exhibit2.htm


    Exhibit
10.2

     

    GUARANTY

    


    THIS GUARANTY (as amended,
restated supplemented or otherwise modified from time to time, this “Guaranty”), dated as
of March 31, 2010, is made by EACH OF THE UNDERSIGNED AND EACH OTHER PERSON WHO
SHALL BECOME A PARTY HERETO BY EXECUTION OF A GUARANTY JOINDER AGREEMENT (each a
“Guarantor”,
and collectively, the “Guarantors”) to BANK
OF AMERICA, N.A., as administrative agent (in such capacity, the “Administrative
Agent”) for each of the lenders (the “Lenders”) now or
hereafter party to the Credit Agreement (as defined below).  All
capitalized terms used but not otherwise defined herein shall have the meanings
ascribed to such terms in the Credit Agreement.

    


    W I T N E S S E T
H:

    


    WHEREAS, the Lenders have
agreed to provide to BORGWARNER INC., a Delaware corporation (the “Borrower”) certain
credit facilities, including a revolving credit facility with letter of credit
and swing line subfacilities pursuant to the terms of that certain Credit
Agreement dated as of even date herewith, among the Borrower, the Administrative
Agent and the Lenders (as amended, modified, supplemented or restated from time
to time, the “Credit
Agreement”);

    


    WHEREAS, each Guarantor is,
directly or indirectly, a Domestic Subsidiary of the Borrower and will
materially benefit from the Loans made and to be made, and the Letters of Credit
issued and to be issued, under the Credit Agreement;

    


    WHEREAS, each Guarantor is
required to enter into this Guaranty pursuant to the terms of the Credit
Agreement; and

    


    WHEREAS, a material part of
the consideration given in connection with and as an inducement to the execution
and delivery of the Credit Agreement by the Lenders was the obligation of the
Borrower to cause each Guarantor to enter into this Guaranty, and the Lenders
are unwilling to extend and maintain the credit facilities provided under the
Loan Documents unless the Guarantors enter into this Guaranty;

    


    NOW, THEREFORE, in
consideration of the premises and mutual covenants contained herein, the parties
hereto agree as follows:

     

    1. Guaranty.  Each
Guarantor hereby jointly and severally, unconditionally, absolutely, continually
and irrevocably guarantees to the Administrative Agent for the benefit of the
Secured Parties the payment and performance in full of the Borrower’s
Liabilities (as defined below).  For all purposes of this Guaranty,
“Borrower’s
Liabilities” means: (a) the Borrower’s prompt payment in full, when due
or declared due and at all such times, of all Obligations and all other amounts
pursuant to the terms of the Credit Agreement and the other Loan Documents
heretofore, now or at any time or times hereafter owing, arising, due or payable
from the Borrower to any one or more of the Secured Parties, including without
limitation, principal, interest, premiums and fees (including, but not limited
to, loan fees and charges and disbursements of counsel); (b) the Borrower’s
prompt, full and faithful performance, observance and discharge of each and
every agreement, undertaking, covenant and provision to be

     

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    performed,
observed or discharged by the Borrower under the Credit Agreement and the other
Loan Documents or any Secured Cash Management Agreement or Secured Hedge
Agreement; and (c) the Borrower’s prompt payment in full, when due or declared
due and at all such times, of Obligations and all other amounts pursuant to the
terms of any Secured Hedge Agreement or Secured Cash Management Agreement
heretofore, now or at any time or times hereafter owing, arising, due or payable
from any Loan Party to any one or more of the Secured Parties, including without
limitation, principal, interest, premiums and fees (including, but not limited
to, reasonable fees and charges and disbursements of counsel).  The
Guarantors’ obligations to the Secured Parties under this Guaranty are
hereinafter collectively referred to as the “Guarantors’
Obligations” and, with respect to each Guarantor individually, the “Guarantor’s
Obligations”.  Notwithstanding the foregoing, the liability of
each Guarantor individually with respect to its Guarantor’s Obligations shall be
limited to an aggregate amount equal to the largest amount that would not render
its obligations hereunder subject to avoidance under Section 548 of the United
States Bankruptcy Code or any comparable provisions of any applicable state
law.

     

     

    Each
Guarantor agrees that it is jointly and severally, directly and primarily,
liable (subject to the limitation in the immediately preceding sentence) for the
Borrower’s Liabilities.

     

     

    2. Payment.  If
the Borrower shall default in payment or performance of any of the Borrower’s
Liabilities, whether principal, interest, premium, fee (including, but not
limited to, loan fees and reasonable charges and disbursements of counsel), or
otherwise, when and as the same shall become due, and after expiration of any
applicable grace period, whether according to the terms of the Credit Agreement,
by acceleration, or otherwise, or upon the occurrence and during the continuance
of any Event of Default under the Credit Agreement, then any or all of the
Guarantors will, upon demand thereof by the Administrative Agent, fully pay to
the Administrative Agent, for the benefit of the Secured Parties, subject to any
restriction on each Guarantor’s Obligations set forth in Section 1 hereof, an
amount equal to all the Borrower’s Liabilities then due and owing.

