-----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, VdwOzGJcFdFiGKPLiMCcUy/T4YPPsLDIAZtaVzy3Dr1cQVtEOqkXD4VC0010D+hV uhErUGt3aqGai8II8Vuc9A== 0000950127-08-000099.txt : 20080307 0000950127-08-000099.hdr.sgml : 20080307 20080306212859 ACCESSION NUMBER: 0000950127-08-000099 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20080307 DATE AS OF CHANGE: 20080306 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/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-56957 FILM NUMBER: 08672512 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: APPALOOSA MANAGEMENT LP CENTRAL INDEX KEY: 0001006438 IRS NUMBER: 223220835 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 26 MAIN ST STREET 2: 1ST FLOOR CITY: CHATHAM STATE: NJ ZIP: 07928 BUSINESS PHONE: 9737017000 MAIL ADDRESS: STREET 1: 26 MAIN ST STREET 2: 1ST FLOOR CITY: CHATAM STATE: NJ ZIP: 07928 SC 13D/A 1 a13da.txt SCHEDULE 13A ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------- SCHEDULE 13D/A (Amendment No. 17) Under the Securities Exchange Act of 1934 DELPHI CORPORATION ------------------ (Name of Issuer) Common Stock, $0.01 Par Value Per Share --------------------------------------- (Title of Class of Securities) 247126105 -------------- (CUSIP Number) Kenneth Maiman Appaloosa Management L.P. 26 Main Street, First Floor Chatham, NJ 07928 (973) 701-7000 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) March 5, 2008 (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 which 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 [ ]. ================================================================================ Page 1 of 17 SCHEDULE 13D - ------------------- CUSIP No. 247126105 - ------------------- - ------ ------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS Appaloosa Investment Limited Partnership I I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) 22-3220838 - ------ ------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [X] (1) - ------ ------------------------------------------------------------------------- 3 SEC USE ONLY - ------ ------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - ------ ------------------------------------------------------------------------- 5 CHECK 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 7 SOLE VOTING POWER BENEFICIALLY OWNED 0 BY EACH REPORTING ------ --------------------------------------------- PERSON WITH 8 SHARED VOTING POWER 27,716,000 ------ --------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 ------ --------------------------------------------- 10 SHARED DISPOSITIVE POWER 27,716,000 - ------ ------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 101,455,448 (2) - ------ ------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------ ------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 18.01% (2) - ------ ------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- - ---------- (1) Box (a) is checked with respect to the relationship of the Reporting Persons and Harbinger, Merrill, UBS, Pardus and GS as described in Item 4 and footnote (2) below. Box (b) is checked with respect to the relationship of the Reporting Persons and the New Additional Investors described in Item 4. The Reporting Persons expressly disclaim membership in a group (within the meaning of Section 13(d) of the Securities Exchange Act of 1934) with the New Additional Investors. Page 2 of 17 (2) As a result of the December 7th Investment Agreement 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 Harbinger, Merrill, UBS, Pardus and GS. Based on information filed with the Securities and Exchange Commission, Harbinger Capital Partners Master Fund I, Ltd. and its related entities beneficially own 26,450,000 shares, Merrill Lynch, Pierce, Fenner & Smith Incorporated beneficially owns 1,459,280 shares, UBS AG beneficially owns 4,420,602 shares, Pardus Special Opportunities Master Fund L.P. and its related entities beneficially own 26,400,000 shares and GS and its related entities beneficially own 15,009,566 shares. Page 3 of 17 SCHEDULE 13D - ------------------- CUSIP No. 247126105 - ------------------- - ------ ------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS Palomino Fund Ltd. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) 98-0150431 - ------ ------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [X] (1) - ------ ------------------------------------------------------------------------- 3 SEC USE ONLY - ------ ------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - ------ ------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ------ ------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands - ------------------------ ------ ------------------------------------------------ NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALLY OWNED 0 BY EACH REPORTING ------ --------------------------------------------- PERSON WITH 8 SHARED VOTING POWER 24,284,000 ------ --------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 ------ --------------------------------------------- 10 SHARED DISPOSITIVE POWER 24,284,000 - ------ ------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 98,023,448 (2) - ------ ------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------ ------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 17.40% (2) - ------ ------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- - ---------- (1) Box (a) is checked with respect to the relationship of the Reporting Persons and Harbinger, Merrill, UBS, Pardus and GS as described in Item 4 and footnote (2) below. Box (b) is checked with respect to the relationship of the Reporting Persons and the New Additional Investors described in Item 4. The Reporting Persons expressly disclaim membership in a group (within the meaning of Section 13(d) of the Securities Exchange Act of 1934) with the New Additional Investors. Page 4 of 17 (2) As a result of the December 7th Investment Agreement 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 Harbinger, Merrill, UBS, Pardus and GS. Based on information filed with the Securities and Exchange Commission, Harbinger Capital Partners Master Fund I, Ltd. and its related entities beneficially own 26,450,000 shares, Merrill Lynch, Pierce, Fenner & Smith Incorporated beneficially owns 1,459,280 shares, UBS AG beneficially owns 4,420,602 shares, Pardus Special Opportunities Master Fund L.P. and its related entities beneficially own 26,400,000 shares and GS and its related entities beneficially own 15,009,566 shares. Page 5 of 17 SCHEDULE 13D - ------------------- CUSIP No. 247126105 - ------------------- - ------ ------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS Appaloosa Management L.P. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) 22-3220835 - ------ ------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [X] (1) - ------ ------------------------------------------------------------------------- 3 SEC USE ONLY - ------ ------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - ------ ------------------------------------------------------------------------- 5 CHECK 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 7 SOLE VOTING POWER BENEFICIALLY OWNED 0 BY EACH REPORTING ------ --------------------------------------------- PERSON WITH 8 SHARED VOTING POWER 52,000,000 ------ --------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 ------ --------------------------------------------- 10 SHARED DISPOSITIVE POWER 52,000,000 - ------ ------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 125,739,448 (2) - ------ ------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------ ------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 22.31% (2) - ------ ------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- - ---------- (1) Box (a) is checked with respect to the relationship of the Reporting Persons and Harbinger, Merrill, UBS, Pardus and GS as described in Item 4 and footnote (2) below. Box (b) is checked with respect to the relationship of the Reporting Persons and the New Additional Investors described in Item 4. The Reporting Persons expressly disclaim membership in a group (within the meaning of Section 13(d) of the Securities Exchange Act of 1934) with the New Additional Investors. Page 6 of 17 (2) As a result of the December 7th Investment Agreement 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 Harbinger, Merrill, UBS, Pardus and GS. Based on information filed with the Securities and Exchange Commission, Harbinger Capital Partners Master Fund I, Ltd. and its related entities beneficially own 26,450,000 shares, Merrill Lynch, Pierce, Fenner & Smith Incorporated beneficially owns 1,459,280 shares, UBS AG beneficially owns 4,420,602 shares, Pardus Special Opportunities Master Fund L.P. and its related entities beneficially own 26,400,000 shares and GS and its related entities beneficially own 15,009,566 shares. Page 7 of 17 SCHEDULE 13D - ------------------- CUSIP No. 247126105 - ------------------- - ------ ------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS Appaloosa Partners Inc. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) 22-3220833 - ------ ------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [X] (1) - ------ ------------------------------------------------------------------------- 3 SEC USE ONLY - ------ ------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - ------ ------------------------------------------------------------------------- 5 CHECK 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 7 SOLE VOTING POWER BENEFICIALLY OWNED 0 BY EACH REPORTING ------ --------------------------------------------- PERSON WITH 8 SHARED VOTING POWER 52,000,000 ------ --------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 ------ --------------------------------------------- 10 SHARED DISPOSITIVE POWER 52,000,000 - ------ ------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 125,739,448 (2) - ------ ------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------ ------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 22.31% (2) - ------ ------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- - ---------- (1) Box (a) is checked with respect to the relationship of the Reporting Persons and Harbinger, Merrill, UBS, Pardus and GS as described in Item 4 and footnote (2) below. Box (b) is checked with respect to the relationship of the Reporting Persons and the New Additional Investors described in Item 4. The Reporting Persons expressly disclaim membership in a group (within the meaning of Section 13(d) of the Securities Exchange Act of 1934) with the New Additional Investors. Page 8 of 17 (2) As a result of the December 7th Investment Agreement 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 Harbinger, Merrill, UBS, Pardus and GS. Based on information filed with the Securities and Exchange Commission, Harbinger Capital Partners Master Fund I, Ltd. and its related entities beneficially own 26,450,000 shares, Merrill Lynch, Pierce, Fenner & Smith Incorporated beneficially owns 1,459,280 shares, UBS AG beneficially owns 4,420,602 shares, Pardus Special Opportunities Master Fund L.P. and its related entities beneficially own 26,400,000 shares and GS and its related entities beneficially own 15,009,566 shares. Page 9 of 17 SCHEDULE 13D - ------------------- CUSIP No. 247126105 - ------------------- - ------ ------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS David A. Tepper I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY) - ------ ------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [X] (1) - ------ ------------------------------------------------------------------------- 3 SEC USE ONLY - ------ ------------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - ------ ------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ------ ------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America - ------------------------ ------ ------------------------------------------------ NUMBER OF SHARES 7 SOLE VOTING POWER BENEFICIALLY OWNED 0 BY EACH REPORTING ------ --------------------------------------------- PERSON WITH 8 SHARED VOTING POWER 52,000,000 ------ --------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 ------ --------------------------------------------- 10 SHARED DISPOSITIVE POWER 52,000,000 - ------ ------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 125,739,448 (2) - ------ ------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------ ------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 22.31% (2) - ------ ------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- - ---------- (1) Box (a) is checked with respect to the relationship of the Reporting Persons and Harbinger, Merrill, UBS, Pardus and GS as described in Item 4 and footnote (2) below. Box (b) is checked with respect to the relationship of the Reporting Persons and the New Additional Investors described in Item 4. The Reporting Persons expressly disclaim membership in a group (within the meaning of Section 13(d) of the Securities Exchange Act of 1934) with the New Additional Investors. Page 10 of 17 (2) As a result of the December 7th Investment Agreement 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 Harbinger, Merrill, UBS, Pardus and GS. Based on information filed with the Securities and Exchange Commission, Harbinger Capital Partners Master Fund I, Ltd. and its related entities beneficially own 26,450,000 shares, Merrill Lynch, Pierce, Fenner & Smith Incorporated beneficially owns 1,459,280 shares, UBS AG beneficially owns 4,420,602 shares, Pardus Special Opportunities Master Fund L.P. and its related entities beneficially own 26,400,000 shares and GS and its related entities beneficially own 15,009,566 shares. Page 11 of 17 This Amendment No. 17 (this "Amendment") to the Schedule 13D (the "Initial Schedule 13D") initially filed on March 16, 2006 by the Reporting Persons (as defined in the Initial Schedule 13D), as amended on August 1, 2006, August 29, 2006, December 19, 2006, January 18, 2007, March 2, 2007, March 12, 2007, May 15, 2007, July 6, 2007, July 10, 2007, July 20, 2007, July 23, 2007, August 3, 2007, November 2, 2007, November 8, 2007, November 16, 2007 and December 12, 2007 relates to the common stock, $0.01 par value per share (the "Common Stock"), of Delphi Corporation, a Delaware corporation (the "Issuer"), and is being filed to amend the Reporting Persons' previously-filed Schedule 13D as specifically set forth below. Certain information contained in this Schedule 13D/A 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 Amendment that does not expressly pertain to a Reporting Person, as such term is defined in Item 2 of the Initial Schedule 13D. Unless otherwise indicated, all capitalized terms shall have the meanings ascribed to them in the Initial Schedule 13D, and unless otherwise amended hereby, all information previously filed remains in effect. Item 4 is hereby amended by adding the following: As disclosed on a Form 8-K, dated March 5, 2008, the Issuer announced that GM has advised the Issuer that GM is prepared to provide a portion of the $6.1 billion of exit financing being sought by the Issuer. The Issuer further announced that its exit financing package is now expected to include a $1.6 billion asset-backed revolving credit facility, at least $1.7 billion of first-lien term loan, an up to $2.0 billion first-lien term note to be issued to GM and a $825 million second-lien term loan, of which any unsold portion would be issued to GM (the "Revised Exit Financing"). The issuer also announced that it believes that GM's increased participation in the Revised Exit Financing structure is necessary to successfully syndicate its exit financing on a timely basis and is consistent with the New Investment Agreement as amended by the December 7th Amendment (referred to as the "EPCA") The Issuer proposed to the New Proposing Investors in late January and during February, 2008 the Revised Exit Financing described above and solicited the reactions of the New Proposing Investors. In response to the Issuer's invitation to express their views, each of ADAH, Del-Auto, Merrill, UBS and Pardus DPH raised certain concerns with and objections to the Revised Exit Financing. ADAH, Del-Auto, Merrill, UBS and Pardus DPH have expressed to the Issuer their view that the Revised Exit Financing leaves the Issuer undercapitalized and underfinanced, especially in light of recent market turmoil and economic forecasts. Additionally, ADAH, Del-Auto, Merrill, UBS and Pardus DPH advised the Issuer that, in their view, the Revised Exit Financing is non-compliant and inconsistent with the EPCA, including, among other provisions, Sections 5(p) and 5(t) of the EPCA. In particular, Section 5(p) of the EPCA prohibits the Issuer from entering into agreements with GM that are outside