-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MyBqN/QWdLOqBIA+MwvslCbk9CDI4bp2/fd1H/xqfJkOsLXVVDM2JGrpOaZo5OFm +qdS8rKyuxRo8bmN5wpTmQ== 0000919574-06-005025.txt : 20061222 0000919574-06-005025.hdr.sgml : 20061222 20061222154740 ACCESSION NUMBER: 0000919574-06-005025 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 20061222 DATE AS OF CHANGE: 20061222 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DELPHI CORP CENTRAL INDEX KEY: 0001072342 STANDARD INDUSTRIAL CLASSIFICATION: MOTOR VEHICLE PARTS & ACCESSORIES [3714] IRS NUMBER: 383430473 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-56957 FILM NUMBER: 061297031 BUSINESS ADDRESS: STREET 1: 5725 DELPHI DRIVE CITY: TROY STATE: MI ZIP: 48098 BUSINESS PHONE: 248-813-2000 MAIL ADDRESS: STREET 1: 5725 DELPHI DRIVE CITY: TROY STATE: MI ZIP: 48098 FORMER COMPANY: FORMER CONFORMED NAME: DELPHI AUTOMOTIVE SYSTEMS CORP DATE OF NAME CHANGE: 19981020 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. CENTRAL INDEX KEY: 0001233563 IRS NUMBER: 000000000 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: C/O INTERNATIONAL FUND SERVICES STREET 2: THIRD FL BISHOP SQUARE REDMONDS HILL CITY: DUBLIN IRELAND STATE: L2 ZIP: 00000 BUSINESS PHONE: 2125216972 MAIL ADDRESS: STREET 1: C/O INTERNATIONAL FUND SERVICES STREET 2: THIRD FL BISHOP SQUARE REDMONDS HILL CITY: DUBLIN IRELAND STATE: L2 ZIP: 00000 FORMER COMPANY: FORMER CONFORMED NAME: HARBERT DISTRESSED INVESTMENT MASTER FUND LTD DATE OF NAME CHANGE: 20030516 SC 13D 1 d732909_13-d.txt SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ---------------- SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (Amendment No. ) Delphi Corporation - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, $0.01 par value - -------------------------------------------------------------------------------- (Title of Class of Securities) 247126105 - -------------------------------------------------------------------------------- (CUSIP Number) William R. Lucas, Jr. One Riverchase Parkway South Birmingham, Alabama 35244 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 18, 2006 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. - ---------- (1) The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No. 247126105 --------------------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Harbinger Capital Partners Master Fund I, Ltd. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [_] 3. SEC USE ONLY 4. SOURCE OF FUNDS* WC 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 26,450,000 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 26,450,000 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 26,450,000 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.7%(1) 14. TYPE OF REPORTING PERSON* CO - ---------- (1) As a result of the proposal and related agreements described in Item 4, the Reporting Persons are deemed to be the beneficial owners of shares of the Issuer's common stock beneficially owned by the other persons described in Item 4. Based on information provided to the Reporting Persons, Appaloosa Management LP and its related entities beneficially own 84,949,069 shares, Merrill Lynch, Pierce, Fenner & Smith Incorporated beneficially owns 1,958,350 shares and UBS Securities LLC beneficially owns 4,540,719 shares. CUSIP No. 247126105 --------------------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Harbinger Capital Partners Offshore Manager, L.L.C. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [_] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 26,450,000 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 26,450,000 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 26,450,000 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.7%(1) 14. TYPE OF REPORTING PERSON* CO - ---------- (1) As a result of the proposal and related agreements described in Item 4, the Reporting Persons are deemed to be the beneficial owners of shares of the Issuer's common stock beneficially owned by the other persons described in Item 4. Based on information provided to the Reporting Persons, Appaloosa Management LP and its related entities beneficially own 84,949,069 shares, Merrill Lynch, Pierce, Fenner & Smith Incorporated beneficially owns 1,958,350 shares and UBS Securities LLC beneficially owns 4,540,719 shares. CUSIP No. 247126105 --------------------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) HMC Investors, L.L.C. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [_] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 26,450,000 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 26,450,000 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 26,450,000 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.7%(1) 14. TYPE OF REPORTING PERSON* CO - ---------- (1) As a result of the proposal and related agreements described in Item 4, the Reporting Persons are deemed to be the beneficial owners of shares of the Issuer's common stock beneficially owned by the other persons described in Item 4. Based on information provided to the Reporting Persons, Appaloosa Management LP and its related entities beneficially own 84,949,069 shares, Merrill Lynch, Pierce, Fenner & Smith Incorporated beneficially owns 1,958,350 shares and UBS Securities LLC beneficially owns 4,540,719 shares. CUSIP No. 247126105 --------------------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Harbert Management Corporation 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [_] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Alabama NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 26,450,000 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 26,450,000 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 26,450,000 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.7%(1) 14. TYPE OF REPORTING PERSON* CO - ---------- (1) As a result of the proposal and related agreements described in Item 4, the Reporting Persons are deemed to be the beneficial owners of shares of the Issuer's common stock beneficially owned by the other persons described in Item 4. Based on information provided to the Reporting Persons, Appaloosa Management LP and its related entities beneficially own 84,949,069 shares, Merrill Lynch, Pierce, Fenner & Smith Incorporated beneficially owns 1,958,350 shares and UBS Securities LLC beneficially owns 4,540,719 shares. CUSIP No. 247126105 --------------------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Philip Falcone 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [_] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 26,450,000 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 26,450,000 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 26,450,000 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.7%(1) 14. TYPE OF REPORTING PERSON* IN - ---------- (1) As a result of the proposal and related agreements described in Item 4, the Reporting Persons are deemed to be the beneficial owners of shares of the Issuer's common stock beneficially owned by the other persons described in Item 4. Based on information provided to the Reporting Persons, Appaloosa Management LP and its related entities beneficially own 84,949,069 shares, Merrill Lynch, Pierce, Fenner & Smith Incorporated beneficially owns 1,958,350 shares and UBS Securities LLC beneficially owns 4,540,719 shares. CUSIP No. 247126105 --------------------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Raymond J. Harbert 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [_] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 26,450,000 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 26,450,000 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 26,450,000 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.7%(1) 14. TYPE OF REPORTING PERSON* IN - ---------- (1) As a result of the proposal and related agreements described in Item 4, the Reporting Persons are deemed to be the beneficial owners of shares of the Issuer's common stock beneficially owned by the other persons described in Item 4. Based on information provided to the Reporting Persons, Appaloosa Management LP and its related entities beneficially own 84,949,069 shares, Merrill Lynch, Pierce, Fenner & Smith Incorporated beneficially owns 1,958,350 shares and UBS Securities LLC beneficially owns 4,540,719 shares. CUSIP No. 247126105 --------------------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Michael D. Luce 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x] (b) [_] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 26,450,000 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 26,450,000 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 26,450,000 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.7%(1) 14. TYPE OF REPORTING PERSON* IN - ---------- (1) As a result of the proposal and related agreements described in Item 4, the Reporting Persons are deemed to be the beneficial owners of shares of the Issuer's common stock beneficially owned by the other persons described in Item 4. Based on information provided to the Reporting Persons, Appaloosa Management LP and its related entities beneficially own 84,949,069 shares, Merrill Lynch, Pierce, Fenner & Smith Incorporated beneficially owns 1,958,350 shares and UBS Securities LLC beneficially owns 4,540,719 shares. CUSIP No. 247126105 --------------------- Item 1. Security and Issuer. This Schedule 13D filed by the Reporting Persons (defined below) relates to the common stock, $0.01 par value per share (the "Shares"), of Delphi Corporation, a Delaware corporation (the "Issuer"). The address of the issuer is 5725 Delphi Drive, Troy, Michigan 48098. Certain information contained in this Schedule 13D relates to share ownership of persons other than the Reporting Persons. The Reporting Persons expressly disclaim any liability for any such information and for any other information provided in this Schedule 13D that does not expressly pertain to a Reporting Person. The information set forth in the Exhibits to this Schedule 13D is hereby expressly incorporated herein by reference, and the responses to each item of this Schedule 13D are qualified in their entirety by the provisions of such Exhibits. - -------------------------------------------------------------------------------- Item 2. Identity and Background. (a-c,f) This Schedule 13D is being filed by Harbinger Capital Partners Master Fund I, Ltd. (the "Master Fund"), Harbinger Capital Partners Offshore Manager, L.L.C., ("Harbinger Management"), the sole investment manager of the Master Fund, HMC Investors, L.L.C., ("HMC Investors") the managing member of Harbinger Management, Harbert Management Corporation ("HMC"), the managing member of HMC Investors, Philip Falcone, a shareholder of HMC who acts as the portfolio manager of the Master Fund, Raymond J. Harbert, a shareholder of HMC, and Michael D. Luce, a shareholder of HMC (each of the Master Fund, Harbinger Management, HMC Investors, HMC, Philip Falcone, Raymond J. Harbert and Michael D. Luce may be referred to herein as a "Reporting Person" and collectively may be referred to as "Reporting Persons"). The Master Fund is a Cayman Islands corporation with its principal business address at c/o International Fund Services (Ireland) Limited, Third Floor, Bishop's Square, Redmond's Hill, Dublin 2, Ireland. Each of Harbinger Management and HMC Investors is a Delaware limited liability company. HMC is an Alabama corporation. Each of Philip Falcone, Raymond J. Harbert and Michael D. Luce is a United States citizen. The principal business address for Philip Falcone is 555 Madison Avenue, 16th Floor, New York, New York 10022. The principal business address for each of Harbinger Management, HMC Investors, HMC, Raymond J. Harbert and Michael D. Luce is One Riverchase Parkway South, Birmingham, Alabama 35244. - -------------------------------------------------------------------------------- Item 3. Source and Amount of Funds or Other Consideration. As of the date hereof the Master Fund may be deemed to beneficially own 26,450,000 Shares. As of the date hereof Harbinger Management may be deemed to beneficially own 26,450,000 Shares. As of the date hereof HMC Investors may be deemed to beneficially own 26,450,000 Shares. As of the date hereof HMC may be deemed to beneficially own 26,450,000 Shares. As of the date hereof Philip Falcone may be deemed to beneficially own 26,450,000 Shares. As of the date hereof Raymond J. Harbert may be deemed to beneficially own 26,450,000 Shares. As of the date hereof Michael D. Luce may be deemed to beneficially own 26,450,000 Shares. No borrowed funds were used to purchase the Shares, other than any borrowed funds used for working capital purposes in the ordinary course of business. - -------------------------------------------------------------------------------- Item 4. Purpose of Transaction. The Master Fund is a member of an Ad Hoc Equity Committee of Delphi Corporation (the "Ad Hoc Committee"). In such capacity, on July 31, 2006, the Master Fund was party to a Confidential Information, Standstill and Nondisclosure Agreement (the "Confidentiality Agreement"). The Confidentiality Agreement is attached hereto as Exhibit B. Also on July 31, 2006, the Reporting Persons were party to engagement letters entered into with UBS and Merrill Lynch to serve as lead financial adviser and lead capital markets provider, and additional financial adviser, respectively, in connection with any potential restructuring, acquisition or other transaction involving the Issuer. The engagement letters are attached hereto as Exhibit C and D. On August 25, 2006, the Reporting Persons were party to an amendment to the Confidentiality Agreement (the "Amendment"). The Amendment is attached hereto as Exhibit E. On December 18, 2006, A-D Acquisition Holdings, LLC ("ADAH") (an affiliate of Appaloosa Management LP ("Appaloosa")), Dolce Investments, LLC ("Dolce") (an affiliate of Cerberus Capital Management L.P. ("Cerberus")), Harbinger Del-Auto Investment Company, Ltd. ("Del-Auto") (an affiliate of the Master Fund), Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill") and UBS Securities LLC ("UBS") delivered to the Issuer a proposal, which the Issuer accepted, for a potential investment of up to $3.4 billion in the aggregate in preferred and common equity of the reorganized Issuer and a proposed reorganization framework for the Issuer (the "Proposal"). Each of ADAH, Dolce, Del-Auto, Merrill and UBS are referred to herein as the "Investors." A copy of the Proposal is attached hereto as Exhibit F. According to the Proposal, the Investors would enter into an Equity Purchase and Commitment Agreement (the "Investment Agreement") providing for the potential equity investment. The Proposal will terminate if, on or before January 22, 2007, (x) the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court") does not issue an order reasonably satisfactory to the Investors approving and authorizing the Issuer to enter into the Investment Agreement and certain other matters, (y) the Issuer has not entered into the Investment Agreement or (z) any of the Investors determines in its sole discretion that any of the conditions contained in the Investment Agreement are incapable of being satisfied or that any of the Investors is entitled to exercise a termination right under the Investment Agreement. Equity Investment - ----------------- Under the terms of the Investment Agreement, on the terms and subject to the conditions of the Investment Agreement, the Investors would purchase an aggregate of $1.2 billion of convertible preferred stock and approximately $200 million of common stock in the reorganized Issuer as follows: (i) each Investor would purchase (A) for $35.00 per share, each Investor's proportionate share of 6,300,000 shares of the reorganized Issuer's new common stock (the "Direct Subscription Shares") and (B) for $35.00 per share, each Investor's proportionate share of the reorganized Issuer's new Series B Senior Convertible Preferred Stock (the "Series B Preferred Stock"); (ii) Dolce would purchase for $35.00 per share, 8,571,429 shares of the reorganized Issuer's new Series A-1 Senior Convertible Preferred Stock (the "Series A-1 Preferred Stock"); and (iii) ADAH would purchase for $35.00 per share, 8,571,429 shares of the reorganized Issuer's new Series A-2 Senior Convertible Preferred Stock (the "Series A-2 Preferred Stock", and together with the Series A-1 Preferred Stock, the "Series A Preferred Stock"). The number of Direct Subscription Shares and Series B Preferred Stock to be purchased by each Investor is set forth on Schedule 2 to the Investment Agreement. Additionally, on the terms and subject to the conditions of the Investment Agreement, the Investors would purchase any unsubscribed shares of the reorganized Issuer's new common stock in connection with an approximately $2.0 billion rights offering that would be made available to holders of Common Stock as of a record date to be determined by the Issuer. In accordance with the Investment Agreement, the Issuer would distribute certain rights to holders of Common Stock to acquire new common stock of the reorganized Issuer subject to the effectiveness of a registration statement to be filed with the U.S. Securities and Exchange Commission, approval of the Bankruptcy Court and satisfaction of other terms and conditions. The rights, which would be transferable by the original eligible holders, would permit holders to purchase their pro rata share of new common stock of the reorganized Issuer at $35.00 per share. Altogether, the Investors could invest up to an aggregate of $3.4 billion in the reorganized Issuer. The Investment Agreement is subject to the completion of due diligence to the satisfaction of the Investors in their sole discretion, satisfaction or waiver of numerous other conditions (including the Issuer's achievement of consensual agreements with its U.S. labor unions and General Motors Corporation ("GM") that are acceptable to the Investors in their sole discretion) and the non-exercise by either the Issuer or the Investors of certain termination rights, all of which are more fully described in the Investment Agreement. The Investors would be entitled to payment of certain commitment fees and an alternate transaction fee at the times and under the circumstances set forth in the Investment Agreement. Plan of Reorganization Framework - -------------------------------- The Investors, the Issuer and GM also executed on December 18, 2006, a Plan Framework Support Agreement (the "Plan Framework Support Agreement") which contains terms pursuant to which the parties agree to support confirmation and consummation of a plan of reorganization for the Issuer which will be based on the terms contained in the Plan Framework Support Agreement (the "Plan Framework"). A copy of the Plan Framework Support Agreement is attached hereto as Exhibit G. The Plan Framework provides for, among other things, the distributions to be made to creditors and stockholders, the treatment of GM's claims against the Issuer, the resolution of certain pension funding issues and the corporate governance of the reorganized Issuer. The Plan Framework Support Agreement as well as the economics and structure of the Plan Framework itself are conditioned on reaching consensual agreements with the Issuer's U.S. labor unions and GM. Both the Issuer and the Investors are permitted to terminate the Investment Agreement (which terminates the Plan Framework Support Agreement) if consensual agreements are not reached with the Issuer's U.S. labor unions and GM by Jan. 31, 2007. Corporate Governance Structure - ------------------------------ The Investment Agreement and the Plan Framework Support Agreement also include certain corporate governance provisions for the reorganized Issuer. Under the terms of the proposed plan, the reorganized Issuer would be governed by a 12 member board of directors, two of whom would be a new Executive Chairman and a new Chief Executive Officer and President. Pursuant to the term sheet for preferred stock attached as an Exhibit to the Investment Agreement (the "Preferred Term Sheet") and Plan Framework Support Agreement, Rodney O'Neal would be the Chief Executive Officer and President of the Issuer. A five member selection committee, consisting of John D. Opie, the lead independent director of the Issuer's current board of directors, a representative of each of the Issuer's two statutory committees and a representative of each of Appaloosa and Cerberus will select the company's post-emergence Executive Chairman as well as four other directors (one of whom may be from the Issuer's current board of directors). Appaloosa and Cerberus must both concur in the selection of the Executive Chairman, but do not vote on the four other directors. Each of Appaloosa and Cerberus would appoint three board members comprising the remaining six members of the reorganized Issuer's new board of directors. The new board of directors would be required to satisfy all independence requirements imposed by the relevant stock exchange on which the reorganized Issuer's common stock would be traded. Executive compensation for the reorganized Issuer must be on market terms, must be reasonably acceptable to ADAH and Dolce, and the overall executive compensation plan design must be described in the Issuer's disclosure statement and incorporated into the plan of reorganization. The holders of the Series A Preferred Stock will have certain approval rights with respect to certain significant corporate transactions such as incurring debt, transferring assets and engaging in mergers or acquisitions, as more fully described in the Preferred Term Sheet. Except as described in this Item 4 or otherwise described in this Statement, the Reporting Persons currently have no plans or proposals which relate to or would result in any transaction, event or action enumerated in paragraphs (a) through (j) of Item 4 of the form of Schedule 13D promulgated under the Securities Exchange Act of 1934, as amended. Subject to the terms of the Investment Agreement and the Plan Framework Support Agreement, each of the Reporting Persons reserves the right, in light of its or his ongoing evaluation of the Issuer's financial condition, business, operations and prospects, the market price of the Common Stock, conditions in the securities markets generally, general economic and industry conditions, its or his business objectives and other relevant factors, to change its or his plans and intentions at any time, as it or he deems appropriate. In particular, and without limiting the generality of the foregoing (but subject to the terms of the Confidentiality Agreement), any one or more of the Reporting Persons (and their respective affiliates) reserves the right, in each case subject to any applicable limitations imposed on the sale of any of their Common Stock by the Securities Act of 1933, as amended, or other applicable law, to (i) purchase additional shares of Common Stock or other securities of the Issuer, (ii) sell or transfer shares of Common Stock or other securities beneficially owned by them from time to time in public or private transactions and (iii) cause any of the Reporting Persons to distribute in kind to their respective stockholders, partners or members, as the case may be, shares of Common Stock or other securities owned by such Reporting Persons. This Schedule 13D is not a solicitation for votes on the Issuer's plan of reorganization. No disclosure statement has been approved by the Bankruptcy Court for the Issuer's plan of reorganization. - -------------------------------------------------------------------------------- Item 5. Interest in Securities of the Issuer. (a, b) As of the date hereof, the Master Fund may be deemed to be the beneficial owner of 26,450,000 Shares, constituting 4.7% of the Shares of the Issuer, based upon 561,781,590 Shares outstanding as of July 31, 2006. The Master Fund has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 26,450,000 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 26,450,000 Shares. (a, b) As of the date hereof, Harbinger Management may be deemed to be the beneficial owner of 26,450,000 Shares, constituting 4.7% of the Shares of the Issuer, based upon 561,781,590 Shares outstanding as of July 31, 2006. Harbinger Management has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 26,450,000 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 26,450,000 Shares. Harbinger Management specifically disclaims beneficial ownership in the Shares reported herein except to the extent of its pecuniary interest therein. (a, b) As of the date hereof, HMC Investors may be deemed to be the beneficial owner of 26,450,000 Shares, constituting 4.7% of the Shares of the Issuer, based upon 561,781,590 Shares outstanding as of July 31, 2006. HMC Investors has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 26,450,000 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 26,450,000 Shares. HMC Investors specifically disclaims beneficial ownership in the Shares reported herein except to the extent of its pecuniary interest therein. (a, b) As of the date hereof, HMC may be deemed to be the beneficial owner of 26,450,000 Shares, constituting 4.7% of the Shares of the Issuer, based upon 561,781,590 Shares outstanding as of July 31, 2006. HMC has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 26,450,000 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 26,450,000 Shares. HMC specifically disclaims beneficial ownership in the Shares reported herein except to the extent of its pecuniary interest therein. (a, b) As of the date hereof, Philip Falcone may be deemed to be the beneficial owner of 26,450,000 Shares, constituting 4.7% of the Shares of the Issuer, based upon 561,781,590 Shares outstanding as of July 31, 2006. Mr. Falcone has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 26,450,000 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 26,450,000 Shares. Mr. Falcone specifically disclaims beneficial ownership in the Shares reported herein except to the extent of his pecuniary interest therein. (a, b) As of the date hereof, Raymond J. Harbert may be deemed to be the beneficial owner of 26,450,000 Shares, constituting 4.7% of the Shares of the Issuer, based upon 561,781,590 Shares outstanding as of July 31, 2006. Mr. Harbert has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 26,450,000 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 26,450,000 Shares. Mr. Harbert specifically disclaims beneficial ownership in the Shares reported herein except to the extent of his pecuniary interest therein. (a, b) As of the date hereof, Michael D. Luce may be deemed to be the beneficial owner of 26,450,000 Shares, constituting 4.7% of the Shares of the Issuer, based upon 561,781,590 Shares outstanding as of July 31, 2006. Mr. Luce has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 26,450,000 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 26,450,000 Shares. Mr. Luce specifically disclaims beneficial ownership in the Shares reported herein except to the extent of his pecuniary interest therein.