assignee were an original party thereto, all
references to "Windmill" in the Loan Agreement and all other Transaction
Documents shall be references to the Assignee and the Assignee agrees to be
bound by all of the terms and provisions contained therein, and the Assignor
shall be substituted, released and discharged from any further obligations under
the Loan Agreement.
2. At or before 12:00 noon, local time of the Assignor, on the Transfer
Effective Date, if the Assignor owns any Loan Amount under the Loan Agreement,
the Assignee shall pay to the Assignor, in immediately available funds, an
amount equal to the sum of (i) the Loan Amount of the Assignor, plus (ii) all
unpaid Interest owed to, or which may become payable to, the Assignor under the
Loan Agreement to the end of all Tranche Periods applicable to such Loan Amount,
plus (iii) all accrued but unpaid fees and other costs and expenses (whether or
not then due) payable to the Assignor under or in connection with the Loan
Agreement (the "Loan Price"). Effective upon receipt by the Assignor of the
Loan Price from the Assignee, the Assignor hereby transfers and assigns to the
Assignee, without recourse, representation or warranty (except as explicitly set
forth below), and the Assignee hereby irrevocably takes, receives and assumes
from the Assignor, all of the Assignor's beneficial interest in the Secured
Interest held by the Agent on its behalf, if any.
3. Concurrently with the execution and delivery hereof, the Assignor will
provide to the Assignee copies of all documents requested by the Assignee which
were delivered to the Assignor pursuant to the conditions precedent set forth in
Article V of the Loan Agreement.
4. Each of the parties to this Loans Supplement agrees that at any time
and from time to time upon the written request of any other party, it will
execute and deliver such further documents and do such further acts and things
as such other party may reasonably request in order to effect the purposes of
this Loans Supplement.
5. By executing and delivering this Loans Supplement, the Assignor and
the Assignee confirm to and agree with each other and the Agent and the other
Lenders as follows: (i) other than the representation and warranty that it has
not created any Adverse Claim upon any interest being transferred hereunder, the
Assignor makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Loan Agreement or any other Transaction Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Loan Agreement, any other Transaction Document, any Interest, any
Receivable, or any other Affected Asset or any other instrument or document
furnished pursuant thereto or the perfection, priority, condition, value or
sufficiency of any collateral; (ii) the Assignor makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or any other Borg-Warner Entity or any other Affiliate of the
Borrower or any other Borg-Warner Entity or any Obligor or the performance or
observance by the Borrower or any other Borg-Warner Entity or any other
Affiliate of the Borrower or any other Borg-Warner Entity of any of its
obligations under the Loan Agreement, any other Transaction Document or any
other instrument or document furnished pursuant thereto or the collectibility of
any Receivable; (iii) the Assignee confirms that it has received a copy of the
Loan Agreement (other than the Fee Letter), together with such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Loans Supplement; (iv) the Assignee will,
independently and without reliance upon the Agent, the Assignor or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under, or in connection with, the Loan Agreement; (v) the Assignee
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under, or in connection with, the Loan Agreement as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, all in accordance with Article X of the Loan
Agreement; (vi) the Assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Agreement are
required to be performed by it as "Windmill" under the Loan Agreement; and (vii)
the Assignee specifies as its address for notices the address set forth in
Schedule II hereto.
6. Each party hereto represents and warrants to and agrees with the Agent
that each party hereto is aware of and will comply with all of the provisions of
the Loan Agreement.
7. Schedule II hereto sets forth administrative information with respect
to the Assignee.
8. Following the execution of this Loans Supplement by the Assignor and
the Assignee, it will be delivered to the Agent for acceptance and recording by
the Agent. This Loans Supplement shall be effective as of the Transfer
Effective Date but only after it has been accepted and recorded by the Agent.
9. Upon acceptance and recording of this Loans Supplement by the Agent,
as of the Transfer Effective Date, (i) the Assignee shall be a party to the Loan
Agreement and, to the extent provided in this Loans Supplement and in the Loan
Agreement and to the extent transferred hereunder, have the rights and
obligations of the Assignor thereunder and (ii) the Assignor shall, to the
extent provided in this Loans Supplement and the Loan Agreement, relinquish its
rights and be released from its obligations under the Loan Agreement.
10. From and after the later of the Transfer Effective Date and the date
of acceptance and recording of this Loans Supplement by the Agent, the Agent
shall make all payments under the Loan Agreement in respect of the interest
assigned hereby (including, without limitation, all payments on account of the
Assignor and of Interest with respect thereto) to the Assignee. The Assignor
and the Assignee shall make directly between themselves all appropriate
adjustments in payments under the Loan Agreement for periods, if any, prior to
the later of the dates specified in the preceding sentence.
11. The Assignor and the Assignee hereby advise the Agent that, to the
extent the consent of the Borrower or any other Person is required for the
transfer contemplated herein, such consent has been duly obtained and remains in
full force and effect.
12. This Loans Supplement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same Loans Supplement.
13. This Loans Supplement shall be governed by, and construed in
accordance with, the laws of the State of Illinois.
In Witness Whereof, the parties hereto have caused this Loans Supplement to be
executed by their respective duly authorized officers on Schedule I hereto as of
the date set forth in Item 1 of Schedule I hereto.<PAGE>
Schedule I
to Loans
Supplement
Completion of Information
and Signatures for
Loans Supplement
Re:Receivables Loan Agreement, dated as of December 23, 1998, with BWA
Receivables Corporation
Item 1 Date of Loans Supplement:
Item 2 Assignor:
Item 3 Assignee:
- -----------------------------------, as
Assignor
By:
Title:
- -----------------------------------, as
Assignee
By:
Title:
Consented To and Acknowledged:
ABN AMRO Bank N.V.,
as Agent
By:
Title:
By:
Title:
BWA Receivables Corporation
By:
Title:<PAGE>
Schedule II
to Loans
Supplement
List of Offices and Addresses
for Notices
Address for Notices:
Attention:
Telephone:
Telecopy:<PAGE>
Schedule III
to Loans
Supplement
Transfer Effective Notice
To: The Assignee Listed
on Schedule I Hereto
The undersigned, as Agent under the Receivables Loan Agreement, dated as of
December 23, 1998, among BWA Receivables Corporation, BorgWarner Automotive,
Inc., as Collection Agent, ABN AMRO Bank N.V., as Agent and Program LOC
Provider, the banks from time to time party thereto and Windmill Funding
Corporation (as amended, supplemented, or otherwise modified from time to time,
the "Loan Agreement"), acknowledges receipt of ten (10) executed counterparts of
a completed Loans Supplement, dated as of the date set forth in Item 1 of
Schedule I hereto, between the Assignor set forth in Item 2 of Schedule I
hereto, and the Assignee set forth in Item 3 of Schedule I hereto, and schedules
thereto. Terms defined in such Loans Supplement are used herein as therein
defined.
1. Pursuant to such Loans Supplement, you are advised that the Transfer
Effective Date will be ------------------.
2. Pursuant to such Loans Supplement the Assignee is required to pay its
Loan Price, if any, to the Assignor at or before 12:00 noon, local time of the
Assignor, on the Transfer Effective Date in immediately available funds.
Very truly yours,
ABN AMRO Bank N.V., as
Agent
By:
Title:
By:
Title:
<PAGE>
Schedule I
To
Receivables Loan Agreement
Banks and Bank Commitments
Name of Bank Bank Commitment
ABN AMRO Bank N.V. $114,750,000
AMENDMENT TO ASSIGNMENT OF TRADEMARKS
AND LICENSE AGREEMENT
This Amendment to Assignment of Trademarks and License Agreement
("Amendment") is entered into as of the 31st day of July, 1998, by and between
Borg-Warner Security Corporation ("BWSC") and Borg-Warner Automotive, Inc.
("BWA") (collectively referred to as the "Parties").
WHEREAS, the Parties entered into an Assignment of Trademarks and License
Agreement dated November 2, 1994 (the "1994 Agreement") which relates to the use
and ownership of the Borg-Warner Trademarks, as therein defined, by BWSC and
BWA.
WHEREAS, the Parties desire upon the terms and conditions set forth herein
to prospectively modify the 1994 Agreement and for BWSC to transfer its
remaining interest in the Borg-Warner Trademarks to BWA.
WHEREAS, the Parties desire that BWA license back to BWSC usage rights in
transferred trademarks and trade names on a royalty-free basis for a period of
time.
WHEREAS, BWSC recognizes that BWA has already paid to BWSC the amounts
required under Paragraph 5.1 of the 1994 Agreement and BWSC acknowledges that
effective with this Amendment, Paragraph 5.2 will be deleted.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties agree as
follows:
1. BWA hereby agrees to pay BWSC on July 31, 1998 the sum of Three Million Six
Hundred Fifty Thousand Six Hundred Fifty Dollars and no cents ($3,650,650).
2. Effective July 31, 1998, the 1994 Agreement is amended as follows:
a. Delete Paragraph 2.2 in its entirety and replaced with the following:
2.2) Security hereby assigns to Automotive all of its right,
title and interest worldwide in and to the Base Trademarks, Automotive
Trademarks and Bow Tie Trademarks outside the Automotive Field, together with
the goodwill of the business associated with such marks, and all United States
and Foreign Registrations and Registration Applications therefor. Security
Agrees that it will not challenge or contest the validity of the Base
Trademarks, Automotive Trademarks or Bow Tie Trademarks used or licensed by
Automotive outside the Automotive Field.
b. Paragraphs 2.3 and 2.4 are added as follows:
2.3) Security hereby assigns to Automotive all of its right, title and
interest worldwide in and to the trademarks and trade names identified in the
"Revised Schedule B" to this Amendment ("Security Trademarks"), together with
the goodwill of the business associated with such marks, and all United States
and Foreign Registrations and Registration Applications therefor. Security
Agrees that it will not challenge or contest the validity of the Security
Trademarks.
2.4) Promptly after the earlier of (a) receipt by Automotive of
written request by Security or (b) the expiration or termination of the
trademark license of the Security Trademarks under the Trademark and Trade Name
Licencing Agreement between Borg-Warner Security Corporation and Borg-Warner
Automotive, Inc. dated as of July 31, 1998 ("1998 Agreement"), Automotive will
expressly abandon the following United States Registrations and Registration
Applications resulting therefrom:
(i) United States Registration No. 2,084,200
"BORG-WARNER SECURITY" and the horse & rider design
(ii) United States Registration No. 2,037,366
"BORG-WARNER SECURITY CORPORATION"
(iii) United States Registration No. 2,021,122
"BORG-WARNER SECURITY"
c. Delete Article III, including Paragraphs 3.1, 3.2 and 3.3, in its
entirety and replaced as follows:
ARTICLE III - REPRESENTATION, WARRANTY AND COVENANT
3.1) Security represents and warrants that, to the best of Security's
knowledge, Security has not used and is not currently using any of the Borg-
Warner Trademarks or derivative or variation thereof, other than those marks and
names listed on Revised Schedule B attached to this Amendment.
3.2) Security agrees that it will not use "Borg Warner" or any
variation thereof as, in whole or in part, a company name, trade name,
trademark, service mark, or the like, except as licensed from Automotive.
d. Delete Paragraphs 5.1 and 5.2 in their entirety.
e. Delete Article VI, including Paragraphs 6.1, 6.2, 6.3 and 6.4, in its
entirety.
f. Delete Paragraph 7.1 in its entirety.
3. This Amendment, and the Revised Schedule B attached hereto, together with
the 1994 Agreement, constitute the entire agreement between Security and
Automotive with respect to the subject matter hereof and not other
representations, oral or otherwise, have been relied upon.
4. The Parties will execute such other documents as are reasonable and
necessary to effectuate the purpose of this Amendment, including but not limited
to the 1998 Agreement.
5. The signatories hereto represent that they have the full authority to bind
their respective principals or entities for whom they are signing to the terms
and provisions of this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed
as of the date first above written.
BORG-WARNER SECURITY CORPORATION BORG-WARNER AUTOMOTIVE, INC.
By:----------------------------- By:----------------------------
Title:-------------------------- Title:--------------------------
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Registration Statement Nos.
333-67133, 333-67131 and 333-67135 dated November 12, 1998; 333-51647 dated
May 1,1998; 333-45491, 333-45493, 333-45507, 333-45495 and 333-45499 dated
February 3, 1998; 333-45423 dated February 2, 1998; 33-75564, 33-75566, 33-
75568, 33-75572, 33-75574, 33-67822 and 33-67824 dated February 1, 1995;
33-92430, 33-92428, 33-92432 and 33-92426 dated May 17, 1995; 33-92862 and 33-
92860 dated May 30, 1995; 33-92858 dated June 1, 1995; 333-12941, 333-12875
and 333-12939 dated September 27, 1996; and 333-17179 dated December 3, 1996
of Borg-Warner Automotive, Inc. on Form S-8 of our report, incorporated by
reference in the Annual Report on Form 10-K of Borg-Warner Automotive, Inc.
for the year ended December 31, 1998.
/s/ DELOITTE & TOUCHE LLP
- ----------------------
Deloitte & Touche LLP
Chicago, Illinois
March 19, 1999
BORG-WARNER AUTOMOTIVE, INC.
AS OF MARCH 1, 1999
NAME OF SUBSIDIARY % VOTING SECURITIES OWNED BY PARENT
Borg-Warner Automotive Powertrain Systems Corporation 100
Borg-Warner Automotive South Asia Corporation 100
Divgi-Warner PVT Limited 60
Huazhong (Automotive) Transmission Company, Ltd. 60
Borg-Warner Automotive PTS Korea Service, Inc. 100
Borg-Warner Automotive Powdered Metals Corporation 100
Borg-Warner Automotive Diversified
Transmission Products Corporation 100
Borg-Warner Automotive Air/Fluid Systems Corporation 100
Borg-Warner Automotive Air/Fluid Systems
Corporation of Michigan 100
Borg-Warner Automotive Air/Fluid Systems Holding Corporation100
Borg-Warner Automotive Air/Fluid Systems Europe S.A.S. 90
Borg-Warner Automotive Air/Fluid Systems,Tulle SA 100
Borg-Warner Automotive Morse TEC Corporation 100
Borg-Warner Automotive (Canada) Ltd. 100
Borg-Warner Automotive Japan Corporation 100
Borg-Warner Automotive K.K. 100
Borg-Warner Automotive Taiwan Co., Ltd. 100
B.W. Componentes Mexicanos de Transmisiones S.A. de C.V. 100
Morse TEC Europe Sp.A 100
Borg-Warner Automotive Foreign Sales Corporation 100
Borg-Warner Automotive Automatic Transmission Systems Corporation100
Borg-Warner Automotive-Europe Corporation 100
AG Kuhnle, Kopp & Kausch 63
Borg-Warner Automotive GmbH 100
Borg-Warner Automotive Europa V&V GmbH 100
3K Warner Turbosystems GmbH 100
Borg-Warner Automotive Europe GmbH 100
Borg & Beck Torque Systems, Inc. 100
Borg-Warner Automotive-NW Corporation 100
Borg-Warner Automotive Korea, Inc. 60
Creon Insurance Agency, Ltd. 100
Creon Trustees, Ltd. 100
Kuhlman Corporation 100
Coleman Cable Systems Inc. 100
The DeKalb Works Company 100
Interflex de Mexico S.A. de C.V. 100
Baron Wire & Cable Corp. 100
Kuhlman Electric Corporation 100
Kuhlman Plastics of Canada, Ltd. 100
Kuhlman Industrial Products, Inc. 100
Bronson Specialties, Inc. 100
Borse Plastic Products Corp. 100
Associated Engineering Company 100
EMTEC Products Corporation 100
Schwitzer, Inc. 100
Schwitzer U.S. Inc. 100
Kysor Asia Limited 100
Schwitzer Manufacturing Canada, Inc. 100
Lacom Schwitzer Equipamentos, Ltda. 100
Kysor DO BRZSIL LTDA 100
Schwitzer (Europe) Holdings Limited 100
Schwitzer (Europe) Limited 100
Kysor Industries, S.A. 100
Kysor Snyder Corporation 100
Snyder Tank Foreign Sales Corporation 100
POWER OF ATTORNEY
The undersigned directors of Borg-Warner Automotive, Inc. (the
"Corporation"), hereby appoint John F. Fiedler as their true and lawful
attorney-in-fact, with full power for and on their behalf to execute, in their
names and capacities as directors of the Corporation, and to file with the
Securities and Exchange Commission on behalf of the Corporation under the
Securities Exchange Act of 1934, as amended, the Annual Report on Form 10-K for
the fiscal year ended December 31, 1998.
This Power of Attorney shall automatically terminate at the close of
business on March 31, 1999.
In witness whereof, the undersigned has executed this Power of Attorney on
this 12th day of March, 1999.
/s/ Jere A. Drummond /s/ Andrew F. Brimmer
- ------------------------- -------------------------
JERE A. DRUMMOND ANDREW F. BRIMMER
/s/ Ivan W. Gorr /s/ William E. Butler
- ------------------------- --------------------------
IVAN W. GORR WILLIAM E. BUTLER
/s/ Paul E. Glaske /s/ John Rau
- ------------------------- --------------------------
PAUL E. GLASKE JOHN RAU
/s/ Alexis P. Michas /s/ James J. Kerley
- ------------------------- --------------------------
ALEXIS P. MICHAS JAMES J. KERLEY
CAUTIONARY STATEMENTS
Information provided by the Company from time to time may contain "forward-
looking statements" as defined by the Private Securities Litigation Reform Act
of 1995. Such forward-looking statements are subject to risks and uncertainties
including, but not limited to, those discussed below, which could cause actual
results to differ materially from those expressed, projected or implied in the
forward-looking statement.
1. The Company's principal operations are cyclical, because they are directly
related to domestic and foreign automotive production, which is itself cyclical
and dependent on general economic conditions and other factors. Any significant
reduction in automotive production would have an adverse effect on the level of
the Company's sales to automotive original equipment manufacturers ("OEMs") and
the Company's financial position and operating results.