the ordinary course of business or which would have a material impact on the New Proposing Investors' proposed investment in the Issuer. This is significant because ADAH has expressed to the Issuer its view that the Revised Exit Financing Proposal results in an unacceptable concentration of Page 12 of 17 influence and control with GM. Moreover, each of ADAH, Del-Auto, Merrill, UBS and Pardus DPH advised the Issuer that, in their view, the Revised Exit Financing is not the "Debt Financing" contemplated by the EPCA. Copies of letters dated February 13, 2008 from Tom Lauria to Jack Butler, dated February 20, 2008 from Jack Butler to Tom Lauria, dated February 24, 2008 from Tom Lauria to Jack Butler, dated February 25, 2008 from Jack Butler to Tom Lauria and dated February 26, 2008 from Tom Lauria to Jack Butler are attached hereto as Exhibits 44, 45, 46, 47 and 48, respectively. In the context of trying to resolve these differences, ADAH extended the first date on which it can terminate the EPCA pursuant to Section 12(d)(iii) such that if the closing date under the EPCA has not occurred by April 4, 2008, ADAH may terminate the EPCA from and after April 5, 2008. A copy of the waiver letter is attached hereto as Exhibit 49. On March 5, 2008, the Issuer filed with the Bankruptcy Court an "Expedited Motion under 11 U.S.C. Section 1142(b) and Fed. R. Bankr. P. 3020(d) for Implementation of Debtors' Confirmed Plan of Reorganization" (the "1142 Motion") seeking an order (i) finding that the terms of the Issuer's Revised Exit Financing comply with the Issuer's Plan of Reorganization and the EPCA and, if consummated, would satisfy the conditions to the effectiveness of the Plan of Reorganization and the EPCA and (ii) directing the New Proposing Investors to use their reasonable best efforts to take all actions, and do all things, reasonably necessary, proper, or advisable on their part under the EPCA and applicable laws to cooperate with Delphi and to consummate and make effective all transactions contemplated by the EPCA and the Plan. Each of ADAH, Del-Auto, UBS, Merrill and Pardus DPH are contesting this motion. On March 6, 2008, ADAH filed its response to the 1142 Motion and Del-Auto, Merrill, UBS and Pardus DPH filed a Memorandum of Law with the Bankruptcy Court in opposition to the 1142 Motion. ADAH's response argues, among other things, that: (i) the Bankruptcy Court may not grant the declarations sought by the Issuer on constitutional grounds or under the Bankruptcy Code; (ii) even if the Bankruptcy Court has jurisdiction to interpret the EPCA on the record before the Bankruptcy Court, the Issuer is not entitled to the declarations it seeks because the Revised Financing Proposal does not comply with the EPCA, and because GM's participation in the Revised Exit Financing is expressly prohibited by Section 5(p) of the EPCA and is not the "Debt Financing" required by the EPCA (which is the financing to be provided on the terms indicated in that certain Engagement Letter, dated November 3, 2007 from J.P. Morgan Securities Inc., JPMorgan Chase Bank, N.A. and Citigroup Global Markets Inc. to the Issuer); (iii) the Issuer has not established a basis for an order mandating the use of best efforts by any party to the EPCA; and (iv) the Issuer's motion suffers from procedural deficiencies. Although ADAH remains prepared to engage in negotiations to resolve the disputes described above, there can be no assurance that they can be resolved by mutual agreement or in the Bankruptcy Court and there can be no assurance that the transactions contemplated by the EPCA will be consummated. Item 7 is amended to add the following exhibits: Page 13 of 17 44 Letter, dated February 13, 2008 from Thomas E. Lauria to John Wm. Butler, Jr. 45 Letter, dated February 20, 2008 from John Wm. Butler, Jr. to Thomas E. Lauria. 46 Letter, dated February 24, 2008 from Thomas E. Lauria to John Wm. Butler, Jr. 47 Letter, dated February 25, 2008 from John Wm. Butler, Jr. to Thomas E. Lauria. 48 Letter, dated February 26, 2008 from Thomas E. Lauria to John Wm. Butler, Jr. 49 Letter, dated February 28, 2008 from A-D Acquisition Holdings, LLC to Delphi Corporation. Page 14 of 17 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. Dated: March 6, 2008 APPALOOSA INVESTMENT LIMITED PARTNERSHIP I By: APPALOOSA MANAGEMENT L.P., Its General Partner By: APPALOOSA PARTNERS INC., Its General Partner By: /s/ David A. Tepper -------------------------- Name: David A. Tepper Title: President PALOMINO FUND LTD. By: APPALOOSA MANAGEMENT L.P., Its Investment Adviser By: APPALOOSA PARTNERS INC., Its General Partner By: /s/ David A. Tepper -------------------------- Name: David A. Tepper Title: President APPALOOSA MANAGEMENT L.P. By: APPALOOSA PARTNERS INC., Its General Partner By: /s/ David A. Tepper -------------------------- Name: David A. Tepper Title: President APPALOOSA PARTNERS INC. By: /s/ David A. Tepper -------------------------- Page 15 of 17 Name: David A. Tepper Title: President /s/ David A. Tepper ------------------------------ David A. Tepper Page 16 of 17 EXHIBIT INDEX 44 Letter, dated February 13, 2008 from Thomas E. Lauria to John Wm. Butler, Jr. 45 Letter, dated February 20, 2008 from John Wm. Butler, Jr. to Thomas E. Lauria. 46 Letter, dated February 24, 2008 from Thomas E. Lauria to John Wm. Butler, Jr. 47 Letter, dated February 25, 2008 from John Wm. Butler, Jr. to Thomas E. Lauria. 48 Letter, dated February 26, 2008 from Thomas E. Lauria to John Wm. Butler, Jr. 49 Letter, dated February 28, 2008 from A-D Acquisition Holdings, LLC to Delphi Corporation. Page 17 of 17 EX-99.1 2 ex99-1.txt [LETTERHEAD OF WHITE & CASE] February 13, 2008 BY EMAIL AND FEDEX John Wm. Butler, Jr., Esq. Skadden, Arps, Slate, Meagher & Flom LLP 333 West Wacker Drive Chicago, IL 60606 Dear Jack: Following up on discussions we had last week with representatives of the Company and General Motors, on February 8, John Sheehan forwarded to us the Summary of Revised Terms to Provide for Enhanced Participation by GM in Delphi Exit Financing (the "Proposal"). As requested by the Company, we have provided a copy of the Proposal to each of the Investors (as defined in the EPCA) and on Monday hosted a meeting among them (other than Goldman Sachs) for the purposes of discussing the Proposal and determining if a consensus existed or could be developed with respect thereto. In light of the comments made to ADAH's counsel by Delphi's counsel in a separate conversation at the February 6th meeting, the Investors (other than Goldman Sachs) determined that, although cumbersome, it would be prudent to conduct their meeting as a privileged conversation pursuant to a common interest agreement. Goldman Sachs informed us that it was not in a position to engage in a dialogue at our meeting on that basis and, so, did not participate in the meeting. Consequently, this letter has not been authorized by Goldman Sachs and we do not know what its positions are with respect to the matters set forth below. Each of the other Investors (other than Goldman Sachs), however, has authorized us to send this letter to you and has confirmed that it agrees with the views set forth herein. Obviously, it is critical for purposes of the EPCA and otherwise on this important issue of potential changes to the exit financing to have a consensus among all the Investors and that consensus does not appear to exist. As a preliminary matter, we are very concerned about Delphi's ability to obtain the $1.7 billion of external first lien financing as contemplated. Likewise, we are also concerned about the potential adverse impacts of marketing a debt financing that does not have a reasonable certainty of being achieved. Proceeding in this fashion could detract from efforts to develop and implement more viable alternatives, and could damage the Company's prospects for obtaining an John Wm. Butler Jr., Esq. February 13,2008 extension of its DIP financing should it be necessary, contrary to the wishes of the Investors and the Company, to remain in chapter 11 longer than anticipated. We are also troubled by the Company's deviation from the syndicated financing provided for under the EPCA and Plan of Reorganization. Moreover, the Company's invitation to GM to participate as a substantial secured, first lien lender may not only undermine the Company's efforts to market the exit financing to the broad syndicate of financial