\ Furthermore, the Reporting Persons specifically disclaim beneficial ownership of the Shares owned by Appaloosa, Dolce, Merrill and UBS. - -------------------------------------------------------------------------------- Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. The Master Fund joined the Ad Hoc Committee. In such capacity, on July 31, 2006, the Reporting Persons were party to the Confidentiality Agreement. Also on July 31, 2006, the Reporting Persons were party to engagement letters entered into with UBS and Merrill Lynch to serve as lead financial adviser and lead capital markets provider, and additional financial adviser, respectively, in connection with any potential restructuring, acquisition or other transaction involving the Issuer. On August 25, 2006, the Reporting Persons were party to the Amendment. On December 18, 2006 (i) the Investors delivered the Proposal to the Issuer, which the Issuer accepted and (ii) the Investors, the Issuer and GM entered into the Plan Framework Support Agreement. Concurrent with the delivery of the Proposal, Appaloosa, Del-Auto and Merrill entered into a limited partnership agreement (the "Limited Partnership Agreement") in connection with the establishment of DEL A-2 L.P. (the "Partnership"), a copy of which is attached hereto as Exhibit H. Pursuant to the Limited Partnership Agreement, an entity wholly-owned by Appaloosa is the general partner of the Partnership. Merrill and entities affiliated with Appaloosa and Del-Auto are limited partners of the Partnership. A commitment letter from Del-Auto regarding its affiliate's obligations as a limited partner is attached hereto as Exhibit I. Pursuant to the Limited Partnership Agreement, if Series A-2 Preferred Stock is purchased by ADAH, it would be sold to the Partnership at a purchase price equal to that paid by ADAH and the Limited Partners would make an investment in the Partnership, and be entitled to participate in distributions on account of, and proceeds in respect of, the Series A-2 Preferred Stock. In addition, concurrent with the delivery of the Proposal, Appaloosa, Del-Auto, UBS and Merrill entered into an agreement regarding the allocation of certain potential liabilities in connection with any breach of the Investment Agreement. A Copy of such agreement is attached hereto as Exhibit J. * * * Other than as described in this statement, to the best knowledge of the Reporting Persons there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the Reporting Persons, and between any such persons and any other person, with respect to any securities of the Issuer, including but not limited to, transfer and voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, or a pledge or contingency the occurrence of which would give another person voting power or investment power over the securities of the Issuer. - -------------------------------------------------------------------------------- Item 7. Material to be Filed as Exhibits. Exhibit A: Agreement between the Reporting Persons to file jointly. Exhibit B: Confidential Information, Standstill and Nondisclosure Agreement, by and among Appaloosa Management L.P., Harbinger Capital Partners Master Fund I, Ltd. and Delphi Corporation, dated July 31, 2006. Exhibit C: Engagement Letter, by and among Appaloosa Management L.P., Harbinger Capital Partners Master Fund I, Ltd. and UBS Securities LLC, dated July 31, 2006. Exhibit D: Engagement Letter, by and among Appaloosa Management L.P., Harbinger Capital Partners Master Fund I, Ltd. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, dated July 31, 2006. Exhibit E: Amended Confidential Information, Standstill and Nondisclosure Agreement, by and among Appaloosa Management L.P., Harbinger Capital Partners Master Fund I, Ltd. and Delphi Corporation, dated August 25, 2006. Exhibit F: Proposal Letter (attaching form of Equity Purchase and Commitment Agreement and Equity Commitment Letters) dated December 18, 2006 (incorporated by reference to Exhibit 99.E of the Form 8-K filed by Delphi Corporation on December 18, 2006). Exhibit G: Plan Framework Support Agreement, dated December 18, 2006, among Delphi Corporation, General Motors Corporation, Appaloosa Management L.P., Cerberus Capital Management, L.P., Harbinger Capital Partners Master Fund I, Ltd., Merrill Lynch, Pierce, Fenner & Smith Incorporated and UBS Securities LLC (incorporated by reference to Exhibit 99.A of the Form 8-K filed by Delphi Corporation on December 18, 2006). Exhibit H: Agreement of Limited Partnership of Del A-2 L.P., dated December 18, 2006, among A-D GP Management, LLC, Appaloosa Investment L.P. I, Palomino Fund Ltd., Harbinger Del-Auto Investment Company, Ltd. and Merrill Lynch, Pierce, Fenner & Smith Incorporated. Exhibit I: Commitment Letter from Harbinger Capital Partners Master Fund I, Ltd. to Harbinger Del-Auto Investments Company, Ltd. and DEL A-2 L.P. Exhibit J: Contribution and Reimbursement Agreement, dated December 18, 2006, among Appaloosa Management L.P., Harbinger Capital Partners Master Fund I, Ltd., Harbinger Capital Partners Special Situations Fund, L.P., Merrill Lynch, Pierce, Fenner & Smith, Incorporated and UBS Securities LLC. - -------------------------------------------------------------------------------- SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Harbinger Capital Partners Master Fund I, Ltd. By: Harbinger Capital Partners Offshore Manager, L.L.C. By: HMC Investors, L.L.C., Managing Member By: /s/ Joel B. Piassick ________________________ Harbinger Capital Partners Offshore Manager, L.L.C. By: HMC Investors, L.L.C., Managing Member By: /s/ Joel B. Piassick - ------------------------------- HMC Investors, L.L.C. By: /s/ Joel B. Piassick - ------------------------------- Harbert Management Corporation By: /s/ William R. Lucas, Jr. - ------------------------------- /s/ Philip Falcone - ------------------------------- Philip Falcone /s/ Raymond J. Harbert - ------------------------------- Raymond J. Harbert /s/ Michael D. Luce - ------------------------------- Michael D. Luce December 22, 2006 Attention. Intentional misstatements or omissions of fact constitute federal criminal violations (see 18 U.S.C. 1001). Exhibit A AGREEMENT The undersigned agree that this Schedule 13D dated December 22, 2006 relating to the Common Stock, $0.01 par value of Delphi Corporation shall be filed on behalf of the undersigned. Harbinger Capital Partners Master Fund I, Ltd. By: Harbinger Capital Partners Offshore Manager, L.L.C. By: HMC Investors, L.L.C., Managing Member By: /s/ Joel B. Piassick - ------------------------------- Harbinger Capital Partners Offshore Manager, L.L.C. By: HMC Investors, L.L.C., Managing Member By: /s/ Joel B. Piassick - ------------------------------- HMC Investors, L.L.C. By: /s/ Joel B. Piassick - ------------------------------- Harbert Management Corporation By: /s/ William R. Lucas, Jr. - ------------------------------- /s/ Philip Falcone - ------------------------------- Philip Falcone /s/ Raymond J. Harbert - ------------------------------- Raymond J. Harbert /s/ Michael D. Luce - ------------------------------- Michael D. Luce December 22, 2006 SK 03773 0003 732909 EX-99.B 2 d733749_ex99-b.txt July 31, 2006 VIA ELECTRONIC MAIL Appaloosa Management L.P. 26 Main Street Chatham, New Jersey 07928 Attn: Mr. David A. Tepper Mr. Ronald M. Goldstein Harbinger Capital Partners Master Fund I, Ltd. c/o 555 Madison Avenue 16th Floor New York, New York 10022 Attn: Mr. Philip A. Falcone CONFIDENTIAL INFORMATION, STANDSTILL AND NONDISCLOSURE AGREEMENT --------------------------- Gentlemen: This letter agreement relates to discussions involving Appaloosa Management L.P. and its affiliates ("Appaloosa") and Harbinger Capital Partners Master Fund I, Ltd. and its affiliates ("Harbinger") (collectively, "you" or "your", it being understood that, unless otherwise determined by Delphi Corporation, Harbinger will communicate with Delphi only through Appaloosa) involving Delphi Corporation ("Delphi"), a debtor and debtor-in-possession in chapter 11 cases (the "Chapter 11 Cases") in the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court") concerning possible negotiated business arrangements between you and the Company (defined below). In connection with your interest in and review of certain matters relating to Delphi and its subsidiaries and affiliates (together with their respective officers, directors, employees, agents, affiliates and other representatives, the "Company"), the Company may furnish to you certain non-public, confidential and/or proprietary information pertaining to the Company which is reasonably necessary in order for you to evaluate a Transaction (as defined below) and which the Company reasonably determines is not competitively sensitive or legally privileged (such information is anticipated to include the financial presentations generally provided on a regular basis to the Company's statutory committees and/or their advisors relating to the Company's transformation plan which are reasonably necessary in order for you to evaluate a Transaction). Such information, in whole or in part, whether written or oral, together with any analyses, summaries, compilations, studies, forecasts, abstracts or documents prepared during the review of the Company by you or your Representatives (as defined below) which contain, are based upon or otherwise reflect such information, is hereinafter referred to as the "Evaluation Material." The term "Evaluation Material" does not include any information which you demonstrate: (a) previously was available to you on a non-confidential basis or by virtue of your becoming a member, if ever, of an official committee in the Chapter 11 Cases (provided, however, that any information made available to you in your capacity as a member of a statutory committee shall be kept confidential as may be required pursuant to agreements between such statutory committee and the Company and any applicable duties and obligations you may have as a member of such committee); (b) was obtained from a third person which, insofar as you know, following reasonable inquiry, is not subject to any prohibition against disclosure; or (c) is or becomes generally available to the public other than as a result of disclosure by of you or any of your Representatives in violation of this agreement. You will use the Evaluation Material solely for the purpose of: (1) considering a possible negotiated business arrangement in our mutual interest involving the Company in the Chapter 11 Cases (such business arrangement, the "Transaction"), and (2) to the extent such Transaction is acceptable to the Company, implementation of such Transaction, and you will not use the Evaluation Material for any other business or competitive purpose. Except as required by law, rule or regulation, you will keep the Evaluation Material strictly confidential and will not disclose the Evaluation Material to any person or entity (including any official or unofficial committee in the Chapter 11 Cases), except that you may disclose the Evaluation Material or portions thereof to those of your directors, officers, partners, employees, agents, financial institutions, attorneys, advisors and accountants (collectively, "Representatives") who need to know such information for the purpose of evaluating on your behalf a Transaction and who also execute an acknowledgment wherein they agree to be bound by the confidentiality provisions of this agreement as if they were parties hereto. Without the prior written consent of the Company, neither you nor your Representatives will disclose to any person or entity (including any official or unofficial committee in the Chapter 11 Cases) the fact that the Evaluation Material has been made available or that discussions between the parties concerning a Transaction are taking place or any term, condition or other fact relating to such business arrangement (except as required by law, rule or regulation and subject to any applicable fiduciary duties as a committee member). You will be responsible for any breach of this agreement by you or any of your Representatives. Prior to the earlier of (i) February 15, 2007, (ii) the date on which the Company files a plan of reorganization in the Chapter 11 Cases (a "Plan of Reorganization") in which any party in interest in the Chapter 11 Cases is afforded an opportunity to participate, including, without limitation, an opportunity to participate in a rights offering for the equity of the Delphi following emergence from the Chapter 11 Cases but the holders of Delphi equity are not afforded such opportunity, (iii) any date selected by the Company in its discretion following either the filing by you of a pleading in the Chapter 11 Cases or the taking by you of a public position which respect to a matter relating to the Chapter 11 Cases which in either case the Company believes is in opposition to, or inconsistent with, a position the Company has taken or expects to take in the Chapter 11 Cases, and (iv) the fifth business day following notice by you that the Company has not delivered to you previously-requested information (other than information the Company reasonably determines is competitively sensitive or legally privileged) described in such notice unless either such information is not reasonably necessary in order for you to evaluate a Transaction or prior, to such fifth business day, the Company delivers to you such information (such earlier date, the "Release Date"), unless otherwise agreed to by the Company in writing, you agree, in your individual capacity and not as a committee member, if ever applicable, to engage (along with your Representatives) in discussions and negotiate exclusively with the Company and its legal and financial advisors with respect to a Transaction. In addition, you hereby withdraw the letter to the Members of the Board of Directors of Delphi, dated March 15, 2006 (the "March 15 Letter"). You will file an amendment to your Schedule 13D disclosing this Agreement and related matters (including that you have withdrawn the March 15 letter). You hereby represent that you have, and will have at all times after the execution of this agreement and prior to the Release Date, a "Net Long Position" (as defined below) with respect to the Company. At the Company's request you agree promptly to provide the Company with reasonable information which supports the initial representation in the prior sentence and your continued compliance with the prior sentence and the next sentence. In addition, prior to the Release Date, you will not sell, dispose of or otherwise transfer any equity or debt securities, equity or fixed income related credit derivatives or other instruments (including put equivalent and call equivalent instruments) issued by, guaranteed by or relating to the Company. With respect to the Company, a "Net Long Position" means that, on an aggregate basis with respect to all equity or debt securities, equity or fixed income related credit derivatives or other instruments (including put equivalent and call equivalent instruments) issued by, guaranteed by or relating to the Company, your portfolio of such securities, derivatives and other instruments would be reasonably likely to gain in value if an event occurred which would be reasonably likely to cause the credit quality of the Company to improve. In the event that you or any of your Representatives are legally required (by deposition, interrogatories, requests for documents, subpoena, civil investigation demand or similar process) to disclose any of the Evaluation Material, or if you or any of your Representatives are legally required (by deposition, interrogatories, requests for documents, subpoena, civil investigation demand or similar process) to disclose the fact that the Evaluation Material has been made available or that discussions between the parties are taking place or any other fact relating to a Transaction, you will provide to the extent practicable, the Company with prompt prior written notice of such requirement so that the Company may (a) seek a protective order or other appropriate remedy or (b) in its sole discretion, waive compliance with the terms of this agreement. If a protective order or other remedy is not obtained within a reasonable period of time, or the Company waives compliance with the terms of this agreement, you or your Representatives, as applicable, will disclose only that which you or your Representatives are legally required to disclose or which is necessary to avoid sanction for contempt of court and you or your Representatives, as applicable, will exercise commercially reasonable efforts (which efforts will consist of at least the efforts you undertake in connection with ensuring the confidential treatment of your non-public, confidential and/or proprietary information) to ensure confidential treatment of (x) the Evaluation Material, (y) the fact that the Evaluation Material has been made available or that discussions between the parties are taking place, and (z) any other fact you are prohibited from disclosing pursuant to this agreement. If we do not proceed with a Transaction, or if the Company so requests, you will promptly return to the Company all copies (including originals) of the Evaluation Material in your possession or in the possession of your Representatives, and you will promptly destroy all Evaluation Material which constitutes copies (including originals) of any analyses, studies, abstracts or other documents prepared by you or your Representatives or for your or your Representatives' use, and any such destruction shall be certified in writing to us by a duly authorized Representative of yours. Notwithstanding the return or destruction of Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality hereunder for the period commencing on the date hereof through the first anniversary of the date of the consummation of a Plan of Reorganization. You understand and agree that except as set forth in written definitive agreements in connection with a Transaction, the Company has not made or is not making any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and nor will the Company or its affiliates or any of their respective officers, directors, employees, agents, affiliates, attorneys, advisors or accountants have any liability to you or any other person or entity relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. For the period commencing on the date hereof through the Release Date (unless the Company is determined by a final order of the Bankruptcy Court to have failed to perform in all material respects all of its obligations hereunder), (a) you will not seek, and will cause each of your affiliates not to, directly or indirectly, knowingly seek, or solicit or induce, or attempt to solicit or induce a third party to seek, or support a third party that may seek or is seeking to shorten or terminate the Company's exclusive periods (the "Exclusive Periods") to propose and/or solicit a Plan of Reorganization; provided, however, that if you become a member of an official committee in the Chapter 11 Cases, then in your capacity as a member of such a committee, you may participate in committee discussions, committee meetings and committee votes with respect to the foregoing matters consistent with your fiduciary duties as a member of such committee and (b) you will not take, and will cause each of your affiliates not to take, directly or indirectly, any action with respect to the matters described in the March 15 Letter. Until the later of the Release Date and the date upon which you are no longer in possession of material, non-public information about the Company (unless the Company is determined by a final order of the Bankruptcy Court to have failed to perform in all material respects all of its obligations hereunder), without the prior written consent of the Company, you will not, and will cause each of your affiliates and Representatives (in their capacity as such) not to, singly or as part of a group, in any manner, directly or indirectly: (i) participate in any solicitation of proxies or become a participant in any election contest with respect to the Company, (ii) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to Delphi's common stock, and (iii) sell, dispose of or otherwise transfer any equity securities of the Company ("Equity Securities"), any debt securities of the Company ("Debt Securities"), or assets of or claims against the Company, or any rights to acquire any Equity Securities, Debt Securities, or assets of or claims against the Company. In addition, nothing in this letter agreement results in or will result in a modification, amendment, waiver of any provision in the (i) the Final Order Under 11 USC Sections 105, 362 and 541 FED. R. BANKR. P. 3001 dated January 6, 2006 (A) Establishing Notification Procedures Applicable to Substantial Holders of Claims and Equity Securities and (B) Establishing Notification and Hearing Procedures for Trading in Claims and Equity Securities, (ii) the letter agreements, dated November 22, 2005 and January 9, 2006, between the Company and Palomino Fund, (iii) the letter agreements, dated December 5, 2005 and January 9, 2006 between the Company and Appaloosa Investment Partnership I, and (iv) the letter agreements, both dated January 9, 2006, between the Company and Appaloosa Management LP. You agree that money damages would not be a sufficient remedy for any breach of this agreement by you or your Representatives and that, in addition to all other remedies, the Company will be entitled to equitable relief, including specific performance and injunctive or other equitable relief, in the event of any breach or threatened breach of any provision of this agreement. In the event of litigation relating to this agreement, each party shall pay its own expenses. You acknowledge and agree that the Company is free to terminate discussions and negotiations with you at any time after the Release Date and for any reason (provided, however, that the Company will not be limited in any way by the terms of this letter agreement in allocating, prioritizing and directing its resources and personnel, including its employees, agents and representatives, to discussions and negotiations with other parties in connection with the Chapter 11 Cases or other matter) and unless and until a written definitive agreement concerning a Transaction has been executed and approved by the Bankruptcy Court, neither the Company nor any of our affiliates or any of our or their respective officers, directors, employees, agents, affiliates, attorneys, advisors or accountants will have any liability to you with respect to any business arrangement, whether by virtue of this agreement, any other written or oral expression with respect to any Transaction or otherwise. You acknowledge that you and your Representatives may receive material non-public information in connection with your evaluation of any Transaction and you are aware (and you will so advise your Representatives) that the United States securities laws impose restrictions on trading in securities when in possession of such information. The Company understands that you would prefer not to be in possession of material non-public information at the time a Plan of Reorganization becomes effective. In this regard, the Company will use commercially reasonable efforts to avoid providing you with information that the Company expects is likely to be material non-public information as of the effective date of such a Plan of Reorganization and you shall follow appropriate procedures to screen information the Company provides to you to avoid being in possession or having knowledge of material non-public information as of such date. If, however, you believe that you are in possession of material non-public information at the time a Plan of Reorganization becomes effective, you may request the Company to make appropriate public disclosure such that the information would no longer be non-public, and the Company will make such public disclosure if the Company reasonably determines that such public disclosure would be in the best interests of the Company and its constituents. If information subject to a claim of attorney-client privilege, work product doctrine or any other ground on which production of such information should not be made is nevertheless inadvertently produced by the Company to you or your Representatives, such production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to, any claim of privilege, work product or other ground for withholding production to which the Company would otherwise be entitled. If a claim of inadvertent production is made pursuant to this paragraph with respect to information then in the custody of you or your Representatives, then you or your Representatives, as the case may be, shall, upon request, promptly return to the Company that material (including all copies thereof) as to which the claim of inadvertent production has been made, and you and your Representatives shall not further use such information for any purpose. Appaloosa and Harbinger are acting independently and not in concert with respect to this agreement and nothing in this agreement shall be construed to suggest that Appaloosa and Harbinger are in any manner acting together with respect to the Company or any Transaction. This agreement is solely for the benefit of the Company and its