2. Some of the Company's products are currently used exclusively in sport-
utility vehicles and light trucks, the most rapidly growing segment in the
overall automotive market. Any significant reduction in production in this
market segment would have an adverse effect on the level of the Company's sales
to OEMs and the Company's financial position and operating results.
3. A number of the Company's major OEM customers manufacture products for their
own use that compete with the Company's products. Although these OEM customers
have indicated that they will continue to rely on outside suppliers, the OEMs
could elect to manufacture products for their own use and in place of the
products now supplied by the Company.
4. The Company has a stated goal of increasing its revenues through the
expansion of existing business and select acquisitions. Failure to grow
existing business in sufficient volume because of changes in the automotive
market and/or the unavailability of suitable acquisition candidates could result
in nonattainment of this goal.
5. Annual price reductions to OEM customers have become a permanent feature of
the Company's business environment. To maintain its profit margins, the
Company, among other things, seeks price reductions from its own suppliers,
adopts improved production processes to increase manufacturing efficiency,
updates product designs to reduce costs and develops new products whose benefits
support increased pricing. The Company's ability to pass through increased raw
material costs to its OEM customers is also limited, with cost recovery less
than 100% and often on a delayed basis. There can be no assurance that the
Company will be able to reduce costs in an amount equal to the annual price
reductions and the increase in raw material costs.
6. The Company makes a significant annual investment in research and
development activities to develop new and improved products and manufacturing
processes. There can be no assurance that research and development activities
will yield new or improved products or products which will be purchased by the
OEMs, or new and improved manufacturing processes.
7. The Company has a stated goal to expand its operations in all significant
global markets to balance the cyclical nature of the automotive business. There
can be no assurance that the Company will be able to expand its existing
business or acquire new business outside of North America to balance its sales.
In addition, there can be no assurance that automotive production in North
America, Europe and Asia will not decline simultaneously.
8. The Company has a stated goal of continuing to increase revenues and
operating earnings at a rate greater than overall world automotive production by
increasing its content per vehicle with innovative new components and systems.
Any of the following factors could cause the Company to fail to outperform world
automotive production: (a) a significant drop in production of sport utility
vehicles and light trucks, high content vehicles for the Company's products; (b)
a failure of research and development spending to result in new components and
systems which will be purchased by the OEMs; (c) technology changes which could
render the Company's components and systems obsolete; and (d) a reversal of the
trend of supplying systems (which allows the Company to increase content per
vehicle) instead of components.
9. With operations and sales in countries outside the United States, the
Company could be affected by changes in trade, monetary and fiscal policies
(both in the United States and elsewhere), trade restrictions or prohibitions,
import and other charges or taxes, and fluctuations in foreign currency and
foreign exchange rates, and political instability and disputes.
CERTIFICATE OF DESIGNATIONS
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
BORG-WARNER AUTOMOTIVE, INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
Borg-Warner Automotive, Inc., a corporation organized and existing under
the General Corporation Law of the State of Delaware (hereinafter called the
"Corporation"), hereby certifies that the following resolution was adopted by
the Board of Directors of the Corporation as required by Section 151 of the
General Corporation Law at a meeting duly called and held on July 21, 1998:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (hereinafter called the "Board of
Directors" or the "Board") in accordance with the provisions of the Certificate
of Incorporation, the Board of Directors hereby creates a series of Preferred
Stock, par value $.01 per share (the "Preferred Stock"), of the Corporation and
hereby states the designation and number of shares, and fixes the relative
rights, preferences, and limitations thereof as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall
be designated as "Series A Junior Participating Preferred Stock" (the "Series A
Preferred Stock") and the number of shares constituting the Series A Preferred
Stock shall be 500,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series A Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series
of Preferred Stock (or any similar stock) ranking prior and superior to the
Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock, in preference to the holders of Voting Common Stock,
par value $.01 per share ("Voting Common Stock") and Non-Voting Common Stock,
par value $.01 per share ("Non-Voting Common Stock", and together with the
Voting Common Stock, "Common Stock"), of the Corporation, and of any other
junior stock, shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June, September and
December in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share of Series A Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the greater
of (a) $1 or (b) subject to the provision for adjustment hereinafter set forth,
100 times the aggregate per share amount of all cash dividends, and 100 times
the aggregate per share amount (payable in kind) of all non-cash dividends or
other distributions, other than a dividend payable in shares of Common Stock or
a subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of
Series A Preferred Stock. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount to which holders of
shares of Series A Preferred Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (A) of this Section
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1 per share on the
Series A Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series A Preferred Stock entitled to receive payment of
a dividend or distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Preferred Stock shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the stockholders of the Corporation.
In the event the Corporation shall at any time declare or pay any dividend on
the Voting Common Stock payable in shares of Voting Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Voting
Common Stock (by reclassification or otherwise than by payment of a dividend in
shares of Voting Common Stock) into a greater or lesser number of shares of
Voting Common Stock, then in each such case the number of votes per share to
which holders of shares of Series A Preferred Stock were entitled immediately
prior to such event shall be adjusted by multiplying such number by a fraction,
the numerator of which is the number of shares of Voting Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Voting Common Stock that were outstanding immediately prior
to such event.
(B) Except as otherwise provided herein, in any other Certificate of
Designations creating a series of Preferred Stock or any similar stock, or by
law, the holders of shares of Series A Preferred Stock and the holders of shares
of Common Stock and any other capital stock of the Corporation having general
voting rights shall vote together as one class on all matters submitted to a
vote of stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series A Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for taking any corporate
action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except dividends
paid ratably on the Series A Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(iii)redeem or purchase or otherwise acquire for consideration shares
of any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or winding up)
to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock ranking on a parity
with the Series A Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board of Directors) to
all holders of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares of
stock of the Corporation unless the Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, or in any other Certificate of Designations
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Series A
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of shares of
Common Stock, or (2) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock, except distributions made ratably on the Series A
Preferred Stock and all such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount to which
holders of shares of Series A Preferred Stock were entitled immediately prior to
such event under the proviso in clause (1) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior tosuch event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series A Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Voting Common Stock is changed or
exchanged. In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Preferred Stock shall be adjusted
by multiplying such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred Stock
shall not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank, with
respect to the payment of dividends and the distribution of assets, junior to
all series of any other class of the Corporation's Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of the
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of at
least two-thirds of the outstanding shares of Series A Preferred Stock, voting
together as a single class.
IN WITNESS WHEREOF, this Certificate of Designations is executed on
behalf of the Corporation by its Vice President and General Counsel and attested
by its Assistant Secretary this 4th day of January, 1999.
Attest:
/s/ Vincent M. Lichtenberger /s/ Laurene H. Horiszny
- ----------------------------- ---------------------------
Name: Vincent M. Lichtenberger Name: Laurene H. Horiszny
Title: Assistant Secretary Title: Vice President and General
Counsel
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Consolidated Statements of Financial Condition at December 31, 1998 and the
Consolidated Statements of Income for the Twelve Months Ended December 31, 1998
and is qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> DEC-31-1998
<CASH> 37,800
<SECURITIES> 6,200
<RECEIVABLES> 185,400
<ALLOWANCES> 0
<INVENTORY> 115,700
<CURRENT-ASSETS> 376,100
<PP&E> 1,004,900
<DEPRECIATION> 370,400
<TOTAL-ASSETS> 1,846,100
<CURRENT-LIABILITIES> 454,100
<BONDS> 248,500
0
0
<COMMON> 200
<OTHER-SE> 777,200
<TOTAL-LIABILITY-AND-EQUITY> 1,846,100
<SALES> 1,836,800
<TOTAL-REVENUES> 1,836,800
<CGS> 1,450,700
<TOTAL-COSTS> 1,450,700
<OTHER-EXPENSES> 218,500
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 26,900
<INCOME-PRETAX> 140,700
<INCOME-TAX> 46,000
<INCOME-CONTINUING> 94,700
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 94,700
<EPS-PRIMARY> 4.03
<EPS-DILUTED> 4.00
</TABLE>
Borg-Warner Automotive
is driven
1998 Annual Report
Trends - Technology - Growth
The accelerating pace of change in powertrain technology is driving growth at
Borg-Warner Automotive. Change sets the stage for joint development with our
automaker customers of new engines, automated transmissions and four-wheel drive
systems. Our customers gain innovative and cost-effective solutions while we
increase BWA content in each vehicle they produce. Our job is to stay ahead of
the curve. The pursuit of product leadership drives our growth. At BWA-driven is
a state of mind.
Contents
Financial Highlights Page 1
Letter to Shareholders Page 2
Business Profile Page 4
4-Wheel Drive - Automated Transmissions - Engines Page 5-19
Financial Review Page 20-43
Investor Information Page 46
Board of Directors and Officers Inside Back Cover
<PAGE>
Financial Highlights
Borg-Warner Automotive, Inc. and Consolidated Subsidiaries
<TABLE>
<CAPTION>
December 31, 1998 1997
<S> <C> <C>
Net sales $1,836.8 $1,767.0
Net earnings 94.7 103.2
Net earnings per share - basic 4.03 4.35
Net earnings per share - diluted 4.00 4.31
Average number of shares outstan-
ding - basic {millions} 23.5 23.7
Average number of shares outstan-
ding - diluted {millions} 23.7 23.9
Number of employees 10,100 10,400
</TABLE>
To Our Shareholders
DRIVEN
We ended 1998 on a strong note, completing a year that challenged us. While we
fell short of our goals, our second half improvement affirms the value of our
growth strategy.
Our challenges in the first part of the year included a difficult Asian economy,
soft four-wheel drive sales and a strike at General Motors. Overreaction to
these temporary issues caused a weakness in our stock price.
We rebounded in the second part of the year. Our Asian business stabilized;
four-wheel drive sales improved and the GM strike was settled. More importantly,
significant new business with increased BWA content came on stream including
Chrysler engine and transmission programs. Demand in Europe for engine timing
systems and turbochargers accelerated. Sales there have doubled to 17% of our
combined worldwide revenue.
We ended the year with our stock price up 7% while the average price of auto
parts suppliers was down 10%. Our resurgence indicates our ability to outpace
our peers, regardless of size, and deliver a strong performance based on our
focused, technology-driven strategy.
Throughout the year, engine programs drove our growth. There is no doubt that
changing engine technology is replacing four-wheel drive as our near-term growth
catalyst.
We saw some shifts in our customer base as well. Ford now represents 32% of
sales. DaimlerChrysler moves up to number two, at 17% of sales. GM is next at
14%, followed by Toyota at 7%. Volkswagen/Audi is now at 4% by virtue of our
turbocharger sales to them.
Growth Goals
Although we were able to grow revenues during the year despite the challenges we
faced, we did not achieve the expected progress toward our long-term growth
objectives. We want to double our size over the next few years, an ambitious
goal.
During 1998 we recommitted ourselves to this goal, establishing a clear road map
to follow and milestones to track our progress. Our path to growth through
powertrain product leadership has three components: current business, internal
growth and acquisitions. Key to our success is internal growth from new products
that exploit our expertise and leverage our knowledge across our operating
groups.
Leveraging Our Expertise
The most exciting piece of this growth model for me is our cross-business
opportunities. We are tapping the ideas, talents and collective expertise of all
of our groups, identifying and funding innovations that we would not have
undertaken as individual business units.
Two great new cross-business projects are already underway. The first is a
project in Europe that blends our transmission and electromechanical know-how to
automate the shifting of manual transmissions. The second is addressing the move
to high voltage electrical systems in tomorrow's vehicles as well as serving as
a pilot for our innovation process.
By working across our businesses, we have already captured the best thinking of
our people on hundreds of potential products and opportunities, giving us a
tremendous backlog of innovative ideas for the future.
In developing our growth model, we have also outlined a strategic acquisitions
program. Our pending purchase of a major U.S. turbocharger business is an
important part of this program. We believe that with proprietary technology, we
can thrive in a consolidating industry, as long as we continue to grow steadily
in those areas that use technology to add value - like engines, transmissions
and torque management. Technology should give us more of an edge than just sheer
size.
Pioneering Innovation
BWA has a proud 70 year history of pioneering innovation in the automotive
industry. Our commitment to growth through powertrain product leadership is a
reaffirmation of the potential of our heritage. This is an exciting time in our
industry as we rethink some of the basic technologies in our business. Our 1998
report looks at BWA expertise as it applies to engines, transmissions and four-
wheel drive systems.
But technology is nothing without people. We work in an industry where we can
never become complacent. Our people challenge themselves every day to find a
better way, to ask "what if" and "why not." Because of our people, I continue to
believe that if you own just one automotive stock, it should be BWA.
[signature]
John F. Fiedler
Chairman and Chief Executive Officer
[FIEDLER PHOTO}
Manufacturing is one of the four pillars that support BWA's drive for product
leadership. Our people search for and implement "best-of-the-best" practices
everyday. Their efforts were recognized by Industry Week which named two of our
facilities as among the 25 best plants in America. CEO John Fiedler is shown
here in our Frankfort, Illinois, facility where our people earned a Top 10
distinction.
BWA History of Innovation
1880
Morse Equalizing Spring Company, forerunner of Morse Chain, is founded.
1901
Warner Gear is founded.
1904
Borg & Beck is founded. George and Earl Holley begin producing carburetors.
1906
Morse begins manufacturing automobile chain.
1909
First manual transmission is manufactured by Warner Gear.
1928
Borg-Warner Corporation is formed.
1929
Borg-Warner acquires Morse Chain.
1936
The Borg-Warner Indianapolis 500 Trophy makes its debut when it is presented to
race winner Louis Meyer.
1940
Warner Gear begins manufacturing four-wheel drive transfer cases.
1950
Borg-Warner introduces a three-speed, automatically shifted transmission for
passenger cars, the "Ford-O-Matic."
1964
Borg-Warner and NSK Limited establish NSK-Warner, a joint venture, to supply the
rapidly growing Japanese automotive industry.
1973
Borg-Warner develops a modern, full-time 4WD transfer case, which incorporates
HY-VO(r) drive chain and a torque-biasing differential.
1983
Borg-Warner develops lightweight MAJI-BAND(r) brake band assembly for automatic
transmissions.
1993
Borg-Warner Automotive, Inc. becomes a separate, independent company.
Morse Gemini(tm) Chain System is developed and goes into production.
1994
Production of Torque-on-Demand(r) [TOD] four-wheel drive transfer case begins.
1996
Three automotive businesses are acquired from Coltec Industries, including
Holley Automotive.
1997
Ownership interest in German turbo-charger business is acquired.
NSK-Warner introduces carbon-impregnated friction materials for all Lexus V-8
engine models.
1998
Plastic air induction modules are produced for Chrysler vehicles.
FWD/4WD system is patented.
Agreement is made to purchase U.S. turbocharger manufacturer.
BUSINESS PROFILE
Air/Fluid Systems
[PIE CHART]
17% 1998 Combined Sales
Business Description
Full service supplier of air induction and fluid control systems and
electromechanical components, for enhanced engine and transmission performance,
reduced emissions, fuel vapor recovery, and increased vehicle safety.
1998 Highlights
Sales are up 3%. Air induction systems and transmission control module content
on new DaimlerChrysler LH and Jeep platforms fuel growth. R&D efforts focus on
European opportunities and new role of electromechanical systems and components
in engine and transmission design.
Growth Opportunities
- - Market consolidation of suppliers in strong strategic product segments
- - Phase-in of new emission regulations in Europe and North America
- - Direct injected gasoline and diesel engines
- - Increased use of electronics and transition to higher voltage electrical
systems
Plant Locations
Headquarters: Warren, Michigan
Blytheville, Arkansas
Dixon, Illinois
Sallisaw, Oklahoma
Tulle, France
Water Valley, Mississippi
[BAR CHART]
Sales
Millions of dollars
1994 91.0
1995 97.8
1996 242.7
1997 342.4
1998 351.4
Automatic Transmission Systems
[PIE CHART]
32% 1998 Combined Sales
Business Description
Supplies "shift quality" components and systems including one-way clutches and
races; clutch-packs; and friction plates and bands to virtually every automatic
transmission maker in the world.
1998 Highlights
The impact of the GM strike and weak demand in Asia for vehicles with automatic
transmissions push sales down 4%. Demand is strong in Europe. New business in
North America boosts production. Two facilities win honors from Industry Week as
"America's Best Plants" finalists.
Growth Opportunities
- - Move from three- to four-to five- to six-speed transmissions
- - Shift from components to sub-systems strategy
- - Development of continuously variable transmissions (CVT)
- - Automation of manual transmissions
Plant Locations
Headquarters: Lombard, Illinois
Bellwood, Illinois
Coldwater, Michigan
Eumsung, Korea (80% JV)
Frankfort, Illinois
Fukuroi City, Japan (50% JV)
Gallipolis, Ohio
Heidelberg, Germany
Ketsch, Germany
Lombard, Illinois (aftermarket)
Margam, Wales
[BAR CHART]
Sales
Millions of dollars
1994 321.8
1995 378.1
1996 392.2
1997 418.2
1998 402.6
Morse TEC
[PIE CHART]
17% 1998 Combined Sales
Business Description
Global leader in the design and manufacturing of automotive chain systems and
components for engine timing, automatic transmission and four-wheel drive
applications.
1998 Highlights
Sales rise 9%. Continued strong demand in North America and Europe for engine
components and systems offsets weakness in Asia and the impact of the GM strike.
New European headquarters opens in Italy. Expansion begins in Japan to
accommodate new engine timing systems business.
