AMENDMENT AND CONSENT AGREEMENT
This AMENDMENT AND CONSENT AGREEMENT (this Agreement), dated as of May 6, 2020, with respect to the Transaction Agreement, dated as of January 28, 2020 (the Transaction Agreement), by and between BorgWarner Inc., a Delaware corporation (BorgWarner), and Delphi Technologies PLC, a public limited company incorporated under the laws of the Bailiwick of Jersey (Delphi), is hereby entered into by and between BorgWarner and Delphi. All capitalized terms used herein and not otherwise defined have the meanings ascribed to them in the Transaction Agreement.
WHEREAS, pursuant to Section 5.1(b)(xii) of the Transaction Agreement, Delphi and its Subsidiaries are prohibited, without BorgWarners consent (such consent not to be unreasonably withheld, conditioned or delayed), from incurring, assuming or guaranteeing any indebtedness for borrowed money, except for, among other things, borrowings under the Company Credit Agreement that do not exceed a balance of $5 million in the aggregate;
WHEREAS, in light of the Delphi board of directors concern around the general economic impacts associated with COVID-19 on Delphis business, Delphi has drawn $500 million of revolving borrowings under the Company Credit Agreement (the Draw Down);
WHEREAS, on March 30, 2020, BorgWarner provided written notice to Delphi that, among other things, asserted that Delphi breached the Transaction Agreement by effectuating the Draw Down without obtaining BorgWarners prior written consent, and Delphi provided written notice to BorgWarner that, among other things, disputed BorgWarners assertion of a breach by Delphi and asserted that BorgWarner breached the Transaction Agreement by unreasonably withholding and conditioning its consent to the Draw Down; and
WHEREAS, BorgWarner wishes to provide its written consent to the Draw Down in accordance with the terms and conditions contained herein, and BorgWarner and Delphi wish to amend the Transaction Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, BorgWarner and Delphi hereby agree as follows:
(a) For all purposes under the Transaction Agreement, BorgWarner hereby consents to:
(i) the Draw Down; and
(ii) the deferral (not to exceed £7 million), for up to three months, of the quarterly contribution otherwise payable by June 19, 2020 to The Delphi Technologies Pension Scheme.
For the avoidance of doubt, the consent in clause (i) above has the same effect as if BorgWarner delivered such consent to Delphi prior to the Draw Down being effected and BorgWarner and Delphi each waive any and all claims of breach or purported rights arising from such Draw Down.