     

     

    3. Absolute
Rights and Obligations.  This is a guaranty of payment and not
of collection.  The Guarantors’ Obligations under this Guaranty shall
be joint and several, absolute and unconditional irrespective of, and each
Guarantor hereby expressly waives, to the extent permitted by law, any defense
to its obligations under this Guaranty and the other Loan Documents which it is
a party by reason of:

     

     

    (a) any lack
of legality, validity or enforceability of the Credit Agreement, of any other
Loan Document, or of any other agreement or instrument creating, providing
security for, or otherwise relating to any of the Guarantors’ Obligations, any
of the Borrower’s Liabilities, or any other guaranty of any of the Borrower’s
Liabilities (the Loan Documents and all such other agreements and instruments
being collectively referred to as the “Related
Agreements”);

     

     

    (b) any
action taken under any of the Related Agreements, any exercise of any right or
power therein conferred, any failure or omission to enforce any right conferred
thereby, or any waiver of any covenant or condition therein
provided;

     

    


    
      
        
           


        

        
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    (c) any
acceleration of the maturity of any of the Borrower’s Liabilities, of the
Guarantor’s Obligations of any other Guarantor, or of any other obligations or
liabilities of any Person under any of the Related Agreements;

     

     

    (d) any
release, exchange, non-perfection, lapse in perfection, disposal, deterioration
in value, or impairment of any security for any of the Borrower’s Liabilities,
for any of the Guarantor’s Obligations of any Guarantor, or for any other
obligations or liabilities of any Person under any of the Related
Agreements;

     

     

    (e) any
dissolution of the Borrower or any Guarantor or any other party to a Related
Agreement, or the combination or consolidation of the Borrower or any Guarantor
or any other party to a Related Agreement into or with another entity or any
transfer or disposition of any assets of the Borrower or any Guarantor or any
other party to a Related Agreement;

     

     

    (f) any
extension (including without limitation extensions of time for payment),
renewal, amendment, restructuring or restatement of, any acceptance of late or
partial payments under, or any change in the amount of any borrowings or any
credit facilities available under, the Credit Agreement or any other Loan
Document or any other Related Agreement, in whole or in part;

     

     

    (g) the
existence, addition, modification, termination, reduction or impairment of
value, or release of any other guaranty (or security therefor) of the Borrower’s
Liabilities (including without limitation the Guarantor’s Obligations of any
other Guarantor and obligations arising under any other Guaranty now or
hereafter in effect);

     

     

    (h) any
waiver of, forbearance or indulgence under, or other consent to any change in or
departure from any term or provision contained in the Credit Agreement, any
other Loan Document or any other Related Agreement, including without limitation
any term pertaining to the payment or performance of any of the Borrower’s
Liabilities, any of the Guarantor’s Obligations of any other Guarantor, or any
of the obligations or liabilities of any party to any other Related
Agreement;

     

    


     

    (i) any other
circumstance whatsoever (with or without notice to or knowledge of any
Guarantor) which may or might in any manner or to any extent vary the risks of
such Guarantor, or might otherwise constitute a legal or equitable defense
available to, or discharge of, a surety or a guarantor, including without
limitation any right to require or claim that resort be had to the Borrower or
any other Loan Party or to any collateral in respect of the Borrower’s
Liabilities or Guarantors’ Obligations.

    


     

    It is the
express purpose and intent of the parties hereto that this Guaranty and the
Guarantors’ Obligations hereunder and under each Guaranty Joinder Agreement
(defined below) shall be absolute and unconditional under any and all
circumstances and shall not be discharged except by payment as herein
provided.

    


     

    
      
        
           


        

        
           


          
            

          

        

        
           


        

      



    
      4.  Currency
and Funds of Payment.  All Guarantors’ Obligations will be paid
in Dollars and in immediately available funds, regardless of any law, regulation
or decree now or hereafter in effect that might in any manner affect the
Borrower’s Liabilities, or the rights of any Secured Party with respect thereto
as against the Borrower, or cause or permit to be invoked any alteration in the
time, amount or manner of payment by the Borrower of any or all of the
Borrower’s Liabilities; provided that any
Guarantors’ Obligations with respect to principal and interest on Loans
denominated in an Alternative Currency shall be made in such Alternative
Currency unless, for any reason, a relevant Guarantor is prohibited by law from
making any such payment hereunder in an Alternative Currency, in which case such
Guarantor shall make such payment in Dollars in the Dollar Amount of the
Alterative Currency payment amount as determined by the Administrative Agent as
of the time of such payment (such that the Secured Parties shall not suffer any
loss from the conversion of such Alternative Currency to
Dollars).



    5. Events of
Default.  Without limiting the provisions of Section 2 hereof, in
the event that there shall occur and be continuing an Event of Default, then
notwithstanding any collateral or other security or credit support for the
Borrower’s Liabilities, at the Administrative Agent’s election and without
notice thereof or demand therefor, the Guarantors’ Obligations shall immediately
be and become due and payable.

