Harbinger Capital Partners Master Fund I, Ltd.
c/o 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
December 10, 2007
Harbinger Del-Auto Investment Company Ltd.
c/o Harbinger Capital Partners Master Fund I, Ltd.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Delphi Corporation
0000 Xxxxxx Xxxxx
Xxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to that certain Equity Purchase and Commitment
Agreement, as amended by that certain Second Restated First Amendment to such
Equity Purchase and Commitment Agreement, dated as of December 10, 2007 (as from
time to time amended, restated, amended and restated, modified or supplemented
in accordance with the terms thereof, the "Agreement"), by and among A-D
Acquisition Holdings, LLC, a limited liability company formed under the laws of
the State of Delaware, Harbinger Del-Auto Investment Company, Ltd., an exempted
company formed under the laws of the Cayman Islands (the "Investor"), Xxxxxxx
Xxxxx, Xxxxxx Xxxxxx & Xxxxx, Incorporated, a Delaware corporation, UBS
Securities LLC, a limited liability company formed under the laws of the State
of Delaware, Xxxxxxx 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 Harbinger Capital Partners
Master Fund I, Ltd. ("Harbinger"), 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 $397,225,891.24, subject
to the terms and conditions set forth herein. The Funds to be provided by or on
behalf of Harbinger 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
Harbinger under clauses (i) and (ii) shall under no circumstances exceed the Cap
(as defined below). Harbinger 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 at all times $38,944,000. Our commitment to fund the Investor's Purchase
Obligation is subject to the satisfaction, or waiver in writing by Harbinger 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 Harbinger hereunder or for
breach of this letter agreement
Harbinger Del-Auto Investment Company Ltd.
Delphi Corporation
December 10, 2007
Page 2
exceed, in the aggregate, the Cap for any reason, (ii) under no circumstances
shall Harbinger be liable for punitive damages, and (iii) the liability of
Harbinger 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 Harbinger.
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.
Harbinger'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 Harbinger, provided that such assignment will
not relieve Harbinger 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, Harbinger'
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 Harbinger 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 Harbinger' obligations
hereunder shall terminate, this letter agreement shall expire and any claims
hereunder shall be forever barred. Upon the termination 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.
Harbinger hereby represents and warrants as follows:
(a) Harbinger is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization.
(b) Harbinger has the requisite corporate 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 Harbinger and constitutes its valid and binding obligation,
enforceable against it in accordance with its terms.
(d) Harbinger 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 Harbinger, or any of its
affiliated funds or managed accounts, and no director, officer, employee,
partner or member of any such persons other than any
Harbinger Del-Auto Investment Company Ltd.
Delphi Corporation
December 10, 2007
Page 3
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). HARBINGER, 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.
The parties hereto acknowledge and agree that the commitment letter of
Harbinger in favor of the Investor and the Company, dated August 3, 2007, has
been terminated and is of no further force and effect and that Harbinger shall
have no further liability or obligation under such commitment letter.
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.
Harbinger Del-Auto Investment Company Ltd.
Delphi Corporation
December 10, 2007
Page 4
Sincerely,
HARBINGER CAPITAL PARTNERS MASTER
FUND I, LTD.
By: Harbinger Capital Partners Offshore
Manager, L.L.C., as investment
manager
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Managing Director
Agreed to and accepted as of the date
first above written:
Harbinger Del-Auto Investment
Company, Ltd.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name:
Title:
DELPHI CORPORATION
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: VP & CRO