Growth Opportunities
- - Timing chain systems for direct injected diesel engines
- - Engine timing systems moving from belts to chains in Japan and Europe
- - Growth of overhead cam engines
- - Systems integration; alternative technologies
Plant Locations
Headquarters: Ithaca, New York
Arcore, Italy
Guadalajara, Mexico
Ithaca, New York
Nabari City, Japan
Simcoe, Ontario, Canada
Tainan Shien, Taiwan
[BAR CHART]
Sales
Millions of dollars
1994 239.9
1995 257.6
1996 276.5
1997 324.1
1998 353.3
Powertrain Systems
[PIE CHART]
25% 1998 Combined Sales
Business Description
Largest independent global designer and producer of transfer cases and systems
for four-wheel and all-wheel drive vehicles for the sport-utility and light
truck markets. Systems enhance driver safety, security, driveability and ease of
use.
1998 Highlights
Production of 4WD systems for the popular Mercedes M-Class AAV and freshened
Ford Ranger are strong. No new Ford applications are added, however, and
shipments of 4WD transfer cases for Ford F-150 trucks are off due to a shortage
of V-8 engines. Transfer case exports to Korea are down significantly due to
economic conditions. Sales are off 15%.
Growth Opportunities
- - Continued popularity of 4WD in an established market segment
- - Growing popularity of passenger car-based 4WD
- - European and emerging markets
- - Application of torque management expertise in alternative technologies
Plant Locations
Headquarters: Sterling Heights, Michigan
Beijing, China (49% JV)
Cary, North Carolina
Livonia, Michigan
Longview, Texas
Margam, Wales
Muncie, Indiana
Pune, India (60% JV)
Seneca, South Carolina
Sirsi, India (60% JV)
[BAR CHART]
Sales
Millions of dollars
1994 364.9
1995 405.5
1996 476.8
1997 613.5
1998 518.8
Turbo Systems
[PIE CHART]
9% 1998 Combined Sales
Business Description
Leading manufacturer of turbochargers for the passenger car and light commercial
vehicle markets.
1998 Highlights
Strong demand for turbochargers on direct injected diesel engines for European
passenger cars accelerates. The purchase of the turbocharger division of AG
Kuhnle, Kopp & Kausch was completed in Europe. A definitive agreement to acquire
Kuhlman Corporation, a major US supplier of turbochargers, is signed.
Growth Opportunities
- - Direct injected diesel engines
- - Emissions/fuel economy needs
- - Emerging applications on light trucks and sport-utility vehicles
- - New technologies such as variable geometry
Plant Locations
Headquarters: Frankenthal, Germany
Kirchheimbolanden, Germany
[BAR CHART]
Sales
Millions of dollars
1997 24.8*
1998 182.9
*Business bought at the end of October 1997.
4-WHEEL DRIVE
[MANGANELLO PHOTO}
Tim Manganello
President, BWA Powertrain Systems
4WD = Safety
It used to be that there were cars, and there were trucks.
With the growth of the sport-utility vehicle (SUV) and introduction of BWA
electronically controlled four-wheel drive (4WD) technology, car buyers
benefited from the security and versatility that were traditionally associated
with trucks and pre-oil crisis passenger cars. Add comfortable interiors and
better handling, and drivers flocked to SUVs.
Far from being a fad, light truck and SUV sales continue to outpace sales of
cars and now account for about 50% of North American vehicle production. More
drivers than ever are being exposed to the benefits of four-wheel/all-wheel
drive. While off-road requirements for most drivers are infrequent, safety and
versatility are paramount. Drivers value the drive-ability, comfort, convenience
and reliability of 4WD.
In response to this demand, BWA is helping automakers develop better and more
fuel efficient 4WD vehicles. Beyond this traditional market, new patented
technology will move us into rapidly emerging cross-over vehicles - four-wheel
drive vehicles based on front-wheel drive (FWD) passenger car platforms.
Why drivers like sport-utility vehicles
[SUV PHOTO]
- - Vehicle size
- - Functionality
- - Reliability
- - Perceived Safety
- - Technology
Our Strength
BWA offers a broad spectrum of mechanical and electronic solutions to move from
two- to four-wheel drive. A pioneer in fully automatic systems, our patented
Torque-on-Demand (TOD) system for rear-wheel drive (RWD) based on 4WD systems
offers four driver-selection modes: 2WD for normal road conditions;
electronically controlled automatic 4WD; full-time 4WD-high for off-road
operation; and 4WD-low for extreme off-road conditions. The system's
distinguishing feature is its ability to deliver optimal torque automatically
using BWA electronic sensors and microcomputer controls. In the automatic 4WD
mode, when the system senses wheel slippage, it automatically transfers power
between front and rear axles and reduces the front-wheel power when it is no
longer needed. The result is a significant handling benefit as compared to
conventional full-time and part-time systems.
BWA / FWD
New Traction Control System
In keeping with our history of innovation, BWA has extended our Torque-on-Demand
(TOD) technology. We've created a new traction control and vehicle stability
enhancement product targeted for front-wheel drive applications that seek the
security and responsiveness of four-wheel drive. This product provides the
option of 2WD or AWD and the automatic transfer of power between the front and
rear axles, while offering side-to-side rear-axle torque management. The system
is capable of distributing 100% of available torque to either rear wheel
independently. As with TOD, the benefits to the driver are greater stability,
control, safety, and driving ease.
Vehicle Market
Millions of units
[CHART]
Worldwide Growth Opportunities
In North America, 4WD remains highly desirable for its security and convenience,
and automakers are focused on improving fuel economy to assure continued sales
of these popular vehicles. The truck/SUV segment is anticipated to outpace
passenger cars, with a 5% growth rate over the next five years. > Significant
growth will occur with the emergence of FWD/4WD vehicles. All automakers are
expected to build these vehicles on global platforms within the next five years,
with 100% estimated market growth by 2004. Growth will be most dramatic in North
America, where an estimated 900,000 FWD/4WD units will exist in 2004 - five-year
growth of some 6,000%. > In Europe, where cars are driven at relatively high
speeds and all-wheel drive is viewed as a critical safety feature, the market
for FWD/4WD systems is expected to grow 47% in five years. Rear-wheel/4WD
vehicles like the new Mercedes AAV will also take a piece of the market. >
Japan, a market that is technology- and feature-driven, is the current leader in
passenger car-derived SUVs with all-wheel drive. Japanese automakers are
expected to increase FWD/4WD production 43% over the next five years.
[TATA SAFARI PHOTO]
Tata Safari from India
AUTOMATED TRANSMISSIONS
4 - 5 - 6 - ?
INCREASED SPEEDS = INCREASED CONTENT
What's the future for the traditional automatic transmission (AT) that shifts
almost half of the world's new vehicles? For many years, drivers have had
essentially two transmission choices: automatic or manual. Today, alternative
technologies like automated manual transmissions and continuously variable
transmissions (CVTs) are emerging as additional options with great promise for
the future. The traditional AT, however, will continue to be the technology of
choice in markets like North America, Japan, Korea, and a growing portion of
Europe.
The push is on to improve the fuel efficiency and performance of the
traditional, or step ratio automatic. As a pioneer in early automatics and the
market leader in "shift quality" technology, no one knows transmissions better
than BWA. On the horizon are six-speed transmissions, more outsourcing of
subsystems, advanced friction materials, and "smart" transmissions that
incorporate our electromechanical expertise.
[TRANSMISSION PARTS PHOTO]
[WELDING PHOTO]
Bob Welding, President, BWA Automatic Transmission Systems
AUTOMATED MANUALS
Take a manual transmission. Add BWA wet clutch, solenoid and controls
technology. The result - a transmission that approaches the ef_ciency of a
manual, while providing the comfort and convenience of an automatic. That's good
news in Europe where drivers deal with congested cities, use cellular telephones
and like the driving experience of the open road. It is also good news for
European automakers who have extensive manual transmission production
facilities.
The idea of automating clutch and/or shifting functions in a manual transmission
is not new. Electronic advances are spurring new interest in this technology in
Europe where fuel is costly and drivers value the feel of the manual shift.
BWA expertise puts us at the leading edge of this growth opportunity. Over the
next ten years, automated manuals could grow to 35% of the European light
vehicle market.
CVT
Improved Fuel Economy
Continuously variable transmissions (CVTs) are another way to improve fuel
economy. While various approaches to CVTs are under development, the most common
uses two variable sheaves and a metal belt to transfer torque. BWA developed
several early CVT prototypes in the 1970s and 1980s and currently has a number
of development programs underway for key CVT systems and components. Until
recently, the CVT has remained a niche product, best suited for small vehicles
in stop-and-go urban driving. With the advent of electronic controls, however,
CVTs are becoming a viable alternative in mainstream vehicle segments. In 1998,
a new milestone was reached, with CVT production worldwide exceeding 500,000
units for the rst time. CVT production and sales to date have been concentrated
in Japan. However, major European and North American automakers are developing
the technology as well. BWA content on a CVT could surpass that on a traditional
automatic.
A.T. Growth (Europe)
[BAR CHART]
The traditional automatic transmission will be transformed with BWA technology
[TRANSMISSION CUTAWAY ILLUSTRATION]
Electronics:
Reinventing Transmissions
As developments in electronics permit manufacturers to rethink traditional
transmissions and experiment with alternatives, BWA engineers are creating the
critical electromechanical interfaces that convert electrical signals into
transmission functions and gear changes. Our solenoid technology advances are
creating smaller, lighter, less costly and better performing actuators.
In new transmission programs, we are developing entire control modules that
integrate sensors, solenoids and control functions into complete "plug-in" sub-
assemblies, increasing BWA electromechanical content per transmission ten-fold.
And where the computerized "brain" function is built right into a new
transmission, we can become the integrator of the electronic and mechanical
control strategies.
ENGINES
[RUZIC PHOTO]
Ron Ruzic
Group President
BWA Morse Tec and BWA Turbo Systems
The exciting pace of change in and around the engine is driving near-term BWA
growth. These changes are fueled by demand for improved efficiency and
emissions, and are influenced by regional issues such as fuel types and prices,
and driving habits. We add value as a partner in the design and development of
new engines, resulting in added content for BWA, and better performing, more
cost-effective systems for our automaker customers.
In North America, the development of overhead cam engines for improved
efficiency, performance and air quality continues. With it comes the move from
simple engine timing chains to complete BWA timing systems and air management
systems.
Engine technology is moving fast in Europe where concerns for fuel economy and
reducing emissions are paramount. Direct injected engines - both gas and diesel
- - are quieter, cleaner, and more efficient. Both types of engines benefit from
BWA chain and engine charge management systems. The market represents a $1
billion opportunity for our type of systems, from turbochargers and timing
systems to electromechanical controls for air management systems.
Beginning in 1999, a new generation of engines from Japanese automakers will be
introduced with chain-driven timing systems. Automakers are converting to
specially designed BWA chain systems from rubber belts for better durability,
reliability and reduced ownership costs.
As engine technology continues to advance, BWA remains an active participant.
Our product involvement with chain systems designed for today's hybrid powered
cars is the next step in solidifying engines as an important growth platform for
BWA. As traditionally fueled vehicles begin to share the road with these
gas/electric hybrids and, some predict, vehicles powered by fuel cells, BWA
product technology will be there to meet the challenges in the years beyond.
DIRECT INJECTED ENGINES
What are they: In a direct injected engine, highly pressurized fuel is delivered
directly into the firing chamber where it is mixed with air for ignition. This
replaces indirect injection where fuel and air are mixed outside of the _ring
chamber. Improving the delivery of the air/fuel mixture improves engine
ef ciency. A turbocharger helps create an ideal high-pressure air/fuel mix to
achieve these results. DI Diesel Engines: Use is accelerating in Europe where
diesel fuel is common. These turbocharged engines have been designed to provide
more power and lower fuel consumption for smaller vehicles. In the US, there is
an emerging opportunity for these engines on light trucks and SUVs to improve
fuel performance, and to allow automakers to meet their corporate fuel
efficiency targets. DI Gas Engines: Currently available in Japan and growing in
popularity in Europe. These engines can improve fuel performance 20%, reduce CO2
emissions by 20% and provide 10% more torque.
Price Per Gallon - Europe
$4.00
[ENGINE PHOTO]
Fuel Performance
Turbochargers
A turbocharger uses the energy in a vehicle's hot exhaust gases to compress cold
intake air. This pressurized air along with fuel is thrust into the firing
chamber of an engine. The turbocharger must work in an environment of extreme
temperatures, pressure and vibration, so precise engineering and top quality
materials are required. Worldwide turbocharger growth for both trucks and cars
over the next ve years is anticipated to be 30%. In Europe alone, sales of
turbocharged direct injected diesel passenger cars are expected to grow from 1.7
million units today to 3.7 million in 2003. Passenger cars with turbocharged
direct injected gasoline engines, while small in number, are expected to grow
six-fold in the next five years to 1.4 million units worldwide. With 100%
ownership of a European turbocharger business completed in the fall of 1998, and
the anticipated acquisition of Kuhlman Corporation, BWA will become a global
leader in this exciting growth area.
[CAR PHOTO]
European passenger cars are the fastest growing market for turbochargers.
Turbocharger Growth Worldwide
[DIAGRAM]
Current Market 1998
7.1 million units:
5.1 million passenger cars
2.0 million commercial vehicles
Expected By 2004
9.7 million units:
7.0 million passenger cars
2.7 million commercial vehicles
Building a Global Turbocharger Business
In early March 1999, Borg-Warner Automotive acquired Kuhlman Corporation, for
$680 million in cash and stock. As a leading supplier of turbochargers and other
highly engineered components for commercial vehicles, Kuhlman's products are
complementary to ours. The acquisition continues to position us to take
advantage of the growth of direct injected diesel engines worldwide and provides
immediate new growth opportunities in air and fluid components for commercial
vehicles. Like BWA, Kuhlman is a respected technology leader with excellent
profitability in its businesses. The combination of our expertise in automotive
engine systems and Kuhlman's knowledge of turbochargers for commercial vehicles
will significantly strengthen BWA's opportunities, expand our customer base and
enhance our ability to outpace vehicle industry growth in both sales and
earnings. As a result of the acquisition, we also expect our engine components
and systems businesses to increase from 15% to about half of our revenue.
Best use of World's Resources: As the world's concern grows over the best use
of our natural resources, the area of vehicle air and fluid management is poised
for innovation. We are moving from add-on devices that meet requirements to
innovating integrated solutions that improve performance and fuel economy, and
reduce emissions. These include electronic EGR valves and turbocharger wastegate
controls for more precise control; more responsive electronic throttle control
systems for gasoline engines; active air induction systems for all types of
engines; and specialized oil pumps that facilitate higher powertrain ef ciency
and technology such as variable valve timing. And as vehicle demands push the
limits of current 12-volt electrical systems, the move to higher voltage systems
means changing the entire electrical architecture of vehicles. BWA
electromechanical expertise will help enable the use of these systems.
[FUKAYAMA PHOTO]
Gary Fukayama
Group President, BWA Air/Fluid Systems
Engine Technology is Changing Worldwide
[WORLD MAP ILLUSTRATION]
[BAR CHART]
Engine Growth
Borg-Warner Automotive expects to gain significant content increases as engines
move from push rod to overhead cam technology.
[AIR INDUCTION MODULE PHOTO]
Air Management
Active manifold systems allow engines to burn cleaner and perform better.
[BAR CHART]
Diesel Engines
Use of direct injected diesel engines is expected to double over the next few
years in response to emission requirements and fuel economy needs.
[AIR CONTROL PRODUCT AND TIMING CHAIN PHOTO]
Direct Injection
The demands of direct injected diesel and gas engines are creating opportunities
for BWA exhaust gas recirculation [EGR] devices, chain timing systems and
turbochargers.
[BAR CHART]
Chain Drive Market
Japanese automakers are switching to chain systems from rubber belts for the
timing of their new engines, more than doubling our potential market growth.
[ENGINE PHOTO]
Hybrid
Electric-and-gasoline hybrid engines, like this one built by Toyota with BWA
chain, can significantly boost fuel economy.
98 FINANCIAL REVIEW
Sales Distribution by Market
[PIE CHART]
14% Asia
17% Europe
69% North America
Sales Distribution by Customer
[PIE CHART]
2% Nissan
4% VW/Audi
7% Toyota
14% GM
17% DaimlerChrysler
32% Ford
24% All Others
Management's Discussion and Analysis of Financial Condition and Results of
Operations
Introduction
Borg-Warner Automotive, Inc. (the "Company") operates as a leading global
supplier of highly engineered systems and components for powertrain and other
automotive applications. Its products are manufactured and sold worldwide,
primarily to original equipment manufacturers ("OEMs") of passenger cars, sport-
utility vehicles and light trucks. The Company operates 35 manufacturing
facilities in 12 countries serving automakers in North America, Europe and Asia,
and is an original equipment supplier to every major OEM in the world.
Management's Discussion and Analysis of Financial Condition and Results of
Operations should be read in conjunction with the Consolidated Financial
Statements of the Company. The Results of Operations section first discusses
results by operating segment for 1998 versus 1997 and 1996, then discusses other
factors affecting the Company's results of operations between 1998 and 1997, and
between 1997 and 1996.
RESULTS OF OPERATIONS
Results by Operating Segment
The Company's products fall into four operating segments: Powertrain Systems,
Automatic Transmission Systems, Morse TEC and Air/Fluid Systems. The Company's
German turbocharger business, previously presented as a separate business group,
has been integrated into the Morse TEC operating segment. Refer to page 4 for a
business profile of each segment, including a business description, 1998
highlights, growth opportunities and plant locations. The following tables
detail sales and earnings before interest and taxes ("EBIT") by segment for each
of the last three years.