institutions that we expected, but also is contrary to Delphi's stated goal of reducing its reliance on and exposure to GM and developing broader relationships with other OEMs (a goal stated in both the Company's disclosure statement and bank presentations). When ADAH and its representatives met with the Company and GM on February 6th, we specifically identified a number of concerns with the prior version of the Proposal in an attempt to provide guidance to GM and the Company regarding how we thought it might be constructively reformulated. We have many of the same concerns today including, without limitation, those described below. o Notwithstanding that the terms of the exit financing required by the EPCA do not include original issue discount ("OID"), the prior version of the Proposal contemplated substantial OID, reducing both the cash proceeds generated therefrom and the Company's overall liquidity. Despite this problem, the new version of the Proposal in fact increases the OID component of the first lien financing. For the same reasons as we explained at the February 6th meeting, in light of our expectations with respect to the Company's cash position, we continue to be concerned about whether this would provide sufficient liquidity to the Company. Additionally, we do not believe that amortizing the OID over four years is appropriate. o We continue to be very concerned that the Proposal would leave the Company underfinanced, especially in light of recent market turmoil and economic forecasts. The financing negotiated in the EPCA reflects a more appropriate capital structure for the Company and one that is the basis upon which the Investors have made their very significant financial commitments. o At the February 6 meeting, we expressed our view that the prior version of the Proposal would adversely affect the Company and the Investors by materially increasing and concentrating GM's ongoing influence and control. The Proposal makes no attempt to address this issue. As you know, we made a number of suggestions to address this problem at the February 6th meeting. We note that the Proposal does not adopt or otherwise address those suggestions. o The Proposal contemplates that the interest on the various tranches of debt will be at rates significantly higher than those required under the EPCA. This is not just a matter of satisfying the one year pro forma interest expense condition contemplated by the EPCA. The OID component exacerbates this. 2 John Wm. Butler Jr., Esq. February 13,2008 Additionally, although not directly related to the Proposal, we would like to receive an update on the current status of discussions with the PBGC/IRS concerning the additional funding waiver. Given today's date, it seems unlikely that the Company could emerge before February 29, 2008 under the best of circumstances. Therefore, it is important to understand whether the PBGC/IRS will require additional contributions by Delphi, especially in light of recent market turmoil. It is important for the Investors to understand this before they can further consider alternative debt financing arrangements. We look forward to addressing these points with you further. The Investors we have spoken to (other than Goldman Sachs) have confirmed that they remain available to discuss with the Company and its representatives potential solutions to the Company's exit financing challenges. Very truly yours, /s/ Tom Lauria Thomas E Lauria cc: Benjamin Mintz, Esq. Rachel Strickland, Esq. Sean O'Neal, Esq. Justin Brass, Esq. 3 EX-99.2 3 ex99-2.txt [LETTERHEAD OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP] February 20, 2008 VIA EMAIL AND COURIER Thomas E. Lauria, Esq. Partner White & Case LLP Wachovia Financial Center 200 South Biscayne Boulevard Suite 4900 Miami, Florida 33131-2352 RE: Delphi Corporation and its related Debtor and non-Debtor subsidiaries and affiliates (collectively "Delphi") -- Investment Agreement with Plan Investors Dear Tom: We have reviewed with our client as well as with counsel to the Statutory Committees and GM your letter, dated February 13, 2008, that was sent on behalf of all of the Plan Investors (other than Goldman Sachs). At the outset, let me observe that this is a difficult letter to write to Delphi's plan investors and presumptive largest equity stakeholders in the reorganized company, but it appears to be a necessary and important communication that is required by the conduct in recent months of the Plan Investors and Additional Plan Investors (collectively referred to as "Investors"). Rather than having the benefit and assistance of the full support and cooperation of the Investors since obtaining authority from the Bankruptcy Court on November 16, 2007 to obtain and close exit financing necessary to consummate the Plan, Delphi has instead encountered resistance, objections and even interference from certain of the Investors. Instead of moving together to promptly consummate the Plan that was confirmed by the Bankruptcy Court on January 25, 2008 pursuant Thomas E. Lauria, Esq. February 20, 2008 Page 2 to a Confirmation Order which the Plan Investors approved and which became a final order on February 4, 2008, substantially all of the interaction with the Investors since the confirmation hearing has focused on obstacles to plan consummation (at least some of which have been interposed by the Investors themselves). As you know, the EPCA between Delphi and the Plan Investors was recently amended on December 10, 2007 in accordance with requirements of the Plan Investors to account for general economic conditions, industry conditions and company-centric conditions extant and/or otherwise reasonably foreseeable at that time. The record in the Bankruptcy Court leading up to and including the EPCA amendment approval hearing and the confirmation hearing make very clear the expectations of the Bankruptcy Court, the company and its stakeholders with respect to the Investors. Fundamental to those expectations is the overarching obligation of the Plan Investors in section 6(d) of the EPCA to use "reasonable best efforts to take all actions, and do all things, reasonably necessary, proper or advisable on its part.. .to cooperate with the Company and to consummate and make effective the transactions." Sections 8(d) and 8(g) of the Co-Investor Letter restrict the Plan Investors from alternate transactions and affirmatively obliges each of them from impeding or interfering with the acceptance, confirmation or the effective date of the Plan. Section 3 of the Additional Investor Agreement dated July 23, 2007 provides that each Additional Investor "shall be bound, and shall cause its Affiliates to be bound, by the EPCA..." and Section 12(a) of the same agreement prohibits an Additional Investor from participating in any transaction that is inconsistent with the Additional Investor Agreement or the EPCA. (See also section 2(k) of the EPCA which binds Ultimate Purchasers to the terms of the EPCA). With that context, we will respond to the concerns set forth in your February 13, 2008 letter with respect to exit financing and then address certain other matters relevant to the Investors that require immediate consideration by your clients. Delphi's Exit Financing Discussions with the Plan Investors and the February 13, 2008 Letter Delphi and the lead arrangers of its exit financing facilities have worked closely together from the exit financing approval hearing on November 16, 2007 through the end of the year to be in a position to launch the exit financing syndication on January 5, 2008. ADAH was regularly informed of the progress made by Delphi and the lead arrangers in this respect and was consulted with respect to the amount, structure and terms of the exit financing that was being contemplated by Delphi consistent with the authorization obtained by the company in November 2007. As you are aware, Delphi and the lead arrangers postponed the initial exit financing launch meeting after it was publicly announced at the request of the Plan Thomas E. Lauria, Esq. February 20, 2008 Page 3 Investors so that Delphi, the leader arrangers and the Plan Investors could instead meet and confer on January 8, 2008 in New York City. Following that meeting, Delphi and the lead arrangers, with the participation of a representative of Appaloosa, launched the syndication of the exit financing facilities at public and private lender