EXECUTION COPY
SUPPLEMENT TO THE EQUITY PURCHASE AND COMMITMENT AGREEMENT
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THIS SUPPLEMENT TO THE EQUITY PURCHASE AND COMMITMENT AGREEMENT (this
"Supplement"), dated as of January 18, 2007, is made by and among A-D
Acquisition Holdings, LLC, a limited liability company formed under the laws of
the State of Delaware ("XXXX"), Harbinger Del-Auto Investment Company, Ltd., an
exempted company incorporated in the Cayman Islands ("Harbinger"), Dolce
Investments LLC ("Dolce"), a limited liability company formed under the laws of
the State of Delaware, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, a
Delaware corporation ("Merrill"), UBS Securities LLC, a Delaware limited
liability company ("UBS"), and Delphi Corporation, a Delaware corporation (as a
debtor-in-possession and a reorganized debtor, as applicable, the "Company").
XXXX, Harbinger, Dolce, Merrill and UBS are each individually referred to herein
as an "Investor" and collectively as the "Investors". Capitalized terms used and
not defined in this Supplement have the meanings assigned thereto in the EPCA
(as defined below).
WHEREAS, the Company and certain of its subsidiaries and affiliates
(the "Debtors") commenced jointly administered cases (the "Chapter 11 Cases")
under United States Bankruptcy Code, 11 U.S.C. xx.xx. 101-1330, as amended and
in effect on October 8, 2005 (the "Bankruptcy Code") in the United States
Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court");
WHEREAS, the Company and the Investors have entered into an Equity
Purchase and Commitment Agreement (the "EPCA") dated as of even date herewith;
WHEREAS, on the terms and subject to the conditions contained in this
Supplement, the Company and the Investors agree to implement the provisions set
forth herein with respect to the EPCA; and
WHEREAS, the Debtors, the Investors and General Motors Corporation
have entered into an amendment and supplement to the Plan Framework Support
Agreement, dated as of January __, 2007 (the "PSA Supplement").
NOW, THEREFORE, in consideration of the mutual promises, agreements,
representations, warranties and covenants contained herein, each of the parties
hereto hereby agrees as follows:
1. Amendment and Supplement of EPCA.
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So long as the official committee of unsecured creditors appointed on
October 17, 2005 in the Chapter 11 Cases (the "Creditors' Committee") shall
support the implementation of the EPCA, the PSA, and each of the
transactions contemplated by the EPCA and the PSA, the EPCA shall be
amended and supplemented by the provisions set forth below; 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
Investors (or resolve to do any of the foregoing) its support for the
implementation of the EPCA, the PSA, or any of the transactions
contemplated by the EPCA or the PSA, or shall have approved or recommended
any competing or other transaction inconsistent with the EPCA or the PSA,
this Supplement shall terminate and shall be of no further force or effect
and as a result, all additions contained in this Supplement shall be
deleted, all deletions resulting from this Supplement shall be reinserted
and the EPCA will remain in full force and effect as if this Supplement had
never existed (a "Withdrawal of Support"); provided, that if the Creditors'
Committee (a) objects in any pleading to (i) any of the terms of any Plan
Document (as such term in defined in the PSA) solely on the basis of
comments provided by such committee pursuant to Section 2.1 of the PSA
Supplement, but rejected by the Debtors or the Investors or (ii) the
position that the Debtors, any Investor or any other party takes as to the
appropriate rate of interest on Trade and Other Unsecured Claims (as
defined in the PSA) as permitted by Section 6.3 of the PSA as amended by
the PSA Supplement, or (b) unsuccessfully seeks the termination of the EPCA
pursuant to Section 2(h) below, then in each such case such objection or
action shall not be considered a Withdrawal of Support for the purposes of
this Supplement.
2. Amended and Supplemented Provisions of EPCA.
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On the terms and subject to the conditions set forth in Section 1:
(a) In Section 2(j) of the EPCA, after the words "to the extent incurred on
or before" shall be added "the first to occur of the date on which this
Agreement terminates in accordance with its terms and".
(b) At the end of the first sentence of Section 5(t) of the EPCA, the
following provision shall be added:
"; provided, that if the Company delivers to XXXX and Dolce definitive
term sheets for such proposed debt financing that have been approved by
the Company's board of directors and executed by the banks or other
financing sources providing such debt financing reflecting
then-prevailing market terms with respect to the applicable interest
rate, redemption provisions and fees (a "Company Financing Proposal"),
then each of XXXX and Dolce shall inform the Company in writing (a
"Financing Notice") whether or not the Company Financing Proposal is
acceptable to it within five (5) Business Days of its receipt of the
definitive term sheets for such Company Financing Proposal. If after
the Company delivers to XXXX and Dolce a Company Financing Proposal
either XXXX or Dolce fails to deliver a Financing Notice within five
(5) Business Days or each of the following circumstances occurs, then
the Company may terminate this Agreement and the transactions
contemplated hereby may be abandoned: (x) either XXXX or Dolce delivers
a Financing Notice in which it does not approve the Company Financing
Proposal, (y) XXXX and Dolce do not present to the Company, within 30
days of the delivery of the Financing Notice by each of XXXX and Dolce
(the "Financing Decision Date"), an alternative written expression of
interest to provide the Debt Financing on terms more favorable to the
Company than the Company Financing Proposal (a "Preferred Debt
Financing") and (z) XXXX and Dolce do not provide to the Company
commitment letters executed by the banks or other financing sources
providing such Preferred Debt Financing within 60 days of the Financing
Decision Date. Delphi shall use its reasonable best efforts to
implement any Preferred Debt Financing and to fulfill its other
obligations pursuant to this Section 5(t)."