<TABLE>
<CAPTION>
millions of dollars
Year Ended December 31, 1998 1997 1996
<S> <C> <C> <C>
Powertrain Systems $ 518.8 $613.6 $476.8
Automatic Transmission Systems 402.6 418.2 392.2
Morse TEC 536.2 349.0 276.6
Air/Fluid Systems 351.4 342.4 242.7
Divested operations 73.5 101.4 189.2
Intersegment eliminations (45.7) (57.6) (37.4)
Net sales $1,836.8 $1,767.0 $1,540.1
millions of dollars
Year Ended December 31, 1998 1997 1996
Powertrain Systems $ 28.4 $ 46.4 $ 38.5
Automatic Transmission Systems 40.0 51.7 46.4
Morse TEC 78.5 64.7 48.4
Air/Fluid Systems 25.1 15.1 13.2
Divested operations 4.7 1.5 (18.9)
Earnings before interest and
taxes $176.7 $179.4 $127.6
</TABLE>
Powertrain Systems' sales and EBIT were down $94.8 million and $18.0 million, or
15.4% and 38.8%, respectively, from 1997's exceptional results. Three signi_cant
issues caused the declines: no new four-wheel drive ("4WD") applications for
Ford trucks in 1998, significant reductions in 4WD transfer case shipments for
the Ford F-150 truck and a decline in 4WD transfer case shipments to Ssangyong
in Korea due to the sluggish Asian economy. Increased 4x4 installation rates on
the Ford Ranger and a full year of sales on the Mercedes-Benz M-Class All-
Activity Vehicle launched in 1997 were only able to partially offset the
shortfalls. Overall, the Company sold 654,000 small and 367,000 large transfer
cases in 1998, as compared with 541,000 small and 652,000 large transfer cases
in 1997 and 481,000 small and 480,000 large transfer cases in 1996. Large
transfer case sales were unusually high in 1997 because of the build out of an
application.
Powertrain Systems had been benefiting in recent years from the industry trend
toward sport-utility vehicles and light trucks. 1997 sales and EBIT were
exceptionally strong, with sales up 28.7% over 1996. The business had been
realizing unprecedented demand for its various 4WD products on applications for
Ford, Lincoln, Mercury, Rover, Isuzu and Ssangyong. The comparisons for 1997
versus 1996 were also aided by a full year of Expedition sales, the introduction
of the Navigator and the successful launch of the 4WD system on the Mercedes-
Benz M-Class All-Activity Vehicle in 1997.
Installation rates at Ford and shipments to Ssangyong in Korea showed signs of
improvement late in 1998 and are expected to continue at somewhat stronger
levels into 1999. While expected to remain strong, the revenue growth for
Powertrain Systems is not expected to return to 1997 levels.
Automatic Transmission Systems experienced decreases in sales and EBIT of $15.6
million and $11.7 million, or 3.7% and 22.6%, respectively, compared to the
prior year. Strong sales in Europe were unable to offset the negative impact of
the nearly two-month long North American General Motors ("GM") strike and the
weakness of the Asian economy. Customer product mix issues also heavily impacted
this segment, particularly the industry-wide shift in emphasis from passenger
cars to trucks. The ramp-up of a new one-way clutch system for Chrysler and the
start-up of production on a significant portion of friction plate business for
GM in 1998 show promise for the coming years.
The segment also continued to benefit from some of the trends that were driving
sales growth of 6.6% in 1997 versus 1996. Increased penetration of automatic
transmissions and increased content as automatic transmissions trended from
three- to four-speed and from four- to five-speed transmissions have presented
growth opportunities for this segment. Sales in 1997 of $418.2 million were
driven by volume gains in each of North America, Europe and Asia. The business
also realized a full year of sales in 1997 on one of its first systems, a one-
way clutch and drum combination for Ford of Europe.
With the effects of the GM strike in the past, and the Asian economy showing
signs of stabilizing, Automatic Transmission Systems is expecting strong results
in the coming years. The business is a supplier to virtually every major
manufacturer of automatic transmissions in the world and has invested heavily in
technology to increase understanding of transmission functioning. This should
improve the Company's ability to develop and provide entire subsystems for
future generations of automatic transmissions and system solutions for
alternative drivetrain configurations, including continuously variable
transmissions and automated manual transmissions.
The Morse TEC operating segment experienced continued growth in 1998 as sales
and EBIT increased by $187.2 million and $13.8 million, respectively. Net of the
effect of the turbocharger business acquired in 1997, sales increased by $29.2
million, or 9.0%, and EBIT improved by $4.7 million, or 7.6%. This segment
continued to benefit from the trends of the prior year, including strong North
American demand, mainly from new content on Chrysler engine timing systems and
increased penetration on GM passenger cars and Ford engines. These positive
factors more than offset weakness in Asia and the impact of the GM strike.
Morse TEC sales revenue increased $72.4 million from 1997 to 1996, and net of
the turbocharger business, sales increased by $47.6 million, or 17.2%. The
overall growth was the result of a number of new applications in engine timing
systems and front-wheel drive automatic transmissions, and the continued
expansion of the 4WD market. Both Ford and Chrysler expanded their line-ups of
overhead cam engines with Morse TEC timing systems. A full year's sales of the
MORSE GEMINI(tm) systems to GM also contributed heavily to the growth.
The strong positive trend at Morse TEC is expected to continue in the coming
years as new products, including timing systems for the new Chrysler 3.7 liter
and 4.7 liter overhead cam engines, powder metal sprockets for both timing
system and transmission applications, and drive chain for the new Toyota hybrid
engine, are introduced. Also, trends in engine timing systems from belts to
chains in Europe and Japan are expected to offer further opportunities. The
turbocharger business has already been aided by strong demand for turbochargers
on direct injected diesel engines for European passenger cars, and expansion
into emerging applications on light trucks and sport-utility vehicles appears
promising.
Air/Fluid Systems' sales increased $9.0 million in 1998, a 2.6% increase versus
1997, while EBIT increased $10.0 million, or 66.2%. The sales increase is due to
changes in transmission solenoid production for the new Chrysler transmission
and increased demand for air induction modules on Chrysler LH vehicles. Three
businesses acquired in mid-1996 from Coltec Industries, Inc (the "Coltec
Acquisition") have begun showing the growth that was expected of them at the
time of the acquisition. The year-over-year comparison of EBIT is skewed
slightly by inventory adjustments recorded in 1997.
The increase in 1997 sales to $342.4 million was almost solely due to the
inclusion of a full year of sales from the Coltec Acquisition in 1996. The
remainder of the business was virtually flat as certain components reaching the
end of their life cycles were replaced by newer generations. Ramp-ups of new
programs were relatively slow in 1997, resulting in slower sales growth than
anticipated.
Air/Fluid Systems continues to offer a substantial opportunity for growth into
the next century because of the increased worldwide emphasis on improved
operating efficiency and reduced emissions, both of which can be realized
through improved engine air and fuel management. Furthermore, the fragmented
nature of the supplier base in this segment creates an opportunity to meet fuel
economy and emission requirements through system solutions.
Divested operations included the sales of two Automatic Transmission Systems
businesses completed in 1998. Substantially all of the remaining assets of the
torque converter business were sold in 1998 after one of the product lines was
sold in 1997. The Company also sold the precision forged powder metal connecting
rod business in 1998. These businesses did not fit the strategic goals of the
Company and management believes the Company's resources will be better spent on
its core technologies in highly engineered components and systems. The sales of
these businesses did not result in a significant gain or loss in either 1998 or
1997. They contributed sales of $73.5 million, $101.4 million and $89.5 million
and EBIT of $4.7 million, $1.5 million and $3.2 million to 1998, 1997 and 1996,
respectively. In 1996, the Company sold its Powertrain Systems North American
manual transmission business to Transmisiones Y Equipos Mecanicos S.A. De C.V.
at a pretax loss of $61.5 million, which net of a tax benefit of $26.5 million,
resulted in a net charge of $35.0 million. 1996 sales and EBIT of the North
American manual transmission business recognized in the Company's consolidated
operations totaled $99.7 million and $(22.1) million, respectively.
The Company's top ten customers in 1998 accounted for approximately 81% of
consolidated sales compared to 84% in 1997 and 83% in 1996. Ford continues to be
the Company's largest customer with 36% of consolidated sales in 1998, compared
to 43% and 42% in 1997 and 1996, respectively. DaimlerChrysler overtook GM as
the Company's second largest customer in 1998, in large part due to a full year
of sales by the turbocharger business in Europe. The Coltec Acquisition in mid-
1996 has also increased sales to DaimlerChrysler. In 1998, 1997 and 1996,
DaimlerChrysler represented 19%, 10% and 9% of consolidated sales, respectively,
and GM accounted for 16%, 20% and 21%, respectively. No other customer accounts
for more than 10% of sales.
OTHER FACTORS AFFECTING RESULTS OF OPERATIONS
The following table details the Company's results of operations as a percentage
of sales:
<TABLE>
<CAPTION>
Year Ended December 31, 1998 1997 1996
<S> <C> <C> <C>
Net sales 100.0% 100.0% 100.0%
Cost of sales 79.0 77.8 78.3
Depreciation 4.1 4.0 4.6
Selling, general and
administrative expenses 7.4 7.5 8.0
Goodwill amortization 0.9 1.0 0.9
Loss on sale of business - - 4.0
Minority interest, affiliate earnings
and other income, net (0.5) (0.6) (0.7)
Earnings before interest
and taxes 9.1% 10.3% 4.9%
</TABLE>
1998 compared with 1997
1998 proved to be a roller-coaster year for the Company as a number of external
events caused the Company's results to fluctuate. Still, the Company realized a
4.0% sales growth in 1998 versus 1997 against a backdrop of essentially flat
worldwide automobile and light truck production, with North American and
Japanese production decreasing 1.4% and 8.5%, respectively, and European
production increasing 6.5%. However, for businesses held throughout both years,
the Company's sales declined 3.7%. The German turbocharger business, AG K hnle,
Kopp & Kausch ("AG Kuhnle"), contributed $182.9 million to 1998 sales, an
increase of $158.1 million over the two months the business was owned in 1997.
Two product lines sold during 1998, as discussed above, contributed $73.5
million to 1998 sales, a decrease of $27.9 million from the prior year. Factors
cutting across each of the business segments which negatively impacted the
Company's 1998 sales included the GM strike in June and July of 1998 and the
weakness of the Asian economy. These external events deflated sales by
approximately $25 million and $33 million, respectively.
Net earnings for 1998 totaling $94.7 million, or $4.00 per diluted share, were
8.2% below 1997 earnings of $103.2 million, or $4.31 per diluted share. The
factors discussed above are responsible for the changes. In particular, the
weakness of the Asian economy impacted earnings by approximately $0.60 per
share, while the GM strike cost the Company approximately $0.30 per share in
earnings. The effects of the Asian downturn were most damaging to the Automatic
Transmission Systems and Morse TEC business segments, as well as to affiliate
earnings; the other segments were less affected by Asia. The strike affected
each of the business segments, most significantly Automatic Transmission Systems
and Morse TEC.
Gross margin for 1998 was 21.0%, down from 22.2% in 1997 and 21.7% (24.2%
excluding the manual transmission business) in 1996. The margin trend reflects
the difficulty in achieving cost reductions and productivity improvements
sufficient to offset both increases in costs and annual price reductions given
to customers. In 1998, price reductions to customers totaled approximately $23
million as compared to $18 million and $10 million in 1997 and 1996,
respectively. To offset the impact of price reductions, the Company actively
pursues offsetting reductions from its suppliers and changes in product design
to remove cost and/or improve manufacturability. The Company implemented a
significant material cost reduction program in 1998 in a further attempt to
maintain margins. The Company's ability to pass through increased costs to its
OEM customers is severely limited, with cost recovery at less than 100% and
often on a delayed basis.
The Company experienced a decline in consolidated EBIT of 8.2% to $167.6 million
for 1998. For businesses held throughout both years, the decrease was 14.9%.
Depreciation continued to increase in 1998 due mainly to a full year of results
from the turbocharger business and increases in capital spending in recent
years. Selling, general and administrative expenses ("SG&A") as a percentage of
sales declined slightly to 7.4% from 7.5% as the Company continued its
commitment to keeping spending down in this area, apart from research and
development ("R&D"). The Company views spending on R&D as a key corporate
strategy in order to develop proprietary new products and enhancements to
existing products. In 1998, R&D spending represented 3.5% of sales versus 3.3%
and 3.5%, respectively, in 1997 and 1996. In order to support its commitment to
product leadership, the Company plans to increase R&D spending in the future.
Equity in affiliates and other income was down $2.9 million from 1997, including
an $8.5 million decline in equity in affiliate earnings. The decrease in equity
in affiliate earnings is largely attributable to the weakness of the Asian
economy in 1998. The Company's equity in the earnings of its 50% owned joint
venture, NSK-Warner, were hit particularly hard, falling to $7.6 million in 1998
from $13.7 million in 1997. Partially offsetting the reductions in affiliate
earnings were certain transactions of a non-recurring or non-operating nature.
The Company recorded a $3.3 million gain on sale of its 50% share of Warner-Ishi
in 1998 and recorded a $4.3 million charge in 1997 to reduce the carrying value
of certain joint venture investments in China and Korea.
Interest expense and finance charges increased by $2.3 million versus 1997. The
Company incurred additional interest on its borrowings to purchase the
turbocharger business in October 1998 and also needed to maintain slightly
higher debt levels to finance operations because cash flow from operations
trailed prior year levels throughout much of 1998.
The effective tax rate for 1998 was 32.7% compared with a rate of 34.6% for
1997. The tax rates for both years were below the standard federal and state
rates due to the realization of R&D and foreign tax credits.
1997 compared with 1996
The Company realized 14.7% growth in revenues in 1997 versus 1996. This growth
was against a backdrop of a minimal increase in the worldwide automobile and
light truck production. North American, European and Japanese production in 1997
was up 3%, 5%, and 6%, respectively. The Company's sales growth included a 13%
gain for businesses held throughout both years. The three operations acquired in
the Coltec Acquisition contributed $116 million for the first half of 1997; the
German turbocharger business, AG Kuhnle, 63% of which was acquired in October
1997, contributed $25 million; and the manual transmission business sold at the
end of 1996 had contributed $100 million to 1996 sales. The Company was able to
increase sales by increasing its content per vehicle by developing and offering
improved components and system solutions for customer needs.
Net earnings for 1997 totaled $103.2 million, or $4.31 per diluted share.
Earnings were almost two and one-half times the 1996 level of $41.8 million. In
1996, the Company incurred a one-time after-tax charge of $35 million ($61.5
million on a pretax basis) for the loss on the sale of the North American manual
transmission business. Excluding this charge, 1997 earnings were 34%, or $26.4
million, higher than 1996. The improvement in earnings was also helped by the
elimination of the loss from the manual transmission business, which reported a
$22.1 million operating loss in 1996.
Consolidated EBIT improved to $182.5 million in 1997, a 33% increase over 1996,
excluding the one-time manual transmission loss. The improvement was 14%
excluding both the operating loss on the manual transmission business and the
one-time loss on the sale. The increase in volume more than offset the margin
compression. The Company also benefited from an entire year of the Coltec
Acquisition versus one-half year in 1996. Depreciation, excluding that related
to the manual transmission business, was up $3 million due to increased capital
spending in recent years. SG&A expenses, although up by $9 million, represented
only 7.5% of sales in 1997 versus 8% in 1996. The increase in spending was due
to increased R&D spending which reached $59 million in 1997 compared with $54
million in 1996. The Company also spent $8 million on research projects that
were reimbursed by customers. The minimal increase in the remainder of SG&A
expenses reflected the Company's ability to control spending not directly
related to products despite continuing revenue growth. The Company is committed
to keeping its overall SG&A spending in the 7.5% of sales range. At the same
time, the Company is committed to spending on R&D as a key corporate strategy to
develop proprietary new products, allowing it to remain competitive. In 1997,
R&D spending represented 3.3% of sales versus 3.5% in 1996. Major programs
included new engine timing systems, powder metal sprockets, advanced 4WD
systems, new air induction systems, advanced transmission solenoids, increased
systems development for automatic transmissions, and advanced friction material
research.
Equity in affiliates and other income was up slightly in 1997 at $13.2 million
versus $13.1 million in 1996. The Company's equity in the earnings of its 50%
owned Japanese joint venture, NSK-Warner, was off slightly in U.S. dollars at
$13.7 million versus $14.3 million in 1996. This was due to continued weakness
of the Japanese yen, which in 1997 was 10% below 1996.
Included in EBIT for 1997 are certain transactions of a non-recurring or non-
operating nature. The Company recorded a $4.3 million charge to reduce the value
of certain joint venture investments in China and Korea. Approximately $3
million was spent to relocate product lines from one facility to another during
1997. Also, during 1997 the Company reduced its reserve for loss on the sale of
the manual transmission business by approximately $6 million as the result of
favorable experience for certain elements of the reserve.
Interest expense and finance charges increased by $3.2 million in 1997. The
Company incurred interest on its borrowing for the Coltec Acquisition for a full
year in 1997 versus one-half year in 1996. In addition, interest was incurred
for the turbocharger business. Offsetting these items was a continuing reduction
in interest rates on the Company's variable rate bank borrowings.
The effective tax rate for 1997 was 34.6% compared with a rate of 33.9% in 1996,
excluding the manual transmission sale loss. The tax rate for both years was
below the standard federal and state rates due to the realization of R&D and
foreign tax credits.
FINANCIAL CONDITION AND LIQUIDITY
The Company's cash and cash equivalents increased $30.6 million at December 31,
1998 compared with December 31, 1997. Of the increase, $30.3 million was related
to the cash held on the residual balance sheet of AG Kuhnle (discussed further
below) at December 31, 1998.
Operating cash flow of $132.6 million, although $34.8 million less than 1997
operating cash flow, was sufficient to cover the $127.6 million cash used in
investing activities. Operating cash flow consisted of $94.7 million of net
earnings and non-cash charges of $96.9 million, including $74.8 million of
depreciation, offset by a $59.0 million increase in net operating assets and
liabilities. The increase in depreciation was due to a full year of results from
the turbocharger business and increases in capital spending in recent years. The
increased investment in net operating assets reflected in the December 31, 1998
balance sheet was primarily due to increased receivables and decreased income
taxes payable. The cash flow effect from an increase in receivables was $29.3
million in 1998 due to a major customer deferring $33 million in payments at the
end of the year. This represented a one-time reversing cash flow item as the
payment was received in early January. Income taxes payable was impacted by
significant payments during 1998 for accrued income taxes.
