EXECUTION COPY
AMENDMENT AND SUPPLEMENT TO THE
PLAN FRAMEWORK SUPPORT AGREEMENT
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by and among
DELPHI CORPORATION,
GENERAL MOTORS CORPORATION,
APPALOOSA MANAGEMENT L.P.,
CERBERUS CAPITAL MANAGEMENT, L.P.,
HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX, INCORPORATED
and
UBS SECURITIES LLC
Dated as of January __, 2007
AMENDMENT AND SUPPLEMENT TO THE
PLAN FRAMEWORK SUPPORT AGREEMENT
--------------------------------
This Amendment and Supplement to the Plan Framework Support Agreement
(the "Amendment and Supplement"), is entered into as of January 18, 2007 by and
among Delphi Corporation ("Delphi"), on behalf of itself and its subsidiaries
and affiliates operating as debtors and debtors-in-possession (together with
Delphi, the "Debtors") in the Chapter 11 Cases, General Motors Corporation
("GM"), Appaloosa Management L.P., ("Appaloosa"), Cerberus Capital Management,
L.P., ("Cerberus"), Harbinger Capital Partners Master Fund I, Ltd.,
("Harbinger"), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated ("Merrill")
and UBS Securities LLC ("UBS"). Each of the Debtors, GM, Appaloosa, Cerberus,
Harbinger, Merrill and UBS is referred to herein individually as a "Party," and
collectively, as the "Parties". Capitalized terms not defined herein shall have
the meaning ascribed to such terms in the Plan Framework Support Agreement
entered into by the Parties dated as of December 18, 2006 (the "PSA"). As used
herein, the phrases "this Amendment and Supplement", "hereto", "hereunder" and
phrases of like import shall mean this Amendment and Supplement.
RECITALS
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A. On December 18, 2006, the Debtors filed that certain Expedited
Motion for Order Authorizing and Approving the Equity Purchase and Commitment
Agreement (the "Investment Agreement") Pursuant to Sections 105(a), 363(b),
503(b) and 507(a) of the Bankruptcy Code and the Plan Framework Support
Agreement Pursuant to Sections 105(a), 363(b) and 1125(e) of the Bankruptcy Code
(the "Approval Motion"), and on December 22, 2006, the Debtors filed their
Motion for Order Under 11 U.S.C. ss. 1121(d) Extending Debtors' Exclusive
Periods Within Which to File and Solicit Acceptances of Reorganization Plan (the
"Exclusivity Extension Motion").
B. The Approval Motion was originally scheduled for hearing before the
Bankruptcy Court on January 5, 2007, but such hearing was adjourned and is now
scheduled for January 11, 2007. A hearing on the Exclusivity Extension Motion
has been scheduled for January 12, 2007.
C. Several creditors and parties in interest have objected to the
Approval Motion and the Exclusivity Extension Motion (the "Objectants"),
including, among others, the official committee of unsecured creditors appointed
on October 17, 2005 in the Chapter 11 Cases (the "Creditors' Committee", and
their objections to the Approval Motion and the Exclusivity Extension Motion
filed thereby, the "Committee Objections") and the ad hoc committee of trade
creditors (the "Ad Hoc Trade Committee", and their objection to the Approval
Motion filed thereby, together with the Committee Objections, the "Objections").
D. On December 22, 2006, the Court entered that certain Pretrial and
Scheduling Order Relating to Debtors' Expedited Motion for Order Authorizing and
Approving Equity Purchase and Commitment Agreement Pursuant to 11 U.S.C. Section
105(a), 363(b), 503(b), and 507(a) and Plan Framework and Support Agreement
Pursuant to 11 U.S.C. Sections 105(a), 363(b), and 1125(e) (the "Pretrial
Order"). Pursuant to the Pretrial Order, the Objecting Parties (as defined
therein) were obligated to provide the Debtors, GM, Appaloosa and Cerberus with
a written statement identifying any perceived ambiguities in the Investment
Agreement. On December 26, 2006, the Creditors' Committee, the Ad Hoc Trade
Committee and the official committee of equity security holders appointed in the
Chapter 11 Cases (the "Equity Committee") each provided the Debtors with a
Statement of Ambiguities (each, a "Statement") in accordance with the Pretrial
Order.