     

     

    6. Subordination.  Until
this Guaranty is terminated in accordance with Section 22 hereof,
each Guarantor hereby unconditionally subordinates all present and future debts,
liabilities or obligations now or hereafter owing to such Guarantor (i) of the
Borrower, to the payment in full of the Borrower’s Liabilities, (ii) of every
other Guarantor (an “obligated
guarantor”), to the payment in full of the Guarantors’ Obligations of
such obligated guarantor, and (iii) of each other Person now or hereafter
constituting a Loan Party, to the payment in full of the obligations of such
Loan Party owing to any Secured Party and arising under the Loan Documents, the
Secured Hedge Agreements or the Secured Cash Management Agreements; provided that the
Borrower or any obligated guarantor may make ordinary course payments pursuant
to such debts, liabilities or obligations unless an Event of Default has
occurred and is continuing.  All amounts due under such subordinated
debts, liabilities, or obligations shall, upon the occurrence and during the
continuance of an Event of Default, be collected and, upon request by the
Administrative Agent, paid over forthwith to the Administrative Agent for the
benefit of the Secured Parties on account of the Borrower’s Liabilities, the
Guarantors’ Obligations, or such other obligations of the type described in
clause (iii) above, as applicable, and, after such request and pending such
payment, shall be held by such Guarantor as agent and bailee of the Secured
Parties separate and apart from all other funds, property and accounts of such
Guarantor.

     

     

    7. Suits.  Each
Guarantor from time to time shall pay to the Administrative Agent for the
benefit of the Secured Parties, on demand, at the Administrative Agent’s place
of business set forth in the Credit Agreement or such other address as the
Administrative Agent shall give notice of to such Guarantor, the Guarantors’
Obligations as they become or are declared due, and in the event such payment is
not made forthwith, the Administrative Agent may proceed to suit against any one
or more or all of the Guarantors.  At the Administrative Agent’s
election, one or more and successive or concurrent suits may be brought hereon
by the Administrative Agent against any one or more or all of the Guarantors,
whether or not suit has been commenced against the Borrower, any other
Guarantor, or any other Person and whether or

     

    


    
      
        
           


        

        
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    not the
Secured Parties have taken or failed to take any other action to collect all or
any portion of the Borrower’s Liabilities or have taken or failed to take any
actions against any collateral securing payment or performance of all or any
portion of the Borrower’s Liabilities, and irrespective of any event,
occurrence, or condition described in Section 3
hereof.

     

     

    8. Set-Off
and Waiver.  Each Guarantor waives any right to assert against
the Secured Parties or any of their respective Affiliates (the “Setoff Parties”) as a
defense, counterclaim, set-off, recoupment or cross claim in respect of its
Guarantor’s Obligations, any defense (legal or equitable) or other claim which
such Guarantor may now or at any time hereafter have against the Borrower or any
or all of the Setoff Parties without waiving any additional defenses, set-offs,
counterclaims or other claims otherwise available to such
Guarantor.  If an Event of Default shall have occurred and be
continuing, each Setoff Party is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by such Setoff Party to or for the credit or the account of any
Guarantor against any of and all the obligations of such Guarantor now or
hereafter existing under this Guaranty or any other Loan Document held by such
Setoff Party, irrespective of whether or not such Setoff Party shall have made
any demand under this Guaranty or any other Loan Document and although such
obligations of such Guarantor may be contingent or unmatured or are owed to a
branch or office of such Lender or the L/C Issuer different from the branch or
office holding such deposit or obligated on such indebtedness; provided that in the
event that any Defaulting Lender shall exercise any such right of setoff (x) all
amounts so set off shall be paid over immediately to the Administrative Agent
for further application in accordance with the provisions of Section 2.22 of the
Credit Agreement and, pending such payment, shall be segregated by such
Defaulting Lender from its other funds and deemed held in trust for the benefit
of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall
provide promptly to the Administrative Agent a statement describing in
reasonable detail the Obligations owing to such Defaulting Lender as to which it
exercised such right of setoff.  In the event that amounts set off in
one currency are applied to obligations in a different currency, the rate of
exchange shall be determined by the Administrative Agent in accordance with
Section 1.6 of the Credit Agreement.  The rights of each Setoff Party
under this Section are in addition to other rights and remedies (including other
rights of setoff) which such Setoff Party may have.  Each Setoff Party
agrees to notify the Borrower and the Administrative Agent promptly after any
such setoff and application, provided that the
failure to give such notice shall not affect the validity of such setoff and
application.  For the purposes of this Section 8, all
remittances and property shall be deemed to be in the possession of a Setoff
Party as soon as the same may be put in transit to it by mail or carrier or by
other bailee.

     

     

    9. Waiver of
Notice; Subrogation.

     

     

    (a) Each
Guarantor hereby waives to the extent permitted by law notice of the following
events or occurrences: (i) acceptance of this Guaranty; (ii) the Secured
Parties’ heretofore, now or from time to time hereafter making Loans and issuing
Letters of Credit and otherwise loaning monies or giving or extending credit to
or for the benefit of

     

    


    
      
        
           


        

        
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    the
Borrower, whether pursuant to the Credit Agreement or any other Loan Document or
Related Agreement or any amendments, modifications, or supplements thereto, or
replacements or extensions thereof; (iii) presentment, demand, default,
non-payment, partial payment and protest; and (iv) any other event, condition,
or occurrence described in Section 3
hereof.  Each Guarantor agrees that each Secured Party may heretofore,
now or at any time hereafter do any or all of the foregoing in such manner, upon
such terms and at such times as each Secured Party, in its sole and absolute
discretion, deems advisable, without in any way or respect impairing, affecting,
reducing or releasing such Guarantor from its Guarantor’s Obligations, and each
Guarantor hereby consents to each and all of the foregoing events or
occurrences.