Capital spending totaling $122.2 million in 1998 was $12.9 million lower than in
1997, despite a full year of spending by the turbocharger business. Spending
levels were reduced to compensate for operating cash flow shortfalls throughout
the year. Approximately 65% of the 1998 spending was related to expansion, as
opposed to renewal and replacement, cost reduction and other. Major 1997
projects carrying over extensive spending into 1998 included spending to
increase capacity for larger transfer cases for Ford, to upgrade powder metal
sprocket capability and to complete programs for timing systems for Chrysler's
new 3.7 and 4.7 liter engines. Major new capital projects included the expansion
of the Company's facility in Japan and a capacity uplift for friction plate
production in Automatic Transmission Systems. The Company anticipates returning
to higher capital spending levels in 1999 to drive expansion.
In October 1997, the Company purchased a 63% interest in AG Kuhnle for $42.4
million. AG Kuhnle consisted of a turbocharger business that the Company began
consolidating November 1, 1997 and a turbomachinery business that was accounted
for in prepayments and other current assets. In 1998, the Company purchased 100%
of the turbocharger business from AG Kuhnle, renaming it 3K-Warner Turbosystems
GmbH. The purchase price was $95.7 million, subject to final settlement. As soon
as practicable, the Company intends to realize its 63% interest in AG Kuhnle,
which consists principally of the net carrying value of the turbomachinery
business at $16.8 million, $30.3 million in cash, representing 63% of the excess
cash held on the residual balance sheet of AG Kuhnle, less certain income tax
and other liabilities. The $30.3 million of cash is netted against payments for
businesses acquired in the 1998 Consolidated Statement of Cash Flows. The
increase in the net carrying value of the turbomachinery business from 1997 of
$6.5 million represents increased operating investment during the course of the
year. The Company used short-term borrowings to finance the purchase of 3K-
Warner Turbosystems GmbH, and expects to repay a portion of the debt in the
first half of 1999 with the proceeds from an anticipated dividend from AG
Kuhnle. Proceeds from the sales of the torque converter and connecting rod
businesses, amounting to $10.0 million and $41.8 million, respectively, were
primarily used to lower the Company's long-term debt.
Stockholders' equity increased by $83.6 million in 1998. Net income of $94.7
million was offset by dividends of $14.1 million and stock repurchases of $13.0
million. In relation to the dollar, the currencies in foreign countries where
the Company conducts business strengthened, causing the currency translation
component of other comprehensive income to increase by $11.8 million in 1998.
Finally, given the continued favorable performance of the Company's pension fund
investments, the Company was able to eliminate the additional minimum pension
liability adjustment.
The Company believes that the combination of cash from its operations and
available credit facilities will be sufficient to satisfy cash needs for its
current level of operations and planned operations for the foreseeable future.
OTHER MATTERS
Sale of Connecting Rod Business
In September 1998, the Company sold its precision forged powder metal connecting
rod business unit to GKN Sinter Metals, Inc., a subsidiary of UK-based GKN plc.
GKN initially paid the Company $41.8 million in the third quarter. The final
selling price determined in February 1999 was $42.0 million. The connecting rod
product line was originally acquired as part of the Company's purchase of the
Precision Forged Products Division of Federal-Mogul Corporation in 1995.
Sale of Torque Converter Business
In April 1998, the Company entered into an agreement to sell substantially all
the remaining assets of its torque converter business, exclusive of land and
buildings, to Mannesmann Sachs AG. One product line of the torque converter
business was previously sold in June 1997. In accordance with the agreement,
operations were phased out during the course of 1998, with Mannesmann Sachs
making multiple progress payments totaling $10.0 million to the Company as the
assets were transferred. The Company expects to recover the remainder of its
investment in the business through the sale of the land and buildings in 1999.
Pending Acquisition of Kuhlman Corporation and Related Debt Financing
On December 17, 1998, the Company entered into a merger agreement with Kuhlman
Corporation, which provides that Kuhlman will become a wholly owned subsidiary
of Borg-Warner Automotive. The total value of consideration to be paid in the
merger, based on the number of shares of Kuhlman common stock outstanding on
December 31, 1998, is approximately $677.8 million. Approximately $527.8 million
of the consideration will be in cash, with the remaining $150.0 million in Borg-
Warner Automotive common stock. This acquisition is expected to close in March,
1999.
Kuhlman is a diversified industrial manufacturing company that currently
operates two product segments: industrial products and electrical products.
Their products are sold to over 5,000 domestic and international customers
operating in more than 60 countries. Kuhlman's Schwitzer Group, which includes
the industrial products business, is a leading worldwide manufacturer of
proprietary engine components, including turbochargers, fans and fan drives,
fuel tanks, instrumentation, heating/ventilation/air conditioning systems, and
other products used primarily in commercial transportation products and
industrial equipment. Kuhlman's electrical products businesses include the
manufacture of transformers and other products for electrical utilities and
industrial users, as well as electrical and electronic wire and cable products
for use in consumer, commercial and industrial applications. Following the
completion of the merger, the Company intends to sell the electrical products
businesses and plans to achieve significant synergies through the integration of
the Schwitzer Group.
On February 22, 1999, the Company issued $200 million of 6.5% senior unsecured
notes maturing in February 2009 and $200 million of 7.125% unsecured notes
maturing in February 2029 to partially fund the impending Kuhlman acquisition.
Litigation
The Company and certain of its current and former direct and indirect corporate
predecessors, subsidiaries and divisions have been identified by the United
States Environmental Protection Agency and certain state environmental agencies
and private parties as potentially responsible parties ("PRPs") at various
hazardous waste disposal sites under the Comprehensive Environmental Response,
Compensation and Liability Act ("Superfund") and equivalent state laws and, as
such, may presently be liable for the cost of clean-up and other remedial
activities at 26 such sites. Responsibility for clean-up and other remedial
activities at a Superfund site is typically shared among PRPs based on an
allocation formula.
Based on information available to the Company, which in most cases includes: an
estimate of allocation of liability among PRPs; the probability that other PRPs,
many of whom are large, solvent public companies, will fully pay the cost
apportioned to them; currently available information from PRPs and/or federal or
state environmental agencies concerning the scope of contamination and estimated
remediation costs; remediation alternatives; estimated legal fees; and other
factors, the Company has established a reserve for indicated environmental
liabilities with a balance at December 31, 1998 of approximately $7.9 million.
The Company expects this amount to be expended over the next three to _ve years.
The Company entered into a Settlement Agreement and Specific Mutual Release
dated as of May 31, 1998 (the "Settlement Agreement") with Borg-Warner Security
Corporation ("BWSC"), the successor corporation to its former parent. The
previously-reported dispute involved whether BWSC was entitled to indemni_cation
from the Company for certain environmental liabilities under a Distribution and
Indemnity Agreement dated January 27, 1993.
Pursuant to the Settlement Agreement, the Company and BWSC agreed to dismiss and
vacate all arbitration awards resulting from the arbitration proceeding and to
dismiss with prejudice the lawsuit settled by the Company in the Circuit Court
of Cook County, Illinois, on January 27, 1998. Under the Settlement Agreement,
the Company agreed to indemnify BWSC for the first $2.9 million BWSC pays in
certain environmental costs after April 30, 1998 and 50% of any amounts in
excess of that $2.9 million. At present, the Company does not have sufficient
information to determine the extent of its liability under the Settlement
Agreement, but does not anticipate that such amount will have a material adverse
effect on its financial position or future operating results. It is expected
that indemnification payments will be made by the Company over the course of
several years as the environmental costs are incurred.
The Company believes that none of these matters, individually or in the
aggregate, will have a material adverse effect on its financial position or
future operating results, generally either because estimates of the maximum
potential liability at a site are not large or because liability will be shared
with other PRPs, although no assurance can be given with respect to the ultimate
outcome of any such matter.
Year 2000 Issues
The Company is in the process of upgrading certain aspects of its operations to
ensure that business systems do not fail to function when the Year 2000 arrives
or at other date intervals. The Company has completed an inventory of key
systems and equipment with potential Year 2000 issues in the areas of business
operating systems, manufacturing operations, operating infrastructure, customers
and suppliers. This included an identification of mission critical systems, an
assessment of the readiness of applications for Year 2000 and the corrective
action needed, if any.
The Company is also participating in the process coordinated by the Automotive
Industries Action Group ("AIAG"), a group sponsored by the major U.S.
automakers. The process consists of ongoing surveys to measure a company's state
of readiness and its progress on the assessment and remediation stages of its
program. The survey results are used to monitor progress against remediation
action plans.
The Company's program to become Year 2000 compliant is being operated on an
enterprise-wide basis. A coordinator has been assigned overall administrative
responsibility; however, each operating unit is responsible for compliance at
its location. Inventories and assessments have been completed at substantially
all locations. Corrective action is underway. The majority of items identified
as non-compliant would not significantly interfere with the Company's operations
if not updated. In addition, the exposure to an enterprise-wide failure is less
likely because of the relative autonomy of the operating units. The Company is
operating on a schedule to have substantially all non-compliant items remedied
by mid-1999 and is also seeking confirmation from key suppliers and other third
parties that their systems and applications that affect the Company will be Year
2000 compliant by mid-1999.
Concurrent with the Year 2000 effort, the process of upgrading certain business
operating systems at a number of operating units to improve both business
operations and control is underway. Any new system acquired is required to be
certified as Year 2000 compliant. The Company will spend approximately $11.5
million for new systems, to upgrade systems and equipment and for other efforts
to ensure compliance with Year 2000 between 1997 and 1999. These costs will be
paid for with cash from operations. The bulk of such spending will provide for
system improvements and enhancements including compliance with Year 2000.
Through 1998, spending has totaled approximately $9.5 million. Spending solely
related to Year 2000 compliance is not expected to be material to either the
financial position or results of operations for any given year.
As with any program to upgrade business systems, there are risks that programs
will not be completed on schedule and that programs will not accomplish all that
they were supposed to accomplish. The chance of this happening throughout the
Company is remote. For individual occurrences, the impact would most likely be a
reduced level of quality control for operations and a substantial increase in
the amount of manual intervention in areas such as material planning and
inventory control, statistical process control, and financial and operational
recordkeeping.
Substantial contingency plans are not in place because the Company believes that
its efforts will be successful. However, specific procedures required to keep
operations functioning in the event of delays or machine failures have been
identified. As mentioned above, the Company has identified key suppliers and
requested confirmation as to their Year 2000 compliance. Supplier responses are
currently being verified, including supplier audits and other actions as
appropriate. The Company is also considering the availability of alternative
supply sources in the event that they are needed.
The Company cannot provide any assurance that the corrective actions being
implemented will prevent dating systems problems or that the cost of doing so
will not be material. In addition, disruptions with respect to the computer
systems of vendors or customers, including both information technology ("IT")
and non-IT systems could impair the Company's ability to obtain necessary
materials or products to sell to or serve its customers. Disruptions of computer
systems or the computer systems of vendors or customers, as well as the cost of
avoiding such disruption, could have a material adverse effect upon the
financial position or operating results of the Company.
Euro Conversion
On January 1, 1999, 11 of the 15 member countries of the European Union
established fixed conversion rates between their existing currencies and a new
common currency (the "euro"). The participating countries have adopted the euro
as their common legal currency. The Company has begun consideration of the
effects of the euro conversion on operations, but is currently unsure of the
potential impact that the euro conversion will have on the financial position or
operating results. Because of the nature of the Company's business and
customers, the effect is not expected to be significant.
New Accounting Pronouncements
In June 1998, FASB issued Statement of Financial Accounting Standards No. 133,
"Accounting for Derivative Instruments and Hedging Activities" ("SFAS 133"),
which is required to be adopted in fiscal years beginning after June 15, 1999.
SFAS 133 requires that all derivatives be recognized as either assets or
liabilities in the balance sheet and that derivative instruments be measured at
fair value. The Company has not yet determined the effect SFAS 133 will have on
its financial position or results of operations.
In March 1998, the American Institute of Certified Public Accountants issued
Statement of Position 98-1, "Accounting for the Costs of Computer Software
Developed or Obtained for Internal Use," ("SOP 98-1"). SOP 98-1 provides
guidance on accounting for the costs of computer software developed or obtained
for internal use and is effective for fiscal years beginning after December 15,
1998. The Company is currently assessing the potential effects of SOP 98-1 on
its results of operations and financial position.
Disclosure Regarding Forward-Looking Statements
Statements contained in this Management's Discussion and Analysis of Financial
Condition and Results of Operations may contain forward-looking statements as
contemplated by the 1995 Private Securities Litigation Reform Act that are based
on management's current expectations, estimates and projections. Words such as
"expects," "anticipates," "intends," "plans," "believes," "estimates,"
variations of such words and similar expressions are intended to identify such
forward-looking statements. Forward-looking statements are subject to risks and
uncertainties, which could cause actual results to differ materially from those
projected or implied in the forward-looking statements. Such risks and
uncertainties include: the fluctuations in domestic or foreign automotive
production, the continued use of outside suppliers, fluctuations in demand for
vehicles containing the Company's products, general economic conditions, as well
as other risks detailed in the Company's filings with the Securities and
Exchange Commission, including the Cautionary Statements filed as Exhibit 99.1
to the Form 10-K for the fiscal year ended December 31, 1998.
Management's Responsibility for Consolidated Financial Statements
The information in this report is the responsibility of management. Borg-Warner
Automotive, Inc. (the "Company") has in place reporting guidelines and policies
designed to ensure that the statements and other information contained in this
report present a fair and accurate financial picture of the Company. In
fulfilling this management responsibility, we make informed judgments and
estimates conforming with generally accepted accounting principles.
The accompanying financial statements have been audited by Deloitte & Touche
LLP, independent auditors. Management has made available all the Company's
financial records and related information deemed necessary by Deloitte & Touche
LLP. Furthermore, management believes that all representations made by it to
Deloitte & Touche LLP during its audit were valid and appropriate.
Management is responsible for maintaining a comprehensive system of internal
control through its operations that provides reasonable assurance that assets
are protected from improper use, that material errors are prevented or detected
within a timely period and that records are sufficient to produce reliable
financial reports. The system of internal control is supported by written
policies and procedures that are updated by management as necessary. The system
is reviewed and evaluated regularly by the Company's internal auditors as well
as by the independent auditors in connection with their annual audit of the
financial statements. The independent auditors conduct their evaluation in
accordance with generally accepted auditing standards and perform such tests of
transactions and balances as they deem necessary. Management considers the
recommendations of its internal auditors and independent auditors concerning the
Company's system of internal control and takes the necessary actions that are
cost-effective in the circumstances. Management believes that, as of December
31, 1998, the Company's system of internal control was adequate to accomplish
the objectives set forth in the first sentence of this paragraph.
The Company's Finance and Audit Committee, composed entirely of directors of the
Company who are not employees, meets periodically with the Company's management
and independent auditors to review financial results and procedures, internal
financial controls and internal and external audit plans and recommendations. To
guarantee independence, the Finance and Audit Committee and the independent
auditors have unrestricted access to each other with or without the presence of
management representatives.
[SIGNATURE] [SIGNATURE]
John F. Fiedler William C. Cline
Chairman and Vice President and
Chief Executive Officer Controller
January 30, 1999
Independent Auditors' Report
The Board of Directors and Stockholders of Borg-Warner Automotive, Inc.
We have audited the consolidated balance sheets of Borg-Warner Automotive, Inc.
and subsidiaries as of December 31, 1998 and 1997, and the related consolidated
statements of operations, stockholders' equity, and cash flows for each of the
three years in the period ended December 31, 1998. These financial statements
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in all
material respects, the financial position of Borg-Warner Automotive, Inc. and
subsidiaries at December 31, 1998 and 1997, and the results of their operations
and their cash flows for each of the three years in the period ended December
31, 1998 in conformity with generally accepted accounting principles.
