December 10, 2007
Pardus DPH Holding LLC
000 Xxxxxxx Xxx.
Xxxxx 00X
Xxx Xxxx, XX 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, 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 limited partnership formed under the laws of the State of
New York and Pardus DPH Holding LLC, a limited liability company formed under
the laws of the State of Delaware (the "Investor"), 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 Pardus Special
Opportunities Master Fund L.P. ("Pardus"), to provide or cause to be provided
funds (the "Funds") to the Investor in an amount up to $342,655,959.96, subject
to the terms and conditions set forth herein. The Funds to be provided by or on
behalf of Pardus 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
Pardus under the immediately preceding clauses (i) and (ii) shall under no
circumstances exceed the Cap (as defined below). Pardus 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 $33,593,000. Our commitment to fund the
Investor's Purchase Obligation is subject to the satisfaction, or waiver in
writing by Pardus and the Investor, of all of the conditions, if any, to the
Investor's obligations at such time contained in the Agreement.
Delphi Corporation
December 10, 2007
Page 2
Notwithstanding any other term or condition of this letter agreement,
(i) under no circumstances shall the liability of Pardus hereunder or for breach
of this letter agreement exceed, in the aggregate, the Cap for any reason, (ii)
under no circumstances shall Pardus be liable for punitive damages and (iii) the
liability of Pardus 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 Pardus.
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.
The obligations of Pardus 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 Pardus, provided that such assignment will not
relieve Pardus 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, the obligations of
Pardus 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 Pardus 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 the obligations of
Pardus hereunder shall terminate, this letter agreement shall expire and any
claims hereunder shall forever be 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.
Pardus hereby represents and warrants as follows:
(a) Pardus is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization.
(b) Pardus 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 Pardus and constitutes its valid and binding obligation,
enforceable against it in accordance with its terms.
-2-
Delphi Corporation
December 10, 2007
Page 3
(d) Pardus 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 Pardus, 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). PARDUS, 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
Pardus 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 Pardus 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.
* * * *
-3-
Delphi Corporation
December 10, 2007
Page 4
Sincerely,
PARDUS SPECIAL OPPORTUNITIES MASTER
FUND L.P.
By: Pardus Capital Management L.P., its
Investment Manager
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxxx
Title:
Agreed to and accepted as of the date
first above written:
PARDUS DPH HOLDING LLC
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name:
Title:
DELPHI CORPORATION
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: VP & CRO
-4-