meetings held in New York and London on January 9 and 10, 2008. The amount, structure and terms of the exit financing presented by Delphi and the lead arrangers to prospective lenders at those meetings was consistent with the amount, structure and terms discussed with and agreed to by the Plan Investors on January 5, 2008. During the syndication process in January 2008, it became apparent to Delphi and the lead arrangers that the likelihood of consummation of the syndication with respect to its proposed amount, structure or terms would be enhanced by GM participation. Again, ADAH was consulted with respect to these developments and advised Delphi to complete its discussions with GM and obtain committed enhanced participation by GM after which the Investors would again evaluate their position on the exit financing. Delphi thereafter proceeded to obtain a commitment from GM for enhanced participation in the exit financing syndication that would, in the reasonable view of Delphi and its lead arrangers, allow the company to obtain the exit financing required to consummate the Plan and remain below the maximum pro forma interest expense limitation of $585 million set forth in section 9(a)(xx) of the EPCA. GM's concessions to Delphi in respect of the plan to facilitate this result are quite extraordinary: GM has agreed to forego certain cash distributions at the Effective Date of the Plan and instead will finance up to $2 billion of the Term A loan and all of the $825 million Term B loan without any original issue discount (OID) and at an interest rate calculated to ensure compliance with the EPCA interest expense limitation (i.e., GM has agreed to bear all interest rate risk under the EPCA). Following Delphi's successful negotiations with GM, the company sought to meet and confer with the Plan Investors and to obtain their support and cooperation (as required by the EPCA) with respect to the exit financing syndication going forward (inclusive of GM's enhanced participation). These discussions, which have been ongoing, culminated in a meeting on February 6, 2008 among Delphi, Appaloosa and GM, as well as your subsequent letter dated February 13, 2008. While the Investors should have enthusiastically supported the exit financing with the enhanced participation by GM, at the very least Delphi had anticipated that your letter would have provided constructive suggestions and even a basis for some additional minor modifications of the proposed exit financing facility. Unfortunately, the letter turned out to amount to nothing more than a restatement of positions expressed by the Plan Investors at the February 6th meeting. Indeed, the letter itself is profoundly disappointing. The letter begins by expressing concern about Delphi's ability to consummate the exit financing and Thomas E. Lauria, Esq. February 20, 2008 Page 4 the "adverse impacts of marketing a debt financing that does not have a reasonable certainty of being achieved." At the same time, the letter attacks GM's enhanced participation in the exit financing as an approach that "may not only undermine the Company's efforts to market the exit financing to the broad syndicate of financial institutions that we expected but also is contrary to Delphi's stated goal of reducing its reliance on and exposure to GM..." The letter asserts that this approach "detracts from efforts to develop and implement more viable alternatives" but fails to suggest a single such alternative. The letter then asserts a series of concerns that are not supported either by the terms of the EPCA or the record in the Bankruptcy Court inclusive of the confirmation hearing record and confirmation order. The letter concludes with a request for an update on the company's discussions with the PBGC and IRS on the pension waivers since "given today's date [February 13 ,2008], it seems unlikely that the company could emerge before February 29, 2008 under the best of circumstances" - even though the Plan Investors were consulted about and were completely aware that Delphi had moved back its internal plan consummation target to March 28, 2008 in order to resolve exit financing matters with the lead arrangers, GM and the Plan Investors. Exit financing is part of the Plan pursuant to Section 7.14 thereof which provides "on the Effective Date, the Reorganized Debtors shall receive the proceeds of the Exit Financing Arrangements in the aggregate amount necessary to implement the Plan and within the terms of the conditions previously approved by the Bankruptcy Court as described in the exit financing letter and term sheet attached [to the Plan] as Exhibit 7.14, as such term sheet may be amended, modified or supplemented....". Under section 9(a)(xxviii)(A)(i) of the EPCA, the Plan is a "Delivered Investment Document". Pursuant to the amendment to the EPCA agreed to in December 2007, "Delivered Investment Documents" were not subject to the condition set forth in section 9(a)(xxviii) of the EPCA, which condition allows ADAH to determine that it is not reasonably satisfied with certain transaction documents. Pursuant to section 9(a)(xxviii)(C)(3) of the EPCA, prior to the issuance of the Confirmation Order, ADAH had the right to make a determination within ten days with respect to amendments or supplements to Delivered Investment Documents (including the Plan). ADAH did not make such determination with respect to the Plan amendments made in connection with the Confirmation Order. Delphi's current exit financing plan, when consummated, will satisfy EPCA conditions relating to financing (Section 9(a)(xix)) and one year pro forma interest expense (Section 9(a)(xx)). The EPCA does not require syndication of exit financing or explicitly prohibit GM's participation in exit financing. Section 9(a)(xix)(A) provides that "[t]he Company shall have received the proceeds of the Debt Financings and the Rights Offering that, together with the proceeds of the sale of the Investor Shares, are sufficient to fund fully the transactions contemplated by Thomas E. Lauria, Esq. February 20, 2008 Page 5 this Agreement, the Preferred Term Sheet, the GM Settlement (to the extent the Company is to fund such transactions) and the Plan." Delphi believes that this condition is fully satisfied when the aggregate of proceeds received is sufficient to fund the transactions. The EPCA does not require a minimum amount of liquidity other than sufficient proceeds to meet the obligations under the Plan and minimum availability under the revolver portion of the exit financing facilities pursuant to section 9(a)(xix) of the EPCA. Indeed, the financing authority obtained by Delphi in November 2007 was pursuant to a financing letter with the lead arrangers that by its terms and by the terms of the EPCA is on a "commercially reasonable best effort" basis. The lead arranger letter specifically anticipated there would be revised interest rates associated with the syndicated financing and also anticipated that there would be OID as referenced in the letter. The fact that no specific interest rates are required in the lead arranger financing letter or the EPCA is illustrated in a number of ways in the documents including, by way of example, in the definition of "Applicable Margin" in Annex I to Exhibit A to the Financing Letter, which provides that the ""Applicable Margin" is an amount presently anticipated based on current market conditions." There is no basis to assert that the EPCA "requires" certain financing terms such as the absence of OID and certain unspecified maximum interest rates. The EPCA says nothing of the sort. The only terms required by the EPCA is the $585 million interest expense limitation for 2008. Simply stated, so long as Delphi procures adequate exit financing consistent with the provisions of the EPCA and authority obtained from the Bankruptcy Court to fund the transactions contemplated in the Plan and does not breach the one year pro forma interest expense condition, the Investors should recognize Delphi's compliance with the EPCA and proceed to closing on the EPCA investments and related consummation of the Plan. Given GM's agreement to participate in Delphi's exit financing as permitted by the EPCA and the view of Delphi's lead arrangers that the remaining syndication of the exit facility should be achievable on terms which Delphi believes are compliant with the EPCA, Delphi has decided to proceed with completion of