[SIGNATURE]
DELOITTE & TOUCHE LLP
Chicago, Illinois
January 30, 1999
(February 22, 1999 as to the third paragraph of Note 14)
Consolidated Statements of Operations
<TABLE>
<CAPTION>
millions of dollars except per share amounts
For the Year Ended December 31, 1998 1997 1996
<S> <C> <C> <C>
Net sales $1,836.8 $1,767.0 $1,540.1
Cost of sales 1,450.7 1,375.4 1,205.5
Depreciation 74.8 70.4 71.3
Selling, general and administrative
expenses 135.1 132.0 122.7
Minority interest 2.1 3.2 2.6
Goodwill amortization 16.8 16.7 13.5
Loss on sale of business - - 61.5
Equity in affiliate earnings and
other income (10.3) (13.2) (13.1)
Earnings before interest expense,
finance charges and income taxes 167.6 182.5 76.1
Interest expense and finance charges 26.9 24.6 21.4
Earnings before income taxes 140.7 157.9 54.7
Provision for income taxes 46.0 54.7 12.9
Net earnings $ 94.7 $ 103.2 $ 41.8
Net earnings per share
Basic $ 4.03 $ 4.35 $ 1.77
Diluted $ 4.00 $ 4.31 $ 1.75
Average shares outstanding (thousands)
Basic 23,479 23,683 23,564
Diluted 23,676 23,934 23,830
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
Consolidated Balance Sheets
<TABLE>
<CAPTION>
millions of dollars
December 31, 1998 1997
<S> <C> <C>
Assets
Cash $ 37.8 $ 10.6
Short-term securities 6.2 2.8
Receivables 185.4 158.6
Inventories 115.7 108.0
Deferred income tax asset 4.7 8.5
Prepayments and other current assets 26.3 18.4
Total current assets 376.1 306.9
Land 24.0 21.6
Buildings 199.7 195.2
Machinery and equipment 692.6 657.3
Capital leases 5.7 5.5
Construction in progress 82.9 91.6
1,004.9 971.2
Less accumulated depreciation 370.4 359.5
Net property, plant and equipment 634.5 611.7
Investments and advances 141.9 132.9
Goodwill 560.4 545.6
Deferred income tax asset 7.7 20.6
Other noncurrent assets 125.5 118.6
Total other assets 835.5 817.7
$1,846.1 $1,736.3
Liabilities and Stockholders' Equity
Notes payable $ 145.0 $ 67.7
Accounts payable and accrued expenses 276.9 273.6
Income taxes payable 32.2 53.9
Total current liabilities 454.1 395.2
Long-term debt 248.5 270.4
Long-term liabilities:
Retirement-related liabilities 318.6 314.0
Other 39.1 42.3
Total long-term liabilities 357.7 356.3
Minority stockholders' interest in
consolidated subsidiaries 8.5 20.7
Capital stock:
Preferred stock, $.01 par value;
authorized shares: 5,000,000;
None issued - -
Common stock, $.01 par value;
authorized shares: 50,000,000;
issued shares: 1998 and 1997, 23,753,365;
outstanding shares: 1998, 23,387,173; 1997,
23,542,765 0.2 0.2
Non-voting common stock, $.01 par value;
authorized shares: 25,000,000;
issued and outstanding shares: 1998, none;
1997, 1,500 - -
Capital in excess of par value 566.0 566.0
Retained earnings 230.2 150.7
Management shareholder note (2.0) -
Accumulated other comprehensive income 0.5 (13.0)
Common stock held in treasury, at cost:
1998, 366,192 shares; 1997, 210,600 shares(17.6) (10.2)
Total stockholders' equity 777.3 693.7
$1,846.1 $1,736.3
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
Consolidated Statements of Cash Flows
<TABLE>
<CAPTION>
millions of dollars
For the Year Ended December 31, 1998 1997 1996
<S> <C> <C> <C>
Operating
Net earnings $ 94.7 $ 103.2 $ 41.8
Adjustments to reconcile net
earnings to net cash flows from operations:
Non-cash charges (credits) to operations:
Depreciation 74.8 70.4 71.3
Goodwill amortization 16.8 16.7 13.5
Loss on sale of business - - 61.5
Deferred income tax provision 16.7 24.1 (12.4)
Other, principally equity in
affiliate earnings (11.4) (11.8) (14.8)
Changes in assets and liabilities,
net of effects of acquisitions
and divestitures:
(Increase) decrease in receivables (29.3) (13.6) 4.0
Increase in inventories (9.1) (8.9) (8.7)
(Increase) decrease in prepayments
and deferred income tax asset (7.6) (1.3) 3.5
Increase (decrease) in accounts
payable and accrued expenses 3.0 (3.9) 7.5
Increase (decrease) in income
taxes payable (22.3) 23.9 4.2
Net change in other long-term
assets and liabilities 6.3 (31.4) 6.5
Net cash provided by operating
activities 132.6 167.4 177.9
Investing
Capital expenditures (122.2) (135.1) (91.9)
Investment in affiliates (5.7) (0.1) (0.5)
Payments for businesses acquired (65.4) (42.4) (287.8)
Proceeds from sales of businesses 51.8 5.8 20.3
Proceeds from other assets 13.9 2.7 8.1
Net cash used in investing
activities (127.6) (169.1) (351.8)
Financing
Net increase (decrease) in notes payable 73.3 31.8 (7.4)
Additions to long-term debt 2.4 37.6 192.4
Reductions in long-term debt (26.1) (42.5) -
Payments for purchase of treasury stock (13.0) (10.2) -
Proceeds from stock options exercised 0.7 2.1 2.6
Dividends paid (14.1) (14.3) (14.1)
Net cash provided by financing
activities 23.2 4.5 173.5
Effect of exchange rate changes on cash
and cash equivalents 2.4 (0.9) (0.2)
Net increase (decrease) in cash and
cash equivalents 30.6 1.9 (0.6)
Cash and cash equivalents at beginning
of year 13.4 11.5 12.1
Cash and cash equivalents at end of year$44.0 $13.4 $11.5
Supplemental Cash Flow Information
Net cash paid during the year for:
Interest $30.3 $27.1 $20.8
Income taxes 36.8 28.9 33.4
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
<PAGE>
Consolidated Statements of Shareholders' Equity
<TABLE>
<CAPTION>
millions of dollars Comprehensive
Number of Shares Stockholders' Equity Income
Accumulated
Issued Common Issued Capital in Management other
common stock in common excess of Treas- shareholder Retained comprehensive
stock treasury stock par value ury stock note earnings income
------- -------- ------- ------- --------- ------- -------- ------ ------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balance,
January
1, 1996 23,467,056 - $0.2 $560.1 $ - $ - $ 34.1 $ 5.6
Dividends
declared - - - - - - (14.1) -
Shares issued
under stock
option plans 177,784- - 3.8 - - - -
Net income - - - - - - 41.8 - $41.8
Adjustment
for minimum
pension lia-
bility - - - - - - - 9.3 9.3
Currency trans-
lation ad-
justment - - - - - - - (12.0)(12.0)
Balance,
Decem-
ber 31,
1996 23,644,840 - $0.2 $563.9 $ - $ - $ 61.8 $ 2.9 $ 39.1
Purchase
of treas-
ury stock - (212,100) - - (10.2) - - -
Dividends
declared - - - - - - (14.3) -
Shares issued
under stock
option
plans 110,025 1,500 - 2.1 - - - -
Net income - - - - - - 103.2 - $103.2
Adjustment
for minimum
pension
liability - - - - - - - 5.7 5.7
Currency trans-
lation adjust-
ment - - - - - - - (21.6) (21.6)
Balance,
December
31, 1997 23,754,865(210,600)$0.2 $566.0 $(10.2) $ - $150.7 $(13.0) $87.3
Purchase of
treasury
stock - (273,200) - - (13.0) - - -
Dividends
declared - - - - - - (14.1) -
Shares issued
for manage-
ment share-
holder note - 36,930 - 0.3 1.7 (2.0) - -
Shares issued
under stock
option plans - 43,614 - (0.3) 2.1 - (1.1) -
Shares issued
under execu-
tive stock
plan - 35,564 - - 1.8 - - -
Non-voting common
stock converted
to voting com-
mon stock (1,500)1,500 - - - - - -
Net income - - - - - - 94.7 - $ 94.7
Adjustment
for minimum
pension lia-
bility - - - - - - - 1.7 1.7
Currency trans-
lation adjust-
ment - - - - - - - 11.8 11.8
Balance,
December 31,
1998 23,753,365(366,192)$0.2 $566.0 $(17.6) $(2.0) $230.2 $ 0.5 $108.2
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
<PAGE>
Notes to Consolidated Financial Statements
Introduction
The Company is a leading global supplier of highly engineered systems and
components primarily for automotive powertrain applications. These products are
manufactured and sold worldwide, primarily to original equipment manufacturers
("OEMs") of passenger cars, sport-utility vehicles and light trucks. The
Company, which operates 35 manufacturing facilities in 12 countries serving
automakers in North America, Europe and Asia, is an original equipment supplier
to every major OEM in the world. Its products fall into four operating segments:
Automatic Transmission Systems, Air/Fluid Systems, Morse TEC and Powertrain
Systems.
1 Summary of Significant Accounting Policies
The following paragraphs briefly describe significant accounting policies.
Estimates The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Principles of consolidation The consolidated financial statements include all
significant majority-owned subsidiaries. All significant intercompany accounts
and transactions have been eliminated in consolidation. Certain prior year
amounts have been reclassified to conform to the current year presentation.
Short-term securities Short-term securities are valued at cost, which
approximates market. It is the Company's policy to classify investments with
original maturities of three months or less as cash equivalents for purposes of
preparing the Consolidated Statements of Cash Flows. All short-term securities
meet this criterion.
Accounts receivable In 1998, an agreement with a financial institution to sell,
without recourse, eligible receivables was amended from $102.0 million to $127.5
million. Accounts receivable are recorded net of this agreement, under which
$125 million was sold at December 31, 1998 and $100 million was sold at December
31, 1997. The agreement extends to December 1999.
Inventories Inventories are valued at the lower of cost or market. Cost of U.S.
inventories is determined by the last-in, first-out (LIFO) method, while the
foreign operations use the first-in, first-out (FIFO) method.
Property, plant and equipment and depreciation Property, plant and equipment are
valued at cost less accumulated depreciation. Expenditures for maintenance,
repairs and renewals of relatively minor items are generally charged to expense
as incurred. Renewals of significant items are capitalized. Depreciation is
computed generally on a straight-line basis over the estimated useful lives of
related assets ranging from 3 to 30 years. For income tax purposes, accelerated
methods of depreciation are generally used.
Goodwill Goodwill is being amortized on a straight-line basis over periods not
exceeding 40 years. The Company periodically reviews its operations to determine
whether there has been a diminution in value of its goodwill. If the review
indicated a decline in the carrying value, the Company would adjust the
amortization accordingly.
Revenue recognition The Company recognizes revenue upon shipment of product.
Although the Company may enter into long-term supply agreements with its major
customers, each shipment of goods is treated as a separate sale. Although the
Company has entered into long-term supply agreements, the price is not fixed
over the life of the agreements.
Financial instruments Financial instruments consist primarily of investments in
cash, short-term securities, and receivables and obligations under accounts
payable and accrued expenses and debt instruments, much of which is variable
rate debt. The fair value of debt is estimated based on current borrowing rates
for loans with similar terms and maturities. The Company believes that the fair
value of the financial instruments approximates the carrying value.
Comprehensive income The Company adopted Statement of Financial Accounting
Standards No. 130, "Reporting Comprehensive Income" ("SFAS 130") in 1998. SFAS
130 requires presentation of comprehensive income (net income plus all other
changes in net assets from non-owner sources) and its components in the _nancial
statements. The Company has changed the format of its Consolidated Statements of
Stockholders' Equity to present the required disclosures regarding comprehensive
income. Additional information is presented in Note 3.
Segment information The Company adopted Statement of Financial Accounting
Standards No. 131, "Disclosures about Segments of an Enterprise and Related
Information" ("SFAS 131") as of December 31, 1998. SFAS 131 requires the
presentation of descriptive and quantitative information about reportable
segments which is consistent with the information made available to the
management of the Company to assess performance. The required disclosures are
presented in Note 13.
Pensions and other postretirement benefit plans Effective December 31, 1998, the
Company adopted Statement of Financial Accounting Standards No. 132, "Employers'
Disclosures about Pensions and Other Postretirement Benefits" ("SFAS 132"). SFAS
132 revises employers' disclosures about pension and other postretirement
benefit plans, but does not change the measurement or recognition of these
plans. The required disclosures are presented in Note 6.
New accounting pronouncements In June 1998, the Financial Accounting Standards
Board ("FASB") issued Statement of Financial Accounting Standards No. 133,
"Accounting for Derivative Instruments and Hedging Activities" ("SFAS 133"),
which is required to be adopted in fiscal years beginning after June 15, 1999.
SFAS 133 requires that all derivatives be recognized as either assets or
liabilities in the balance sheet and that derivative instruments be measured at
fair value. The Company has not yet determined the effect SFAS 133 will have on
its nancial position or results of operations.
In March 1998, the American Institute of Certified Public Accountants issued
Statement of Position 98-1, "Accounting for the Costs of Computer Software
Developed or Obtained for Internal Use" ("SOP 98-1"). SOP 98-1 provides guidance
on accounting for the costs of computer software developed or obtained for
internal use and is effective for fiscal years beginning after December 15,
1998. The Company is currently assessing the potential effects of SOP 98-1 on
its results of operations and nancial position.
2 Balance Sheet Information
Detailed balance sheet data are as follows:
<TABLE>
<CAPTION>
millions of dollars
<S> <C> <C>
December 31, 1998 1997
Receivables:
Customers $147.5 $118.6
Other 40.6 42.2
188.1 160.8
Less allowance for losses 2.7 2.2
Net receivables $185.4 $158.6
Inventories:
Raw material $ 57.3 $ 53.9
Work in progress 32.7 33.9
Finished goods 25.7 20.2
Total inventories $115.7 $108.0
Prepayments and other current assets:
Investment in business
held for disposition $ 16.8 $ 10.3
Other 9.5 8.1
Total prepayments and
other current assets$ 26.3 $ 18.4
Investments and advances:
NSK-Warner $133.6 $124.1
Other 8.3 8.8
Total investments and
advances $141.9 $132.9
Other noncurrent assets:
Deferred pension assets$ 54.1 $ 41.0
Deferred tooling 53.1 59.3
Other 18.3 18.3
Total other noncurrent
assets $125.5 $118.6
Accounts payable and
accrued expenses:
Trade payables $164.3 $166.7
Payroll and related 34.2 33.3
Insurance 18.4 18.3
Accrued costs related to
divested operations 13.9 22.8
Other 46.1 32.5
Total accounts payable
and accrued expenses$276.9 $273.6
Other long-term liabilities:
Environmental reserve $ 7.9 $ 7.2
Other 31.2 35.1
Total other long-term
liabilities $ 39.1 $ 42.3
</TABLE>
Inventory held by U.S. operations was $66.3 million in 1998 and $69.7 million in
1997. Such inventories, if valued at current cost instead of LIFO, would have
been greater by $6.3 million in 1998 and $8.7 million in 1997.
Dividends received from affiliates accounted for under the equity method totaled
$3.9 million in 1998, $4.8 million in 1997 and $5.0 million in 1996.
Accumulated amortization related to capital leases amounted to $4.5 million in
1998 and $4.3 million in 1997. Accumulated amortization of goodwill amounted to
$117.8 million in 1998 and $101.4 million in 1997.
The Company has a 50% interest in NSK-Warner, a joint venture based in Japan
that manufactures automatic transmission components. The Company's share of the
earnings or losses reported by NSK-Warner is accounted for using the equity
method of accounting. NSK-Warner has a fiscal year-end of March 31. The
Company's equity in the earnings of NSK-Warner consists of the 12 months ended
November 30 so as to reflect earnings on as current a basis as is reasonably
feasible.
Following are summarized financial data for NSK-Warner, translated using the
ending or periodic rates as of and for the years ended March 31, 1998, 1997 and
1996:
<TABLE>
<CAPTION>
millions of dollars
Year Ended March 31, 1998 1997 1996
<S> <C> <C> <C>
Balance sheets:
Current assets $139.0 $145.7 $156.5
Noncurrent assets 119.4 124.7 152.0
Current liabilities 68.0 74.1 85.8
Noncurrent liabilities 7.0 8.1 11.1
Statements of operations:
Net sales $264.1 $296.5 $334.7
Gross profit 64.7 82.6 91.8
Net income 21.5 29.0 32.3
</TABLE>
3 Other Comprehensive Income
The components of other comprehensive income in the Consolidated Statements of
Shareholders' Equity are as follows:
millions of dollars
<TABLE>
<CAPTION>
Year Ended December 31, 1998 1997 1996
<S> <C> <C> <C>
Foreign currency translation adjustment $17.6 $(33.0) $(15.7)
Income taxes (5.8) 11.4 3.7
Net foreign currency translation
adjustment 11.8 (21.6) (12.0)
Minimum pension liability adjustment 2.5 8.7 12.2
Income taxes (0.8) (3.0) (2.9)
Net minimum pension liability
adjustment 1.7 5.7 9.3
Other comprehensive income $13.5 $(15.9) $ (2.7)
</TABLE>
The components of accumulated other comprehensive income (net of tax) in the
Consolidated Balance Sheets are as follows:
millions of dollars
<TABLE>
<CAPTION>
December 31, 1998 1997
<S> <C> <C>
Foreign currency translation adjustment $0.5 $(11.3)
Minimum pension liability adjustment - (1.7)
Accumulated other comprehensive income $0.5 $(13.0)
</TABLE>
4 Contingent Liabilities
The Company and certain of its current and former direct and indirect corporate
predecessors, subsidiaries and divisions have been identified by the United
States Environmental Protection Agency and certain state environmental agencies
and private parties as potentially responsible parties ("PRPs") at various
hazardous waste disposal sites under the Comprehensive Environmental Response,
Compensation and Liability Act ("Superfund") and equivalent state laws and, as
such, may presently be liable for the cost of clean-up and other remedial
activities at 26 such sites. Responsibility for clean-up and other remedial
activities at a Superfund site is typically shared among PRPs based on an
allocation formula.
Based on information available to the Company, which in most cases, includes: an
estimate of allocation of liability among PRPs; the probability that other PRPs,
many of whom are large, solvent public companies, will fully pay the cost
apportioned to them; currently available information from PRPs and/or federal or
state environmental agencies concerning the scope of contamination and estimated
remediation costs; remediation alternatives; estimated legal fees; and other
factors, the Company has established a reserve for indicated environmental
liabilities with a balance at December 31, 1998 of approximately $7.9 million.
The Company expects this amount to be expended over the next three to ve years.
The Company entered into a Settlement Agreement and Specific Mutual Release
dated as of May 31, 1998 (the "Settlement Agreement") with Borg-Warner Security
Corporation ("BWSC"), the successor corporation to its former parent. The
previously-reported dispute involved whether BWSC was entitled to indemni cation
from the Company for certain environmental liabilities under a Distribution and
Indemnity Agreement dated January 27, 1993.
Pursuant to the Settlement Agreement, the Company and BWSC agreed to dismiss and
vacate all arbitration awards resulting from the arbitration proceeding and to
dismiss with prejudice the lawsuit _led by the Company in the Circuit Court of
Cook County, Illinois, on January 27, 1998. Under the Settlement Agreement, the
Company agreed to indemnify BWSC for the first $2.9 million BWSC pays in certain
environmental costs after April 30, 1998 and 50% of any amounts in excess of
that $2.9 million. At present, the Company does not have suf cient information
to determine the extent of its liability under the Settlement Agreement, but
does not anticipate that such amount will have a material adverse effect on its
financial position or future operating results. It is expected that
indemnification payments will be made by the Company over the course of several
years as the environmental costs are incurred.