Schedule I to the EPCA shall be amended to include the defined terms in
the above-referenced provision.
(c) At the end of the proviso in Section 8(c)(v)(B) of the EPCA but
immediately preceding the parenthetical containing the definition of
"Amended and Restated Constituent Documents", the following provision
shall be added:
"and provided, further, that any transaction between GMAC and the
Company and/or any of its Subsidiaries shall not be subject to the
exclusion of the immediately preceding proviso".
(d) The word "or" at the end of Section 12(f)(ii) shall be deleted, the
period at the end of Section 12(f)(iii) shall be replaced with "; and"
immediately following Section 12(f)(iii) a new Section 12(f)(iv) shall
be added as follows:
"in accordance with Section 5(t)."
(e) At the end of the second paragraph under the heading "Conversion of
Series A Preferred Stock into Class B Preferred Stock" in the Preferred
Term Sheet, the following provision shall be added:
"The direct or indirect transfer of ownership interests in any
Permitted Holder that owns shares of Series A Preferred Stock such that
such Permitted Holder ceases to be an Affiliate of Cerberus or
Appaloosa shall constitute a transfer of such Series A Preferred Stock
to a person other than a Permitted Holder for the purposes of this
provision."
(f) At the end of the third paragraph under the heading "Governance - Board
of Directors" in the Preferred Term Sheet, the following provision
shall be added:
"A mechanism agreed among the Investors and Delphi shall be implemented
providing for the resignation and replacement of the directors selected
by the holders of the Series A Preferred Stock after the conversion of
all Series A Preferred Stock into Series B Preferred Stock."
(g) In the fifth paragraph under the heading "Governance - Voting Rights"
in the Preferred Term Sheet, the following provision shall be added
immediately after the parenthetical "(or a preferred security of
equivalent economic value)":
", such fair market value shall not reflect the value of the governance
rights attributable to the Series A Preferred Stock,".
(h) In the event that the Debtors and the Plan Investors agree to (i)
substantive and material changes in the overall deal as set forth in
the Investment Agreement and the PSA after the date of the Initial
Approval Order, (ii) Flow-Through Claims (as defined in Section 6.4 of
the PSA) other than claims arising out of or resulting from customer
claims and environmental claims, or (iii) any alternative treatment of
securities claims from estate assets other than available insurance,
any of which would have a material adverse effect on the economics of
the recovery of general unsecured creditors under the plan of
reorganization to be funded through the EPCA, the Creditors' Committee
shall have the right to seek termination of the EPCA by the Bankruptcy
Court by establishing by a preponderance of the evidence that there has
been a material adverse effect on the economics of the recovery to
general unsecured creditors under the plan of reorganization to be
funded through the EPCA as a result of such actions.
3. Effectiveness. This Supplement shall become effective (the "Effective
Date") immediately upon its execution by the parties hereto. Subject to
Section 1, on and after the Effective Date, each reference in the EPCA to
"this Agreement", "hereunder", "hereof", "herein" or words of like import
referring to the EPCA, and each reference in the PSA to the "EPCA",
"thereunder", "thereof" or words of like import referring to the EPCA shall
mean and be a reference to the EPCA as amended and supplemented by this
Supplement. This Supplement shall operate as an amendment of the provisions
of the EPCA referred to specifically herein. Except as specifically amended
or supplemented by this Supplement and as set forth in the preceding
sentence, the EPCA shall remain in full force and effect and are hereby
ratified and confirmed.
4. Assignment. Neither this Supplement nor any of the rights, interests or
obligations under this Supplement will be assigned by any of the parties
(whether by operation of law or otherwise) without the prior written
consent of the other parties, except in accordance with Section 14 of the
EPCA.
5. Third Party Beneficiaries. Except as otherwise provided in the EPCA, this
Supplement (including the documents and instruments referred to in this
Agreement) is not intended to and does not confer upon any person other
than the parties hereto any rights or remedies under this Supplement.
6. Prior Negotiations; Entire Agreement. This Supplement (including the
documents and instruments referred to in this Supplement) constitutes the
entire agreement of the parties with respect to the subject matter of this
Supplement and supersedes all prior agreements, arrangements or
understandings, whether written or oral, among the parties.
7. Miscellaneous Provisions. The provisions of Sections 14, 16, 17, 18 and 20
of the EPCA shall apply to this Supplement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to
be signed by their respective officers thereunto duly authorized, all as of the
date first written above.
DELPHI CORPORATION
By:
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Name:
Title:
A-D ACQUISITION HOLDINGS, LLC
By:
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Name:
Title:
HARBINGER DEL-AUTO INVESTMENT COMPANY, LTD.
By:
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Name:
Title:
DOLCE INVESTMENTS LLC
By: Cerberus Capital Management L.P.,
its Managing Member
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:
By:
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Name:
Title:
SK 03773 0003 740122
1/19/07 12:13 PM