the syndication of the exit facilities as described on Exhibit A hereto. Delphi presently expects that the lead arrangers will announce GM's enhanced participation in the exit financing to prospective investors next week on or about February 25, 2008. Assuming that the Investors meet their obligations to Delphi under the EPCA and Additional Investor Agreement (as applicable), Delphi and the lead arrangers expect to complete the exit financing syndication within approximately two weeks. These obligations include the obligation to use reasonable best efforts to cooperate with the company and to consummate and make effective the transactions Thomas E. Lauria, Esq. February 20, 2008 Page 6 including the consummation of the Plan which includes consummation of the exit financing facilities. Common Interest Agreement Among the Plan Investors (Other than Goldman Sachs) dated February 10, 2008 Last week, you provided us with a copy of a "Common Interest Agreement" dated February 10, 2008 that was entered into by the Plan Investors (excluding Goldman Sachs) pursuant to which the Common Interest Parties purport to establish certain rights and privileges with respect to the sharing of confidential and allegedly privileged information and documents among the Common Interest Parties. According to its recitals, the Common Interest Parties have a common interest in "potential litigation between the Common Interest Parties, on the one hand, and Delphi.. .on the other hand." Putting aside for the moment whether the agreement is effective in any respect and/or could prevent the Bankruptcy Court, the United States Trustee, the Debtors, the Statutory Committees, or other interested persons from discovering and/or inquiring into oral and/or written communications involving the Plan Investors (as to which Delphi expressly reserves all of its rights), there is a serious question as to whether execution of the Common Interest Agreement is in contravention of the EPCA and the Co-Investor Letter. Among other provisions and as discussed above, each Plan Investor is affirmatively obligated under the EPCA to use reasonable best efforts to cooperate with the company and to consummate and make effective the transactions. Also as discussed above, the Co-Investors are restricted under the Co-Investor Letter from alternate transactions and affirmatively obliges each of them from impeding or interfering with the acceptance, confirmation or the effective date of the Plan. Paragraphs 1(c), 2(a) and 2(b) of the Common Interest Agreement each appear to restrain effective cooperation and/or communications between one or more of the Common Interest Parties and the Debtors. The Debtors believe such cooperation and communications are essential to consummation of the transactions under the EPCA and the Plan. Accordingly, the Debtors respectfully request that the Common Interest Parties terminate the Common Interest Agreement retroactive to its date of execution as well as any prior oral or written agreements on this subject. Thomas E. Lauria, Esq. February 20, 2008 Page 7 Alleged Conduct of Plan Investors and/or Additional Plan Investors As you can appreciate, Delphi has a fiduciary responsibility to evaluate information received by the company which may materially affect the best interests of the company and its stakeholders in the chapter 11 cases. Recently, credible information has come to Delphi's attention that one or more Investors may have been trading and/or shorting one or more of Delphi's outstanding public securities. Delphi has also been advised that these investors may have material unrealized or realized gains on these investments. Delphi has been further advised that one or more of these investors may have communicated with ADAH and/or its representatives regarding scenarios and/or courses of conduct pursuant to which the EPCA would not be consummated and/or funded to Delphi's detriment and the detriment of all of the company's stakeholders. Delphi consulted with its Statutory Committees regarding this information at a joint meeting with the Statutory Committees on February 14, 2008. Delphi was advised at that time that similar information was also received independently by representatives of at least one of the Statutory Committees. In order for the company to continue to evaluate this information, it is necessary that ADAH provide the following information to the undersigned on behalf of the company by the close of business on Friday, February 22, 2008: (a) a complete list of all Investors; (b) the name, address, telephone and email contact information for the principal contact(s) at each such Investor; (c) a copy of any written agreement between ADAH and any such Investor relating to Delphi, its chapter 11 cases or the EPCA, and (d) a written statement summarizing any knowledge that ADAH and/or its representatives has with respect to the accuracy and/or credibility of the information described in the immediately preceding paragraph or any similar matter. Report on PBGC/IRS Discussions In the February 13, 2008 letter, you requested a status report with respect to current discussions between Delphi, the IRS and the PBGC concerning the three pension waivers that currently expire on February 29, 2008. ADAH has been separately briefed on this subject and is aware that the company filed requests with the IRS on January 31, 2008 for extensions of the pension funding waivers and the company's discussions with the two agencies. However, for purposes of clarity and based on the letter dated February 20, 2008 from the Executive Director of the PBGC attached as Exhibit B, the current position of the PBGC is that they will recommend to the IRS that further extensions of the three pension waivers be granted through March 31, 2008 in consideration of the following concessions by Delphi and GM: (1) extension of the existing $150 million of letters of credit from March 15 to Thomas E. Lauria, Esq. February 20, 2008 Page 8 April 15; (2) provide an unconditional consensual lien from Delphi Singapore in the amount of $50 million; (3) recognition of and waiver of defenses by Delphi of $250 million of the PBGC's existing statutory liens as valid, enforceable and perfected; and (4) a guarantee or other assurance from GM for $300 million issued to the PBGC on behalf of Delphi's Salaried and Hourly Pension Plans in the event that the waivers become null and void. While Delphi had previously offered the first two concessions to the PBGC, the latter two requests are not reasonable under the facts and circumstances applicable to Delphi's situation including the fact of the existence of a final confirmation order which preserves Delphi's Salaried and Hourly Pension Plans. Discussions are continuing with the agencies. Delphi plans to brief the Bankruptcy Court on developments regarding the pension waivers as well as the other matters discussed in this letter at a Chambers Conference scheduled for February 21, 2008. Conclusion In conclusion, let me again reiterate Delphi's basic views. The company has substantially achieved its chapter 11 transformation plan and has obtained a final confirmation order in support of its reorganization plan on terms consistent with the EPCA. The company has also obtained the additional financial support from GM that the company believes is necessary to successfully syndicate its exit financing arrangements and remain consistent with the EPCA. The company also believes that if the Investors would proceed with their reasonable best efforts to take all actions, and do all things, reasonably necessary, proper or advisable to cooperate with the company and to consummate and make effective the transactions contemplated by the EPCA that the Plan will become effective on or prior to March 31, 2008. The company looks forward to working with ADAH and the remaining Investors to meet this timetable over the next five weeks. Sincerely yours, /s/ John Wm. Butler, Jr. John Wm. Butler, Jr. cc: Mr. John D. Sheehan David M. Sherbin, Esq. Sean P. Corcoran, Esq. Robert J. Rosenberg, Esq. Brad Eric Scheler, Esq Jeffrey Tanenbaum, Esq. EX-99.3 4 ex99-3.txt [LETTERHEAD OF WHITE & CASE] February 24, 2008 BY E-MAIL John Wm. Butler, Jr., Esq. Skadden, Arps, Slate, Meagher & Flom LLP 333 West Wacker Drive Chicago, IL 60606 Dear Jack: We are in receipt of a draft exit financing presentation and draft press release related thereto both of which were