The Company believes that none of these matters, individually or in the
aggregate, will have a material adverse effect on its financial position or
future operating results, generally either because estimates of the maximum
potential liability at a site are not large or because liability will be shared
with other PRPs, although no assurance can be given with respect to the ultimate
outcome of any such matter.
5 Notes Payable and Long-Term Debt
Following is a summary of notes payable and long-term debt.
<TABLE>
<CAPTION>
millions of dollars
1998 1997
December 31, Current Long-Term Current Long-Term
<S> <C> <C> <C> <C>
Bank borrowings $144.4 $ 69.5 $36.1 $ 94.9
Bank term loans due through 2003
(at an average rate of 5.3% in 1998
and 5.2% in 1997; and 4.6% at
December 1998) 0.2 25.5 30.2 21.8
7% Senior Notes due 2006, net of
unamortized discount - 149.7 - 149.6
Capital lease liabilities (at an average rate
of 7.2% in 1998 and 6.5%
in 1997) 0.4 3.8 1.4 4.1
Total notes payable and long-
term debt $145.0 $248.5 $67.7 $270.4
</TABLE>
Annual principal payments required as of December 31, 1998 are as follows (in
millions of dollars):
1999 $145.0
2000 7.4
2001 88.3
2002 1.2
2003 -
after 2003 151.6
The Company has a revolving credit facility which provides for borrowings up to
$350 million through September, 2001. At December 31, 1998, the facility was
unused; at December 31, 1997, $25.0 million of borrowings under the facility
were outstanding. The credit agreement contains numerous financial and operating
covenants including, among others, covenants requiring the Company to maintain
certain financial ratios and restricting its ability to incur additional foreign
indebtedness.
In November 1996, the Company issued $150 million of 7% senior unsecured notes
due 2006. Interest is payable semiannually on May 1 and November 1. The
indenture contains certain covenants including, among others, covenants limiting
liens, sale/leaseback transactions, mergers and the sale of substantially all of
the Company's assets.
Bank term loans of $25.7 million outstanding at December 31, 1998 are subject to
annual reductions of $0.2 million in 1999, $7.4 million in 2000, $16.7 million
in 2001, $1.2 million in 2002 and $0.2 million for 2003 and thereafter.
6 Retirement Benefit Plans
The Company has a number of defined benefit pension plans and other
postretirement benefit plans covering eligible salaried and hourly employees.
The other postretirement benefit plans, which provide medical and life insurance
benefits, are unfunded plans. The following provides a reconciliation of the
plans' benefit obligations, plan assets, funded status and recognition in the
Consolidated Balance Sheets.
<TABLE>
<CAPTION>
millions of dollars
Other
Pension Benefits Postretirement Benefits
December 31, 1998 1997 1998 1997
<S> <C> <C> <C> <C>
Change in benefit obligation:
Benefit obligation at
beginning of year $330.1 $309.1 $ 271.2 $ 261.2
Service cost 5.4 4.5 4.5 4.1
Interest cost 21.7 21.8 18.7 19.0
Plan participants'
contributions 0.3 0.2 - -
Amendments 0.3 - (0.1) -
Actuarial loss 13.2 15.2 28.6 2.8
Acquisition/divestiture - 6.0 - -
Currency translation 2.8 (4.1) - -
Curtailments (3.8) - (6.8) -
Settlements (3.5) - (2.7) -
Special termination
benefits 1.8 - 0.9 -
Benefits paid (22.5) (22.6) (17.6) (15.9)
Benefit obligation at
end of year 345.8 330.1 296.8 271.2
Change in plan assets:
Fair value of plan assets
at beginning of year 328.2 271.2
Actual return on plan
assets 63.7 67.0
Employer contributions 12.5 12.3
Plan participants'
contributions 0.3 0.2
Currency translation 0.6 -
Settlements (4.1) -
Benefits paid (22.5) (22.6)
Fair value of plan assets
at end of year 378.7 328.1
Funded status 32.9 (2.0) (296.8) (271.2)
Unrecognized net
actuarial (gain) loss (23.0) (1.3) 23.1 1.0
Unrecognized transition
asset (0.9) (1.2) - -
Unrecognized prior
service cost 7.6 6.4 (0.3) (0.2)
Net amount recognized $ 16.6 $ 1.9 $(274.0) $(270.4)
Amounts recognized in the consolidated
balance sheets:
Prepaid benefit cost $ 54.1 $ 41.0 $ - $ -
Accrued benefit
liability (37.5) (43.0) (274.0) (270.4)
Intangible asset - 1.1 - -
Accumulated other
comprehensive income - 2.8 - -
Net amount recognized $ 16.6 $ 1.9 $(274.0) $(270.4)
</TABLE>
The funded status of pension plans included above with accumulated bene_t
obligations in excess of plan assets is as follows:
millions of dollars
December 31, 1998 1997
Accumulated benefit obligations $52.0 $219.4
Plan assets 26.4 177.5
Deficiency $25.6 $ 41.9
<TABLE>
<CAPTION>
millions of dollars
Other
Pension Benefits Postretirement Benefits
Year Ended December 31, 1998 1997 1996 1998 1997 1996
<S> <C> <C> <C> <C> <C> <C>
Components of net benefit cost:
Service cost $ 5.4 $4.5 $ 4.3 $ 4.5 $ 4.1 $ 4.4
Interest cost 21.7 21.8 21.4 18.7 19.0 19.7
Expected return on plan assets (28.6)(24.6)(22.5) - - -
Amortization of unrecognized
transition asset (0.2) (0.2) (0.1) - - -
Amortization of unrecognized prior
service cost 1.5 1.5 1.6 - - -
Amortization of unrecognized loss - 0.5 1.5 - - -
Curtailment gain (0.8) - - - - -
Net benefit cost (credit) $ (1.0)$ 3.5 $ 6.2 $23.3 $23.1 $24.1
</TABLE>
The Company's weighted-average assumptions used in determining the pension costs
and pension liabilities shown above were as follows:
percent
Other
Pension Benefits Postretirement Benefits
December 31, 1998 1997 1996 1998 1997 1996
U.S. plans:
Discount rate 6.75 7.0 7.5 6.75 7.0 7.5
Rate of salary
progression 4.5 4.5 4.5
Expected return
on plan assets 9.5 9.5 9.5
Foreign plans:
Discount rate 5.0-6.0 6.0-6.75 6.0-7.5
Rate of compen-
sation increase2.5-4.5 2.5-5.5 3.0-6.0
Expected return
on plan assets 6.0 6.0-7.0 7.75
For measurement purposes, a 5.25% health care cost inflation rate was assumed
for 1999 and subsequent years. Assumed health care cost trend rates have a
significant effect on the amounts reported for health care plans. A one-
percentage point change in the assumed rate would have the following effects:
millions of dollars
One Percentage Point
Increase Decrease
Change in benefit obligation as of December 31, 1998 $40.8 $(32.4)
Increase (decrease) in service and interest cost $ 3.9 $ (3.3)
7 Equity in Affiliate Earnings and Other Income
Items included in equity in affiliate earnings and other income consist of:
<TABLE>
<CAPTION>
millions of dollars
Year Ended December 31, 1998 1997 1996
<S> <C> <C> <C>
Equity in affiliate earnings $ 5.5 $14.0 $14.3
Gain on sale of affiliate 3.3 - -
Interest income 0.4 0.4 0.3
Loss on asset disposals, net (0.1) (3.7) (2.4)
Other 1.2 2.5 0.9
$10.3 $13.2 $13.1
</TABLE>
8 Stock Incentive Plans
Stock option plans Under the Company's 1993 Stock Incentive Plan, the Company
may grant options to purchase up to 1,500,000 shares of the Company's common
stock. Options granted to date under this plan carry exercise prices ranging
from $22.50 to $57.31 per share, equal to the market price of the Company's
common stock on the date of grant. The options vest over periods up to three
years and have a term of ten years from date of grant. There are 561,475
outstanding options at December 31, 1998. There are also 92,300 fully vested
options outstanding at December 31, 1998 that were granted under a predecessor
plan. The exercise prices of the predecessor plan range from $13.91 to $18.33
per share.
The Company accounts for stock options in accordance with Accounting Principles
Board Opinion No. 25, under which no compensation cost has been recognized for
stock options grants.
A summary of the two plans' shares under option at December 31, 1998, 1997 and
1996 follows:
Shares Weighted-average
1998 (thousands) exercise price
Outstanding at beginning of year 471 $30.72
Granted 242 51.76
Exercised (44) 17.44
Forfeited (15) 53.42
Outstanding at end of year 654 38.85
Options exercisable at year-end 294
Shares available for future grants 746
Shares Weighted-average
1997 (thousands) exercise price
Outstanding at beginning of year 461 $21.57
Granted 130 53.48
Exercised (111) 19.14
Forfeited (9) 35.34
Outstanding at end of year 471 30.72
Options exercisable at year-end 323
Shares Weighted-average
1996 (thousands) exercise price
Outstanding at beginning of year 632 $19.39
Granted 16 32.41
Exercised (178) 14.72
Forfeited (9) 23.09
Outstanding at end of year 461 21.57
Options exercisable at year-end 395
The following table summarizes information about the options outstanding at
December 31, 1998:
Options Outstanding
Weighted-
Shares average Weighted-
Range of outstanding remaining average
exercise prices (thousands) contractual life exercise price
$13.91-18.83 92 2.5 $17.76
$22.50-25.00 178 4.7 24.81
$25.31-38.94 37 6.8 30.55
$40.44-57.31 347 9.2 52.56
$13.91-57.31 654 6.9 38.85
Options Exercisable
Shares Weighted-
Range of exercisable average
exercise prices (thousands) exercise price
$13.91-18.83 92 $17.76
$22.50-25.00 178 24.81
$25.31-38.94 24 27.82
$40.44-57.31 -- --
$13.91-57.31 294 22.83
Pro forma information regarding net income and earnings per share is required by
Statement of Financial Accounting Standards No. 123, and has been determined as
if the Company had accounted for its employee stock options under the fair value
method of that Statement. The fair value for these options was estimated at the
date of grant using a Black-Scholes options pricing model with the following
weighted average assumptions:
1998 1997 1996
Risk-free interest rate 5.57% 6.35% 5.73%
Dividend yield 1.16% 1.67% 1.88%
Volatility factor 31.37% 27.64% 27.62%
Weighted average expected life 6.5 years 7 years 7 years
The Black-Scholes option valuation model was developed for use in estimating the
fair value of traded options which have no vesting restrictions and are fully
transferable. In addition, option valuation models require the input of highly
subjective assumptions including the expected stock price volatility. Because
the Company's employee stock options have characteristics significantly
different from those of traded options, and because changes in the subjective
input assumptions can materially affect the fair value estimate, in management's
opinion, the existing models do not necessarily provide a reliable single
measure of the fair value of its employee stock options.
For purposes of pro forma disclosures, the estimated fair value of the options
is amortized to expense over the options' vesting period. The Company's pro
forma net earnings and earnings per share, adjusted to include pro forma expense
related to options, are as follows:
<TABLE>
<CAPTION> millions of dollars
except per share amounts
1998 1997 1996
<S> <C> <C> <C>
Net earnings - as reported $94.7 $103.2 $41.8
Net earnings - pro forma 93.1 102.9 41.8
Earnings per share - as
reported (basic) 4.03 4.35 1.77
Earnings per share - as reported
(diluted) 4.00 4.31 1.75
Earnings per share - pro forma
(basic) 3.96 4.34 1.77
Earnings per share - pro forma
(diluted) 3.93 4.30 1.75
Weighted average fair value of
options granted during the year 18.52 19.60 10.81
</TABLE>
Executive stock performance plan The Company has an executive stock performance
plan which provides payouts at the end of successive three-year periods based on
the Company's performance in terms of total stockholder return relative to a
peer group of automotive companies. Payouts earned are payable 40% in cash and
60% in the Company's common stock. For the three-year measurement periods ended
December 31, 1998 and 1997, the amounts earned under the plan and accrued over
the three-year periods were $4.3 million and $3.0 million, respectively.
Estimated shares issuable under the plan are included in the computation of
diluted earnings per share as earned.
Earnings per share In calculating earnings per share, earnings are the same for
the basic and diluted calculations. Shares increased for diluted earnings per
share by 197,000, 251,000 and 266,000 for 1998, 1997 and 1996, respectively, due
to the effects of stock options and shares issuable under an executive stock
performance plan.
9 Interim Financial Information (Unaudited)
The following information includes all adjustments, as well as normal recurring
items, that the Company considers necessary for a fair presentation of 1998 and
1997 interim results of operations. Certain 1998 and 1997 quarterly amounts have
been reclassified to conform
to the annual presentation.
<PAGE>
<TABLE>
<CAPTION> millions of dollars
1998 1997
Quarter Ended Quarter Ended
March 31 June 30 Sept. 30 Dec. 31 Year March 31June 30 Sept.30 Dec. 31 Year
1998 1997
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Net
sales $464.7 $451.3 $431.6 $489.2 $1,836.8 $443.5 $449.7 $406.8$467.0$1,767.0
Cost of
sales 365.7 359.4 340.4 385.2 1,450.7 345.7 346.9 323.7 359.1 1,375.4
Depre-
ciation 19.3 19.3 18.9 17.3 74.8 16.8 17.7 17.0 18.9 70.4
Selling, general
and administra-
tive ex-
penses 37.2 34.5 34.1 29.3 135.1 36.0 34.0 25.5 36.5 132.0
Minority in-
terest 0.7 0.8 0.9 (0.3) 2.1 0.7 0.5 0.6 1.4 3.2
Goodwill
amort-
ization 4.2 4.2 4.3 4.1 16.8 4.1 4.1 4.2 4.3 16.7
Equity in
affiliate
earnings and
other
income (5.5) (2.9) (0.5) (1.4) (10.3) (4.0) (4.6) (3.1) (1.5)(13.2)
Earnings before
interest expense
and finance
charges and
income
taxes 43.1 36.0 33.5 55.0 167.6 44.2 51.1 38.9 48.3 182.5
Interest expense
and finance
charges 6.0 7.0 7.6 6.3 26.9 6.5 6.3 6.2 5.6 24.6
Earnings before
income
taxes 37.1 29.0 25.9 48.7 140.7 37.7 44.8 32.7 42.7 157.9
Provision for
income
taxes 11.1 9.4 8.6 16.9 46.0 12.9 15.2 11.1 15.5 54.7
Net ear-
nings $26.0 $19.6 $17.3 $ 31.8 $ 94.7 $ 24.8 $ 29.6 $ 21.6 $27.2$103.2
Net ear-
nings per share
- basic $1.10 $ 0.84 $0.74 $ 1.35 $ 4.03 $ 1.05 $ 1.25 $0.91 $1.14 $4.35
Net earnings
per share
- diluted$1.09$ 0.83 $0.73 $ 1.35 $ 4.00 $ 1.04 $ 1.23 $0.90 $1.14 $4.31
</TABLE>
10 Income Taxes
Income before taxes and provision for taxes consist of:
<TABLE>
<CAPTION> millions of dollars
1998 1997 1996
U.S. Non-U.S. Total U.S. Non-U.S. Total U.S.Non-U.S. Total
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Income before taxes $99.3 $41.4 $140.7 $115.7 $42.2 $157.9 $25.1$29.6 $54.7
Income taxes:
Current:
Federal/foreign $6.4 $18.5 $24.9 $19.8 $7.2 $27.0 $12.0$11.0 $23.0
State 4.4 - 4.4 3.6 - 3.6 2.3 - 2.3
10.8 18.5 29.4 23.4 7.2 30.6 14.3 11.0 25.3
Deferred 14.8 1.9 16.7 19.0 5.1 24.1 (13.4) 1.0 (12.4)
Total income taxes $25.6 $20.4 $ 46.0 $42.4 $12.3 $ 54.7 $ 0.9 $12.0 $12.9
/TABLE
<PAGE>
The analysis of the variance of income taxes as reported from income taxes
computed at the U.S. statutory rate for consolidated operations is as follows:
<TABLE>
<CAPTION>
millions of dollars
1998 1997 1996
<S> <C> <C> <C>
Income taxes at U.S. statutory rate of 35% $49.2 $55.3 $19.1
Increases (decreases) resulting from:
Income from non-U.S. sources 6.7 1.7 2.7
State taxes, net of federal benefit 2.9 2.3 1.5
Business tax credits, net (8.5) (2.5) (3.8)
Affiliate earnings (1.9) (4.9) (5.0)
Nontemporary differences (2.4) 2.8 2.5
Basis difference on assets sold - - (4.2)
Other, net - - 0.1
Income taxes as reported $46.0 $54.7 $12.9
</TABLE>
The Company has not provided deferred income taxes on the excess of the carrying
value of its investment in foreign joint ventures and subsidiaries over its tax
basis in these investments as the differences are essentially permanent in
nature. It is not practicable to estimate the amount of unrecognized deferred
tax liability.
Following are the gross components of deferred tax assets and liabilities as of
December 31, 1998 and 1997:
<TABLE>
<CAPTION>
millions of dollars
1998 1997
<S> <C> <C>
Deferred tax assets - current:
Accrued costs related to divested operations $ 4.7 $ 8.5
Deferred tax assets - noncurrent:
Postretirement benefits $104.2 $102.8
Pension 4.5 4.7
Other long-term liabilities and reserves 18.9 19.5
Foreign tax credits 9.2 18.6
Valuation allowance (9.2) (18.8)
Other 12.6 15.5
140.2 142.3
Deferred tax liabilities - noncurrent:
Fixed assets 77.1 73.8
Pension 20.6 16.0
Other 34.8 31.9
132.5 121.7
Net deferred tax asset - noncurrent $ 7.7 $ 20.6
</TABLE>
11 Research and Development Costs
The Company spent approximately $65.1 million, $59.0 million and $54.4 million
in 1998, 1997 and 1996, respectively, on research and development activities.