     

     

    (b) Each
Guarantor hereby agrees that payment or performance by such Guarantor of its
Guarantor’s Obligations under this Guaranty may be enforced by the
Administrative Agent on behalf of the Secured Parties upon demand by the
Administrative Agent to such Guarantor without the Administrative Agent being
required, such Guarantor expressly waiving to the extent permitted by law any
right it may have to require the Administrative Agent, to (i) prosecute
collection or seek to enforce or resort to any remedies against the Borrower or
any other Guarantor or any other guarantor of the Borrower’s Liabilities, or
(ii) seek to enforce or resort to any remedies with respect to any security
interests, Liens or encumbrances granted to the Administrative Agent or any
Lender or other party to a Related Agreement by the Borrower, any other
Guarantor or any other Person on account of the Borrower’s Liabilities or any
guaranty thereof, IT BEING
EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY SUCH GUARANTOR THAT DEMAND
UNDER THIS GUARANTY MAY BE MADE BY THE ADMINISTRATIVE AGENT, AND THE PROVISIONS
HEREOF ENFORCED BY THE ADMINISTRATIVE AGENT, EFFECTIVE AS OF THE FIRST DATE ANY
EVENT OF DEFAULT OCCURS AND IS CONTINUING UNDER THE CREDIT
AGREEMENT.

     

     

    (c) Each
Guarantor further agrees with respect to this Guaranty that it shall have no
right of subrogation, reimbursement, contribution or indemnity, nor any right of
recourse to security for the Borrower’s Liabilities unless and until 93 days
immediately following the Facility Termination Date (as defined below) shall
have elapsed without the filing or commencement, by or against any Loan Party,
of any state or federal action, suit, petition or proceeding seeking any
reorganization, liquidation or other relief or arrangement in respect of
creditors of, or the appointment of a receiver, liquidator, trustee or
conservator in respect to, such Loan Party or its assets.  This waiver
is expressly intended to prevent the existence of any claim in respect to such
subrogation, reimbursement, contribution or indemnity by any Guarantor against
the estate of any other Loan Party within the meaning of Section 101 of the
Bankruptcy Code, in the event of a subsequent case involving any other Loan
Party.  If an amount shall be paid to any Guarantor on account of such
rights at any time prior to termination of this Guaranty in accordance with the
provisions of Section
22 hereof, such amount shall be held in trust for the benefit of the
Secured Parties and shall forthwith be paid to the Administrative

     

    


    
      
        
           


        

        
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    Agent,
for the benefit of the Secured Parties, to be credited and applied upon the
Guarantors’ Obligations, whether matured or unmatured, in accordance with the
terms of the Credit Agreement or otherwise as the Secured Parties may
elect.  The agreements in this subsection shall survive repayment of
all of the Guarantors’ Obligations, the termination or expiration of this
Guaranty in any manner, including but not limited to termination in accordance
with Section 22
hereof, and occurrence of the Facility Termination Date.  For purposes
of this Guaranty, “Facility Termination
Date” means the date as of which all of the following shall have
occurred: (a) the Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees and other Obligations payable
hereunder and under the other Loan Documents shall have been paid in full and
all Letters of Credit shall have expired or terminated and all LC Disbursements
shall have been reimbursed, (b) the obligations and liabilities of the Borrower
and each other Loan Party under all Secured Cash Management Agreements and
Secured Hedge Agreements shall have been fully, finally and irrevocably paid and
satisfied in full and the Secured Cash Management Agreements and Secured Hedge
Agreements shall have expired or been terminated, or other arrangements
satisfactory to the counterparties shall have been made with respect thereto;
and (c) the Borrower and each other Loan Party shall have fully, finally and
irrevocably paid and satisfied in full all of their respective obligations and
liabilities arising under the Loan Documents, including with respect to the
Borrower and the Obligations (except for future obligations consisting of
continuing indemnities and other contingent Obligations of the Borrower or any
Loan Party that may be owing to any Secured Party or any Lender pursuant to the
Loan Documents and expressly survive termination of the Credit
Agreement).

     

     

    10. Effectiveness;
Enforceability.  This Guaranty shall be effective as of the
date first above written and shall continue in full force and effect until
termination in accordance with Section 22
hereof.  Any claim or claims that the Secured Parties may at any time
hereafter have against a Guarantor under this Guaranty may be asserted by the
Administrative Agent on behalf of the Secured Parties by written notice directed
to such Guarantor in accordance with Section 24
hereof.

     

     

    11. Representations
and Warranties.  Each Guarantor warrants and represents to the
Administrative Agent, for the benefit of the Secured Parties, that it is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, duly authorized to execute and deliver this
Guaranty (or the Guaranty Joinder Agreement to which it is a party, as
applicable), and to perform its obligations under this Guaranty, that this
Guaranty (or the Guaranty Joinder Agreement to which it is a party, as
applicable) has been duly executed and delivered on behalf of such Guarantor by
its duly authorized representatives; that this Guaranty (and any Guaranty
Joinder Agreement to which such Guarantor is a party) is legal, valid, binding
and enforceable against such Guarantor in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights
generally and by general equitable principles; and that such Guarantor’s
execution, delivery and performance of this Guaranty (and any Guaranty Joinder
Agreement to which such Guarantor is a party) is within such Guarantor’s
corporate powers and do not violate or constitute a breach of any of its
charter, by-laws or other organizational

     

    


    
      
        
           


        

        
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    documents,
any agreement or instrument to which such Guarantor is a party, or any law,
order, regulation, decree or award of any governmental authority or arbitral
body to which it or its properties or operations is subject or result in the
creation or imposition of any Lien on any asset of such Guarantor.