forwarded to us on the afternoon of February 23, 2008. We have forwarded such financing presentation to the other Plan Investors, but given the timing of Delphi's distribution, we have not been able to obtain the complete views of all Plan Investors. On behalf of ADAH, we have the following preliminary response. The proposed exit financing package is substantially identical to the proposal delivered to ADAH on February 8, 2008. Certain objections to, and concerns with, that proposal as outlined in detail in our letter of February 13, 2008, apply to the financing described in yesterday's package. Such financing is non-compliant, and inconsistent, with the EPCA, including, among other provisions, sections 5(p) and 5(t) of the EPCA. Moreover, the debt financing proposed is not the "Debt Financing" as contemplated by the EPCA. ADAH reserve all of its rights with respect to the foregoing, including under the EPCA and otherwise. ADAH is in no position to advise Delphi of its disclosure obligations to the proposed bank syndicate or under applicable securities laws. ADAH assumes that Delphi will carefully consider the views expressed above and in the letter of February 13 as it determines what disclosures it will make. Very truly yours, /s/ Thomas E Lauria EX-99.4 5 ex99-4.txt [LETTERHEAD OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP] February 25, 2008 VIA EMAIL AND COURIER Thomas E. Lauria, Esq. Partner White & Case LLP Wachovia Financial Center 200 South Biscayne Boulevard Suite 4900 Miami, Florida 33131-2352 RE: Delphi Corporation and its related Debtor and non-Debtor subsidiaries and affiliates (collectively "Delphi") -- Investment Agreement with Plan Investors Dear Tom: This is a supplement to our earlier letter dated February 20, 2008, which responded to your letter to Delphi on behalf of the Plan Investors (other than Goldman Sachs) dated February 13, 2008. This letter is written to (1) confirm developments subsequent to our earlier response and (2) respond to your second letter dated February 24, 2008, in which you allege on behalf of ADAH that Delphi's proposed exit financing package that was scheduled to be publicly announced this morning "is non-compliant, and inconsistent, with the EPCA". Capitalized terms in this letter have the same meaning as defined in the February 20th response. Thomas E. Lauria, Esq. February 25, 2008 Page 2 Re-launching of Delphi's Exit Financing Facilities Both Appaloosa and your firm (principally through Jim Bolin and you) have been briefed on several occasions regarding the timetable for the re-launching of Delphi's exit financing facilities this week with GM's increased participation. As both ADAH and you are aware from discussions with Delphi's representatives, Delphi's lead arrangers believe that there is a reasonable prospect of successfully completing the syndication of the exit financing over the next several weeks and that the climate for auto sector syndications has improved recently suggesting that time is of the essence in these turbulent capital markets. Both Mr. Bolin and you were provided under separate cover over the weekend with copies of Delphi's press announcement which was scheduled to be released this morning at 11:00 a.m. EST as well as the marketing materials that were proposed to be made available to prospective lenders in connection with the lender teleconference that was scheduled for tomorrow (Tuesday, February 26, 2008). Rather than provide any constructive comments on either document or make any other proposal, ADAH asserted through your February 24, 2008 letter that the proposed exit financing: o is non-compliant, and inconsistent, with the EPCA, including, among other provisions, sections 5(p) and 5(t) of the EPCA; and o is not the "Debt Financing" as contemplated by the EPCA. In the letter, ADAH also reserved all of its rights and cautioned the Debtors about their disclosure obligations to the proposed bank syndicate and under applicable securities laws. ADAH is a very sophisticated investor. ADAH surely understood and intended that the delivery of the February 24, 2008 letter to Delphi would disrupt the re-launch of the exit financing and interfere with Delphi's ability to consummate the Plan, among other matters. As ADAH must expect, Delphi does not believe that it would be equitable or proper under the EPCA for ADAH potentially to have the opportunity to consider the exercise of a termination right under the EPCA if the Plan is somehow not consummated by March 31, 2008 when the actions of one or Thomas E. Lauria, Esq. February 25, 2008 Page 3 more of the Investors would be the direct or indirect cause of any inability by Delphi to meet an EPCA condition. Even though Delphi is compliant in all respects with the EPCA, ADAH's contrary assertion, unless withdrawn by ADAH, would have to be publicly disclosed in connection with the re-launch of the exit financing and in other contexts including with respect to the planned filing with the SEC later this week of Delphi's amendment to the S-l registration statement for the rights offerings. Because Delphi is compliant with the EPCA and ADAH and the other Plan Investors will be obligated to close and fund the EPCA next month upon Delphi's satisfaction of the closing conditions in the EPCA (each of which Delphi believes will be satisfied prior to the targeted March 28, 2008 closing), Delphi believes that the February 24, 2008 letter is a further example of the failure of ADAH and the Investors to use their reasonable best efforts to take all actions, and do all things, reasonably necessary, proper or advisable to cooperate with the company and to consummate and make effective the transactions as required by Section 6(d) of the EPCA. Nevertheless, in order to mitigate any damage to the Debtors, including any damage to the re-launching of the exit financing, Delphi has postponed the press release and related calendar for at least one business day to provide ADAH with the opportunity to withdraw the February 24, 2008 letter in writing and to move forward in a cooperative fashion with the company and its other stakeholders to procure the exit financing, close the EPCA and consummate the Plan. Accordingly, Delphi requests that ADAH withdraw the February 24, 2008 letter by 3:00 p.m. EST today. In the event that ADAH does not withdraw the February 24, 2008 letter by that time, Delphi will communicate with Chambers and request a Chambers conference for 1:30 p.m. EST tomorrow, Tuesday, February 26, 2008 or such other time tomorrow as is convenient to the Court. Delphi will ask that Chambers require that counsel and a principal for each Plan Investor participate in the Chambers conference. In the event that this matter cannot be resolved consensually today or tomorrow, Delphi will ask the Bankruptcy Court to schedule an expedited hearing on this matter later this week and judicially determine that the proposed exit financing is in compliance with the EPCA. As you know, Delphi's representatives have worked diligently for many weeks to resolve any obstacles to consummation of the Plan including developing a viable exit financing solution. At each step, ADAH has been consulted and its views have been factored into Delphi's considerations and actions. Delphi's board of directors, executive management team and advisors very much desire to continue to work with ADAH and the other Investors on a fully consensual path Thomas E. Lauria, Esq. February 25, 2008 Page 4 which results in consummation of the Plan on or prior to March 28, 2008. However, both to comply with their obligations under the EPCA and as fiduciaries to their stakeholders, the Debtors are independently obliged to use their reasonable best efforts to take all actions, and do all things, reasonably necessary, proper or advisable to consummate and make effective the transactions contemplated by the Plan including the EPCA. Report on IRS/PBGC Waivers Extension Settlement In the February 13, 2008 letter, you requested a status report with respect to current discussions between Delphi, the IRS and the PBGC concerning Delphi's January 31, 2008 request to extend the three pension waivers that currently expire on February 29, 2008. Our February 20th response letter included a written communication from the PBGC of that same date which was appended as Exhibit B to the response. Subsequently, following the Chambers conference on February 21, 