respective successors and assigns. The rights of the Company under this agreement may be assigned in whole or in part to any purchaser of the Company or any substantial part thereof, which purchaser shall be entitled to enforce this agreement to the same extent and in the same manner as the Company is entitled to enforce this agreement. No failure or delay by the Company in the exercise of any right, power or privilege hereunder will operate as a waiver thereof. This agreement can only be modified or waived in writing. Notices required or permitted by this Agreement shall be given by certified mail, return receipt requested, overnight courier service or facsimile to the following notice addresses: A. For the Company: David M. Sherbin, Esq. Vice President, General Counsel and Chief Compliance Officer Delphi Corporation 5725 Delphi Drive Troy, Michigan 48098-2815 Telephone: (248) 813-2000 Facsimile: (248) 813-2670 with a copy to: John Wm. Butler, Jr., Esq. Skadden, Arps, Slate, Meagher & Flom LLP 333 West Wacker Drive Chicago, IL 60606-1285, Suite 2100 Telephone: (312) 407-0700 Facsimile: (312) 407-0411 B. For Appaloosa Management L.P. Appaloosa Management L.P. 26 Main Street Chatham, New Jersey 07928 Attn: Mr. David A. Tepper Mr. Ronald M. Goldstein Telephone: (973) 701-7000 Facsimile: (973) 701-7055 C. For Harbinger Capital Partners Master Fund I, Ltd. Harbinger Capital Partners Master Fund I, Ltd. c/o 555 Madison Avenue 16th Floor New York, New York 10022 Attn: Mr. Philip A. Falcone Telephone: (212) 521-6970 Facsimile: (212) 508-3721 with a copy to: Harbinger Capital Partners Master Fund I, Ltd. One Riverchase Parkway South Birmingham, AL 35244 Attn: Legal Department Telephone: (205) 987-5500 Facsimile: (205) 987-5505 Any proceeding relating to this letter agreement shall be brought in the Bankruptcy Court during the pendency of the Chapter 11 Cases and thereafter in a federal or state court of New York. You and the Company hereby consent to personal jurisdiction in any such action and to service of process by mail, and waive any objection to venue in any such court. This letter shall be governed by the internal laws of the State of New York and shall inure to the benefit of and be binding upon the Company and you and our respective affiliates, successors and assigns, including any successor to the Company or you or substantially all of the Company's or your assets or business. Please acknowledge your acceptance of the terms and conditions stated herein by signing and returning this agreement to the Company. DELPHI CORPORATION ---------------------------------------- By: David M. Sherbin Its: Vice President & General Counsel ACCEPTED AND AGREED: APPALOOSA MANAGEMENT L.P. - ----------------------------------- By: Its: HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. By: Harbinger Capital Partners Offshore Manager, LLC, as its investment manager - ----------------------------------- By: Its: SK 03773 0003 733749 EX-99.C 3 d733750_ex99-c.txt July 31, 2006 CONFIDENTIAL - ------------ Appaloosa Management L.P. 26 Main Street Chatham, NJ 07928 Attention: Ronald Goldstein Vice President Harbinger Capital Partners Master Fund I, Ltd. 555 Madison Avenue, 16th Floor New York, NY 10022 Attention: Philip A. Falcone Ladies and Gentlemen: 1. UBS Securities LLC ("UBS") is pleased to act as lead financial advisor and lead capital markets advisor to Appaloosa Management L.P. ("AMLP") and Harbinger Capital Partners Master Fund I, Ltd. ("HCP") in connection with any potential restructuring, acquisition or other transaction (a "Transaction") involving Delphi Corporation (together with its affiliates and subsidiaries, "Delphi"). This letter agreement (the "Agreement") confirms the terms of our engagement. On the terms and subject to the conditions of this Agreement, UBS will provide AMLP and HCP with such financial and market related advice and assistance as reasonably requested by AMLP and HCP and reasonably agreed to by UBS, which may include (i) assisting AMLP and HCP in analyzing and valuing Delphi (including assisting AMLP and HCP in analyzing Delphi's business plan); (ii) assisting AMLP and HCP in analyzing, structuring and negotiating the financial aspects of any AMLP Sponsored Transaction (as defined below); (iii) assisting AMLP and HCP in reviewing and analyzing financing alternatives for any proposed Transaction; and (iv) determining whether UBS is prepared to provide any Committed Financing (as defined below) required to complete an AMLP Sponsored Transaction. 2. For UBS' services hereunder, AMLP and HCP agree that, during the term of this Agreement, UBS shall have a right of first refusal to act as one of the lead bookrunners (with UBS named on the left) with respect to any debt or equity financing (including, without limitation, any bank or bond financing, broadly distributed equity or bond rights offering, any public or 144A equity or debt financing and any private placement of equity or debt for which placement an investment bank is hired) (collectively, the "Financings") in connection with any Transaction sponsored by AMLP and not financed by (or the financing for which is not led by) AMLP (an "AMLP Sponsored Transaction"), in each case for compensation mutually agreed upon by AMLP and UBS in good faith. Concurrently with its due diligence in connection with acting as AMLP's and HCP's financial and capital markets advisor, UBS will proceed with its internal commitment approval process to determine whether UBS is prepared to undertake any required committed Financing, including as a backstop funder (a "Committed Financing"). UBS will complete such approval process prior to making any recommendation to AMLP and HCP with respect to any AMLP Sponsored Transaction. UBS' determination to proceed with a Committed Financing will be subject to completion of due diligence satisfactory to UBS, legal documentation satisfactory to UBS, UBS' internal credit and other approval processes and other conditions customary for UBS. Any commitment by UBS with respect to a Financing will be set forth in a separate agreement. This Agreement is not an express or implied commitment by UBS to provide any Financing or to enter into any agreement to do so. 3. Except to the extent legally required (after consultation with, and, in the case of UBS' advice, approval (not to be unreasonably withheld) as to form and substance by, UBS), none of (i) the name of UBS, (ii) any advice rendered by UBS to AMLP and/or HCP, or (iii) the terms of this Agreement or any communication from UBS in connection with the services performed by UBS pursuant to this Agreement will be quoted or referred to orally or in writing, or in the case of (ii) and (iii), reproduced or disseminated, by AMLP, HCP or any of their respective affiliates or any of their respective agents, without UBS' prior written consent, such consent not to be unreasonably withheld in the case of clause (i) and (iii) (but not (ii)). 4. AMLP and HCP recognize and confirm that UBS (a) will use and rely primarily on information provided by Delphi and other parties to any proposed Transaction and on information available from generally recognized public sources in performing the services contemplated by this Agreement without having assumed responsibility for independently verifying the same, (b) does not assume responsibility for the accuracy, completeness or reasonableness of such information and such other information and (c) will not make an appraisal of any assets or liabilities (contingent or otherwise) of a potential Transaction party, AMLP, HCP or Delphi. 5. UBS' services hereunder may be terminated by AMLP (or HCP as to itself) or UBS upon 30 days prior written notice without liability or continuing obligation of AMLP (or HCP as to itself) or UBS except that (i) UBS' right to receive the Break-up Fee (as set forth in section 9) shall survive only if AMLP (or HCP as to itself) terminates UBS' services, (ii) expenses (as set forth in Section 9) incurred by UBS as a result of services rendered prior to the date of the termination shall become immediately payable in full, and (iii) Sections 3, 5, 7, 8 (last sentence only), 10, 11, 12, 13, 14 and 15 hereof shall remain operative and in full force and effect regardless of any termination. 6. UBS may, at its own expense, place customary tombstone announcements or advertisements in financial newspapers and journals describing its services hereunder, which such announcements or advertisements shall be subject to the approval of AMLP and HCP, which shall not unreasonably be denied. 7. AMLP and HCP acknowledge and agree that UBS has been retained to act solely as an advisor to AMLP and HCP, and not as an advisor to any other person, and AMLP's and HCP's engagement of UBS is not intended to confer rights upon any person (including partners, shareholders, employees or creditors of AMLP and/or HCP) not a party hereto as against UBS or its affiliates, or their respective directors, officers, employees or agents, successors, or assigns. UBS shall act as an independent contractor under this Agreement, and not in any other capacity including as a fiduciary, and any duties arising out of its engagement shall be owed solely to AMLP and HCP. 8. UBS AG (the parent of UBS) and its subsidiaries, branches and affiliates (the "UBS Group") are involved in a wide range of commercial banking, investment banking and other activities (including investment management, corporate finance and securities issuing, trading and research) from which conflicting interests, or duties, may arise. Information which is held elsewhere within UBS or within the UBS Group but of which none of the individuals in the Investment Banking Department of UBS involved in providing the services contemplated by this engagement actually has (or without breach of internal procedures can properly obtain) knowledge, will not for any purpose be taken into account in determining UBS' responsibilities to AMLP and HCP under this engagement. Neither UBS nor any other part of the UBS Group will have any duty to disclose to AMLP or HCP or utilize for AMLP's or HCP's benefit any non-public information acquired in the course of providing services to any other person, engaging in any transaction (on its own account or otherwise) or otherwise carrying on its business. In addition, in the ordinary course of business, UBS and its affiliates may trade the securities of Delphi and potential Transaction parties for its own account and for the accounts of customers, and may at any time hold a long or short position in such securities. Notwithstanding the foregoing, UBS will not act as a financial advisor, underwriter or sponsor with respect to any Transaction (other than an AMLP Sponsored Transaction or a Transaction supported by AMLP) without the express written consent of AMLP. 9. Whether or not any Transaction is consummated, and in addition to any fees payable to UBS, AMLP and HCP will, subject to Section 11, reimburse UBS upon its request from time to time for all reasonable and documented out-of-pocket expenses incurred by UBS in entering into and performing services pursuant to this Agreement, including the reasonable documented fees, disbursements and other charges of its outside legal counsel; provided, however, that AMLP and HCP shall not be responsible for reimbursing legal expense in excess of $50,000 unless agreed (not to be unreasonably withheld) in writing by AMLP and HCP subsequent to the date of this Agreement. It is understood that UBS anticipates that, (i) if UBS is requested to testify in the Delphi bankruptcy proceedings with respect to a proposed Transaction, UBS will engage outside counsel to assist, and (ii) UBS would need to engage outside counsel to prepare documentation and conduct due diligence in connection with any proposed Financing in connection with an AMLP Sponsored Transaction (it being understood that, if Delphi proceeds with such Financing with UBS as a bookrunner, such legal expenses shall be borne by either the arrangers/underwriters or Delphi, and not AMLP and HCP, in accordance with the terms of the definitive agreements governing such Financing). If UBS, after conducting due diligence, agrees to provide all (or its portion) of the necessary Committed Financing requested by AMLP (it being understood that AMLP may request that UBS provide only a portion of the Committed Financing as lead bookrunner of a syndicate) on terms and conditions reasonably acceptable to AMLP in respect of an AMLP Sponsored Transaction and Delphi pursues such Transaction or a similar Transaction supported by AMLP in which UBS does not act as one of the lead bookrunners, then AMLP and HCP agree, subject to Section 11, to pay UBS a break-up fee (the "Break-up Fee") of $3,000,000 if such Transaction is completed. 10. AMLP and HCP, subject to Section 11, agree to the indemnification and other agreements set forth in the Indemnification Annex attached hereto, the provisions of which are incorporated herein by reference and shall survive the termination, expiration or supersession of this Agreement. 11. The obligations of AMLP and HCP hereunder shall be several (and not joint and several) obligations. The pro rata share of AMLP and HCP of any obligations hereunder is set forth opposite the name of AMLP and HCP on the signature pages to this Agreement. 12. Each party hereto acknowledges and agrees that (i) neither AMLP nor HCP has determined to pursue or support any Transaction (including, in the case of AMLP, an AMLP Sponsored Transaction), (ii) that AMLP, in its sole discretion, may decide not to pursue an AMLP Sponsored Transaction, (iii) that AMLP and HCP have no understandings, agreements or arrangements, whatsoever, among themselves with respect to any Transaction (including an AMLP Sponsored Transaction) or with respect to the voting, disposition or any other investment decision with respect to the securities of Delphi, and (iv) that AMLP and HCP may vote, dispose of, invest in any securities of Delphi without obligation or notice to any other party. 13. THIS AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT ("CLAIM"), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW, NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS, AND AMLP, HCP AND UBS CONSENT TO THE JURISDICTION OF SUCH COURTS AND PERSONAL SERVICE WITH RESPECT THERETO. EACH OF UBS, AMLP AND HCP WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT. 14. This Agreement (including the attached Indemnification Annex) embodies the entire agreement and understanding between the parties hereto and supersedes all prior agreements and understandings relating to the subject matter hereof. If any provision of this Agreement is determined to be invalid or unenforceable in any respect, such determination will not affect such provision in any other respect or any other provision of this Agreement, which will remain in full force and effect. This Agreement may not be amended or otherwise modified or waived except by an instrument in writing signed by UBS, AMLP and HCP. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. 15. This Agreement (including the attached Indemnification Annex) shall be binding upon AMLP, HCP and UBS and their respective successors and assigns. If the foregoing correctly sets forth our understanding, please indicate your acceptance thereof in the space provided below, whereupon this Agreement and your acceptance shall constitute a binding agreement between us. Very truly yours, UBS Securities LLC By: By: -------------------------- ------------------------- Name: Steven D. Smith Name: Andrew Kramer Title: Managing Director Title: Managing Director Accepted and agreed to as of the date first above written: Reimbursement Percentage APPALOOSA MANAGEMENT L.P. 66.242% By: -------------------- Name: Title: HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. 33.758% By: -------------------- Name: Title: Indemnification Annex In the event that UBS becomes involved in any claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a "Proceeding") to the extent such Proceeding is against (or involves) UBS in its capacity as financial advisor to AMLP and HCP, including, without limitation, with respect to related services and activities prior to the date of this Agreement, AMLP and HCP agree, subject to Section 11 of the engagement letter, to indemnify, defend and hold UBS harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses in connection with any such Proceeding, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that such losses, claims, damages, liabilities and expenses resulted from the gross negligence or willful misconduct of UBS. In the event that UBS becomes involved in any capacity in any such Proceeding, AMLP and HCP will reimburse UBS for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are incurred by UBS in connection therewith; provided to the extent it shall be determined by a court of competent jurisdiction in a judgment that such reimbursed expenses resulted from the gross negligence or willful misconduct of UBS, UBS will promptly refund any such reimbursed expenses to AMLP and HCP . If such indemnification were not to be available for any reason (other than a judicial determination of the gross negligence or willful misconduct of UBS), AMLP and HCP agree to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by AMLP and HCP, on the one hand, and UBS, on the other hand, in connection with the matters contemplated by this Agreement and (ii) the relative fault of AMLP and HCP on the one hand and UBS, on the other hand, as well as any other relevant equitable considerations; provided that, in no event (other than a judicial determination of the gross negligence or willful misconduct of UBS) shall AMLP and HCP contribute less than the amount necessary to assure that UBS is not liable for losses, claims, damages, liabilities and expenses (including legal and other expenses) in excess of the amount of fees actually received by UBS pursuant to this Agreement. AMLP and HCP will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not UBS is an actual or potential party to such Proceeding, without UBS' prior written consent (which consent shall not be unreasonably withheld in the case of a Proceeding involving only the payment of money damages), unless such settlement is confidential and (i) includes an unconditional release of UBS from all liability in any way related to or arising out of such Proceeding and (ii) does not include an admission of fault, culpability or a failure to act by or with respect to UBS or an adverse statement regarding the reputation or conduct of UBS. AMLP and HCP agree that UBS shall not have any liability to AMLP, HCP or any person asserting claims on behalf of or in right of AMLP and/or HCP in connection with or as a result of either UBS' engagement under this Agreement or any matter referred to in this Agreement, including, without limitation, related services and activities prior to the date of this Agreement, except to the extent that it shall be determined by a court of competent jurisdiction in a judgment that any losses, claims, damages, liabilities or expenses incurred by AMLP and/or HCP resulted from the gross negligence or willful misconduct of UBS in performing the services that are the subject of this Agreement. For purposes of this Indemnification Annex, UBS shall include UBS Securities LLC, any of its affiliates, each other person, if any, controlling UBS or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party may have at common law or otherwise. It is understood that the Indemnification Annex shall not apply to any Proceeding in connection with or arising out of any financings in connection with any Transaction. The indemnification arrangements with respect to any such financings shall be between Delphi and the arrangers/underwriters as provided in the definitive agreements governing any such financings. UBS, AMLP and HCP agree to use their reasonable efforts to have Delphi assume the obligations of AMLP and HCP under this Indemnification Annex and to the extent Delphi assumes such obligations, AMLP and HCP will thereafter be relieved of any further obligations under this Indemnification Annex. SK 03773 0003 733750 EX-99.D 4 d733751_ex99-d.txt July 31, 2006 Appaloosa Management L.P. 26 Main Street Chatham, NJ 07928 Attention: Ronald Goldstein Vice President Harbinger Capital Partners Master Fund I, Ltd. 555 Madison Avenue, 16th Floor New York, NY 10022 Attn: Philip A. Falcone Gentlemen: Pursuant to our recent conversations, we are pleased to confirm the arrangements under which Merrill Lynch & Co. ("Merrill Lynch") will act as financial advisor to Appaloosa Management L.P. ("AMLP") and Harbinger Capital Partners Master Fund I, Ltd. ("HCP") in connection with any potential restructuring, acquisition or other transaction involving Delphi Corporation (together with its affiliates and subsidiaries, "Delphi")(a "Transaction"). 1. Scope of Engagement. As your financial advisor, we will perform such financial advisory and investment banking services for AMLP and HCP as are customary and appropriate in transactions of this type and as you reasonably request, including assisting AMLP and HCP in analyzing, structuring, negotiating and effecting the proposed Transaction on the terms and conditions of this letter agreement. In this regard, we propose to undertake certain activities on your behalf, including, if appropriate, the following: (a) performing financial analyses of Delphi in the context of the Transaction; (b) preparing financial analyses relating to Delphi's business plan in the context of the Transaction and assisting AMLP and HCP in structuring and negotiating the financial aspects of any AMLP Sponsored Transaction (as defined below); (c) assisting AMLP and HCP in reviewing and analyzing financing alternatives for any proposed Transaction; (d) assuming an agreement in principle is reached for the Transaction, advising and assisting AMLP and HCP in negotiating a definitive Transaction agreement; (e) assisting AMLP and HCP in any proceedings relating to regulatory or court approvals required for the Transaction; and (f) rendering such other financial advisory and investment banking services as may from time to time be agreed upon by Merrill Lynch, AMLP and HCP. In addition to the services described above, Merrill Lynch agrees to proceed with its internal review and commitment approval process to determine whether Merrill Lynch is prepared to undertake any required committed financing, including as a backstop funder (a "Committed Financing"). Merrill Lynch agrees to use its reasonable best efforts to complete such approval process to obtain preliminary approval, subject to finalization of definitive terms, prior to making any financing proposal to AMLP and HCP with respect to any AMLP Sponsored Transaction. As you are aware, financing transactions of this type are subject to satisfactory market conditions and to other customary conditions in the context of any such financing such as the determination of the ultimate structure of the Transaction, including the terms of the Committed Financing, satisfactory completion of a business and legal due diligence review, Merrill Lynch commencing and completing its customary internal committee review and obtaining approval pursuant thereto and execution of definitive documentation in a form satisfactory to Merrill Lynch. This letter is not intended to be and should not be construed as a commitment with respect to the Committed Financing or any other financing and creates no obligation or liability on the part of Merrill Lynch or any of its affiliates in connection with or any agreement by Merrill Lynch or any of its affiliates to provide, place, underwrite or participate in any financing. 2. Other Transactions. In consideration of the provision of Merrill Lynch's services hereunder, AMLP and HCP agree that, during the Term (as defined below), Merrill Lynch will be afforded an opportunity to participate with UBS Securities LLC as backstop funders in respect of any debt or equity financing (including, without limitation, any bank or bond financing, broadly distributed equity or bond rights offering, any public or Rule 144A (under the Securities Act of 1933, as amended) equity or debt financing and any private placement of equity or debt for which placement an investment bank is hired) in connection with any Transaction sponsored by AMLP and not financed by (or the financing for which is not led by) AMLP (an "AMLP Sponsored Transaction"). Notwithstanding the foregoing, during the Term, Merrill Lynch will not, without the express prior written consent of AMLP and HCP, (a) be engaged to act as a financial advisor to any other party with respect to any Transaction (other than an AMLP Sponsored Transaction or any other restructuring, acquisition or other transaction involving Delphi supported by AMLP) and (b) act as underwriter or placement agent in an offering of any securities of Delphi that is not an AMLP Supported Transaction or that is in connection with any other restructuring, acquisition or other transaction involving Delphi that is not supported by AMLP; provided that in any event such restrictions will not apply upon the effective date of Delphi's emergence from bankruptcy. AMLP and HCP each agrees to promptly inform Merrill Lynch whether or not it intends to support any other restructuring, acquisition or other transaction involving Delphi. Notwithstanding anything else in this letter agreement, Merrill Lynch and its affiliates may effect or recommend transactions, vote or otherwise exercise its discretion in connection with holdings of any securities or other financial instruments or indebtedness, either as principal or as agent on behalf of third parties, in the ordinary course of Merrill Lynch's business or the business of its affiliates, in, relating to or involving (i) securities or financial instruments of Delphi, including, without limitation, transactions in which Merrill Lynch or its affiliates are acting as an investment advisor, an investment company, a broker or dealer in securities or other financial instruments, as a lender, loan participant, or as counterparty, a market maker, a specialist, an arbitrageur or other similar role, and (ii) financial assets and liabilities and related securitizations, factoring and servicing operations of Delphi, including, without limitation, transactions involving deposit accounts, commercial and consumer loans, commercial and residential mortgages, accounts receivable and other evidences of indebtedness. 