     

     

    12. Expenses.  Each
Guarantor agrees to be jointly and severally liable for the payment of all
reasonable fees and expenses, including all reasonable charges and disbursements
of counsel, incurred by any Secured Party in connection with the enforcement of
this Guaranty, whether or not suit be brought.

     

     

    13. Reinstatement.  Each
Guarantor agrees that this Guaranty shall continue to be effective or be
reinstated, as the case may be, at any time payment received by any Secured
Party in respect of any Borrower’s Liabilities is rescinded or must be restored
for any reason, or is repaid by any Secured Party in whole or in part in good
faith settlement of any pending or threatened avoidance claim.

     

     

    14. Attorney-in-Fact.  To
the extent permitted by law, each Guarantor hereby appoints the Administrative
Agent, for the benefit of the Secured Parties, as such Guarantor’s
attorney-in-fact for the purposes of carrying out the provisions of this
Guaranty and taking any action and executing any instrument which the
Administrative Agent may deem necessary or advisable to accomplish the purposes
hereof, which appointment is coupled with an interest and is irrevocable; provided that the
Administrative Agent shall have and may exercise rights under this power of
attorney only upon the occurrence and during the continuance of an Event of
Default.

     

     

    15. Reliance.  Each
Guarantor represents and warrants to the Administrative Agent, for the benefit
of the Secured Parties, that: (a) such Guarantor has adequate means to obtain on
a continuing basis (i) from the Borrower, information concerning the Borrower
and the Borrower’s financial condition and affairs and (ii) from other reliable
sources, such other information as it deems material in deciding to provide this
Guaranty and any Guaranty Joinder Agreement (“Other Information”),
and has full and complete access to the Borrower’s books and records and to such
Other Information; (b) such Guarantor is not relying on any Secured Party or its
or their employees, directors, agents or other representatives or Affiliates, to
provide any such information, now or in the future; (c) such Guarantor has been
furnished with and reviewed the terms of the Credit Agreement and such other
Loan Documents as it has requested, is executing this Guaranty (or the Guaranty
Joinder Agreement to which it is a party, as applicable) freely and
deliberately, and understands the obligations and financial risk undertaken by
providing this Guaranty (and any Guaranty Joinder Agreement); (d) such Guarantor
has relied solely on the Guarantor’s own independent investigation, appraisal
and analysis of the Borrower, the Borrower’s financial condition and affairs,
the Other Information, and such other matters as it deems material in deciding
to provide this Guaranty (and any Guaranty Joinder Agreement) and is fully aware
of the same; and (e) such Guarantor has not depended or relied on any Secured
Party or its or their employees, directors, agents or other representatives or
Affiliates, for any information whatsoever concerning the Borrower or the
Borrower’s financial condition and affairs or any other matters material to such
Guarantor’s decision to provide this Guaranty (and

     

    


    
      
        
           


        

        
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    any
Guaranty Joinder Agreement), or for any counseling, guidance, or special
consideration or any promise therefor with respect to such
decision.  Each Guarantor agrees that no Secured Party has any duty or
responsibility whatsoever, now or in the future, to provide to such Guarantor
any information concerning the Borrower or the Borrower’s financial condition
and affairs, or any Other Information, other than as expressly provided herein,
and that, if such Guarantor receives any such information from any Secured Party
or its or their employees, directors, agents or other representatives or
Affiliates, such Guarantor will independently verify the information and will
not rely on any Secured Party or its or their employees, directors, agents or
other representatives or Affiliates, with respect to such
information.

     

     

    16. Rules of
Interpretation.  The rules of interpretation contained in
Sections 1.2 through and including 1.7 of the Credit Agreement shall be
applicable to this Guaranty and each Guaranty Joinder Agreement and are hereby
incorporated by reference.  All representations and warranties
contained herein shall survive the delivery of documents and any extension of
credit referred to herein or guaranteed hereby.

     

     

    17. Entire
Agreement.  This Guaranty and each Guaranty Joinder Agreement,
together with the Credit Agreement and other Loan Documents, constitutes and
expresses the entire understanding between the parties hereto with respect to
the subject matter hereof, and supersedes all prior negotiations, agreements,
understandings, inducements, commitments or conditions, express or implied, oral
or written, except as herein contained.  The express terms hereof
control and supersede any course of performance or usage of the trade
inconsistent with any of the terms hereof.  Except as provided in
Section 22,
neither this Guaranty nor any Guaranty Joinder Agreement nor any portion or
provision hereof or thereof may be changed, altered, modified, supplemented,
discharged, canceled, terminated, or amended orally or in any manner other than
as provided in the Credit Agreement.