E. Pursuant to the Pretrial Order, the Debtors were obligated to
deliver to the Objecting Parties a response to each such Statement, stating
whether and in what respect the Debtors believe that any such ambiguity exists.
On December 29, 2006, the Debtors delivered their Omnibus Response To Statements
Of Purported Ambiguities Concerning Framework Agreements Propounded By Statutory
And Ad Hoc Trade Committees (the "Response").
F. In addition, the Debtors and the Plan Investors have conferred with
certain of the Objectants, including the Creditors' Committee and the Ad Hoc
Trade Committee in an effort to resolve their objections to the Approval Motion
and issues raised in the Statements on a consensual basis. As a result of these
discussions, the Creditors' Committee, subject to its fiduciary duties, and the
Ad Hoc Trade Committee, have agreed to withdraw the Objections and to support
the Investment Agreement and the PSA and the transactions contemplated thereby,
on the condition that certain modifications are made to the Investment
Agreement, the PSA and the proposed order approving the Approval Motion (the
"Approval Order").
G. The Parties to this Amendment and Supplement have agreed to amend
the PSA as set forth in Article I hereof, and, conditioned upon the withdrawal
of the Objections and the continued support of the Creditors' Committee and the
Ad Hoc Trade Committee for entry of the Approval Order, the implementation of
the Investment Agreement, the PSA, and each of the transactions contemplated by
the Investment Agreement and the PSA, to supplement the PSA as set forth in
Article II hereof.
ARTICLE I
AMENDMENT
NOW THEREFORE, the Parties hereto hereby agree as follows:
1.1 Section 3.1(b) of the PSA is hereby amended by adding the words ";
provided further however, that such notice may not be given by any Plan Investor
or the Debtors after the Disclosure Statement Approval Date (as defined in the
Investment Agreement)" immediately following the words "April 1, 2007" in the
third line thereof.
1.2 Section 6.1 of the PSA is hereby amended by adding the words
"excluding all allowed accrued postpetition interest thereon" immediately
following the word "billion" in the 9th line thereof.
1.3 Section 6.3 of the PSA is hereby amended by adding the words
"which for trade claims shall be at a rate to be agreed to or determined by the
Bankruptcy Court, it being understood that with respect to trade claims the
Debtors and Plan Investors will not take the position that there should not be
an entitlement to postpetition interest" immediately following the words
"(including all allowed accrued interest" in what is currently the 2nd line
thereof, and adding the words "excluding all allowed accrued postpetition
interest thereon" after the word "billion" in the 8th line thereof.
1.4 Section 6.12(d) of the PSA is hereby amended by adding the words
"or their respective Affiliates" immediately following the word "(Dolce)" in
what is currently the 3rd line thereof, and by adding the words "or their
respective Affiliates" immediately following the word "Dolce" in what is
currently the 7th line thereof.
ARTICLE II
SUPPLEMENT
So long as the Creditors' Committee and the Ad Hoc Trade Committee
shall have withdrawn the Objections and support entry of the Approval Order and
so long as the Creditors' Committee shall support the implementation of the
Investment Agreement, the PSA, and each of the transactions contemplated by the
Investment Agreement and the PSA, the following provisions of this Amendment and
Supplement shall be in effect, and to the extent such provisions are
inconsistent with any provisions of the PSA, the following provisions of this
Amendment and Supplement shall supplant and supersede the provisions of the PSA;
provided, that if the Creditors' Committee, in the exercise of its fiduciary
duties, shall subsequently withdraw, qualify or modify in a manner adverse to
the Plan Investors (or resolve to do any of the foregoing) its support for the
entry of the Approval Order, the implementation of the Investment Agreement, the
PSA, or any of the transactions contemplated by the Investment Agreement or the
PSA, or shall have approved or recommended any competing or other transaction
inconsistent with the Investment Agreement or the PSA (each such action, a
"Withdrawal of Support"), then Sections 2.1 through 2.2 of this Amendment and
Supplement shall terminate and shall be of no further force or effect; provided
further, that if the Creditors' Committee (a) objects in any pleading to (i) any
of the terms of any Plan Document solely on the basis of comments provided by
the Creditors' Committee pursuant to Section 2.1 hereof, but rejected by the
Debtors or the Plan Investors or (ii) the position that the Debtors, any Plan
Investor or any other Party takes as to the appropriate rate of interest on
Trade and Other Unsecured Claims as permitted by Section 6.3 of the PSA as
amended hereby, or (b) unsuccessfully seeks the termination of the Investment
Agreement pursuant to Section 2(h) of that certain Supplement to the Equity
Purchase and Commitment Agreement, dated as of __, 2007 by and among the Debtors
and the Investors, then in each such case such objection or action shall not be
considered a Withdrawal of Support:
2.1 The Debtors will provide the Creditors' Committee with periodic
working drafts of the Plan, the Disclosure Statement, the Confirmation Order and
any Plan Documents that the Creditors' Committee reasonably believes could have
a material impact on the recovery of unsecured creditors, and any amendments
thereto, and with a reasonable opportunity to review and comment on such
documents prior to such documents being filed with the Bankruptcy Court. The
Debtors and the Plan Investors will consider in good faith any comments
consistent with the Investment Agreement and PSA, and any other reasonable
comments of the Creditors' Committee, and will not reject such comments without
first discussing the reasons therefore with counsel to the Creditors' Committee
and giving due consideration to the views of the Creditors' Committee.
