Harbinger Capital Partners Master Fund I, Ltd.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
December 18, 2006
Harbinger Del-Auto Investments Company, Ltd.
c/o Harbinger Capital Partners Master Fund I, Ltd.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
DEL A-2 L.P.
c/o A-D GP Management LLC
as General Partner
c/o Appaloosa Management L.P.
00 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Ladies and Gentlemen:
Reference is made to that certain Agreement of Limited Partnership
(the "Agreement"), dated as of the date hereof, by and among A-D GP Management
LLC, a limited liability company formed under the laws of the State of Delaware,
as General Partner of DEL A-2 L.P., a Delaware limited partnership (the
"Partnership") and the Limited Partners identified on Exhibit A to the
Agreement, including Harbinger Del-Auto Investment Company, Ltd., an exempted
company formed under the laws of the Cayman Islands (the "Investor").
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 equal to $51,420,000. The Funds
to be provided by or on behalf of Harbinger will be used to provide the Funds
for the Investor to make the Capital Contribution required to be made by it
pursuant to, and in accordance with the terms and conditions of, Section 3.2 of
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 exceed in the aggregate $51,420,000 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 Partnership.
Subject to the terms and conditions of this letter agreement, the Partnership
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 and the
Partnership's acceptance of the terms and conditions of this letter agreement
(by signing below) and will expire on the earliest to occur of (i) the
termination of the Investor's obligation to fund its Capital Contribution in
accordance with Section 3.2 of the Agreement, (ii) the Investor's funding of its
Capital Contribution in accordance with Section 3.2 of the Agreement, (iii) the
termination of the Agreement in accordance with its terms, and (iv) the
dissolution of the Partnership in accordance with its terms, and any claim for
breach of this letter agreement shall be barred if not brought in a court of
competent jurisdiction on or before the date that is 90 days after the date on
which this letter agreement expires. Upon termination or expiration of this
letter agreement, all rights and obligations of the parties under this letter
agreement shall terminate and there shall be no liability on the part of any
party hereto, except that nothing contained herein shall release any party
hereto from liability for any breach of this letter agreement.
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 has taken all necessary corporate action required for the due
authorization, execution, delivery and performance by it of this letter
agreement.
(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 or direct or indirect holder of any equity
interests or securities of Harbinger, and no director, officer or employee 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). HARBINGER AND THE INVESTOR 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.
* * * *
[SIGNATURE PAGE TO LP COMMITMENT LETTER]
Sincerely,
HARBINGER CAPITAL PARTNERS MASTER
FUND I, LTD.
By: Harbinger Capital Partners Offshore
Manager, L.L.C., as investment manager
By:
---------------------------------
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:
---------------------------------------
Name:
Title:
DEL A-2 L.P.
By: A-D GP Management, LLC,
its General Partner
By:
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Name:
Title:
SK 03773 0003 733724
