Even if they won't give you the 5K back, if an 09 is what you want, you might just have to flush the deposit and move on. The car you want at MSRP + 5K gone is better than the car you didn't want at MSRP +10K markup.

On the other hand, keep in mind the rumor is that the Orange 09 may be limited production, to satisfy frustrated orders for 08's, and may disappear. So an 09 in Orange may be hard to get. Also the delivery date for the 09's is not definite...heck, pricing is not even announced yet. So to say the 08 will not be far ahead of the 09 in delivery is speculative.