APPALOOSA MANAGEMENT L.P.
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August 3, 2007
A-D Acquisition Holdings, LLC
c/o Appaloosa Management L.P.
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Attention: ▇▇▇ ▇▇▇▇▇
Delphi Corporation
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Ladies and Gentlemen:
Reference is made to that certain Equity Purchase and Commitment
Agreement (the "Agreement"), dated as of the date hereof, by and among A-D
Acquisition Holdings, LLC, a limited liability company formed under the laws of
the State of Delaware (the "Investor"), Harbinger Del-Auto Investment Company,
Ltd., an exempted company formed under the laws of the Cayman Islands, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, a Delaware corporation, UBS
Securities LLC, a limited liability company formed under the laws of the State
of Delaware, ▇▇▇▇▇▇▇ Sachs & Co., a New York limited partnership, and Pardus DPH
Holding LLC, a limited liability company formed under the laws of the State of
Delaware, on the one hand, and Delphi Corporation, a Delaware corporation (as a
debtor-in-possession and a reorganized debtor, as applicable, the "Company"), on
the other hand. Capitalized terms used but not defined herein shall have the
meanings set forth in the Agreement.
This letter will confirm the commitment of Appaloosa Management L.P.
("AMLP"), on behalf of one or more of its affiliated funds or managed accounts
to be designated, to provide or cause to be provided funds (the "Funds") to the
Investor in an amount up to $1,076,400,000, subject to the terms and conditions
set forth herein. If (i) a Limited Termination has occurred, (ii) the Agreement
has not been terminated by the Investor in accordance with its terms within ten
(10) Business Days of the occurrence of such Limited Termination, and (iii) the
Investor becomes obligated in accordance with Section 2(b) of the Agreement to
purchase the Available Investor Shares as a result of such Limited Termination
(an "Escalation Trigger"), the maximum amount of Funds referred to in the
immediately preceding sentence shall be increased as follows: (i) by
$166,860,000 if an Escalation Trigger arises as a result of a Limited
Termination by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated; (ii) by
$166,860,000 if an Escalation Trigger arises as a result of a Limited
Termination by UBS Securities LLC; (iii) by $397,230,000 if an Escalation
Trigger arises as a result of a Limited Termination by Harbinger Del-Auto
Investments Company, Ltd.; (iv) by $400,000,000 if an Escalation Trigger arises
as a result of a Limited Termination by ▇▇▇▇▇▇▇ Sachs & Co.; and (v) by
$342,650,000 if an Escalation Trigger arises as a result of a Limited
Termination by Pardus DPH Holding LLC. The Funds to be
A-D Acquisition Holdings, LLC
Delphi Corporation
August 3, 2007
Page 2
provided by or on behalf of AMLP to the Investor will be used to provide the
financing for the Investor (i) to purchase the Investor Shares pursuant to the
Agreement (the "Purchase Obligation") and (ii) to satisfy the Investor's other
obligations under the Agreement, if any; provided, however, that the aggregate
liability of AMLP under the immediately preceding clauses (i) and (ii) shall
under no circumstances exceed the Cap (as defined below). AMLP shall not be
liable to fund to the Investor any amounts hereunder (other than to fund the
Purchase Obligation), unless and until, any party to the Agreement, other than
the Company, commits a willful breach of the Agreement. For purposes of this
letter agreement, the "Cap" shall mean (i) at all times on or prior to the
Disclosure Statement Approval Date, $100,000,000 and (ii) after the Disclosure
Statement Approval Date, $250,000,000. Our commitment to fund the Investor's
Purchase Obligation is subject to the satisfaction, or waiver in writing by AMLP
and the Investor, of all of the conditions, if any, to the Investor's
obligations at such time contained in the Agreement.
Notwithstanding any other term or condition of this letter agreement,
(i) under no circumstances shall the liability of AMLP hereunder or for breach
of this letter agreement exceed, in the aggregate, the Cap for any reason, (ii)
under no circumstances shall AMLP be liable for punitive damages and (iii) the
liability of AMLP shall be limited to monetary damages only. There is no express
or implied intention to benefit any person or entity not party hereto and
nothing contained in this letter agreement is intended, nor shall anything
herein be construed, to confer any rights, legal or equitable, in any person or
entity other than the Investor and the Company. Subject to the terms and
conditions of this letter agreement, the Company shall have the right to assert
its rights hereunder directly against AMLP.
The terms and conditions of this letter agreement may be amended,
modified or terminated only in a writing signed by all of the parties hereto.
AMLP's obligations hereunder may not be assigned, except its obligations to
provide the Funds may be assigned to one or more of its affiliated funds or
managed accounts affiliated with AMLP, provided that such assignment will not
relieve AMLP of its obligations under this letter agreement.
This commitment will be effective upon the Investor's acceptance of
the terms and conditions of this letter agreement (by signing below) and the
execution of the Agreement by the Company and will expire on the earliest to
occur of (i) the closing of the transactions contemplated by the Agreement, and
(ii) termination of the Agreement in accordance with its terms; provided,
however, that in the event that the Agreement is terminated, AMLP's obligations
hereunder to provide funds to the Investor to fund the Investor's obligations
under the Agreement on account of any willful breach of the Agreement for which
the Investor would be liable shall survive; provided, further, that the Company
shall provide AMLP with written notice within 90 days after the termination of
the Agreement of any claim that a willful breach of the Agreement has occurred
for which the Investor would be liable and if the Company fails to timely
provide such notice then all of AMLP's obligations hereunder shall terminate,
this letter agreement shall expire and any claims hereunder shall forever be
barred. Upon the termination
A-D Acquisition Holdings, LLC
Delphi Corporation
August 3, 2007
Page 3
or expiration of this letter agreement, all rights and obligations of the
parties hereunder shall terminate and there shall be no liability on the part of
any party hereto.
AMLP hereby represents and warrants as follows:
(a) AMLP is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization.
(b) AMLP has the requisite limited partnership power and authority to
enter into, execute and deliver this letter agreement and to perform its
obligations hereunder and all necessary action required for the due
authorization, execution, delivery and performance by it of this letter
agreement has been taken.
(c) This letter agreement has been duly and validly executed and
delivered by AMLP and constitutes its valid and binding obligation, enforceable
against it in accordance with its terms.
(d) AMLP has, and will have on the Closing Date, available funding
necessary to provide the Funds in accordance with this letter agreement.
No director, officer, employee, partner, member or direct or indirect
holder of any equity interests or securities of AMLP, or any of its affiliated
funds or managed accounts, and no director, officer, employee, partner or member
of any such persons other than any general partner (collectively, the "Party
Affiliates") shall have any liability or obligation of any nature whatsoever in
connection with or under this letter or the transactions contemplated hereby,
and each party hereto hereby waives and releases all claims against such Party
Affiliates related to such liability or obligation.
This letter agreement shall be governed by, and construed in
accordance with, the laws of the State of New York (without giving effect to the
conflict of laws principles thereof). AMLP, THE INVESTOR AND THE COMPANY HEREBY
IRREVOCABLY SUBMIT TO THE JURISDICTION OF, AND VENUE IN, THE UNITED STATES
BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND WAIVE ANY OBJECTION
BASED ON FORUM NON CONVENIENS.
This letter agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and same instrument.
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A-D Acquisition Holdings, LLC
Delphi Corporation
August 3, 2007
Page 4
Sincerely,
APPALOOSA MANAGEMENT L.P.
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
Title:
Agreed to and accepted as of the date
first above written:
A-D ACQUISITION HOLDINGS, LLC
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
Title:
DELPHI CORPORATION
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, General Counsel
and Chief Compliance Officer