2.2 The Creditors' Committee will have consultation rights through the
Confirmation Date with respect to executive compensation under the Plan and as
described in the Disclosure Statement. The Creditors' Committee shall also have
one representative of the Creditors' Committee placed on the joint claims
oversight committee contemplated by Section 6.11 of the PSA, it being understood
that such member shall not have veto rights over any committee action.
ARTICLE III
MISCELLANEOUS
3.1 Subject to Section 8.1 of the PSA, this Amendment and Supplement
shall become effective (the "Effective Date") immediately upon its execution by
the Parties.
3.2 On and after the Effective Date, each reference in the PSA to
"this Agreement", "hereunder", "hereof", "herein" or words of like import
referring to the PSA, and each reference in the Investment Agreement to the
"PSA", "thereunder", "thereof" or words of like import referring to the PSA
shall mean and be a reference to the PSA as amended and supplemented by this
Amendment and Supplement.
3.3 This Amendment and Supplement shall operate as an amendment of the
provisions of the PSA referred to specifically herein. Except as specifically
amended or supplemented by this Amendment and Supplement and as set forth in the
preceding sentence, the PSA and the Investment Agreement shall remain in full
force and effect and are hereby ratified and confirmed.
3.4 Section and subsection headings in this Amendment and Supplement
are included herein for convenience of reference only and shall not constitute a
part of this Amendment and Supplement for any other purpose or be given any
substantive effect.
3.5 This Amendment and Supplement will be governed and construed in
accordance with the internal laws of the State of New York without regard to any
conflict of law provision that could require the application of the law of any
other jurisdiction. By its execution and delivery of this Agreement, each Party
hereby irrevocably and unconditionally agrees for itself that the Bankruptcy
Court will retain exclusive jurisdiction over all matters related to the
construction, interpretation or enforcement of this Agreement. Each Party
further agrees to waive any objection based on forum non conveniens.
3.6 This Amendment and Supplement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. Delivery of an executed signature page of this Amendment and
Supplement by facsimile shall be effective as delivery of a manually executed
signature page of this Amendment and Supplement.
3.7 It is agreed that the Creditors' Committee shall be a third party
beneficiary of Article II of this Amendment and Supplement.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned have each caused this Amendment
and Supplement to be duly executed and delivered by their respective, duly
authorized officers as of the date first above written.
DELPHI CORPORATION
By:
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Name:
Title:
GENERAL MOTORS CORPORATION
By:
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Name:
Title:
APPALOOSA MANAGEMENT L.P.
By:
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Name:
Title:
HARBINGER CAPITAL PARTNERS MASTER FUND I,
LTD.
By: Harbinger Capital Partners Offshore
Manager, L.L.C., as investment manager
By:
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Name:
Title:
CERBERUS CAPITAL MANAGEMENT, L.P.
By:
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Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
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Name:
Title:
UBS SECURITIES LLC
By:
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Name:
Title:
SK 03773 0003 740123
1/19/07 12:13 PM