     

     

    18. Binding
Agreement; Assignment.  This Guaranty, each Guaranty Joinder
Agreement and the terms, covenants and conditions hereof and thereof, shall be
binding upon and inure to the benefit of the parties hereto and thereto, and to
their respective heirs, legal representatives, successors and assigns; provided that no
Guarantor shall be permitted to assign any of its rights, powers, duties or
obligations under this Guaranty, any Guaranty Joinder Agreement or any other
interest herein or therein without the prior written consent of the
Administrative Agent.  Without limiting the generality of the
foregoing sentence of this Section 18, any
Lender may assign to one or more Persons, or grant to one or more Persons
participations in or to, all or any part of its rights and obligations under the
Credit Agreement (to the extent permitted by the Credit Agreement); and to the
extent of any such assignment or participation such other Person shall, to the
fullest extent permitted by law, thereupon become vested with all the benefits
in respect thereof granted to such Lender herein or otherwise, subject however,
to the provisions of the Credit Agreement, including Article VIII thereof
(concerning the Administrative Agent) and Section 9.4 thereof concerning
assignments and participations.  All references herein to the
Administrative Agent shall include any successor thereof.

     

     

    19. Secured
Cash Management Agreements; Secured Hedge Agreements.  All
obligations of the Borrower under (a) Secured Cash Management Agreements to
which any Cash

     

    


    
      
        
           


        

        
          9

          
            

          

        

        
           


        

      

    

    


    Management
Bank is a party, or (b) Secured Hedge Agreements to which any Hedge Bank is a
party, shall be deemed to be Borrower’s Liabilities, and each Cash Management
Bank and each Hedge Bank shall be deemed to be a Secured Party hereunder with
respect to such Borrower’s Liabilities.

     

    


    No Person
who obtains the benefit of this Guaranty by virtue of the provisions of this
Section shall have, prior to the Facility Termination Date, any right to notice
of any action or to consent to, direct or object to any action hereunder or
under any other Loan Document or otherwise in respect of the Guarantors’
Obligations (including the release or modification of any Guarantors’
Obligations or security therefor) other than in its capacity as a Lender and
only to the extent expressly provided in the Loan Documents.  Each
Secured Party not a party to the Credit Agreement who obtains the benefit of
this Guaranty by virtue of the provisions of this Section shall be deemed to
have acknowledged and accepted the appointment of the Administrative Agent
pursuant to the terms of the Credit Agreement, and that with respect to the
actions and omissions of the Administrative Agent hereunder or otherwise
relating hereto that do or may affect such Secured Party, the Administrative
Agent and its Affiliates shall be entitled to all the rights, benefits and
immunities conferred under Article VIII of the Credit Agreement.

     

    20. Severability.  The
provisions of this Guaranty are independent of and separable from each
other.  If any provision hereof shall for any reason be held invalid
or unenforceable, such invalidity or unenforceability shall not affect the
validity or enforceability of any other provision hereof, but this Guaranty
shall be construed as if such invalid or unenforceable provision had never been
contained herein.

     

     

    21. Counterparts.  This
Guaranty may be executed in any number of counterparts each of which when so
executed and delivered shall be deemed an original, and it shall not be
necessary in making proof of this Guaranty to produce or account for more than
one such counterpart executed by the Guarantor against whom enforcement is
sought.  Without limiting the foregoing provisions of this Section 21, the
provisions of Section 9.1 of the Credit Agreement shall be applicable to this
Guaranty.

     

     

    22. Termination.  Subject
to reinstatement pursuant to Section 13 hereof,
this Guaranty and each Guaranty Joinder Agreement, and all of the Guarantors’
Obligations hereunder (excluding those Guarantors’ Obligations relating to
Borrower’s Liabilities that expressly survive such termination) shall terminate
on the Facility Termination Date.

     

     

    23. Remedies
Cumulative; Late Payments.  All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies of the
Administrative Agent or any other Secured Party provided by law or under the
Credit Agreement, the other Loan Documents or other applicable agreements or
instruments.  The making of the Loans and other credit extensions
pursuant to the Credit Agreement shall be conclusively presumed to have been
made or extended, respectively, in reliance upon each Guarantor’s guaranty of
the Borrower’s Liabilities pursuant to the terms hereof.  Any amounts
not paid when due under this Guaranty shall bear interest at the rate specified
in Section 2.13(c) of the Credit Agreement.

     

    


    
      
        
           


        

        
          10

          
            

          

        

        
           


        

      

    

    


     

    24. Notices.  All
notices and communications hereunder or under any Guaranty Joinder Agreement
shall be given to the addresses and otherwise made in accordance with Section
9.1 of the Credit Agreement; provided that notices
and communications to the Guarantors shall be directed to the Guarantors, at the
address of the Borrower set forth in Section 9.1 of the Credit
Agreement.

     

     

    25. Joinder.  Each
Person who shall at any time execute and deliver to the Administrative Agent a
Guaranty Joinder Agreement substantially in the form attached as Exhibit A
(each, a “Guaranty
Joinder Agreement”) hereto shall thereupon irrevocably, absolutely and
unconditionally become a party hereto and obligated hereunder as a Guarantor,
and all references herein and in the other Loan Documents to the Guarantors or
to the parties to this Guaranty shall be deemed to include such Person as a
Guarantor hereunder.

     

     

    26. Governing
Law; Jurisdiction; Consent to Service of Process; WAIVER OF JURY
TRIAL.

     

     

    (a) This
Guaranty shall be construed in accordance with and governed by the law of the
State of New York.

     

     

    (b) Each
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State of
New York sitting in New York County and of the United States District Court of
the Southern District of New York, and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Guaranty, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court.  Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.  Nothing in this
Guaranty shall affect any right that the Administrative Agent or any other
Secured Party may otherwise have to bring any action or proceeding relating to
this Guaranty against the any Guarantor or its properties in the courts of any
jurisdiction.

     

     

    (c) Each
Guarantor hereby irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Guaranty in any court referred to in paragraph (b) of
this Section.  Each of the parties hereto hereby irrevocably waives,
to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.

     

     

    (d) Each
party to this Guaranty irrevocably consents to service of process in the manner
provided for notices in Section 9.1 of the Credit Agreement.  Nothing
in this Guaranty will affect the right of any party to this Guaranty to serve
process in any other

     

    


    
      
        
           


        

        
          11

          
            

          

        

        
           


        

      

    

    


    manner
permitted by law.

     

     

    (f) EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY).  EACH PARTY HERETO (1) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (2) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS GUARANTY BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.

     

    


     

    [Signature
pages follow]

    



    


      
        
          12 


        

        
           


          
            

          

        

        
           


        

      


      IN WITNESS WHEREOF, the
parties hereto have duly executed and delivered this Guaranty as of the day and
year first written above.

      
        	 
      	 
      	 
      
	 
      	
                GUARANTORS:

              	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                BORGWARNER
      DIVERSIFIED TRANSMISSION PRODUCTS INC., as Guarantor

              	 
      
	 
      	 
      	 
      
	 
      	
                By:

              	 
      
	 
      	
                Name:

              	 
      
	 
      	
                Title:

              	 
      
	 	 	 
	 
      	
                BORGWARNER
      DIVERSIFIED TRANSMISSION PRODUCTS SERVICES INC., as
    Guarantor

              	 
      
	 
      	
                By:

              	 
      
	 
      	
                Name:

              	 
      
	 
      	
                Title:

              	 
      
	 	 	 
	 
      	
                BORGWARNER
      EMISSIONS SYSTEMS HOLDING INC., as Guarantor

              	 
      
	 
      	
                By:

              	 
      
	 
      	
                Name:

              	 
      
	 
      	
                Title:

              	 
      
	 	 	 
	 
      	
                BORGWARNER
      EMISSIONS SYSTEMS INC., as Guarantor

              	 
      
	 
      	
                By:

              	 
      
	 
      	
                Name:

              	 
      
	 
      	
                Title:

              	 
      
	 	 	 
	 
      	
                BORGWARNER
      EMISSIONS SYSTEMS OF MICHIGAN INC., as Guarantor

              	 
      
	 
      	
                By:

              	 
      
	 
      	
                Name:

              	 
      
	 
      	
                Title:

              	 
      


      





      
        
           


        

        
           


          
            

          

        

        
           


        

      


      
        	 
      	 
      	
                BORGWARNER
      EUROPE INC., as Guarantor

              	 
      
	 
      	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	
                Title:

              	 
      
	 	 	 	 
	 
      	 
      	
                BORGWARNER
      HOLDING INC., as Guarantor

              	 
      
	 
      	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	
                Title:

              	 
      
	 	 	 	 
	 
      	 
      	
                BORGWARNER
      INVESTMENT HOLDING INC., as Guarantor

              	 
      
	 
      	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	
                Title:

              	 
      
	 	 	 	 
	 
      	 
      	
                BORGWARNER
      JAPAN INC., as Guarantor

              	 
      
	 
      	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	
                Title:

              	 
      
	 	 	 	 
	 
      	 
      	
                BORGWARNER
      MORSE TEC INC., as Guarantor

              	 
      
	 
      	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	
                Title:

              	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	
                BORGWARNER
      NW INC., as Guarantor

              	 
      
	 
      	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	
                Title:

              	 
      
	 	 	 	 
	 
      	 
      	
                BORGWARNER
      POWDERED METALS INC., as Guarantor

              	 
      
	 
      	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	
                Title:

              	 
      


      




       


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      
        	 
      	
                BORGWARNER
      SOUTH ASIA INC., as Guarantor

              	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	
                Name:

              	 
      	 
      
	 
      	
                Title:

              	 
      	 
      
	 	 	 	 
	 
      	
                BORGWARNER
      THERMAL SYSTEMS INC., as Guarantor

              	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	
                Name:

              	 
      	 
      
	 
      	
                Title:

              	 
      	 
      
	 	 	 	 
	 
      	
                BORGWARNER
      THERMAL SYSTEMS OF MICHIGAN INC., as Guarantor

              	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	
                Name:

              	 
      	 
      
	 
      	
                Title:

              	 
      	 
      
	 	 	 	 
	 
      	
                BORGWARNER
      TORQTRANSFER SYSTEMS INC., as Guarantor

              	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	
                Name:

              	 
      	 
      
	 
      	
                Title:

              	 
      	 
      
	 	 	 	 
	 
      	
                BORGWARNER
      TRANSMISSION SYSTEMS INC., as Guarantor

              	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	
                Name:

              	 
      	 
      
	 
      	
                Title:

              	 
      	 
      
	 	 	 	 
	 
      	
                BORGWARNER
      TURBO SYSTEMS INC., as Guarantor

              	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	
                Name:

              	 
      	 
      
	 
      	
                Title:

              	 
      	 
      


      


      
        
           


        

        
           


          
            

          

        

        
           


        

