Third Amendment and Waiver Dated as of April 27, 2007 to Second Amended and Restated Receivables Loan Agreement

 

This Third Amendment and Waiver (the “Amendment”), dated as of April 27, 2007, is entered into among BWA Receivables Corporation (the “Borrower”), BorgWarner Inc. (“BWI” and in its capacity as Collection Agent, the “Collection Agent”), Windmill Funding Corporation, a Delaware corporation (“Windmill”), the Bank listed on the signature page hereof (the “Bank”) and ABN AMRO Bank N.V., as agent for Windmill, and the Bank (the “Agent”).

Reference is hereby made to that certain Second Amended and Restated Receivables Loan Agreement, dated as of December 6, 2004 (as amended, supplemented or otherwise modified through the date hereof, the “Loan Agreement”), among the Borrower, the Collection Agent, Windmill, the Bank and the Agent.  Terms used herein and not otherwise defined herein which are defined in each Amended Agreement or other Transaction Documents (as defined in the Loan Agreement) shall have the same meaning herein as defined therein.

For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:

Section 1.    Upon execution by the parties hereto in the space provided for that purpose below, the Loan Agreement shall be, and it hereby is, amended as follows:

(a)    The date “April 27, 2007” appearing in clause (iv) of the defined term “Bank Termination Date” appearing in Article I to the Loan Agreement is deleted and replaced with the date “April 25, 2008”.

(b)     The date “April 27, 2007” appearing in the clause (i) of the defined term “Loan Amortization Date” appearing in Article I of the Loan Agreement is deleted and replaced with the date “April 25, 2008”.

Section 2.   The Agent, Windmill and the Bank hereby waive the right of the Agent in the last sentence of Section 6.1(e) of the Loan Agreement to conduct an annual audit of the Records of the Borrower and/or make test audit of verifications of the Receivables for the fiscal year ended December 31, 2007.  Such waiver shall only be effective for such fiscal year, and shall not be construed to be a waiver of any right of the Agent under Section 6.1(e) of the Loan Agreement for any other period.

Section 3.   This Amendment shall become effective as of the date first stated above once the Agent has received executed counterparts hereof from each of the parties hereto.

Section 4.   The Loan Agreement, as amended and supplemented hereby or as contemplated herein, and all rights and powers created thereby and thereunder or under the other Transaction Documents (as defined in the Loan Agreement) and all other documents executed in connection therewith, are in all respects ratified and confirmed.  From and after the date hereof, the Loan Agreement shall be amended and supplemented as herein provided, and, except as so amended and supplemented, the Loan Agreement, each of the other Transaction Documents and all other documents executed in connection therewith shall remain in full force and effect.

Section 5.  This Amendment may be executed in two or more counterparts, each of which shall constitute an original but both or all of which, when taken together, shall constitute but one instrument.

Section 6.  This Amendment shall be governed and construed in accordance with the internal laws of the State of Illinois.

[Signature Pages to Follow]

 

   

 

ABN AMRO BANK N.V., as the Agent and as a Bank

By: /s/ ABN AMRO BANK N.V.

Title:

WINDMILL FUNDING CORPORATION

By: /s/ WINDMILL FUNDING CORPORATION

Title:

BWA RECEIVABLES CORPORATION

By: /s/ BWA RECEIVABLES CORPORATION

Title:

BORGWARNER INC.

By: /s/ BORGWARNER INC.

Title: