SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 21, 2009
BORGWARNER INC.
(Exact name of registrant as specified in its charter)
| |
|
|
|
|
Delaware
(State or other jurisdiction
of incorporation)
|
|
1-12162
(Commission File No.)
|
|
13-3404508
(IRS Employer
Identification No.) |
3850 Hamlin Road, Auburn Hills, Michigan 48326
(Address of principal executive offices) (Zip Code)
Registrant’s telephone number, including area code: (248) 754-9200
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
|
|
|
| Item 1.01. |
|
Entry Into a Material Definitive Agreement |
On December 21, 2009 BWA Receivables Corporation, a wholly-owned subsidiary of BorgWarner
Inc., as buyer (“BWARC”), and BorgWarner Emissions Systems Inc., BorgWarner Morse TEC Inc.,
BorgWarner Powdered Metals Inc., BorgWarner Thermal Systems Inc., BorgWarner TorqTransfer Systems
Inc., BorgWarner Transmission Systems Inc., and BorgWarner Turbo Systems Inc., all wholly-owned
subsidiaries of BorgWarner Inc. (the “Originators”), entered into a Receivables Sale Agreement (the
“Receivables Sale Agreement”). The Receivables Sale Agreement provides for the sale and assignment
by the Originators of all of their right, title and interest in and to all of their receivables to
BWARC. The transactions between the Originators and BWARC pursuant to
the Receivables Sale
Agreement is intended to be a true sale of receivables from the Originators to BWARC, providing
BWARC with the full benefits of ownership of the receivables and is not intended to be a loan
secured receivables.
On December 21, 2009, BWARC, as seller, BorgWarner Inc., as the collection agent, the
purchasers from time to time party thereto (the “Purchasers”) and Wachovia Bank, National
Association, as Administrative Agent, entered into a Receivables Purchase Agreement (the
“Receivables Purchase Agreement”, and together with the Receivables Sale Agreement, the
“Receivables Facility”). The Receivables Purchase Agreement provides for the sale by BWARC to the
Purchasers of certain eligible receivable interests up to a maximum of $50,000,000 at any one time
outstanding. The termination date of the Receivables Purchase Agreement is the earlier of December
21, 2012, the “amortization date” (as defined in the Receivables Purchase Agreement), and (iii) the
scheduled maturity date of the Credit Agreement (as defined below),
as amended, restated or extended from time to time (or any replacement
indebtedness, the proceeds of which are used to refinance such Credit Agreement).
On December 21, 2009, in connection with the establishment of the Receivables Facility, and in
order to facilitate the operation of the Receivables Facility, BorgWarner Inc., as borrower,
certain subsidiaries of BorgWarner Inc., Bank of America, N.A., as Administrative Agent, the
Co-Syndication Agents named therein, the Documentation Agents named therein and the Lenders parties
thereto, entered into a letter agreement that amended the Credit Agreement (the “Letter
Agreement”). As used herein, “Credit Agreement” means that certain Credit Agreement dated July 22,
2004 as amended by (i) Amendment No.1 and Consent Agreement dated as of April 30, 2009 among
BorgWarner Inc., as borrower, Bank of America, N. A., as Administrative Agent, the Co-Syndication
Agents named therein, the Documentation Agents named therein and the Lenders parties thereto, (ii)
Amendment No. 2 dated as of August 11, 2009 among BorgWarner Inc., as borrower, the Guarantors, the
Lenders, and Bank of America, N.A., as Administrative Agent, Issuing Bank and Swingline Lender, and
(iii) Amendment No. 3 dated as of October 23, 2009 among BorgWarner Inc., as borrower, the
Guarantors, the Lenders, and Bank of America, N.A., as Administrative Agent, Issuing Bank and
Swingline Lender. In addition to amending the Credit Agreement to facilitate the operation of the
Receivables Facility, the Letter Agreement amended the Credit Agreement to provide that
consolidated total debt, as defined in the Credit Agreement, shall not include the Receivables
Facility irrespective of whether the Receivables Facility is treated as indebtedness in accordance
with generally accepted accounting principles.
The descriptions of (i) the Receivables Sale Agreement, (ii) the Receivables Purchase
Agreement, and (iii) the Letter Agreement are qualified in their entirety by reference to the full
text of the Receivables Sale Agreement, the Receivables Purchase Agreement and the Letter
Agreement, the forms of which are attached hereto as Exhibits 10.1, 10.2 and 10.3, respectively,
and are incorporated herein by this reference.