3. Disclosure. Any document, advice, opinion or analysis provided by Merrill Lynch hereunder will be solely for the use and benefit of AMLP and HCP and, except as required by law or regulation, will not be quoted, reproduced, summarized, or otherwise disclosed, nor will any reference to Merrill Lynch be made, without Merrill Lynch's prior written consent; provided, however, that in the event of any such disclosure required by law or regulation, AMLP and HCP agree to give Merrill Lynch prompt notice thereof and to reasonably cooperate with Merrill Lynch in securing a protective order in the event of such disclosure and that any disclosure made pursuant to public filings shall be subject to Merrill Lynch's prior review. Notwithstanding any other provision of this letter agreement, immediately upon the commencement of discussions with respect to the transactions contemplated hereby, AMLP and HCP (and each employee, representative or other agent of AMLP and HCP) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated by this letter agreement and all materials of any kind (including opinions or other tax analyses) that are provided to AMLP and HCP relating to such tax treatment and tax structure. 4. Information. AMLP and HCP each agrees that it will furnish, or arrange to have furnished to, Merrill Lynch such information as Merrill Lynch believes appropriate to its engagement hereunder (for any information about Delphi, only to the extent it is reasonably able to do so), and will update such information as appropriate, and Merrill Lynch will use and rely on publicly available information available from generally recognized public sources (all such information so furnished or publicly available being the "Information"). AMLP and HCP recognize and consent to the fact that Merrill Lynch (i) will use and rely on the accuracy and completeness of the Information supplied or otherwise made available to Merrill Lynch without having any obligation to independently verify the same, (ii) does not assume responsibility for the accuracy or completeness of the Information or such other information, (iii) has no obligation to undertake an independent evaluation, appraisal or physical inspection of any assets or liabilities of AMLP, HCP or Delphi, and (iv) with respect to any financial forecasts (including cost savings and synergies) that may be furnished to or discussed with Merrill Lynch by AMLP, HCP or Delphi, will assume that they have been reasonably prepared and reflect the best then currently available estimates and judgment of AMLP, HCP or Delphi's management. 5. Independent Contractor. It is understood and agreed that Merrill Lynch is retained to act solely as financial advisor and, in such capacity, shall act as an independent contractor with duties solely to AMLP and HCP and nothing in this letter agreement or the nature of the services shall be deemed to create a fiduciary or agency relationship between Merrill Lynch, on the one hand, and AMLP, HCP or their respective stockholders, partners, members, creditors, employees or any other party, on the other hand. 6. Term and Termination. This engagement may be terminated by AMLP, HCP or Merrill Lynch at any time after the date hereof upon 30 days prior written notice (the "Term"), it being understood that the provisions of the last two paragraphs of Sections 2 (Other Transactions), 3 (Disclosure), 5 (Independent Contractor), 6 (Term and Termination), 7 (Indemnity) and 8 (Miscellaneous) shall survive termination of this letter agreement. 7. Indemnity. In connection with engagements such as this, it is Merrill Lynch's policy to receive indemnification. AMLP and HCP agree to the provisions with respect to the indemnification of Merrill Lynch and the other matters set forth in Annex A. Annex A is incorporated by reference in its entirety into this letter. The obligations of AMLP and HCP hereunder shall be several (and not joint and several) obligations. The pro rata share of each party's obligation is set forth under the name of such party on the signature pages to this letter agreement. 8. Miscellaneous. (a) Merrill Lynch is acting as Financial Advisor and is not an expert on, and cannot render opinions regarding, legal, accounting, regulatory or tax matters. You should consult with your other professional advisors concerning these matters before undertaking the proposed transaction. (b) Merrill Lynch is a full service securities firm engaged, either directly or through its affiliates, in various activities including securities trading, investment management, financing and brokerage activities and financial advisory services for companies, governments and individuals. In the ordinary course of these activities, Merrill Lynch and its affiliates may actively trade the debt and equity securities or other financial instruments (or related derivative instruments) of Delphi or other parties which may be the subject of the engagement contemplated by this letter agreement for their own account and for the accounts of their customers and may at any time hold long and short positions in such securities or instruments. The interests of the parties described in this Section 8(b) may conflict with yours. (c) Each party hereto acknowledges and agrees that (i) neither AMLP nor HCP has determined to pursue or support any Transaction (including, in the case of AMLP, an AMLP Sponsored Transaction), (ii) that AMLP, in its sole discretion, may decide not to pursue an AMLP Sponsored Transaction, (iii) that AMLP and HCP have no understandings, agreements or arrangements, whatsoever, among themselves with respect to any Transaction (including an AMLP Sponsored Transaction) or with respect to the voting, disposition or any other investment decision with respect to the securities of Delphi, and (iv) that AMLP and HCP may vote, dispose of, and/or invest in any securities of Delphi without obligation or notice to any other party. (d) AMLP and HCP hereby consent to Merrill Lynch or its affiliates acting as principal and not as agent or fiduciary of, or financial advisor to, AMLP and HCP with respect to any Committed Financing. (d) No waiver, amendment or other modification of this letter agreement shall be effective unless in writing and signed by each party to be bound thereby. This letter agreement shall inure to the benefit of and be binding on AMLP, HCP and Merrill Lynch and their respective successors. (e) In case any provision of this letter agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this letter agreement shall not in any way be affected or impaired thereby. (f) This letter agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York. Each of Merrill Lynch, AMLP and HCP (each on its own behalf and, to the extent permitted by applicable law, on behalf of its stakeholders) waives all right to trial by jury in any action, proceeding or counterclaim (whether based upon contract, tort or otherwise) related to or arising out of this letter agreement. Please confirm that the foregoing correctly sets forth our agreement by signing and returning to Merrill Lynch the duplicate copy of this letter agreement enclosed herewith. We are delighted to accept this engagement and look forward to working with you on the assignment. Very truly yours, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED By ------------------------------- Scott Levy Managing Director Investment Banking Group Accepted and Agreed to as of the date first written above: APPALOOSA MANAGEMENT L.P. Pro rate share: 66.242% By -------------------------------- HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. Pro rate share: 33.758% By -------------------------------- ANNEX A In the event that Merrill Lynch becomes involved in any threatened or pending claim, suit, action, proceeding, investigation or inquiry (including, without limitation, any shareholder or derivative action or arbitration proceeding) (collectively, a "Proceeding") to the extent such Proceeding arises out of or is in connection with Merrill Lynch's engagement as financial advisor pursuant to the engagement letter, including, without limitation, with respect to related services and activities prior to the date of the engagement letter, AMLP and HCP agree to indemnify, defend and hold Merrill Lynch harmless to the fullest extent permitted by law, from and against any losses, claims, damages, liabilities and expenses in connection with any such Proceeding, except to the extent that it shall be determined by a court of competent jurisdiction in a final judgment that such losses, claims, damages, liabilities and expenses resulted from the gross negligence or willful misconduct of Merrill Lynch. In the event that Merrill Lynch becomes involved in any capacity in any such threatened or pending Proceeding, AMLP and HCP will reimburse Merrill Lynch for its legal and other expenses (including the cost of any investigation and preparation) as such expenses are incurred by Merrill Lynch in connection therewith; provided to the extent it shall be determined by a court of competent jurisdiction in a final judgment that such reimbursed expenses resulted from the gross negligence or willful misconduct of Merrill Lynch, Merrill Lynch will promptly refund any such reimbursed expenses to AMLP and HCP. If such indemnification were not to be available for any reason (other than a judicial determination of the gross negligence or willful misconduct of Merrill Lynch as set forth above), AMLP and HCP agree to contribute to the losses, claims, damages, liabilities and expenses involved (i) in the proportion appropriate to reflect the relative benefits received or sought to be received by AMLP and HCP, on the one hand, and Merrill Lynch, on the other hand, in connection with the matters contemplated by the engagement letter (whether or not a Transaction is consummated) or (ii) if (but only if) the allocation provided in for clause (i) is for any reason held unenforceable, in the proportion appropriate to reflect the relative fault of AMLP and HCP, on the one hand, and Merrill Lynch, on the other hand, as well as any other relevant equitable considerations. AMLP and HCP agree that for the purposes of clause (i) in the prior sentence the relative benefits to AMLP, HCP and Merrill Lynch shall be deemed to be in the same proportion that the total value paid or issued or contemplated to be paid or issued by AMLP and HCP to Delphi, its shareholders, stakeholders or creditors, as appropriate, or the total value received or contemplated to be received by AMLP and HCP from Delphi, as appropriate, in each case as a result of or in connection with the Transaction, bears to the fees paid or to be paid to Merrill Lynch under the engagement letter; provided that, in no event (other than a final judicial determination of the gross negligence or willful misconduct of Merrill Lynch) shall AMLP and HCP contribute less than the amount necessary to assure that Merrill Lynch is not liable for losses, claims, damages, liabilities and expenses (including legal and other expenses) in excess of the amount of fees actually received by Merrill Lynch pursuant to the engagement letter. AMLP and HCP will not settle any Proceeding in respect of which indemnity may be sought hereunder, whether or not Merrill Lynch or any other Indemnified Party is an actual or potential party to such Proceeding, without Merrill Lynch's prior written consent (which consent shall not be unreasonably withheld in the case of a Proceeding involving only the payment of money damages), unless such settlement is confidential and (i) includes an unconditional release of Merrill Lynch from all liability in any way related to or arising out of such Proceeding and (ii) does not include an admission of fault, culpability or a failure to act by or with respect to Merrill Lynch or an adverse statement regarding the reputation or conduct of Merrill Lynch. AMLP and HCP agree that no Indemnified Party shall have any direct or indirect liability to AMLP or HCP or any person asserting claims on behalf of or in right of AMLP or HCP (including, without limitation, any of their respective security holders, partners or creditors) in connection with or as a result of either Merrill Lynch's engagement under the engagement letter or any matter referred to in the engagement letter, including, without limitation, related services and activities prior to the date of the engagement letter, except to the extent that it shall be determined by a court of competent jurisdiction in a final judgment that any losses, claims, damages, liabilities or expenses incurred by AMLP and/or HCP resulted from the gross negligence or willful misconduct of Merrill Lynch in performing the services that are the subject of the engagement letter. For purposes of this Indemnification Annex, Merrill Lynch shall include Merrill Lynch, Pierce, Fenner & Smith Incorporated, any of its affiliates, each other person, if any, controlling Merrill Lynch or any of its affiliates, their respective officers, current and former directors, employees and agents, and the successors and assigns of all of the foregoing persons. The foregoing indemnity and contribution agreement shall be in addition to any rights that any indemnified party may have at common law or otherwise. It is understood that this Annex A shall not apply to any Proceeding in connection with or arising out of any financings in connection with any Transaction. The indemnification arrangements with respect to any such financings shall be between Delphi and the arrangers/underwriters as provided in the definitive agreements governing any such financings. AMLP and HCP agree to use their reasonable efforts to have Delphi assume the obligations of AMLP and HCP under this Annex A and to the extent Delphi assumes such obligations, AMLP and HCP will thereafter be relieved of any further obligations under this Annex A. The provisions of this Annex A shall continue to apply and shall remain in full force and effect regardless of any modification or termination of the engagement or engagement letter of which this Annex A is a part or the completion of Merrill Lynch's services thereunder. SK 03773 0003 733751 EX-99.E 5 d733752_ex99-e.txt August 25, 2006 VIA ELECTRONIC MAIL Appaloosa Management L.P. 26 Main Street Chatham, New Jersey 07928 Attn: Mr. David A. Tepper Mr. Ronald M. Goldstein Harbinger Capital Partners Master Fund I, Ltd. c/o 555 Madison Avenue 16th Floor New York, New York 10022 Attn: Mr. Philip A. Falcone AMENDED CONFIDENTIAL INFORMATION, STANDSTILL AND NONDISCLOSURE AGREEMENT --------------------------- Gentlemen: This letter agreement (the "Amended NDA") relates to discussions involving Appaloosa Management L.P. and its affiliates ("Appaloosa") and Harbinger Capital Partners Master Fund I, Ltd. and its affiliates ("Harbinger") (collectively, "you" or "your", it being understood that, unless otherwise determined by Delphi Corporation, Harbinger will communicate with Delphi only through Appaloosa) involving Delphi Corporation ("Delphi"), a debtor and debtor-in-possession in chapter 11 cases (the "Chapter 11 Cases") in the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court") concerning possible negotiated business arrangements between you and the Company (defined below). The Amended NDA amends and supersedes the Confidential Information, Standstill and Nondisclosure Agreement, dated July 31, 2006, among Delphi, Appaloosa, and Harbinger. In connection with your interest in and review of certain matters relating to Delphi and its subsidiaries and affiliates (together with their respective officers, directors, employees, agents, affiliates and other representatives, the "Company"), the Company may furnish to you certain non-public, confidential and/or proprietary information pertaining to the Company which is reasonably necessary in order for you to evaluate a Transaction (as defined below) and which the Company reasonably determines is not competitively sensitive or legally privileged (such information is anticipated to include the financial presentations generally provided on a regular basis to the Company's statutory committees and/or their advisors relating to the Company's transformation plan which are reasonably necessary in order for you to evaluate a Transaction). Such information, in whole or in part, whether written or oral, together with any analyses, summaries, compilations, studies, forecasts, abstracts or documents prepared during the review of the Company by you or your Representatives (as defined below) which contain, are based upon or otherwise reflect such information, is hereinafter referred to as the "Evaluation Material." The term "Evaluation Material" does not include any information which you demonstrate: (a) previously was available to you on a non-confidential basis or by virtue of your becoming a member, if ever, of an official committee in the Chapter 11 Cases (provided, however, that any information made available to you in your capacity as a member of a statutory committee shall be kept confidential as may be required pursuant to agreements between such statutory committee and the Company and any applicable duties and obligations you may have as a member of such committee); (b) was obtained from a third person which, insofar as you know, following reasonable inquiry, is not subject to any prohibition against disclosure; or (c) is or becomes generally available to the public other than as a result of disclosure by of you or any of your Representatives in violation of this agreement. You will use the Evaluation Material solely for the purpose of: (1) considering a possible negotiated business arrangement in our mutual interest involving the Company in the Chapter 11 Cases (such business arrangement, the "Transaction"), and (2) to the extent such Transaction is acceptable to the Company, implementation of such Transaction, and you will not use the Evaluation Material for any other business or competitive purpose (collectively, the "Permitted Purposes"). Except as required by law, rule or regulation, you will keep the Evaluation Material strictly confidential and will not disclose the Evaluation Material to any person or entity (including any official or unofficial committee in the Chapter 11 Cases), except that you may disclose the Evaluation Material or portions thereof to those of your directors, officers, partners, employees, agents, financial institutions, attorneys, advisors and accountants (collectively, "Representatives") who need to know such information for the purpose of evaluating on your behalf a Transaction and who also execute an acknowledgment wherein they agree to be bound by the confidentiality provisions of this agreement as if they were parties hereto. Without the prior written consent of the Company, neither you nor your Representatives will disclose to any person or entity (including any official or unofficial committee in the Chapter 11 Cases) the fact that the Evaluation Material has been made available or that discussions between the parties concerning a Transaction are taking place or any term, condition or other fact relating to such business arrangement (except as required by law, rule or regulation and subject to any applicable fiduciary duties as a committee member). You will be responsible for any breach of this agreement by you or any of your Representatives. Prior to the earlier of (i) February 15, 2007, (ii) the date on which the Company files a plan of reorganization in the Chapter 11 Cases (a "Plan of Reorganization") in which any party in interest in the Chapter 11 Cases is afforded an opportunity to participate, including, without limitation, an opportunity to participate in a rights offering for the equity of the Delphi following emergence from the Chapter 11 Cases but the holders of Delphi equity are not afforded such opportunity, (iii) any date selected by the Company in its discretion following either the filing by you of a pleading in the Chapter 11 Cases or the taking by you of a public position which respect to a matter relating to the Chapter 11 Cases which in either case the Company believes is in opposition to, or inconsistent with, a position the Company has taken or expects to take in the Chapter 11 Cases, and (iv) the fifth business day following notice by you that the Company has not delivered to you previously-requested information (other than information the Company reasonably determines is competitively sensitive or legally privileged) described in such notice unless either such information is not reasonably necessary in order for you to evaluate a Transaction or prior, to such fifth business day, the Company delivers to you such information (such earlier date, the "Release Date"), unless otherwise agreed to by the Company in writing, you agree, in your individual capacity and not as a committee member, if ever applicable, to engage (along with your Representatives) in discussions and negotiate exclusively with the Company and its legal and financial advisors with respect to a Transaction. In addition, you hereby withdraw the letter to the Members of the Board of Directors of Delphi, dated March 15, 2006 (the "March 15 Letter"). You will file an amendment to your Schedule 13D disclosing this Agreement and related matters (including that you have withdrawn the March 15 letter). In addition, certain representatives of Appaloosa have been furnished and may continue to be furnished with certain confidential information produced and designated as "confidential" or "highly confidential" by the Debtors (the "Litigation Material") under various stipulations and protective orders entered into in these chapter 11 cases by and between Debtors' counsel and counsel for Appaloosa (the "Protective Orders").(1) You have expressed a desire to review the Litigation Material for a Permitted Purpose. To the extent you wish to use the Litigation Material for a Permitted Purpose then: (a) the Company consents to the sharing of the Litigation Material by Appaloosa representatives subject to the Protective Orders with Appaloosa and Harbinger, (b) the Litigation Material so used will be deemed Evaluation Material as defined herein, and (c) such Litigation Material shall be subject to the terms of the Amended NDA when used for a Permitted Purpose. Such Litigation Material shall not be subject to the Amended NDA, but shall remain subject to terms of any applicable Protective Order, when used by Appaloosa's representatives for all other purposes. - ---------- (1) Appaloosa representatives are parties to the following Protective Orders in these cases: (i) Stipulation And Agreed Protective Order Governing Production And Use Of Confidential And Highly Confidential Information In Connection With The Motion Of Appaloosa Management L.P.For An Order Directing The United States Trustee To Appoint An Equity Committee And Objections Filed Thereto, by and between Skadden, Arps, Slate, Meagher & Flom LLP ("Skadden"), as counsel for Delphi and certain of its subsidiaries and affiliates, debtors and debtors-in-possession in these chapter 11 cases (the "Debtors"), and White & Case LLP ("W & C"), as counsel for Appaloosa, dated January 31, 2006 (Docket No. 1998); (ii) Stipulation And Agreed Protective Order Governing Production And Use Of Confidential And Highly Confidential Information In Connection With The Motion For Order Under 11 U.S.C. ss. 363(b) And Fed. R. Bankr. P. 6004 Approving Debtors' Human Capital Hourly Attrition Programs, by and between Skadden, as counsel for the Debtors, and W & C, as counsel for Appaloosa, dated April 5, 2006 (Docket No. 3125); (iii) Stipulation And Agreed Protective Order Governing Production And Use Of Confidential And Highly Confidential Information In Connection With The Motion For Order Under 11 U.S.C. ss. 1113(c) Authorizing Rejection Of Collective Bargaining Agreements And Under 11 U.S.C. ss. 1114(g) Authorizing Modification Of Retiree Welfare Benefits And Objections Filed Thereto, by and between Skadden, as counsel for the Debtors, and W & C, as counsel for Appaloosa and Wexford Capital LLC, dated May 5, 2006 (Docket No. 3706); (iv) Stipulation And Agreed Protective Order, among, Skadden, as counsel for the Debtors, Weil, Gotshal & Manges LLP, as counsel for General Motors Corporation, Latham & Watkins LLP, as counsel for the Official Committee of Unsecured Creditors, Fried, Frank, Harris, Shriver & Jacobson LLP, as counsel for the Official Committee of Equity Security Holder (Retention Subject to Court Approval), and W & C, as counsel for the Ad Hoc Committee of Equity Security Holders, dated June 12, 2006 (Docket No. 4156); (v) Stipulation And Agreed Protective Order Governing Production And Use Of Confidential And Highly Confidential Information In Connection With The Motion Under 11 U.S.C. ss. 363(b) And Fed. R. Bankr. P. 6004 Approving (I) Supplement To UAW Special Attrition Program, and (II) IUE-CWA Special Attrition Program, by and between Skadden, as counsel for the Debtors, and W & C, as counsel for Appaloosa, dated June 29, 2006 (Docket No. 4410); and (vi) Stipulation And Agreed Protective Order Governing Production And Use Of Confidential And Highly Confidential Information In Connection With The Motion For Order Under 11 U.S.C. ss. 365 And Fed. R. Bankr. P. 6006 Authorizing Rejection Of Certain Executory Contracts With General Motors Corporation And Objections Filed Thereto has been entered into by and between Skadden, as counsel for the Debtors, and W & C, as counsel for Appaloosa and Wexford (Docket No. TBD). You hereby represent that you have, and will have at all times after the execution of this agreement and prior to the Release Date, a "Net Long Position" (as defined below) with respect to the Company. At the Company's request you agree promptly to provide the Company with reasonable information which supports the initial representation in the prior sentence and your continued compliance with the prior sentence and the next sentence. In addition, prior to the Release Date, you will not sell, dispose