Not included in these amounts were customer-sponsored R&D activities of
approximately $8.4 million, $8.0 million and $10.0 million in 1998, 1997 and
1996, respectively.
12 Acquisitions and Divestitures
Acquisitions
AG Kuhnle, Kopp & Kausch On October 31, 1997, the Company acquired 63% of the
capital stock of AG Kuhnle, Kopp & Kausch, ("AG Kuhnle") a German manufacturer
of turbochargers and turbomachinery, for $42.4 million. The Company accounted
for the acquisition of the turbocharger business as a purchase and began
consolidating it on November 1, 1997. Because AG Kuhnle's turbomachinery
business did not fit the Company's strategic plan, the turbomachinery business
was not consolidated and the net carrying value, $10.3 million, was included in
prepayments and other current assets.
On October 31, 1998, the Company purchased 100% of the net assets of the
turbocharger business from AG Kuhnle, renaming it 3K-Warner Turbosystems GmbH.
The purchase price was $95.7 million, subject to final settlement. Included in
1998 results of operations are sales of $182.9 million and net earnings of $3.3
million (net of minority interest of $1.1 million that existed prior to November
1, 1998). As soon as is practicable, the Company intends to realize its 63%
interest in AG Kuhnle, which consists principally of the turbomachinery business
and excess cash held on the residual balance sheet of AG Kuhnle, less certain
income tax and other liabilities. The Company's investment in AG Kuhnle is
included in the December 31, 1998 Consolidated Balance Sheet as $30.3 million of
cash and $16.8 million of prepayments and other current assets, representing the
carrying value of the Company's 63% interest in the turbomachinery business.
The following unaudited pro forma information has been prepared assuming that
the 100% acquisition of 3K-Warner Turbosystems GmbH had occurred at the
beginning of 1997, and includes adjustments for estimated amounts of goodwill
amortization and increased interest expense. The unaudited pro forma financial
information is not necessarily indicative of the results of operations that
would have occurred had the transactions been consummated at the beginning of
1997 nor is it necessarily indicative of results of operations that may occur in
the future.
millions of dollars
except per share amounts
Year Ended December 31, 1998 1997
Net sales $1,836.8 $1,884.1
Net earnings 94.0 103.3
Net earnings per share - basic 4.00 4.36
Net earnings per share - diluted 3.97 4.32
Coltec On June 17, 1996, the Company acquired for $283 million the operations
and substantially all of the operating assets of three of Coltec Industries
Inc's automotive OEM businesses: Holley Automotive, Coltec Automotive and
Performance Friction Products which manufactured a broad base of air and fluid
management products. Since the acquisition was accounted for as a purchase, the
purchase price was allocated to the assets acquired based upon their estimated
fair values, resulting in goodwill of $242 million. Included in the 1996
Consolidated Statement of Earnings were sales of $123 million and pretax
operating income of $13 million.
Divestiture
North American Manual Transmission Business On December 31, 1996, the Company
sold its North American manual transmission business located in Muncie, Indiana,
to Transmisiones Y Equipos Mecanicos S.A. De C.V. Under the agreement, the
Company received $20.3 million at closing for certain assets of the business and
approximately $20 million during a transition period for the value of inventory
and certain services provided. The Company recorded a pretax loss on the sale of
$61.5 million in 1996, which, net of tax benefit of $26.5 million, resulted in
an after-tax charge of $35 million or $1.49 per share.
13 Operating Segments and Related Information
Operating segments The Company's business comprises four operating segments:
Powertrain Systems, Automatic Transmission Systems, Morse TEC, and Air/Fluid
Systems. These reportable segments are strategic business units which are
managed separately because each represents a specific grouping of automotive
components and systems. Borg-Warner Automotive evaluates performance based on
earnings before interest and taxes, which emphasizes realization of a
satisfactory return on the total capital invested in each operating unit.
Intersegment sales, which are not significant, are recorded at market prices.
<TABLE>
<CAPTION>
millions of dollars
Sales
Earnings
Before Long-Lived
Inter- Interest Year End Depr./ Assets
Customers segment Net and Taxes Assets Amort. Expend.
1998
<S> <C> <C> <C> <C> <C> <C> <C>
Powertrain Systems $ 516.4 $ 2.4 $ 518.8 $ 28.4 $ 288.1 $ 17.7 $ 13.4
Automatic Transmission
Systems 391.7 10.9 402.6 40.0 434.8 23.8 29.8
Morse TEC 511.4 24.8 536.2 78.5 649.0 29.0 60.3
Air/Fluid Systems 343.9 7.5 351.4 25.1 380.0 17.2 21.0
Divested operations(a) 73.4 0.1 73.5 4.7 13.9 2.3 8.8
Intersegment elimin-
ations - (45.7) (45.7) - (4.9) - -
Total 1,836.8 - 1,836.8 176.7 1,760.9 90.0 133.3
Corporate, including
equity in affiliates - - - (9.1) 85.2(c) 1.6 3.7
Consolidated $ 1,836.8 $- $ 1,836.8 $ 167.6 $ 1,846.1 $ 91.6 $137.0
1997
Powertrain Systems $ 610.8 $ 2.8 $ 613.6 $ 46.4 $ 270.3 $ 17.5 $ 41.7
Automatic Transmission
Systems 406.6 11.6 418.2 51.7 421.4 23.8 41.5
Morse TEC 318.3 30.7 349.0 64.7 488.8 24.8 47.8
Air/Fluid Systems 330.0 12.4 342.4 15.1 383.6 16.2 20.0
Divested operations(a)101.3 0.1 101.4 1.5 61.3 2.9 15.4
Intersegment elimin-
ations - (57.6) (57.6) - (5.3) - -
Total 1,767.0 - 1,767.0 179.4 1,620.1 85.2 166.4
Corporate, including
equity in affiliates - - - 3.1 116.2(c) 1.9 -
Consolidated $1,767.0 $ - $1,767.0 $182.5 $1,736.3 $87.1 $166.4
1996
Powertrain Systems $ 474.8 $ 2.0 $ 476.8 $ 38.5 $ 229.7 $15.2 $ 36.7
Automatic Trans-
mission Systems 385.3 6.9 392.2 46.4 430.8 24.8 24.3
Morse TEC 252.9 23.7 276.6 48.4 376.2 24.2 28.7
Air/Fluid Systems 237.9 4.8 242.7 13.2 403.5 13.4 11.2
Divested operations(a)189.2 - 189.2 (18.9) 57.7 5.9 0.3
Intersegment eli-
minations - (37.4) (37.4) - (7.2) - -
Total 1,540.1 - 1,540.1 127.6 1,490.7 83.5 101.2
Corporate, including
equity in affiliates - - - (51.5)(b) 132.9(c) 1.3 1.8
Consolidated $1,540.1 $ - $1,540.1$ 76.1 $1,623.6 $84.8 $103.0
</TABLE>
(a) The torque converter and connecting rod businesses were sold in 1998. The
North American manual transmission business was sold in 1996.
(b) A $61.5 million loss was recognized on the sale of the North American
manual transmission business.
(c) Corporate assets, including equity in affiliates, are net of trade
receivables sold to third parties, and include cash, marketable securities,
deferred tax assets and investments and advances.
The following table reconciles segments' earnings before interest and income
taxes to consolidated earnings before income taxes.
<PAGE>
millions of dollars
1998 1997 1996
Earnings before interest and income taxes $167.6 $182.5 $ 76.1
Interest expense and finance charges (26.9) (24.6) (21.4)
Earnings before income taxes $140.7 $157.9 $ 54.7
Geographic information No country outside the U.S., other than Germany, accounts
for as much as 5% of consolidated net sales, attributing sales to the sources of
the product rather than the location of the customer. For this purpose, the
Company's 50% equity investment in NSK-Warner (Note 2) amounting to $133.6
million at December 31, 1998 is excluded from the definition of long-lived
assets, as is goodwill.
<TABLE>
<CAPTION>
millions of dollars
Net Sales Long-Lived Assets
1998 1997 1996 1998 1997 1996
<S> <C> <C> <C> <C> <C> <C>
United States $1,410.0 $1,485.2 $1,309.2 $494.9 $508.7 $447.0
Germany 264.4 98.9 70.1 91.7 76.1 45.3
Other Europe 93.6 89.6 72.2 55.5 51.6 39.3
Total Europe 357.8 188.5 142.3 147.2 127.7 84.6
Other Foreign 69.0 93.3 88.6 56.3 43.2 50.8
Total $1,836.8 $1,767.0 $1,540.1 $698.4 $679.9 $582.4
Sales to major customers Consolidated sales included sales to Ford Motor Company
of approximately 36%, 43% and 42%; to DaimlerChrysler of approximately 19%, 14%
and 12%; and to General Motors Corporation of approximately 16%, 20% and 21% for
the years ended December 31, 1998, 1997 and 1996, respectively. No other single
customer accounted for 10% or more of consolidated sales in any year between
1996 and 1998. Such sales consisted of a variety of products to a variety of
customer locations worldwide. Each of the four operating segments had
significant sales to all three of the customers listed above.
14 Pending Acquisition of Kuhlman Corporation and Related Debt Financing
On December 17, 1998, the Company entered into a merger agreement with Kuhlman
Corporation, which provides that Kuhlman will become a wholly owned subsidiary
of Borg-Warner Automotive. The total value of consideration to be paid in the
merger, based on the number of shares of Kuhlman common stock outstanding on
December 31, 1998 is approximately $677.8 million. Approximately $527.8 million
of the consideration will be in cash, with the remaining $150 million in
Borg-Warner Automotive common stock. This acquisition is expected to close in
March, 1999.
Kuhlman is a diversified industrial manufacturing company that currently
operates two product segments: industrial products and electrical products.
Their products are sold to over 5,000 domestic and international customers
operating in more than 60 countries. Kuhlman's Schwitzer Group, which includes
the industrial products business, is a leading worldwide manufacturer of
proprietary engine components, including turbochargers, fans and fan drives,
fuel tanks, instrumentation, heating/ventilation/air conditioning systems, and
other products used primarily in commercial transportation products and
industrial equipment. Kuhlman's electrical products businesses include the
manufacture of transformers and other products for electrical utilities and
industrial users, as well as electrical and electronic wire and cable products
for use in consumer, commercial and industrial applications. Following the
completion of the merger, the Company intends to sell the electrical products
businesses and integrate the Schwitzer Group into the Company.
On February 22, 1999, the Company issued $200 million of 6.5% senior unsecured
notes maturing in February 2009 and $200 million of 7.125% unsecured notes
maturing in February 2029 to partially fund the impending Kuhlman acquisition.
<PAGE>
Selected Financial Data
</TABLE>
<TABLE>
<CAPTION>
millions of dollars except per share amounts
Year Ended December 31, 1998 1997 1996 1995 1994
Statement of Operations Data
<S> <C> <C> <C> <C> <C>
Net sales $1,836.8 $1,767.0 $1,540.1 $1,329.1 $1,223.4
Cost of sales 1,450.7 1,375.4 1,205.5 1,044.9 948.4
Depreciation 74.8 70.4 71.3 68.0 60.9
Selling, general and
administrative expenses135.1 132.0 122.7 97.8 92.1
Minority interest 2.1 3.2 2.6 2.0 1.4
Goodwill amortization 16.8 16.7 13.5 9.6 9.6
Loss on sale of business - - 61.5(a) - -
Equity in affiliate
earnings and other income(10.3) (13.2) (13.1) (18.6) (10.6)
Interest expense and
finance charges 26.9 24.6 21.4 14.2 13.9
Provision for income
taxes 46.0 54.7 12.9 37.0 43.3
Net earnings $ 94.7 $ 103.2 $ 41.8 $ 74.2 $64.4
Net earnings per
share - basic $ 4.03 $ 4.35 $ 1.77(a) $ 3.18 $2.79
Average shares
outstanding
(thousands)- basic 23,479 23,683 23,564 23,303 23,048
Net earnings per
share - diluted $ 4.00 $ 4.31 $ 1.75(a) $ 3.15 $ 2.75
Average shares
outstanding (thousands)
- diluted 23,676 23,934 23,830 23,570 23,424
Cash dividend declared
per share $ 0.60 $ 0.60 $ 0.60 $ 0.60 $ 0.45
Balance Sheet Data
(at end of period)
Total assets $ 1,846.1 $ 1,736.3 $ 1,623.6 $ 1,335.2 $ 1,240.3
Total debt 393.5 338.1 317.3 134.7 107.3
/TABLE
<PAGE>
(f) The Company recorded a pretax loss on the sale of the North American manual
transmission business of $61.5 million, which, net of tax benefit of $26.5
million, results in an after-tax charge of $35.0 million, or $1.49 per share.
See Note 12 to the Company's Consolidated Financial Statements for additional
information.
Corporate Information
Company Information
Borg-Warner Automotive, Inc.
200 South Michigan Avenue
Chicago, IL 60604
312-322-8500
Stock Listing
Borg-Warner Automotive shares are listed and traded on the New York Stock
Exchange.
Ticker symbol: BWA.
High Low
Fourth Quarter 1998 $ 55 13/16 $ 33 5/16
Third Quarter 1998 51 9/16 37 1/16
Second Quarter 1998 68 1/8 43 11/16
First Quarter 1998 64 1/2 49 5/8
High Low
Fourth Quarter 1997 $ 60 7/8 $ 46 1/8
Third Quarter 1997 57 3/4 50 7/16
Second Quarter 1997 53 1/4 42
First Quarter 1997 42 5/8 38 3/8
Dividends
The current dividend practice established by the directors is to declare regular
quarterly dividends. The last such dividend of 15 cents per share of common
stock was declared on January 22, 1999, payable February 16, 1999, to
stockholders of record on February 1, 1999. The current practice is subject to
review and change at the discretion of the Board of Directors.
Stockholders
As of December 31, 1998, there were 369 holders of record and an estimated
10,000 beneficial holders.
Annual Meeting of Stockholders
The 1999 annual meeting of stockholders will be held on Tuesday, April 27, 1999,
beginning at 11:00 a.m. on the 19th floor of the Company's headquarters at 200
South Michigan Avenue in Chicago.
Securities Information
ChaseMellon Shareholder Services is the transfer agent, registrar and dividend
dispersing agent for Borg-Warner Automotive common stock. Communications
concerning stock transfer, change of address, lost stock certificates or proxy
statements for the annual meeting should be directed to:
ChaseMellon Shareholder Services
450 West 33rd Street, 15th Floor
New York, NY 10001
800-851-9677
http://www.cmssonline.com
Investor Inquiries
Financial investors and securities analysts requiring financial reports,
interviews or other information should contact Mary Brevard, Director of
Investor Relations and Communications, at the Company headquarters, 312-322-
8683.
Form 10-K Report
A copy of the Company's annual report on Form 10-K, filed with the Securities
and Exchange Commission, is available to stockholders without charge by writing
the Investor Relations and Communications Department at the Company headquarters
or calling 312-322-8524.
Dividend Reinvestment and Stock Purchase Plan
The Borg-Warner Automotive Dividend Reinvestment and Stock Purchase Plan has
been established so that anyone can make direct purchases of Borg-Warner
Automotive common stock and reinvest dividends. The Company pays the brokerage
commissions on purchases. To receive a prospectus and enrollment package,
contact ChaseMellon at 800-842-7629. Questions about the plan can be directed to
ChaseMellon at 800-851-4229.
Internet Homepage
For current news, stock quotes and other information on Borg-Warner Automotive,
visit our new Internet Homepage: www.bwauto.com.
"BorgWarner Automotive," Torque-on-Demand and the Borg-Warner Indianapolis 500
Trophy are registered trademarks of Borg-Warner Automotive, Inc.
[TROPHY PHOTO]
Since 1936, the Borg-Warner Indianapolis 500 Trophy has been synonymous with
top performance, speed and leading-edge automotive technology, the same
qualities that continue to characterize Borg-Warner Automotive today.
Directors
Dr. Andrew F. Brimmer (2)
President
Brimmer & Company, Inc.
William E. Butler (3,4)
Chairman and Chief Executive Officer, Retired
Eaton Corporation
Jere A. Drummond (1,3,4)
President and Chief Executive Officer
BellSouth Communications Group
BellSouth Corporation
John F. Fiedler (1)
Chairman and Chief Executive Officer
Borg-Warner Automotive
Paul E. Glaske (3,4)
Chairman, President and Chief Executive Officer
Blue Bird Corporation
Ivan W. Gorr (4)
Chairman and Chief Executive Officer, Retired
Cooper Tire & Rubber Company
James J. Kerley (2)
Chairman, Retired
Rohr, Inc.
Alexis P. Michas (1,2)
Managing Partner and Director
Stonington Partners, Inc.
John Rau (2,3)
President and Chief Executive Officer
Chicago Title and Trust Company
Committees of the Board
(1) Executive Committee
(2) Finance and Audit Committee
(3) Compensation Committee
(4) Board Affairs Committee
Executive Officers
John F. Fiedler
Chairman and Chief Executive Officer
Gary P. Fukayama
Executive Vice President
Group President and General Manager,
Air/Fluid Systems
Ronald M. Ruzic
Executive Vice President
Group President and General Manager,
Morse TEC and Turbo Systems
Robert D. Welding
Executive Vice President
President and General Manager,
Automatic Transmission Systems
Timothy M. Manganello
Vice President
President and General Manager,
Powertrain Systems
Robin J. Adams
Vice President and Treasurer
William C. Cline
Vice President and Controller
Christopher A. Gebelein
Vice President, Business Development
Laurene H. Horiszny
Vice President, General Counsel and Secretary
John A. Kalina
Vice President and Chief Information Officer
Geraldine Kinsella
Vice President, Human Resources