2008 in which the two of us both participated (along with other representatives of the Debtors, Plan Investors, Statutory Committees, GM and the PBGC), Delphi and the PBGC agreed to extend the waivers for 30 days to March 31, 2008. In connection with the extension, Delphi will extend the Letters of Credit currently outstanding from March 15, 2008 to April 15, 2008 and will increase the amount of the Letters of Credit by $10 million, representing interest for one month (February 29 to March 31) on the missed contributions. In anticipation of the receipt of the three formal waiver extensions from the Internal Revenue Service later this week, Delphi will today be presenting an order to show cause order to Chambers for expedited approval of the waiver extensions at the Delphi hearing previously scheduled for tomorrow, February 26, 2007 at 10:00 a.m. EST. Alleged Conduct of Plan Investors and/or Additional Plan Investors As was discussed previously with you and with the Bankruptcy Court and the parties participating in the Chambers conference on February 21, 2008, Delphi has a fiduciary responsibility to evaluate information received by the company which may materially affect the best interests of the company and its stakeholders in the chapter 11 cases. As we reported to you in our February 20, 2008 response letter, credible information has recently come to Delphi's attention that one or more Investors may have been trading and/or shorting one or more of Delphi's outstanding public securities and may have engaged in conduct that violates the EPCA and is detrimental to Delphi and its other stakeholders in connection therewith. In our February 20, 2008 response letter, we advised you that it was necessary that ADAH provide the following information to the undersigned on Thomas E. Lauria, Esq. February 25, 2008 Page 5 behalf of the company by the close of business on Friday, February 22, 2008: (a) a complete list of all Investors; (b) the name, address, telephone and email contact information for the principal contact(s) at each such Investor; (c) a copy of any written agreement between ADAH and any such Investor relating to Delphi, its chapter 11 cases or the EPCA, and (d) a written statement summarizing any knowledge that ADAH and/or its representatives has with respect to the accuracy and/or credibility of the information described in the immediately preceding paragraph or any similar matter. As of this morning, the information requested from ADAH had not been provided. Given the gravity of this information, if accurate, and considering the Court's comments expressed during last week's Chambers conference, Delphi will have no alternative but to request the Court's assistance tomorrow in obtaining the information requested from the Investors if the responsive information is not received prior to that time. We know that ADAH and your firm appreciate Delphi's responsibilities in these matters and look forward to your immediate response. Conclusion As we communicated last week, the company believes that if the Investors will proceed with their reasonable best efforts to take all actions, and do all things, reasonably necessary, proper or advisable to cooperate with the company and to consummate and make effective the transactions contemplated by the EPCA that the Plan will become effective on or prior to March 31, 2008. The company looks forward to working with ADAH and the remaining Investors to meet this timetable over the next month. Sincerely yours, /s/ John Wm. Butler, Jr. John Wm. Butler, Jr. cc: Mr. John D. Sheehan David M. Sherwin, Esq. Sean P. Corcoran, Esq. Robert J. Rosenberg, Esq. Brad Eric Scheler, Esq. Jeffrey Tenenbaum, Esq. EX-99.5 6 ex99-5.txt [LETTERHEAD OF WHITE & CASE] February 26, 2008 BY E-MAIL John Wm. Butler, Jr., Esq. Skadden, Arps, Slate, Meagher & Flom LLP 333 West Wacker Drive Chicago, IL 60606 Dear Jack: On behalf of ADAH, we write to respond to your request for information contained in your letters of February 20, 2008 and February 25, 2008 with respect to alleged short selling or trading by Plan Investors or Additional Plan Investors in Delphi's outstanding public securities (requests a-d on page 7 of the February 20th letter and page 5 of the February 25th letter). With respect to requests (a) and (b) we assume you have the identities and contact information regarding the Plan Investors so we will not repeat that here. We have previously produced to you, on a confidential litigation basis, the identity of the Additional Plan Investors. We attach to this letter as Annex A a copy of such information as it was previously produced and additional contact information readily available to us, and we consent to your use of such information for purposes of your investigation. With respect to request (c), substantially all the agreements to which ADAH and any Plan Investors or Additional Plan Investors are parties relating to Delphi, its chapter 11 cases or the EPCA have been filed publicly as exhibits to Appaloosa's Schedule 13D filings. We refer you to such filings for those agreements. The only exceptions being (i) the Common Interest Agreement, which we have previously delivered, (ii) that certain Letter Agreement, dated July 30, 2007 between ADAH and Goldman Sachs, which was subsequently superseded but is attached hereto as Annex B for completeness, (iii) that certain Letter Agreement, dated November 14, 2007 among Appaloosa Management L.P. and the Plan Investors attached hereto as Annex C amending the July 18, 2007 Contribution and Reimbursement Agreement, (iv) that certain Agreement among Initial Investors, dated March 5, 2007, among certain of the Plan Investors and Dolce Investors LLC, which was never fully executed by Dolce and has since been superseded, but which we attach hereto as Annex D for completeness and (v) any agreement to which Delphi was also a party. John Wm. Butler Jr., Esq. February 26, 2008 With respect to your request (d), ADAH has no knowledge of the accuracy and/or credibility of the information regarding trading or shorting one or more of Delphi's outstanding public securities. Each of the other Plan Investors other than Goldman Sachs (which would be prepared to respond on its own behalf), and UBS, have informed ADAH that since executing an NDA (to the extent relevant) they have not engaged in any trading or short selling of Delphi's outstanding public securities, except that Merrill Lynch has undertaken insubstantial trading in common stock that has been publicly disclosed. UBS has informed ADAH that it is still in the process of completing its internal inquiry. Very truly yours, /s/ Thomas E. Lauria Thomas E. Lauria 2 EX-99.6 7 ex99-6.txt A-D Acquisition Holdings, LLC 26 Main Street Chatham, New Jersey 07928 February 28, 2008 Delphi Corporation 5725 Delphi Drive Troy, Michigan 48098 Ladies and Gentlemen: Reference is made to that certain Equity Purchase and Commitment Agreement, dated August 3, 2007, as amended by that certain Second Restated First Amendment to such Equity Purchase and Commitment Agreement, dated as of December 10, 2007 (the "Agreement"), by and among A-D Acquisition Holdings, LLC, a limited liability company formed under the laws of the State of Delaware ("ADAH"), Harbinger Del-Auto Investment Company, Ltd., an exempted company incorporated in the Cayman Islands, Merrill Lynch, Pierce, Fenner & Smith Incorporated, a Delaware corporation, UBS Securities LLC, a Delaware limited liability company, Goldman, Sachs & Co., a New York limited partnership, and Pardus DPH Holding LLC, a Delaware limited liability company, on the one hand, and Delphi Corporation, a Delaware corporation, on the other hand. Capitalized terms used herein and not defined, have the meanings set forth in the Agreement. This confirms ADAH's commitment to the Bankruptcy Court that the undersigned waives its right to terminate the Agreement under Section 12(d)(iii) of the Agreement unless the Closing Date has not occurred by April 4, 2008, but if the Closing Date has not occurred by April 4, 2008, ADAH may terminate the Agreement under Section 12(d)(iii) from and after April 5, 2008. This letter shall not be deemed a waiver of any other right and shall not amend or be deemed to amend the Agreement in any manner. * * * * A-D ACQUISITION HOLDINGS, LLC By:/s/ James E. Bolin ------------------------- Name: James E. Bolin Title: Partner -----END PRIVACY-ENHANCED MESSAGE-----