of or otherwise transfer any equity or debt securities, equity or fixed income related credit derivatives or other instruments (including put equivalent and call equivalent instruments) issued by, guaranteed by or relating to the Company. With respect to the Company, a "Net Long Position" means that, on an aggregate basis with respect to all equity or debt securities, equity or fixed income related credit derivatives or other instruments (including put equivalent and call equivalent instruments) issued by, guaranteed by or relating to the Company, your portfolio of such securities, derivatives and other instruments would be reasonably likely to gain in value if an event occurred which would be reasonably likely to cause the credit quality of the Company to improve. In the event that you or any of your Representatives are legally required (by deposition, interrogatories, requests for documents, subpoena, civil investigation demand or similar process) to disclose any of the Evaluation Material, or if you or any of your Representatives are legally required (by deposition, interrogatories, requests for documents, subpoena, civil investigation demand or similar process) to disclose the fact that the Evaluation Material has been made available or that discussions between the parties are taking place or any other fact relating to a Transaction, you will provide to the extent practicable, the Company with prompt prior written notice of such requirement so that the Company may (a) seek a protective order or other appropriate remedy or (b) in its sole discretion, waive compliance with the terms of this agreement. If a protective order or other remedy is not obtained within a reasonable period of time, or the Company waives compliance with the terms of this agreement, you or your Representatives, as applicable, will disclose only that which you or your Representatives are legally required to disclose or which is necessary to avoid sanction for contempt of court and you or your Representatives, as applicable, will exercise commercially reasonable efforts (which efforts will consist of at least the efforts you undertake in connection with ensuring the confidential treatment of your non-public, confidential and/or proprietary information) to ensure confidential treatment of (x) the Evaluation Material, (y) the fact that the Evaluation Material has been made available or that discussions between the parties are taking place, and (z) any other fact you are prohibited from disclosing pursuant to this agreement. If we do not proceed with a Transaction, or if the Company so requests, you will promptly return to the Company all copies (including originals) of the Evaluation Material in your possession or in the possession of your Representatives, and you will promptly destroy all Evaluation Material which constitutes copies (including originals) of any analyses, studies, abstracts or other documents prepared by you or your Representatives or for your or your Representatives' use, and any such destruction shall be certified in writing to us by a duly authorized Representative of yours. Notwithstanding your obligations as described in the preceding sentence, if the Evaluation Material also is Litigation Material, then with respect to Appaloosa representatives also subject to a Protective Order, the return and/or destruction of such material shall be governed by the applicable Protective Order, and not this Amended NDA. Notwithstanding the return or destruction of Evaluation Material, you and your Representatives will continue to be bound by your obligations of confidentiality hereunder for the period commencing on the date hereof through the first anniversary of the date of the consummation of a Plan of Reorganization. You understand and agree that except as set forth in written definitive agreements in connection with a Transaction, the Company has not made or is not making any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material, and nor will the Company or its affiliates or any of their respective officers, directors, employees, agents, affiliates, attorneys, advisors or accountants have any liability to you or any other person or entity relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. For the period commencing on the date hereof through the Release Date (unless the Company is determined by a final order of the Bankruptcy Court to have failed to perform in all material respects all of its obligations hereunder), (a) you will not seek, and will cause each of your affiliates not to, directly or indirectly, knowingly seek, or solicit or induce, or attempt to solicit or induce a third party to seek, or support a third party that may seek or is seeking to shorten or terminate the Company's exclusive periods (the "Exclusive Periods") to propose and/or solicit a Plan of Reorganization; provided, however, that if you become a member of an official committee in the Chapter 11 Cases, then in your capacity as a member of such a committee, you may participate in committee discussions, committee meetings and committee votes with respect to the foregoing matters consistent with your fiduciary duties as a member of such committee and (b) you will not take, and will cause each of your affiliates not to take, directly or indirectly, any action with respect to the matters described in the March 15 Letter. Until the later of the Release Date and the date upon which you are no longer in possession of material, non-public information about the Company (unless the Company is determined by a final order of the Bankruptcy Court to have failed to perform in all material respects all of its obligations hereunder), without the prior written consent of the Company, you will not, and will cause each of your affiliates and Representatives (in their capacity as such) not to, singly or as part of a group, in any manner, directly or indirectly: (i) participate in any solicitation of proxies or become a participant in any election contest with respect to the Company, (ii) form, join or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) with respect to Delphi's common stock, and (iii) sell, dispose of or otherwise transfer any equity securities of the Company ("Equity Securities"), any debt securities of the Company ("Debt Securities"), or assets of or claims against the Company, or any rights to acquire any Equity Securities, Debt Securities, or assets of or claims against the Company. In addition, nothing in this letter agreement results in or will result in a modification, amendment, waiver of any provision in the (i) the Final Order Under 11 USC Sections 105, 362 and 541 FED. R. BANKR. P. 3001 dated January 6, 2006 (A) Establishing Notification Procedures Applicable to Substantial Holders of Claims and Equity Securities and (B) Establishing Notification and Hearing Procedures for Trading in Claims and Equity Securities, (ii) the letter agreements, dated November 22, 2005 and January 9, 2006, between the Company and Palomino Fund, (iii) the letter agreements, dated December 5, 2005 and January 9, 2006 between the Company and Appaloosa Investment Partnership I, and (iv) the letter agreements, both dated January 9, 2006, between the Company and Appaloosa Management LP. You agree that money damages would not be a sufficient remedy for any breach of this agreement by you or your Representatives and that, in addition to all other remedies, the Company will be entitled to equitable relief, including specific performance and injunctive or other equitable relief, in the event of any breach or threatened breach of any provision of this agreement. In the event of litigation relating to this agreement, each party shall pay its own expenses. You acknowledge and agree that the Company is free to terminate discussions and negotiations with you at any time after the Release Date and for any reason (provided, however, that the Company will not be limited in any way by the terms of this letter agreement in allocating, prioritizing and directing its resources and personnel, including its employees, agents and representatives, to discussions and negotiations with other parties in connection with the Chapter 11 Cases or other matter) and unless and until a written definitive agreement concerning a Transaction has been executed and approved by the Bankruptcy Court, neither the Company nor any of our affiliates or any of our or their respective officers, directors, employees, agents, affiliates, attorneys, advisors or accountants will have any liability to you with respect to any business arrangement, whether by virtue of this agreement, any other written or oral expression with respect to any Transaction or otherwise. You acknowledge that you and your Representatives may receive material non-public information in connection with your evaluation of any Transaction and you are aware (and you will so advise your Representatives) that the United States securities laws impose restrictions on trading in securities when in possession of such information. The Company understands that you would prefer not to be in possession of material non-public information at the time a Plan of Reorganization becomes effective. In this regard, the Company will use commercially reasonable efforts to avoid providing you with information that the Company expects is likely to be material non-public information as of the effective date of such a Plan of Reorganization and you shall follow appropriate procedures to screen information the Company provides to you to avoid being in possession or having knowledge of material non-public information as of such date. If, however, you believe that you are in possession of material non-public information at the time a Plan of Reorganization becomes effective, you may request the Company to make appropriate public disclosure such that the information would no longer be non-public, and the Company will make such public disclosure if the Company reasonably determines that such public disclosure would be in the best interests of the Company and its constituents. If information subject to a claim of attorney-client privilege, work product doctrine or any other ground on which production of such information should not be made is nevertheless inadvertently produced by the Company to you or your Representatives, such production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to, any claim of privilege, work product or other ground for withholding production to which the Company would otherwise be entitled. If a claim of inadvertent production is made pursuant to this paragraph with respect to information then in the custody of you or your Representatives, then you or your Representatives, as the case may be, shall, upon request, promptly return to the Company that material (including all copies thereof) as to which the claim of inadvertent production has been made, and you and your Representatives shall not further use such information for any purpose. Appaloosa and Harbinger are acting independently and not in concert with respect to this agreement and nothing in this agreement shall be construed to suggest that Appaloosa and Harbinger are in any manner acting together with respect to the Company or any Transaction. This agreement is solely for the benefit of the Company and its respective successors and assigns. The rights of the Company under this agreement may be assigned in whole or in part to any purchaser of the Company or any substantial part thereof, which purchaser shall be entitled to enforce this agreement to the same extent and in the same manner as the Company is entitled to enforce this agreement. No failure or delay by the Company in the exercise of any right, power or privilege hereunder will operate as a waiver thereof. This agreement can only be modified or waived in writing. Notices required or permitted by this Agreement shall be given by certified mail, return receipt requested, overnight courier service or facsimile to the following notice addresses: A. For the Company: David M. Sherbin, Esq. Vice President, General Counsel and Chief Compliance Officer Delphi Corporation 5725 Delphi Drive Troy, Michigan 48098-2815 Telephone: (248) 813-2000 Facsimile: (248) 813-2670 with a copy to: John Wm. Butler, Jr., Esq. Skadden, Arps, Slate, Meagher & Flom LLP 333 West Wacker Drive Chicago, IL 60606-1285, Suite 2100 Telephone: (312) 407-0700 Facsimile: (312) 407-0411 B. For Appaloosa Management L.P. Appaloosa Management L.P. 26 Main Street Chatham, New Jersey 07928 Attn: Mr. David A. Tepper Mr. Ronald M. Goldstein Telephone: (973) 701-7000 Facsimile: (973) 701-7055 C. For Harbinger Capital Partners Master Fund I, Ltd. Harbinger Capital Partners Master Fund I, Ltd. c/o 555 Madison Avenue 16th Floor New York, New York 10022 Attn: Mr. Philip A. Falcone Telephone: (212) 521-6970 Facsimile: (212) 508-3721 with a copy to: Harbinger Capital Partners Master Fund I, Ltd. One Riverchase Parkway South Birmingham, AL 35244 Attn: Legal Department Telephone: (205) 987-5500 Facsimile: (205) 987-5505 Any proceeding relating to this letter agreement shall be brought in the Bankruptcy Court during the pendency of the Chapter 11 Cases and thereafter in a federal or state court of New York. You and the Company hereby consent to personal jurisdiction in any such action and to service of process by mail, and waive any objection to venue in any such court. This letter shall be governed by the internal laws of the State of New York and shall inure to the benefit of and be binding upon the Company and you and our respective affiliates, successors and assigns, including any successor to the Company or you or substantially all of the Company's or your assets or business. Please acknowledge your acceptance of the terms and conditions stated herein by signing and returning this agreement to the Company. DELPHI CORPORATION ---------------------------------- By: John D. Sheehan Its: Vice President & Chief Restructuring Officer ACCEPTED AND AGREED: APPALOOSA MANAGEMENT L.P. - -------------------------------- By: Its: HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. By: Harbinger Capital Partners Offshore Manager, LLC, as its investment manager - -------------------------------- By: Its: SK 03773 0003 733752 EX-99.H 6 d733722_ex99-h.txt EXECUTION COPY AGREEMENT OF LIMITED PARTNERSHIP OF DEL A-2 L.P. (A DELAWARE LIMITED PARTNERSHIP) DATED AS OF DECEMBER 18, 2006 AGREEMENT OF LIMITED PARTNERSHIP OF DEL A-2 L.P. AGREEMENT OF LIMITED PARTNERSHIP OF DEL A-2 L.P. (the "Partnership"), dated as of the 18th day of December, 2006 by and among A-D GP MANAGEMENT, LLC, as the General Partner, and each of the Persons identified on Exhibit A, as Limited Partners (the Limited Partners and the General Partner are collectively referred to as the "Partners"). All capitalized terms used herein and not otherwise defined shall have the meaning ascribed to such terms in Exhibit B hereto; provided, that capitalized terms used herein that are not defined herein or in Exhibit B hereto but are defined in the Purchase Agreement (defined below) shall have the meanings ascribed to such terms in the Purchase Agreement. W I T N E S S E T H: - - - - - - - - - - WHEREAS, the Partnership was formed by filing the Certificate of Limited Partnership with the Secretary of State of the State of Delaware on December 13, 2006; WHEREAS, it is the intention that if A-D Acquisition Holdings, LLC purchases 8,571,429 newly issued shares of Series A-2 Senior Convertible Preferred Stock (the "Series A-2 Preferred Stock") of Delphi Corporation ("Delphi") pursuant to that certain Equity Purchase and Commitment Agreement (the "Purchase Agreement"), by and among Delphi, A-D Acquisition Holdings, LLC, Dolce Investments LLC, Harbinger Del-Auto Investment Company, Ltd. ("Harbinger"), UBS Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill"), then the Series A-2 Preferred Stock will be sold to the Partnership at a purchase price equal to that paid by A-D Acquisition Holdings, LLC when it acquires the Series A-2 Preferred Stock from Delphi; and WHEREAS, the Partners wish to make an investment in the Partnership in accordance with the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto do hereby mutually covenant and agree as follows: ARTICLE I. ORGANIZATION ------------ SECTION 1.1. Name. The name of the Partnership shall be "Del A-2 L.P.". All business of the Partnership shall be conducted under such name. SECTION 1.2. General Partner. A-D GP Management, LLC shall be the sole "general partner" of the Partnership within the meaning of the Act (the "General Partner"). SECTION 1.3. Purposes. The Partnership is organized for the purpose of acquiring and owning 8,571,429 newly issued shares of the Series A-2 Preferred Stock of Delphi and to engage in such other activities as the General Partner deems necessary, convenient or incidental to the conduct, promotion or attainment of such purpose. SECTION 1.4. Place of Registered Office; Registered Agent. The address of the registered office of the Partnership in the State of Delaware is 2711 Centerville Road, Wilmington, Delaware 19808. The name and address of the registered agent for service of process on the Partnership in the State of Delaware is Corporation Service Company, 2711 Centerville Road, Wilmington, Delaware 19808. The General Partner may at any time on ten (10) days' prior notice to all Partners change the location of the Partnership's registered office or change the registered agent. SECTION 1.5. Term. Subject to the events of dissolution set forth in Article IX, the Partnership shall have a perpetual existence. SECTION 1.6. Fiscal Year. The fiscal year of the Partnership (the "Fiscal Year") shall be the calendar year. SECTION 1.7. Filings. (a) The General Partner shall use its commercially reasonable efforts to cause amendments to the Certificate of Limited Partnership to be executed and filed whenever required by the Act. (b) The General Partner shall use its commercially reasonable efforts to take such other actions as may be reasonably necessary to perfect and maintain the status of the Partnership as a limited partnership under the laws of the State of Delaware. (c) Subject to Section 1.8, the General Partner shall (i) cause the Partnership to be qualified, formed or registered under assumed or fictitious name statutes or similar laws in any jurisdiction in which the Partnership transacts business in which such qualification, formation or registration is required or desirable, and (ii) execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Partnership to qualify to do business in a jurisdiction in which the Partnership may wish to conduct business. SECTION 1.8. Limitations on Partnership Powers. Notwithstanding anything contained herein to the contrary, the Partnership shall not do business in any jurisdiction that would jeopardize the limitation on liability afforded to the Limited Partners under the Act or this Agreement. ARTICLE II. PARTNERSHIP INTERESTS AND CAPITAL ACCOUNTS; REPRESENTATIONS AND WARRANTIES -------------------------------------------------------------------------- SECTION 2.1. Partnership Interests. A Partner's "Partnership Interest" shall mean the entire ownership interest of such Partner in the Partnership, including any and all rights, powers and benefits accorded a Partner under this Agreement and the duties and obligations of such Partner hereunder. The "Percentage Interest" of each Partner used in computing certain allocations and distributions to the Partners pursuant to the terms of this Agreement shall be as set forth on Exhibit A. SECTION 2.2. Representations and Warranties of the General Partner. The General Partner represents and warrants to each Partner on and as of the date hereof and as of the Closing Date that: (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (b) it has full power and authority to execute, deliver and perform its obligations under this Agreement, including all documents executed in connection herewith; (c) this Agreement has been duly and validly authorized, executed and delivered by the General Partner and is legal, valid, binding and enforceable against the General Partner in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors' rights generally or by general equitable principles relating to enforceability; (d) as of the Closing Date, when the transactions contemplated by the Purchase Agreement are consummated in accordance with their terms, the General Partner will be the sole legal and beneficial owner of the Series A-2 Preferred Stock, and the Partnership Interests will not be subject to any lien, encumbrance, pledge, transfer, conveyance, assignment, option or participation by the General Partner (other than pursuant to this Agreement) and the General Partner is not a party to any agreement (other than this Agreement) which may result in the foregoing; and (e) no notice to, registration with, consent or approval of, or any other action by any person or entity is or will be required for the General Partner to execute, deliver, and perform its obligations under this Agreement, other than any such consents, approvals or other actions that shall have been received, made or taken as of the Closing Date. SECTION 2.3. Representations and Warranties of the Each Partner. Each Partner severally and not jointly represents and warrants to the General Partner and to each other Partner on and as of the date hereof and as of the Closing Date that: (a) the Partner is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (b) the Partner has full power and authority to execute, deliver and perform its obligations under this Agreement and all other documents executed in connection herewith and therewith, and to purchase Partnership Interests hereunder; (c) this Agreement has been duly and validly authorized, executed and delivered by the Partner and is legal, valid, binding and enforceable against the Partner in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors' rights generally or by general equitable principles relating to enforceability; (d) no notice to, registration with, consent or approval of, or any other action by any person or entity is or will be required for the Partner to execute, deliver, and perform its obligations under this Agreement, other than any such consents, approvals or other actions that shall have been received, made or taken as of the Closing Date; (e) the Partner is a sophisticated buyer with respect to the Partnership Interests and has adequate information concerning the business and financial condition of the Partnership and Delphi to make an informed decision regarding the purchase of the Partnership Interests and the Partner independently and without reliance on the General Partner or any of their Affiliates and based on such information as the Partner has deemed appropriate, made its own analysis and decision to enter into this Agreement. The Partner shall continue to make its own analysis and decisions with respect to its Partnership Interest without reliance on the General Partner or any of its Affiliates; (f) the General Partner is not, with respect to the acquisition, holding and disposition of the Partnership Interests by any Partner, a fiduciary of any Partner; (g) either (i) the Partner is not buying any Partnership Interest by or on behalf of one or more "employee benefit plans" subject to Title I of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), "plans" subject to Section 4975 of Internal Revenue Code of 1986, as amended (the "Code"), or any entity whose assets include the assets of any such employee benefit plans or plans or (ii) the Partner's purchase of Partnership Interests satisfies the conditions for exemptive relief from the prohibited transaction restrictions of ERISA and Section 4975 of the Code under one or more prohibited transaction exemptions, such as Prohibited Transaction Class Exemption ("PTE") 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds), and PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers); (h) without implying any characterization of the Partnership Interests or any participation therein as a "security" within the meaning of any applicable securities laws, the Partner is acquiring the Partnership Interest for investment for its own account and not with a view to, or for resale in connection with, any distribution or public offering of all or any part thereof or of any interest therein in a manner which would violate applicable securities laws; and (i) the Partner has received such information as the Partner deemed necessary in connection with its purchase of the Partnership Interests, and the Partner is assuming all risk with respect to the completeness, accuracy or sufficiency of such information. ARTICLE III. CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS --------------------------------------- SECTION 3.1. Original Capital Contributions. Simultaneous with the execution of this Agreement, the Partners shall contribute to the capital of the Partnership an amount of cash set forth opposite such Partner's name on Exhibit A hereto. SECTION 3.2. Additional Capital Contributions . (a) Except as set forth in Section 3.1 above, no Partner shall be required to make any Capital Contributions; provided, that: (i) Each Partner agrees to make immediate Capital Contributions pursuant to a capital call to be made by the General Partner as set forth in Section 3.2(ii) upon the purchase, if any, by A-D Acquisition Holdings, LLC of the Series A-2 Preferred Stock pursuant to the Purchase Agreement (the "Capital Call Date"). On the Capital Call Date, the General Partner shall cause the Series A-2 Preferred Stock to be sold to the Partnership and the Capital Contributions made by the Partners on the Capital Call Date shall be used solely to fund the Partnership's purchase of the Series A-2 Preferred Stock. Any Partner's obligations pursuant to this Section 3.2 shall terminate automatically upon the valid termination of such Partner's obligations under the Purchase Agreement. If both Merrill's and Harbinger's obligations under the Purchase Agreement are validly terminated pursuant to the Purchase Agreement, this Agreement will terminate and have no further force or effect. (ii) The General Partner shall send a written notice to each Partner at least one (1) Business Day before the Closing Date for the purchase of the Series A-2 Preferred Stock by A-D Acquisition Holdings, LLC. Each of the Partners, severally and not jointly, agrees that such Partner shall make a Capital Contribution as set forth in Exhibit A without setoff or counterclaim not later than 10:00 a.m., New York City time, on the Closing Date. (iii) Each Partner's payment pursuant to this Section 3.2 shall be made by wire transfer to the Partnership at the account specified on Exhibit A hereto, in U.S. Dollars ("Dollars") and in immediately available funds. The General Partner shall have the authority, in its sole discretion, to offset the amount of cash required to be contributed by a Partner pursuant to this Agreement by any proceeds to be paid by the Partnership to such Partner in exchange for Series A-2 Preferred Stock sold to the Partnership and to reduce the amount of cash required to be contributed by such Partner pursuant to this Agreement accordingly; provided, that, the amount of any such reduction shall be treated as amounts contributed to the capital of the Partnership by such Partner pursuant to this Agreement. Interest shall be payable daily on any unpaid amounts pursuant to such capital call until payment in full is received by the Partnership at the rate that is equal to the 1-month London Interbank Offered Rate for Dollar deposits appearing on the Reuters Screen LIBO Page as of approximately 11:00 a.m., London time on the date that is two (2) Business Days prior to the Capital Call Date (or, if such rate does not appear on such Reuters Screen LIBO Page, from such other source as the General Partner shall reasonably determine), plus six percent (6%). In addition, each Partner that defaults in its obligation under this Section 3.2 shall pay or reimburse the Partnership for the reasonable costs and expenses, including the reasonable fees and expenses of its counsel, of collecting and enforcing the obligations of such defaulting Partner; provided, that the General Partner shall have the right to terminate this Agreement as it relates to any Partner if such Partner has not made the Capital Contributions required pursuant to this Section 3.2 by 5:00 p.m., New York City time, on the tenth (10th) Business Day after the Capital Call Date. If the General Partner terminates this Agreement with respect to a particular Partner pursuant to the proviso of the immediately preceding sentence, (i) all rights and obligations of the General Partner and the defaulting Partner as between each of them shall terminate and (ii) the defaulting Partner's failure to make the Capital Contribution pursuant to this Section 3.2 and such termination shall not otherwise affect the rights and obligations of the General Partner and the other Partners as among them. Nothing in this Section 3.2 shall relieve any party of liability for any breach of this Agreement. Subject to the occurrence of the Capital Call Date, each Partner's obligations under this Section 3.2 shall be absolute, unconditional and irrevocable under any and all circumstances (including, without limitation, any adverse change in the business, prospects, condition (financial or otherwise) of Delphi and its subsidiaries, or any disruption of or material adverse change in conditions in the financial, banking or capital markets) and irrespective of any setoff, counterclaim or defense to payment that such Partner may have against the General Partner, any other Partner, Delphi or any other person or entity or any default in performance by any other Partner. Any determination made by the General Partner under the Purchase Agreement or this Agreement shall be binding on each Partner, absent gross negligence or willful misconduct. The General Partner and its Affiliates shall not be liable for any error, omission, interruption or delay, to the extent related to the Series A-2 Preferred Stock, in connection with this Agreement, the Purchase Agreement, the PSA, the Rights, the Plan, the Partnership Interests, the Series A-2 Preferred Stock or any other transaction contemplated hereby or thereby, except for errors or omissions found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the General Partner; provided, that nothing in this Agreement shall relieve the General Partner or its Affiliates from any obligations contained in any other agreement to which they are a party. Any action taken or omitted to be taken by the General Partner, to the extent related to the Series A-2 Preferred Stock, under or in connection with this Agreement, the Purchase Agreement, the PSA, the Rights, the Plan, the Partnership Interests, the Series A-2 Preferred Stock or any other transaction contemplated hereby or thereby in the absence of gross negligence or willful misconduct, shall be binding on each Partner and shall not result in any liability of the General Partner to such Partner; provided, that nothing in this Agreement shall relieve the General Partner or its Affiliates from any obligations contained in any other agreement to which they are a party; and (iv) The General Partner shall make the following Capital Contributions, if and when applicable, and such Capital Contributions will in no way affect the Percentage Interests of any Partner: (A) any Preferred Commitment Fee attributable to the Series A-2 Preferred Stock actually received by the General Partner and its Affiliates (it being understood and agreed by the Partners that the portion of the Preferred Commitment Fee attributable to the Series A-2 Preferred Stock shall be 25% of such Preferred Commitment Fee), if any; provided, that any such Preferred Commitment Fee actually received by the General Partner and its Affiliates shall first be allocated to reimburse the General Partner and Harbinger Capital Partners Master Fund I, Ltd. and their Affiliates for 25% of all out-of-pocket costs and expenses (including attorneys' fees and costs and any advisory or other fees or costs with respect to individuals who are nominated pursuant to the terms of the Series A-2 Preferred Stock by the General Partner or its Affiliates to serve on Delphi's board of directors) incurred by the General Partner and Harbinger Capital Partners Master Fund I, Ltd. and their Affiliates since the commencement date of Delphi's chapter 11 cases and related to such chapter 11 cases, which have not otherwise been reimbursed to the General Partner and Harbinger Capital Partners Master Fund I, Ltd. or their Affiliates by Delphi as Transaction Expenses in accordance with the Purchase Agreement ("Reimbursable Expenses"); provided, further, that the fees and expenses of any attorneys for Harbinger Capital Partners Master Fund I, Ltd., other than those of White & Case LLP, shall not be Reimbursable Expenses; and (B) any Alternate Transaction Fee attributable to the Series A-2 Preferred Stock actually received by the General Partner and its Affiliates (it being understood and agreed by the Partners that the portion of the Alternate Transaction Fee attributable to the Series A-2 Preferred Stock shall be 8.8% of such Alternate Transaction Fee), if any; provided, that any such Alternate Transaction Fee actually received by the General Partner and its Affiliates shall first be allocated to reimburse the General Partner and Harbinger Capital Partners Master Fund I, Ltd. and their Affiliates for 8.8% of all Reimbursable Expenses incurred by the General Partner and Harbinger Capital Partners Master Fund I, Ltd. and their Affiliates; provided, further, that the fees and expenses of any attorneys for Harbinger Capital Partners Master Fund I, Ltd., other than those of White & Case LLP, shall not be Reimbursable Expenses. (b) The Preferred Commitment Fee and Alternate Transaction Fee allocated to the reimbursement of Reimbursable Expenses shall be allocated among the General Partner and Harbinger Capital Partners Master Fund I, Ltd. pro rata based on their respective proportions of the aggregate of such Reimbursable Expenses incurred by the General Partner and Harbinger Capital Partners Master Fund I, Ltd. and their Affiliates, respectively. Any portion of any Preferred Commitment Fee and Alternate Transaction Fee remaining after the reimbursement of Reimbursable Expenses shall be made as a Capital Contribution by the General Partner in accordance with Section 3.3(a). To the extent that any portion of any Preferred Commitment Fee and Alternate Transaction Fee is applied to the payment of Reimbursable Expenses of the General Partner or Harbinger Capital Partners Master Fund I, Ltd. or their Affiliates and the General Partner or Harbinger Capital Partners Master Fund I, Ltd. or an Affiliate subsequently is reimbursed for such Reimbursable Expenses by Delphi as Transaction Expenses in accordance with the Purchase Agreement, then the amount of such later reimbursed costs and expenses shall be treated as a Preferred Commitment Fee or Alternate Transaction Fee, as applicable, in accordance with this Section 3.2. SECTION 3.3. Return of Capital; Interest. No Partner shall be entitled to withdraw any part of its Capital Contributions, to receive interest on its Capital Contributions or to receive any distributions from the Partnership, except as expressly provided in this Agreement. SECTION 3.4. Capital Accounts. A separate capital account ("Capital Account") shall be maintained for each Partner in accordance with Regulations Section 1.704-1(b)(2). Without limiting the foregoing, each Partner's Capital Account shall be credited with the sum of (i) the amount of money and fair market value of property contributed by such Partner to the Partnership (net of liabilities assumed by the Partnership or which such property is taken subject to) and (ii) allocations to such Partner of its allocable share of income (or items thereof) pursuant to Section 4.1. Each Partner's Capital Account shall be decreased by the sum of (x) the amount of money distributed to such Partner and the fair market value of property distributed to such Partner (net of liabilities assumed by such Partner or which such property is taken subject to), (y) allocations to such Partner of its allocable share of losses and (z) the amount of deductions or losses or items thereof, if any, allocated to such Partner pursuant to Section 4.1. If any property other than cash is distributed to a Partner, the Capital Accounts of the Partners shall be adjusted as if the property had instead been sold by the Partnership for a price equal to its fair market value and the proceeds distributed. Upon liquidation and winding-up of the Partnership, any unsold Partnership property shall be valued at its fair market value to determine the gain or loss which would result if such property were sold at the time of such liquidation. The Capital Accounts of the Partners shall be adjusted to reflect how any such gain or loss would have been allocated under Article IV if such property had been sold at the assigned values. The Capital Account of any Partner shall carry over to the transferee of any Partner in proportion to the Partnership Interest Transferred. ARTICLE IV. ALLOCATIONS ----------- SECTION 4.1. Allocation of Income and Losses. All income, profits, gain, losses, deductions and credits of the Partnership for each Fiscal Year shall be allocated to the Partners according to their Percentage Interests. SECTION 4.2. Tax Incidents. It is intended that the Partnership will be treated as a pass-through entity for tax purposes. Subject to Section 704(c) of the Code, for U.S. federal and state income tax purposes, all items of Partnership income, gain, loss, deduction, credit and any other allocations not otherwise provided for shall be allocated among the Partners in the same manner as the corresponding item of income, gain, loss or deduction was allocated pursuant to the preceding sections of this Article IV. SECTION 4.3. Allocation with Respect to Transferred Interests. Each item of income or loss allocable to a Partner's Partnership Interest that is Transferred in whole or in part during any Fiscal Year shall, if permitted by law, be allocated on a daily basis according to the varying Percentage Interests of the Partners during such year. ARTICLE V. DISTRIBUTIONS ------------- SECTION 5.1. Distributions. (a) Subject to Section 9.3(d), distributions may be made to the Partners in an aggregate amount to be determined by the General Partner in its sole discretion, in all cases in proportion to the respective Percentage Interests of the Partners. (b) The General Partner, except with respect to breaches of an express provision of this Agreement, (i) shall not be liable for any error in judgment or for any action taken or omitted to be taken by it hereunder, except for its gross negligence or willful misconduct and (ii) may rely on legal counsel, independent public accountants and other experts selected or accepted by the General Partner and shall not be liable for any action taken or omitted to be taken in good faith by the General Partner in accordance with the advice of such counsel, accountants or experts. The General Partner has no duty to propose to take any action with respect to the Series A-2 Preferred Stock and may act with respect to the voting, conversion or disposition of the Series A-2 Preferred Stock in its sole discretion without any obligation of prior consultation to the Partners. Notwithstanding the above, nothing in this Section 5.1(b) shall relieve the General Partner from any liability for its breach of any of its covenants or agreements contained in this Agreement. (c) Any Partner may own such interests in, and may have and engage in any other relationships with or concerning, Delphi or its Affiliates, without any obligation or liability of any kind to the Partnership or any other Partner, except as expressly provided in this Agreement. Notwithstanding any other term or provision of this Agreement, neither the Partnership nor any other Partner shall have any rights to or interests in any rights or interests of any Partner in respect of Delphi, except as expressly provided in this Agreement. ARTICLE VI. ACCOUNTING; TAX RETURNS; TAX MATTERS PARTNER; REPORTING TO LIMITED PARTNERS -------------------------------------------------- SECTION 6.1. Maintenance of Books and Records; Accounts and Accounting Method. The General Partner shall cause to be maintained: (a) books of account of the Partnership, which shall be maintained in accordance with GAAP; and (b) all other records necessary to the business of the Partnership as provided for herein. The books of account and records of the Partnership shall be maintained on the accrual basis method of accounting. SECTION 6.2. Reports; Tax Returns. The General Partner shall prepare or cause to be prepared all income and other tax returns of the Partnership and shall cause the same to be filed in a timely manner (including extensions). In addition, the General Partner shall be entitled to take any other action on behalf of the Partnership required to cause the Partnership to be in compliance with any applicable governmental regulations. Not later than ninety (90) days after the end of each Fiscal Year of the Partnership, the General Partner shall deliver or cause to be delivered to each Partner a copy of the Partnership tax returns and Schedule K-1 for the Partnership with respect to such Fiscal Year, together with such information with respect to the Partnership as shall be necessary for the preparation by such Partner of its U.S. federal and state income or other tax and information returns. The Schedule K-1 will be prepared at the expense of the Partnership. SECTION 6.3. Tax Elections; Tax Matters Partner. The General Partner may, in its sole discretion, cause the Partnership to make an election under Section 754 of the Code. The General Partner is hereby designated as the tax matters partner (the "Tax Matters Partner") of the Partnership, as provided in the Treasury Regulations pursuant to Section 6231 of the Code (and any similar provisions under any other state or local or non-U.S. tax laws). Each Limited Partner hereby consents to such designation and agrees that upon the request of the Tax Matters Partner it will execute, certify, acknowledge, deliver, swear to, file and record at the appropriate public offices such documents as may be necessary or appropriate to evidence such consent. All expenses incurred by the General Partner while acting in the capacity of Tax Matters Partner shall be paid or reimbursed by the Partnership. SECTION 6.4. Valuations; Financial Reports. (a) Annual Valuation. Within one hundred twenty (120) days after the end of each Fiscal Year of the Partnership (beginning with the 2007 Fiscal Year) or as soon thereafter as possible, the General Partner shall cause to be prepared and distributed to each Partner and to the Partnership, at the expense of the Partnership, annual audited financial statements (the "Financial Statements"). (b) Valuation Methods. The assets of the Partnership will be valued as determined in good faith by the General Partner. SECTION 6.5. Inspection of Partnership Records. Each Partner shall have the right, at all reasonable times during usual business hours, upon reasonable prior written notice to the General Partner, to audit, examine and make copies of, or extracts from, the books of account and other financial records of the Partnership at the office of the General Partner. Such right may be exercised through any agent or employee of a Partner designated by such Partner or by an independent certified public accountant designated by such Partner. Each Partner shall bear all out of pocket expenses incurred in any examination made for such Partner's account and shall keep all information obtained during such inspection confidential. In the exercise of their rights under this Section 6.5, the Partners agree that they shall not cause any unreasonable interference with or disruption of the Partnership business. SECTION 6.6. Tax Compliance. Each Limited Partner hereby undertakes promptly to provide to the General Partner, at its request, any and all information, statements or certificates which the General Partner may at any time judge necessary to comply with the tax laws of any jurisdiction, or in order to minimize any obligation which the Partnership may have to withhold tax on distributions to such Partners. If any Limited Partner shall fail to provide any such information, statement or certificate reasonably requested by the General Partner, the General Partner shall be entitled to take such action as the General Partner may reasonably determine. ARTICLE VII. OPERATIONS ---------- SECTION 7.1. Exclusive Authority to Manage; Partnership Management. Except as expressly provided herein, the conduct and control of the Partnership's business, operations and affairs, including, but not limited to, any actions to be taken (including, but not limited to, voting, converting, holding and disposition or Transfer) regarding the Series A-2 Preferred Stock, and the right and power to manage and operate the Partnership, shall be vested exclusively in the General Partner. The General Partner is hereby authorized and empowered, on behalf and in the name of the Partnership (i) to carry out the purposes of the Partnership, (ii) to perform all acts, and to enter into and to perform all contracts and other undertakings, which the General Partner may in its sole discretion deem necessary or advisable, or which are incidental, to carry out the purposes of the Partnership and (iii) to delegate any and all authority or responsibility granted to the General Partner pursuant to this Agreement to one or more agents of the General Partner. Any action taken by the General Partner shall constitute the act of and serve to bind the Partnership. The General Partner may not Transfer its General Partner Partnership Interest without the prior unanimous consent of all of the Limited Partners, except pursuant to a Transfer to any Affiliate of the General Partner. In any case, any such Transferee (whether an Affiliate of the General Partner or a Transferee approved by the prior unanimous consent of all of the Limited Partners) shall agree in writing to be bound by the provisions of this Agreement and shall execute and deliver to the Partnership and each other Partner a counterpart to this Agreement. SECTION 7.2. Partnership Expenses and Liabilities. The Partnership shall pay, and shall reimburse the General Partner to the extent it pays, all expenses, debts and liabilities of the organization and the operations of the Partnership and the Partnership shall reimburse the General Partner for all expenses incurred by the General Partner in connection with its management and operation of the Partnership. SECTION 7.3. Indemnification and Liability. (a) Neither the General Partner nor any of its employees, officers, directors, representatives, attorneys, advisors or Affiliates (all of the foregoing collectively "Representatives"), to the extent related to the Series A-2 Preferred Stock, shall be liable or have any duties or obligations to the Partnership or the Limited Partners in respect of Delphi or under or in respect of the Purchase Agreement, the PSA, the Plan, the Rights, the Partnership Interests, the Series A-2 Preferred Stock or any other transaction contemplated thereby, except those expressly set forth herein and the duty to deal with the Partnership and the Limited Partners in good faith; provided, that this Section 7.3(a) shall not eliminate any other obligation owing by the General Partner or any Representatives pursuant to any other agreement between the General Partner or such Representative and any Limited Partner. Without limiting the generality of the foregoing, to the extent related to the Series A-2 Preferred Stock, (A) neither the General Partner nor any of the Representatives shall have any duty to any Limited Partner to obtain, through the exercise of diligence or otherwise, to investigate, confirm, or disclose to the Limited Partners any information relating to Delphi or any of its subsidiaries that may have been communicated to or obtained by the General Partner or any of its Affiliates in any capacity and (B) the Limited Partners may not rely, and have not relied, on any due diligence investigation that the General Partner or any person or entity acting on its behalf may have conducted with respect to Delphi, any of its subsidiaries or Affiliates or any of their respective securities. Moreover, neither the General Partner nor any of the Representatives shall be liable to any Limited Partner or its Affiliates for any action taken or not taken by the General Partner or any Representative with the written consent or at the written request of such Limited Partner. Neither the General Partner nor any of the Representatives shall have any duty to ascertain or inquire into (i) any statement, warranty or representation in or in connection with the Purchase Agreement, the PSA, the Plan, the Rights, the Partnership Interests, Series A-2 Preferred Stock or any other transaction contemplated hereby or thereby, or in any reports or filings made by Delphi with the Securities Exchange Commission, (ii) the contents of any certificate, report or other document delivered in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in the Purchase Agreement, the PSA, the Plan, the Rights or the Series A-2 Preferred Stock, (iv) the validity, enforceability, effectiveness or genuineness of the Purchase Agreement, the PSA, the Plan, the Rights, the Series A-2 Preferred Stock or any other transaction contemplated thereby or any other agreement, instrument or document thereunder or (v) the satisfaction of any condition set forth in the Purchase Agreement, the PSA, the Plan, the Rights, the Partnership Interests or the Series A-2 Preferred Stock, nor shall they have any responsibility to any Limited Partner in respect of any of the foregoing. (b) The General Partner and any of the Representatives shall be entitled to rely on, and shall not incur any liability for relying on, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper person. The General Partner and any of the Representatives also may rely on any statement made to it orally or by telephone and believed by it to be made by the proper person, and shall not incur any liability for relying thereon. The General Partner may perform any and all its obligations and exercise its rights and powers by or through any one or more sub-agents appointed by the General Partner, which sub-agents shall be Affiliates of the General Partner. The General Partner and any such sub-agent may perform any and all its duties and exercise its rights and powers through Representatives. The exculpatory provisions of this Section 7.3 shall apply to any such sub-agent and to the Representatives of the General Partner and any such sub-agent, and shall apply to their respective activities in connection with the transactions provided for herein, in the Purchase Agreement or the Plan as well as activities as the General Partner; provided, that the General Partner shall continue to be responsible for its obligations hereunder. (c) Each Limited Partner acknowledges that it has, independently and without reliance on the General Partner, any Representatives or any other Limited Partner and based on such documents and information as it has deemed appropriate, made its own investment, tax, legal and economic analysis of this Agreement, the Purchase Agreement, the PSA, the Plan, the Rights, Delphi and its subsidiaries, the Partnership Interests and the Series A-2 Preferred Stock and its own independent decision to enter into this Agreement and is not relying on any representation or warranty of, or information or analysis provided by or on behalf of, the General Partner or any Representatives concerning this Agreement, the Purchase Agreement, the PSA, Delphi and its subsidiaries, the Plan, the Rights, the Partnership Interests and the Series A-2 Preferred Stock. Each Limited Partner also acknowledges that it will, independently and without reliance on the General Partner, any Representatives or any other Limited Partner and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based on this Agreement, the Purchase Agreement, the PSA, the Plan, the Rights, the Partnership Interests, the Series A-2 Preferred Stock or any other transaction contemplated hereby or thereby. (d) Each Limited Partner, severally and not jointly, agrees to indemnify the General Partner and its Representatives (to the extent not previously reimbursed by Delphi and without limiting the obligation of Delphi to do so), (i) for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever (including the reasonable costs and expenses of counsel) that may at any time be imposed on, incurred by or asserted against the General Partner or a Representative as a result of any representation or warranty of such Limited Partner made herein being untrue or incorrect in any respect, and (ii) for its pro rata share based on its Percentage Interest of any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever (including the reasonable costs and expenses of counsel) that may at any time be imposed on, incurred by or asserted against the General Partner or a Representative in any way relating to or arising out of this Agreement, the Partnership Interests, the Partnership's ownership of the Series A-2 Preferred Stock or any action taken or omitted by the General Partner or the Representatives under or in connection with any of the foregoing; provided, that no Limited Partner shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and non-appealable decision of a court of competent jurisdiction to have resulted from the General Partner's or Representatives' gross negligence or willful misconduct. If such indemnification is for any reason not available or insufficient to hold the General Partner or such Representatives harmless, each Limited Partner, severally and not jointly, agrees to contribute to the liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements referred to in this Section 7.3 in such proportion as is appropriate to reflect the relative benefits received (or anticipated to be received) by such Limited Partner, on the one hand, and by the General Partner and the Representatives, on the other hand, under this Agreement or, if such allocation is determined by a court of competent jurisdiction to be unavailable, in such proportion as is appropriate to reflect other equitable considerations such as the relative fault of such Limited Partner, on the one hand and of the General Partner and the Representatives on the other hand. (e) Each Limited Partner acknowledges that the General Partner makes no representation or warranty and assumes no responsibility with respect to any statements, warranties, or representations made by any person or entity other than the General Partner in or in connection with the Purchase Agreement or the execution, legality, validity, or enforceability (with respect to any person or entity other than the General Partner) of the Purchase Agreement and the General Partner makes no representation or warranty and assumes no responsibility with respect to the financial condition, creditworthiness, properties, affairs, status or nature of Delphi, or the performance or observance by Delphi of its obligations under the Purchase Agreement or any other instrument or document. The General Partner acknowledges that it shall have no recourse to any Limited Partner except for any Limited Partner's indemnities and other obligations, in each case as expressly stated in this Agreement. (f) The General Partner shall not be liable to the Partnership or the Limited Partners for mistakes of judgment or for any act or omission suffered or taken by it, or for losses due to any such mistakes, action or inaction, except to the extent of the willful misconduct or gross negligence of such General Partner. The General Partner and its Representatives shall be fully protected and are hereby indemnified, to the fullest extent permitted by applicable law, by the Partnership against any and all liabilities, losses, damages and expenses (including without limitation (1) legal fees and expenses and (2) any amounts paid in respect of judgments, fines or settlement of litigation) suffered or incurred in any actual or threatened claim, action or proceeding as a result or by reason of (i) in the case of the General Partner, (A) the fact that it is or was the General Partner or (B) any alleged action or inaction as General Partner and (ii) in the case of any Representative of the General Partner, any alleged action or inaction in such Person's capacity as representative of the General Partner; provided, that the foregoing indemnity shall not apply to the extent that any action or inaction by the General Partner or its Representative is determined by a final judgment to have constituted gross negligence or willful misconduct. The General Partner may consult with legal counsel or accountants selected by the General Partner and any action or omission suffered or taken in good faith in reliance and accordance with the opinion or advice of any such counsel or accountants shall be full protection and justification with respect to the action or omission so suffered or taken. The General Partner shall not be personally liable for the return of all or any part of a Limited Partner's Capital Contribution or payment of any amounts allocated to it or credited to its Capital Accounts, which return or payment shall be made solely from, and to the extent of, the Partnership's assets. SECTION 7.4. Relationship of General Partner, the Partnership and Others. (a) The General Partner shall use its commercially reasonable efforts to further the interests of the Partnership. However, the General Partner is and may be affiliated with other firms, corporations and other Persons. (b) The fact that the General Partner or a Limited Partner or any Affiliate of either may have dealings with the Partnership or is directly or indirectly interested in or connected with any firm, corporation or other Person with which the Partnership may have dealings shall not preclude such dealings or make them void or voidable. Neither the Partnership nor any of the Partners shall have any right in such Partner's or such Person's income or profits from such dealings with the Partnership. SECTION 7.5. Limited Partners. Except as expressly provided in this Agreement, the Limited Partners shall take no part in the conduct, management or operation of the Partnership or the Partnership's business and shall have no authority or power to act for or to bind the Partnership, including, but not limited to, with respect to the acquisition, holding, voting or disposition of the Partnership's property. No Limited Partner shall hold himself or itself out as a general partner or take any action on behalf of the Partnership or in any way commit the Partnership to any agreement or obligation, and the Limited Partners shall have no right, power or authority to do any of the foregoing. The following matters affecting the Partnership shall not be performed by the General Partner without the affirmative vote of all of the Limited Partners, obtained pursuant to Section 7.6: (i) any merger or consolidation of the Partnership with or into another entity after the close of business on the date hereof or any change in the Partnership's purpose as set forth in Section 1.3; (ii) subject to Section 9.2, the dissolution, liquidation and termination of the Partnership pursuant to Section 9.2(a); or (iii) the reconstitution of the Partnership prior to the termination thereof following a dissolution of the Partnership pursuant to Section 9.2(b). No disposition of the Series A-2 Preferred Stock by the Partnership pursuant to a transaction with the General Partner or any of its Affiliates shall occur without the unanimous approval of all of the Limited Partners. Additionally, the General Partner shall give each of the Limited Partners reasonable notice prior to any sale or transfer, in one transaction or a series of related transactions, involving both Series A-2 Preferred Stock of the Partnership and other securities of Delphi owned by the General Partner or any of its Affiliates (other than indirectly through its Partnership Interests). SECTION 7.6. Partner Meetings. (a) Time. (i) The annual meeting of the Partners shall be held on a date selected by the General Partner which is within one hundred eighty (180) days after the end of each Fiscal Year, which annual meeting shall be held on the date and at the time and place specified in the notice of such meeting given pursuant to Section 7.6(b). At such annual meeting, the Partners shall meet to vote upon any matters set forth in Section 7.5, to discuss the operations and/or Financial Statements of the Partnership and to discuss any other matters relating to the Partnership that are of interest to the Limited Partners. (ii) The General Partner or its Representative shall preside over any meeting of the Partners at which it is present. (b) Notice. Notices of meetings of the Partners shall state the date and hour of the meeting and, other than in the case of the annual meeting, the purpose or purposes for which the meeting is called. Meetings shall be held at such place as shall be specified by the General Partner. The notice of a meeting of the Partners shall be given in writing not less than ten (10) days before the date of the meeting. The Partners may waive in writing the requirements for notice before, at or after a meeting of the Partners, and attendance at such a meeting without objection by a Partner shall be deemed a waiver of such notice requirements on behalf of the attending Partner. (c) Quorum. In order to approve any action set forth in Section 7.5 at a meeting of the Partners, the presence in person or by proxy of Limited Partners representing all of the Limited Partners shall be necessary to constitute a quorum for the transaction of such business. (d) Approval Requirements. At each meeting of the Partners, a Limited Partner shall be entitled to vote in proportion to the Percentage Interest held by such Limited Partner. Approval by the Limited Partners of any matter shall require the vote of all of the Limited Partners present in person or by proxy and voting at a duly held meeting of the Partners. All resolutions passed by the Limited Partners in a meeting shall be documented in minutes of the meeting prepared and executed by the General Partner, filed with the records of the Partnership and mailed by the General Partner after such meeting to all Limited Partners. (e) Written Consents. Any action required or permitted to be taken at a meeting of the Partners may be taken without a meeting if Limited Partners holding sufficient Partnership Interests to approve such action consent thereto in writing. Such consents shall be delivered to the General Partner, filed with the records of the Partnership and thereafter mailed by the General Partner to all Limited Partners. (f) Proxies. A Limited Partner may vote (or execute a written consent) by proxy; provided, that such proxy must be in writing and must identify the specific meeting or matter to which the proxy applies or state that it applies to all matters (subject to specified reservations, if any) coming before the Limited Partners for approval under any provision of this Agreement. Any such proxy shall be revocable in writing at any time. ARTICLE VIII. TRANSFERS --------- SECTION 8.1. Transfers. (a) A Limited Partner may not Transfer any of its Partnership Interests without the prior written consent of the General Partner; provided, that any such Transfer that is approved by the General Partner may only be made in compliance with applicable laws (including, to the extent applicable, securities laws). (b) Notwithstanding anything to the contrary contained in Section 8.1(a), a Limited Partner may at any time effect any of the following Transfers of a Partnership Interest (each a "Permitted Transfer," and each transferee of such Limited Partner in respect of such Transfer, a "Permitted Transferee"): (i) any Transfer of such Limited Partner's Partnership Interest to any Affiliate of such Limited Partner; provided, that any such Affiliate shall Transfer such Partnership Interest to the Limited Partner from whom the Partnership Interest was originally received or acquired within five (5) calendar days after ceasing to be an Affiliate of such Limited Partner; or (ii) any Transfer to another Partner. In any Transfer referred to above in this Section 8.1(b), the Permitted Transferee shall agree in writing to be bound by the provisions of this Agreement and shall execute and deliver to the Partnership and each other Partner a counterpart to this Agreement. Each Permitted Transferee shall hold such Partnership Interest subject to the provisions of this Agreement as a "Partner" hereunder as if such Permitted Transferee were an original signatory hereto and shall be deemed to be a party to this Agreement. (c) Any Person to whom a Transfer is made pursuant to Section 8.1 shall be admitted to the Partnership as a substituted Limited Partner (a "Substituted Limited Partner") upon the delivery of such documentation as the General Partner shall reasonably require, including a counterpart of this Agreement executed by or on behalf of such Substitute Limited Partner. Upon the admission of the Substituted Limited Partner, this Agreement shall be amended by the General Partner to reflect the admission of such Substituted Limited Partner in accordance with the terms of this section. SECTION 8.2. Withdrawal. No Partner shall voluntarily withdraw from the Partnership; provided, that each Partner agrees to withdraw from the Partnership upon the valid termination of such Partner's obligations under the Purchase Agreement, and the Partners hereby acknowledge and agree that such withdrawal shall not be considered a "voluntary" withdrawal pursuant to this Section 8.2. ARTICLE IX. DISSOLUTION, LIQUIDATION AND TERMINATION OF THE PARTNERSHIP ----------------------------------------------------------- SECTION 9.1. Limitations. The Partnership may be dissolved, liquidated and terminated pursuant to and only pursuant to the provisions of this Article IX, and the parties hereto do hereby irrevocably waive any and all other rights they may have to cause a dissolution of the Partnership or a sale or partition of any or all of the Partnership's assets. SECTION 9.2. Exclusive Causes. The Partnership shall be dissolved and liquidated pursuant to Section 9.3, upon the earliest to occur of (it being understood that the following events are the only events that can cause the dissolution and liquidation of the Partnership): (a) The agreement by the General Partner and each of the Limited Partners to so dissolve, liquidate and terminate the Partnership; (b) The General Partner withdraws, retires, becomes insolvent or bankrupt or enters into an assignment for the benefit of its creditors or is liquidated, wound-up or otherwise loses its legal existence, unless the business of the Partnership is continued by consent of all of the Limited Partners within ninety (90) days following the occurrence of any such event; (c) The sale of all of the Partnership's assets; (d) The Partnership no longer owns any Series A-2 Preferred Stock; or (e) The termination of the Purchase Agreement with respect to each Partner other than the General Partner and any Limited Partner that is an Affiliate of the General Partner. SECTION 9.3. Liquidation. In all cases of dissolution of the Partnership, the business of the Partnership shall be continued to the extent necessary to allow an orderly winding up of its affairs, including the liquidation of the assets of the Partnership pursuant to the provisions of this Section 9.3, as promptly as practicable thereafter, and each of the following shall be accomplished: (a) The General Partner shall cause to be prepared a statement setting forth the assets and liabilities of the Partnership as of the date of dissolution, a copy of which statement shall be furnished to all of the Limited Partners. (b) The property of the Partnership shall be liquidated or distributed in kind by the General Partner as promptly as possible, but in an orderly, businesslike and commercially reasonable manner. The General Partner may, in the exercise of its business judgment and if commercially reasonable, determine, subject to Section 7.5, (i) to sell all or any portion of the property of the Partnership to a Partner; provided, that the purchase price is not less than the fair market value of such property as determined in the sole reasonable discretion of the General Partner or its designee, or to any other Person or (ii) not to sell all or any portion of the property of the Partnership, in which event such property and assets shall be distributed in kind pursuant to Section 9.3(d). (c) Any gain or loss realized by the Partnership upon the sale of its property shall be deemed recognized and allocated to the Partners in the manner set forth in Article IV. To the extent that an asset is to be distributed in kind, such asset shall be deemed to have been sold at its fair market value on the date of distribution, the gain or loss deemed realized upon such deemed sale shall be allocated in accordance with Article IV and the amount of the distribution shall be considered to be the value of the asset. (d) The proceeds from a sale of the assets of the Partnership and all other assets of the Partnership distributed in kind shall be applied and distributed as follows and in the following order of priority: (i) to the payment of the debts and liabilities of the Partnership and the expenses of liquidation or distribution; (ii) to the setting up of any reserves which the General Partner shall determine to be reasonably necessary for contingent, unliquidated or unforeseen liabilities or obligations of the Partnership or the Partners arising out of or in connection with the Partnership; and (iii) the balance, if any, to the Partners according to their respective Percentage Interests. SECTION 9.4. Liability of Partners in Liquidation. Except to the extent otherwise provided by law with respect to third party creditors of the Partnership or otherwise by this Agreement, upon liquidation, none of the Partners shall be liable to the Partnership for any deficit in any Partner's Capital Account, nor shall such deficit be deemed an asset of the Partnership. Upon any dissolution or liquidation of the Partnership, the Partners shall provide such releases of liability as may be reasonably requested by the General Partner and shall make such arrangements as may be reasonably requested by the General Partner to ensure that the General Partner continues to enjoy the benefits of the provisions contained in Section 7.3. ARTICLE X. MISCELLANEOUS ------------- SECTION 10.1. Notices. Any and all notices, demands, consents, approvals, requests or other communications which any Partner may desire or be required to give hereunder (collectively, "Notices") shall be in writing and shall be deemed to have been given when delivered personally, or by first class mail, as follows: (i) if to a Partner, to the Partner's address last provided to the General Partner; and (ii) if to the Partnership, to the General Partner at its address set forth on Exhibit A; or to such other address as any party shall specify by notice in writing to each of the other parties. Except for a notice of change of address, which shall be effective only upon receipt thereof, all such Notices shall be deemed to have been received on the date of delivery unless if mailed, in which case on the fifth day after the mailing thereof. SECTION 10.2. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and fully supersedes any and all prior agreements or understandings between the parties hereto pertaining to the subject matter hereof. SECTION 10.3. Section Headings. The section headings used in this Agreement are intended solely for convenience of reference and shall not in any manner amplify, limit, modify or otherwise be used in the interpretation of any of the provisions hereof. SECTION 10.4. Counterparts. This Agreement may be executed in several counterparts and all such executed counterparts shall constitute a single agreement, binding on all of the parties hereto, their successors and their assigns, notwithstanding that all of the parties hereto are not signatories to the original or to the same counterpart. Each counterpart signature page so executed may be attached to a master counterpart of this Agreement to be kept by the General Partner at the principal office of the Partnership and such master counterpart as well as any and all other counterparts executed by any of the parties hereto shall constitute a single agreement. SECTION 10.5. Severability. In case any one or more of the provisions contained in this Agreement shall be invalid or unenforceable in any jurisdiction, the validity and enforceability of all remaining provisions contained herein shall not in any way be affected or impaired thereby; and the invalid or unenforceable provisions shall be interpreted and applied so as to produce as near as may be the economic result intended by the Partners. SECTION 10.6. Governing Law. This Agreement, including its existence, validity, construction and operating effect, and the rights of each of the parties hereto, shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflict of laws. SECTION 10.7. Incorporation by Reference. Every exhibit attached to this Agreement and referred to herein is incorporated in this Agreement by reference unless this Agreement otherwise expressly provides. SECTION 10.8. Variation of Pronouns. All pronouns and any variations thereof shall be deemed to refer to masculine, feminine, or neuter, singular or plural, as the identity of the person or persons may require. SECTION 10.9. Further Action. Each Partner agrees to perform all further acts and execute, acknowledge, and deliver any documents which may be reasonably necessary, appropriate or desirable to carry out the provisions of this Agreement. SECTION 10.10. Consents. Any consent or approval to any act or matter required under this Agreement must be in writing and shall apply only with respect to the particular act or matter to which such consent or approval is given, and shall not relieve any Partner from the obligation, to obtain the consent or approval, as applicable, wherever required under this Agreement to any other act or matter. SECTION 10.11. Amendment, Waiver or Modification. No amendment, waiver or modification to this Agreement shall be effective without the prior written approval of the General Partner and all of the Limited Partners; provided, however, that no such amendment or modification of this Agreement shall require any additional capital contributions to be made by any Limited Partner that does not vote in favor of such amendment. SECTION 10.12. Waiver. Each Partner waives its right to initiate judicial or administrative action to seek dissolution or to seek partition or to seek the appointment of a receiver to liquidate the Partnership. SECTION 10.13. Successors and Assigns. Each Partner agrees that this Agreement shall be binding upon its, his or her heirs, distributees, successors and assigns. IN WITNESS WHEREOF, the Partners have entered into this Agreement as of the day and year first above written. A-D GP MANAGEMENT, LLC, as General Partner By: ----------------------------------- Name: Title: APPALOOSA INVESTMENT L.P. I, as Limited Partner By: APPALOOSA MANAGEMENT L.P., its Investment Advisor By: ----------------------------------- Name: Title: PALOMINO FUND LTD., as Limited Partner By: APPALOOSA MANAGEMENT L.P., its Investment Advisor By: ----------------------------------- Name: Title: MERRILL LYNCH, PIERCE, FENNER & SMITH, INCORPORATED, as Limited Partner By: ----------------------------------- Name: Title: HARBINGER DEL-AUTO INVESTMENT COMPANY, LTD., as Limited Partner By: ----------------------------------- Name: Title: EXHIBIT A
LIST OF MEMBERS AND CAPITAL CONTRIBUTIONS ----------------------------------------- Partner Name and Original Capital Eventual Capital Percentage Address for Notices Partner Partner Payment Instructions Contribution Contribution Interest ------------------- ------- ---------------------------- ------------ ------------ -------- A-D GP Management, LLC General A-D GP Management, LLC $10 $3,000,000 1% c/o Appaloosa Management L.P. Partner c/o Appaloosa Management L.P. 26 Main Street, JP Morgan Chase Chatham, New Jersey 07928 ABA: 021-000-021 Acct: Goldman Sachs & Co. Acct. No.: 930-1-011483 FFC: AMLP Acct. No.: 001-885201 Appaloosa Investment L.P. I Limited Appaloosa Investment L.P. I $10 $96,692,670 32.23% c/o Appaloosa Management L.P. Partner JP Morgan Chase 26 Main Street, ABA: 021-000-021 Chatham, New Jersey 07928 Acct: Goldman Sachs & Co. Acct. No.: 930-1-011483 FFC: Appaloosa Investment Acct. No.: 002-021152 Palomino Fund Ltd. Limited Palomino Fund Ltd. $10 $106,017,330 35.34% c/o Appaloosa Management L.P. Partner JP Morgan Chase 26 Main Street, ABA: 021-000-021 Chatham, New Jersey 07928 Acct: Goldman Sachs & Co. Acct. No.: 930-1-011483 FFC: Palomino Fund Acct. No.: 002-026276 Harbinger Del-Auto Investment Limited Harbinger Del-Auto $10 $51,420,000 17.14% Company, Ltd. Partner Investment Company, Ltd. c/o Harbinger Capital Partners To be provided by notice to Offshore Manager, LLC the Partnership 555 Madison Avenue, 16th Floor New York, NY 10022 Attn: Philip A. Falcone with a copy to: Harbert Management Corp. One Riverchase Parkway South Birmingham, Alabama 35244 Fax 205-987-5505 Attn: General Counsel Merrill Lynch, Pierce, Fenner & Limited Merrill Lynch, Pierce, $10 $42,870,000 14.29% Smith Incorporated Partner Fenner & Smith Incorporated 4 World Financial Center The Chase Manhattan Bank, New York, New York 10080 New York ABA: 021-000-021 A/C Name: MLPF&S, Concentration Account A/C Number: 930-4-019012 Sub-A/C Number: 035-00460 Ref: Delphi Series A-2 Preferred Stock
EXHIBIT B Page 1 DEFINITION OF TERMS ------------------- "Act" shall mean the Delaware Revised Uniform Limited Partnership Act, as amended from time to time. "Affiliate" shall have the meaning ascribed to such term in Rule 12b-2 under the Securities Exchange Act of 1934 in effect on the date hereof. "Agreement" shall mean this Limited Partnership Agreement of Del A-2 L.P., as amended from time to time. "Capital Account" shall have the meaning set forth in Section 3.5. "Capital Call Date" shall have the meaning set forth in Section 3.2. "Capital Contribution" shall mean, with respect to any Partner, the cash or other property contributed by such Partner to the capital of the Partnership as provided in Section 3.1. "Certificate of Limited Partnership" shall mean the Certificate of Limited Partnership of the Partnership filed in the Office of the Secretary of State of the State of Delaware on December 16, 2006 as amended from time to time. "Code" shall mean the U.S. Internal Revenue Code of 1986, as amended from time to time, including the corresponding provisions of any successor law. "Delphi" shall have the meaning set forth in the recitals. "Dollar" shall have the meaning set forth in Section 3.2(a). "ERISA" shall have the meaning set forth in Section 2.3(g). "Financial Statements" shall have the meaning set forth in Section 6.4(a). "Fiscal Year" shall have the meaning set forth in Section 1.6. "GAAP" shall mean generally accepted accounting principles as in effect in the United States, consistently applied. "General Partner" shall have the meaning set forth in Section 1.2. "Harbinger" shall have the meaning set forth in the recitals. "Investment Company Act" shall mean the U.S. Investment Company Act of 1940, as amended. "Limited Partner" shall mean each Person executing this Agreement as a Limited Partner (or any successor or permitted assignee of such Limited Partner). EXHIBIT B Page 2 "Notices" shall have the meaning set forth in Section 10.1. "Partner" shall mean each Person executing this Agreement as a General Partner or a Limited Partner (or any successor or permitted assignee of such Partner). "Partnership" shall have the meaning set forth in the first paragraph of this Agreement. "Partnership Interest" shall have the meaning set forth in Section 2.1. "Percentage Interest" shall have the meaning set forth in Section 2.1. "Permitted Transfer" shall have the meaning set forth in Section 8.1(b). "Permitted Transferee" shall have the meaning set forth in Section 8.1(b). "Person" shall mean and include an individual, a company, a joint venture, a corporation, a trust, a limited liability company, an unincorporated organization and a government or other department or agency thereof. "Pro Rata Share" shall mean, for each Partner, the percentage equal to the Partner's Percentage Interest. "PTE" shall have the meaning set forth in Section 2.3(g). "Purchase Agreement" shall have the meaning set forth in the recitals. "Reimbursable Expenses" shall have the meaning set forth in Section 3.2(c). "Representatives" shall have the meaning set forth in Section 7.3(a). "Series A-2 Preferred Stock" shall have the meaning set forth in the recitals. "Substituted Limited Partner" shall have the meaning set forth in Section 8.1(c). "Tax Matters Partner" shall have the meaning set forth in Section 6.3. "Transfer" shall mean, as a noun, any transfer, sale, assignment, exchange, charge, pledge, gift, hypothecation, conveyance, encumbrance or other disposition (including a participation interest) whether direct or indirect, voluntary or involuntary, by operation of law or otherwise and, as a verb, directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, to transfer, sell, assign, exchange, charge, pledge, give, hypothecate, convey, encumber or otherwise dispose of (including through a participation interest). "Treasury Regulations" or "Regulations" shall mean the applicable provisions of the federal income tax regulations promulgated under the Code, as amended from time to time, including the corresponding provisions of any succeeding regulations. SK 03773 0003 733722 EX-99.I 7 d733724_ex99-i.txt Harbinger Capital Partners Master Fund I, Ltd. 555 Madison Avenue New York, New York 10122 December 18, 2006 Harbinger Del-Auto Investments Company, Ltd. c/o Harbinger Capital Partners Master Fund I, Ltd. 555 Madison Avenue New York, NY 10022 DEL A-2 L.P. c/o A-D GP Management LLC as General Partner c/o Appaloosa Management L.P. 26 Main Street Chatham, NJ 07928 Attn: Ronald Goldstein 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: Philip A. Falcone 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: --------------------------------------- Name: Title: SK 03773 0003 733724 EX-99.J 8 d733721_ex99-j.txt EXECUTION VERSION CONTRIBUTION AND REIMBURSEMENT AGREEMENT ---------------------------------------- THIS CONTRIBUTION AND REIMBURSEMENT AGREEMENT, dated as of December 18, 2006 (this "Agreement"), is made by and among (i) Appaloosa Management L.P., a limited partnership formed under the laws of the State of Delaware ("AMLP"), (ii) Harbinger Capital Partners Master Fund I, Ltd., an exempted company incorporated in the Cayman Islands ("Harbinger Master Fund"), (iii) Harbinger Capital Partners Special Situations Fund, L.P., a limited partnership formed under the laws of the State of Delaware ("Harbinger Special Situations," and together with Harbinger Master Fund, "Harbinger"), (iv) Merrill Lynch, Pierce, Fenner & Smith, Incorporated, a Delaware corporation ("Merrill"), and (v) UBS Securities LLC, a limited liability company formed under the laws of the State of Delaware ("UBS"). Each of AMLP, Harbinger, Merrill and UBS are sometimes referred to herein individually as a "Contributor" and collectively as the "Contributors." Capitalized terms used herein but not defined shall have the meanings given to them in the Equity Purchase and Commitment Agreement (as defined below). W I T N E S S E T H: WHEREAS, A-D Acquisition Holdings, LLC, a limited liability company formed under the laws of the State of Delaware ("A-D Acquisition"), Harbinger Del-Auto Investment Company, Ltd., an exempted company incorporated in the Cayman Islands ("Del-Auto"), Dolce Investments LLC, a limited liability company formed under the laws of the State of Delaware ("Dolce"), Merrill, UBS and Delphi Corporation, a Delaware corporation (as a debtor-in-possession and a reorganized debtor, as applicable, together with its subsidiaries, the "Company") intend to enter into that certain Equity Purchase and Commitment Agreement (the "Equity Purchase and Commitment Agreement"); WHEREAS, (i) AMLP intends to enter into a letter agreement with A-D Acquisition and the Company pursuant to which AMLP commits to provide, subject to the terms and conditions of such letter agreement, funds to A-D Acquisition in connection with the transactions contemplated by the Equity Purchase and Commitment Agreement, and (ii) Harbinger intends to enter into a letter agreement with Del-Auto and the Company pursuant to which Harbinger commits to provide, subject to the terms and conditions of such letter agreement, funds to Del-Auto in connection with the transactions contemplated by the Equity Purchase and Commitment Agreement (the letter agreements referred to in clauses (i) and (ii), collectively, the "Letter Agreements"); WHEREAS, the Contributors are, directly or indirectly, subject to certain joint and several liabilities in connection with any willful breach of the Equity Purchase and Commitment Agreement and the Letter Agreements (the "Obligations"), pursuant to the terms thereof; WHEREAS, on the date hereof, AMLP and Cerberus Capital Management L.P. ("Cerberus") have entered into an agreement (the "App/Cerb Contribution Agreement") pursuant to which AMLP and Cerberus have established the manner in which the Obligations will be allocated between them; and WHEREAS, the Contributors desire to enter into this Agreement for the purpose of establishing the manner in which liability for the Payments (as defined below), if any, will be allocated among the Contributors. NOW, THEREFORE, in order to carry out their intent as expressed above and in consideration of the mutual agreements hereinafter contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Contributors hereby covenant and agree as follows: 1. Contribution and Reimbursement. (a) If, at any time, any Contributor gives notice (a "Contribution Notice") to the other Contributors of a Payment (which notice shall include either (x) a written notice or invoice from the Company requesting a Payment or (y) a certificate from the Contributor who has made all or any portion of a Payment stating that it has made such Payment), then each Contributor (i) shall be responsible for, and shall pay, such Contributor's Pro Rata Portion of such Payment to the Company, and (ii) shall, without duplication, reimburse the other Contributors (as required based on the amount of such Payment made by each such other Contributor), in each case, in an amount equal to such Contributor's Pro Rata Portion of such Payment. For the avoidance of doubt, the intent of this Section 1 is to apportion the cumulative, aggregate amounts required to be paid by, and actually paid by, any Contributor and all of the Contributors (directly or indirectly) as or in respect of Payments on a several basis among all Contributors in accordance with their respective Pro Rata Portions. Without limiting the provisions of the preceding paragraph, the other provisions of this Agreement or the rights and remedies of any Contributor with respect thereto, if any Contributor fails to pay or reimburse all or any portion of such Contributor's Pro Rata Portion of any Payment (any such amount, a "Shortfall"), and such failure continues for a period of ten (10) Business Days after the due date for such payment or reimbursement, each non-defaulting Contributor, in addition to its respective obligations set forth above, (A) shall be responsible for, and shall pay to the Company or, as the case may be, such other person or entity referred to in the first sentence of this Section 1(a), its proportional share of the Shortfall based its Pro Rata Portion, but excluding the Pro Rata Portion of the defaulting Contributor (the "Adjusted Pro Rata Portion"), and (B) shall, without duplication, reimburse any non-defaulting Contributor (as required based on the amount of the respective payments made by such non-defaulting Contributors with respect to such Shortfall), in each case, in an amount equal to the non-defaulting Contributor's Adjusted Pro Rata Portion of such Shortfall; provided, however, that nothing contained in this sentence shall relieve or release a defaulting Contributor from any of its obligations and liabilities under this Agreement, including, without limitation, the obligation to reimburse the non-defaulting Contributors for any payment or reimbursement made by the non-defaulting Contributors with respect to any Shortfall. Notwithstanding the foregoing, a Contributor shall only be required to make a Payment pursuant to the terms hereof if the Obligation to which the Contribution Notice relates arises out of circumstances existing on or prior to the Closing Date. (b) For purposes of this Agreement: (x) "Payment" or "Payments" means any amount required to be paid or paid, directly or indirectly (i) (A) to the Company by any Contributor in respect of the Obligations (including any liabilities, penalties, losses, damages, deficiencies and judgments required to be paid in respect thereto and including any payment to the Company or Cerberus made by AMLP pursuant to the App/Cerb Contribution Agreement) or any Shortfall, or (B) otherwise to Cerberus in respect of the Obligations (including any liabilities, penalties, losses, damages, deficiencies and judgments required to be paid, in respect thereto); provided, however, that in no event shall any Contributor be required to make payments pursuant to this subsection (x)(i) for an aggregate amount in excess of $250 million, and (ii) in respect of any interest, costs and expenses (including reasonable attorneys' fees) for investigation, defense and enforcement of the Equity Purchase and Commitment Agreement in respect of the Obligations, the provisions of this Agreement and the App/Cerb Contribution Agreement and (y) "Pro Rata Portion" with respect to any Contributor means the percentage of the Payment payable hereunder by such Contributor, whether to the Company or to any other entity, which percentage shall initially be the percentage set forth next to such Contributor's name on Exhibit A attached hereto. The Pro Rata Portion shall only be changed in connection with the occurrence of the events set forth in Section 1(d) in which case, the percentage for each Contributor shall be calculated by dividing (A) the aggregate amount required to be paid by such Contributors, in each case, for (x) the Direct Subscription Shares, (y) the Series B Preferred Stock, and (z) the Series A-2 Preferred Stock (provide that the amount required to be paid in respect of the Series A-2 Preferred Stock shall be calculated based on each Contributor's proposed economic interest in the Series A-2 Preferred Stock pursuant to the certain Agreement of Limited Partnership of Del A-2 L.P. dated as of even date herewith), by (B) the sum of the payments under subsection (A) with respect to all Contributors. (c) All amounts due hereunder shall be paid, or, as applicable, reimbursed by the Contributors in immediately available funds to the Company or, as the case may be, another Contributor within two (2) Business Days after receipt by the Contributors of a Contribution Notice (or, with respect to payments and reimbursements in connection with any Shortfall, within two (2) Business Days after the expiration of the ten (10) Business Day period referred to in Section 1(a)) and any amounts not paid within such time shall accrue interest at a rate of fifteen percent (15%) per annum (compounded quarterly), but in no event in excess of the maximum rate permitted by applicable law. Each Contributor hereby waives any right to question the validity or amount of any Payment made by any other Contributor, it being intended that the actual payment to the Company of any Payment or the incurrence of any liabilities, losses, damages, deficiencies, judgments and costs and expenses (including, without limitation, interest, penalties, out-of-pocket expenses for investigation, defense and enforcement, and reasonable attorney's fees) referred to in the definition of "Payment" in Section 1(a) shall conclusively establish any Contributor's (who has made a Payment) right to be reimbursed pursuant to this Section 1. (d) Notwithstanding the foregoing provisions of this Section 1 or any other provision in this Agreement to the contrary, upon the valid exercise of a Limited Termination of the Equity Purchase and Commitment Agreement, in accordance with the terms and conditions thereof, as to itself by Del-Auto (with respect to Harbinger), Merrill or UBS (any of Harbinger (with respect to such a termination by Del-Auto), Merrill or UBS so terminating, the "Terminating Contributor"), the Terminating Contributor shall have no obligations or liabilities under this Agreement with respect to Payments to the extent arising out of any facts or circumstances occurring entirely after the date of such Limited Termination by the Terminating Contributor; provided, that, any such Terminating Contributor shall remain obligated and liable under this Agreement with respect to Payments to the extent arising out of any facts or circumstances occurring on or prior to the date of such termination by the Terminating Contributor. If as a result of such Limited Termination a Related Purchaser or an Ultimate Purchaser becomes obligated to purchase the Available Investor Shares pursuant to the terms of the Equity Purchase and Commitment Agreement, it shall be a condition precedent to such Related Purchaser or Ultimate Purchaser becoming a party to the Equity Purchase and Commitment Agreement or otherwise becoming obligated to purchase such shares that such Related Purchaser or Ultimate Purchaser becomes a Contributor by becoming a party to this Agreement and, upon such event, the Pro Rata Portion of the Contributors shall be adjusted in accordance with Section 1(b). 2. Obligations Unconditional; No Prohibition on Rights and Remedies for Breach of Transactions Agreements. (a) The payment and reimbursement obligations of each Contributor under this Agreement are absolute, irrevocable and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of the Company's rights under the Equity Purchase and Commitment Agreement and the Letter Agreements or any agreement or instrument relating thereto, and, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of the parties hereto that such obligations shall be absolute and unconditional under any and all circumstances. With respect to its obligations hereunder, except as set forth in the first sentence of Section 1(a) hereof, each Contributor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that any other Contributor exhaust any right, power or remedy or proceed against any person or entity. (b) Nothing contained in this Agreement shall preclude or prohibit any Contributor from taking any actions and otherwise exercising any rights or remedies, at law or in equity, against any other Contributor with respect to such other Contributor's breach of the Letter Agreements, the Transaction Agreements or any other documents or agreements entered into in connection therewith. Each of the Contributors acknowledges, and agrees to, the immediately preceding sentence. 3. Reinstatement. The payment and reimbursement obligations of each Contributor under this Agreement shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of such Contributor in respect of any obligation hereunder is rescinded or must be otherwise restored by the person or entity receiving such payment, whether as a result of any proceedings in bankruptcy or reorganization or otherwise. 4. Representations and Warranties. Each Contributor, severally but not jointly, represents and warrants to the other Contributors as to itself as follows: (a) Such Contributor has full power, authority and legal right to execute, deliver, perform and observe the provisions of this Agreement, including, without limitation, the payment of all moneys hereunder. (b) The execution, delivery and performance by such Contributor of this Agreement has been duly authorized by all necessary action under its constituent documents. (c) This Agreement constitutes the legal, valid and binding obligation of such Contributor, enforceable in accordance with its terms, subject as to enforceability to bankruptcy, insolvency and other similar laws affecting creditors' rights generally and general equity principles. (d) No authorization, approval, consent or permission (governmental or otherwise) of any court, agency, commission or other authority or entity is required for the due execution, delivery, performance or observance by such Contributor of this Agreement or for the payment of any sums hereunder. (e) Neither the execution and delivery of this Agreement by such Contributor, nor the consummation of the transactions herein contemplated, nor compliance with the terms and provisions hereof, conflicts or will conflict with or result in a breach of any of the terms, conditions or provisions of the constituent documents of such Contributor, or of any law, order, writ, injunction or decree of any court or governmental authority, or of any agreement or instrument to which such Contributor is a party or by which it is bound, or constitutes or will constitute a default thereunder. 5. Notices. All notices, consents, requests, claims, demands and other communications hereunder shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) in accordance with Section 13 of the Equity Purchase and Commitment Agreement (it being understood that notice given or made to an Affiliate of a Contributor if such Affiliate is a party to the Equity Purchase and Commitment Agreement shall be deemed to be a notice given or made to such Contributor). 6. Taxes. To the fullest extent permitted by law, all payments to be made pursuant to this Agreement shall be made without any withholding on account of taxes, levies, duties or any other deduction whatsoever. If a Contributor is required by law to withhold or deduct any sum from payments required under this Agreement, such Contributor shall, to the extent permitted by applicable law, increase the amount paid by it so that, after all withholdings and deductions, the amount received by the applicable receiving party shall equal the amount such receiving party would have received without any such deduction. 7. Governing Law; Consent to Jurisdiction. 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). In addition, each party (i) irrevocably and unconditionally consents and submits to the personal jurisdiction of the state and federal courts of the United States of America located in the State of New York, New York County solely for the purposes of any suit, action or other proceeding between any of the parties hereto arising out of this Agreement, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such court, (iii) waives any claim of improper venue or any claim that the courts of the State of New York, New York County are an inconvenient forum for any action, suit or proceeding between any of the parties hereto arising out of this Agreement or any transaction contemplated hereby, (iv) agrees that it will not bring any action relating to this Agreement in any court other than the courts of the State of New York, New York County and (v) to the fullest extent permitted by law, consents to service being made through the notice procedures set forth in Section 5. 8. WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY. 9. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 10. No Waiver; Cumulative Remedies. No party hereto shall by any act (except by a written instrument pursuant to Section 11) of delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any breach of any of the terms and conditions hereof. No failure to exercise, nor any delay in exercising, on the part of any party hereto, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy that would otherwise be available on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any rights or remedies provided by law. 11. Amendments and Waivers. None of the terms or provisions of this Agreement may be waived, amended or supplemented or otherwise modified except by a written instrument executed by each party hereto. 12. Assignment; Successors and Assigns; No Third-Party Rights. No party may assign its rights nor delegate its obligations under this Agreement, in whole or in part, without the prior written consent of each other party hereto. Any purported assignment or delegation made without the prior written consent of each other party hereto shall be null and void. This Agreement shall be binding upon the successors and permitted assigns of the parties hereto and shall inure to the benefit of each party and such successors and permitted assigns. Nothing expressed or referred to in this Agreement will be construed to give any person other than the parties to this Agreement any legal or equitable right, remedy or claim under or with respect to this Agreement or any provision of this Agreement. This Agreement and all of its provisions and conditions are for the sole and exclusive benefit of the parties to this Agreement and their successors and permitted assigns and no other person or entity. 13. Counterparts. This Agreement may be executed in any number of separate counterparts, including by facsimile, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. 14. No Recourse. Notwithstanding anything to the contrary herein, each Contributor acknowledges and agrees that (i) no person or entity other than a Contributor shall have any obligation under this Agreement, (ii) no recourse under this Agreement shall be had against any past, current or future officer, director, agent, employee, affiliate or advisor of any Contributor, or any past, current or future director, officer, agent, employee, advisor, general or limited partner, member, stockholder, affiliate, assignee or successor of any of the foregoing (collectively, the "Relevant Persons"), as such, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any law or otherwise and (iii) no personal liability whatsoever shall attach to, be imposed on, or otherwise be incurred by any Relevant Person, as such, for any obligation of the applicable Contributor under this Agreement or for any claim relating to, based on, or in respect of or by reason of such obligation. 15. Effectiveness. This Agreement is expressly contingent on, and shall only become effective, and the rights hereunder enforceable, at the time that the Equity Purchase and Commitment Agreement is executed by the parties thereto. [Remainder of the page intentionally left blank.] IN WITNESS WHEREOF, the undersigned have duly executed and delivered this Agreement on the date first above written. APPALOOSA MANAGEMENT L.P. By: ------------------------------------- Name: Title: HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. By: Harbinger Capital Partners Offshore Manager, L.L.C., as investment manager By: ------------------------------------- Name: Philip A. Falcone Title: Senior Managing Director HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P. By: Harbinger Capital Partners Special Situations GP, LLC, as general partner By: ------------------------------------- Name: Philip A. Falcone Title: Senior Managing Director MERRILL LYNCH, PIERCE, FENNER & SMITH, INCORPORATED By: ------------------------------------- Name: Graham Goldsmith Title: Managing Director UBS SECURITIES LLC By: ------------------------------------- Name: Title: By: ------------------------------------- Name: Title: EXHIBIT A --------- PRO RATA PORTIONS ----------------- CONTRIBUTOR PRO RATA PORTION - -------------------------------------------------------------------------------- Appaloosa Management L.P. 61.5101% - -------------------------------------------------------------------------------- Harbinger Capital Partners Master Fund 15.3771% I, Ltd. and Harbinger Capital Partners Special Situations Fund, L.P. - -------------------------------------------------------------------------------- Merrill Lynch, Pierce Fenner & Smith, 12.8154% Incorporated - -------------------------------------------------------------------------------- UBS Securities LLC 10.2974% - -------------------------------------------------------------------------------- SK 03773 0003 733721 -----END PRIVACY-ENHANCED MESSAGE-----