      




      
        	 
      	
                BRONSON
      SPECIALTIES INC., as Guarantor

              	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	
                Name:

              	 
      	 
      
	 
      	
                Title:

              	 
      	 
      
	 	 	 	 
	 
      	
                BWA
      TURBO SYSTEMS HOLDING CORPORATION, as Guarantor

              	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	
                Name:

              	 
      	 
      
	 
      	
                Title:

              	 
      	 
      
	 	 	 	 
	 
      	
                KUHLMAN
      CORPORATION, as Guarantor

              	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	
                Name:

              	 
      	 
      
	 
      	
                Title:

              	 
      	 
      


      


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      EXHIBIT
A

      


      Form
of Guaranty Joinder Agreement

      


      GUARANTY
JOINDER AGREEMENT

      

        THIS
GUARANTY JOINDER
AGREEMENT (as amended, restated, supplemented or otherwise modified, the
“Guaranty Joinder
Agreement”), dated as of __________, 20__ is made by and between
__________, a __________ (the “Joining Guarantor”),
and BANK OF AMERICA, N.A., in its capacity as Administrative Agent (the “Administrative
Agent”) under that certain Credit Agreement (as amended, modified,
supplemented or restated from time to time, the “Credit Agreement”),
dated as of March 31, 2010 by and among BORGWARNER INC., a Delaware corporation
(the “Borrower”), the
Lenders party thereto and the Administrative Agent.  All capitalized
terms not otherwise defined herein shall have the meanings given to such terms
in the Credit Agreement.

        


        WHEREAS, the Joining Guarantor
is a Domestic Subsidiary and required by the terms of the Credit Agreement to
become a “Guarantor” under the Credit Agreement and be joined as a party to the
Guaranty; and

        


        WHEREAS, the Joining Guarantor
will materially benefit directly and indirectly from the credit facilities made
available and to be made available to the Borrower by the Lenders under the
Credit Agreement; and

        


        NOW, THEREFORE, the Joining
Guarantor hereby agrees as follows with the Administrative Agent, for the
benefit of the Secured Parties:

         

        1.           Joinder.  The
Joining Guarantor hereby irrevocably, absolutely and unconditionally becomes a
party to the Guaranty as a Guarantor and bound by all the terms, conditions,
obligations, liabilities and undertakings of each Guarantor or to which each
Guarantor is subject thereunder, including without limitation the joint and
several, unconditional, absolute, continuing and irrevocable guarantee to the
Administrative Agent for the benefit of the Secured Parties of the payment and
performance in full of the Borrower’s Liabilities (as defined in the Guaranty)
whether now existing or hereafter arising, all with the same force and effect as
if the Joining Guarantor were a signatory to the Guaranty.

         

         

        2.           Affirmations.  The
Joining Guarantor hereby acknowledges and reaffirms as of the date hereof with
respect to itself, its properties and its affairs each of the waivers,
representations, warranties, acknowledgements and certifications applicable to
any Guarantor contained in the Guaranty.

         

         

        3.           Severability.  The
provisions of this Guaranty Joinder Agreement are independent of and separable
from each other.  If any provision hereof shall for any reason be held
invalid or unenforceable, such invalidity or unenforceability shall not affect
the validity or enforceability of any other provision hereof, but this Guaranty
Joinder Agreement shall be construed as if such invalid or unenforceable
provision had never been contained herein.

         


        
          
             


          

          
             


            
              

            

          

          
             


          

        


         

        4,           Counterparts.  This
Guaranty Joinder Agreement may be executed in any number of counterparts each of
which when so executed and delivered shall be deemed an original, and it shall
not be necessary in making proof of this Guaranty Joinder Agreement to produce
or account for more than one such counterpart executed by the Joining
Guarantor.  Without limiting the foregoing provisions of this Section 4, the
provisions of Section 9.1 of the Credit Agreement shall be applicable to this
Guaranty Joinder Agreement.

         

         

        5.           Delivery.  Joining
Guarantor hereby irrevocably waives notice of acceptance of this Guaranty
Joinder Agreement and acknowledges that the Borrower’s Liabilities are and shall
be deemed to be incurred, and credit extensions under the Loan Documents made
and maintained, in reliance on this Guaranty Joinder Agreement and the
Guarantor’s joinder as a party to the Guaranty as herein provided.

         

         

        6.           Governing
Law; Venue; Waiver of Jury Trial.  The provisions of Section 26, of the
Guaranty are hereby incorporated by reference as if fully set forth
herein.

         

        


         

        


        [Signature
page follows]


        
          
             


          

          
             


            
              

            

          

          
             


          

        



      IN WITNESS WHEREOF, the
Joining Guarantor has duly executed and delivered this Guaranty Joinder
Agreement as of the day and year first written above.

      


      
        	 
      	
                JOINING
      GUARANTOR:

              	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	
                Name:

              	 
      	 
      
	 
      	
                Title:

              	 
      	 
      
	 
      	 
      	 
      	 
      


      

      


      


      
        	 
      	
                Acknowledged
      and accepted:

              	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                BANK
      OF AMERICA, N.A.,

              	 
      	 
      
	 
      	
                as
      Administrative Agent

              	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                By:                                                      

              	 
      	 
      
	 
      	
                Name:                                                      

              	 
      	 
      
	 
      	
                Title: