FIRST AMENDMENT TO SUPPORT AGREEMENT
Exhibit 5
FIRST AMENDMENT TO SUPPORT AGREEMENT
This First Amendment (this “Amendment”) to the Support Agreement, dated June 28, 2016, by and among Xxxxxxxx Group International, an Indian corporation (“KGI”) and each of the other signatories thereto (each, a “Supporting Party” and collectively, the “Supporting Parties”) (as may be further amended, modified, or supplemented, from time to time, the “Support Agreement”), is entered into as of July 15, 2016 (the “Effective Date”) by and among: (i) KGI; and (ii) the Supporting Parties. This Amendment collectively refers to KGI and the Supporting Parties as the “Parties” and each individually as a “Party.” Unless otherwise noted, capitalized terms used but not defined herein are used as defined in the Support Agreement.
RECITALS
WHEREAS, the Parties desire to amend the Support Agreement to modify certain provisions thereof; and
WHEREAS, Section 16.12 of the Support Agreement permits the modification, amendment or supplementation as to any matter by an instrument in writing signed by KGI and each of the Supporting Parties that have executed the Support Agreement on the Agreement Date;
NOW, THEREFORE, in consideration of the covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto hereby agrees as follows:
AGREEMENT
| 1. | Amendment Effective Date. This Amendment shall become effective, and the obligations contained herein shall become binding upon the Parties, upon the Effective Date. Following the Effective Date, whenever the Support Agreement is referred to in any agreements, documents, and instruments, such reference shall be deemed to be to the Support Agreement as amended by this Amendment. |
| 2. | Amendments to the Support Agreement. The Support Agreement is hereby amended as follows: |
| (a) | The reference to “July 15, 2016” in the definition of “CPC Arrangement Agreement Outside Date” in the Support Agreement is hereby deleted and replaced with “August 15, 2016”. |
| (b) | Section 5.2(m) of the Support Agreement is hereby amended by adding the following proviso to the end thereof: |
“; provided that nothing contained in this Agreement shall preclude the Supporting Parties from engaging in discussions among the Supporting Parties, CPC, or the board of directors or management of CPC regarding modifications, amendments, extensions, replacements, refinancings, or any similar actions with respect to any securities of CPC held by the Supporting Parties;”
| CUSIP No. 00000X000 | SCHEDULE 13D/A | Page 2 of 8 Pages |
| (c) | Section 6.5 of the Support Agreement is hereby amended by adding the following sentence to the end thereof: |
“KGI shall provide weekly updates to the Supporting Parties and keep the Supporting Parties apprised of the progress of all material discussions with respect to the CPC Arrangement Agreement and the CBCA Proceedings.”
| (d) | Section 7.1(b) of the Support Agreement is hereby amended by deleting the date October 13, 2016 contained therein and replacing it with “October 28, 2016”. |
| (e) | Section 7.1(c) of the Support Agreement is hereby amended by deleting the date October 17, 2016 contained therein and replacing it with “November 1, 2016”. |
| (f) | Section 7.1(d) of the Support Agreement is hereby amended by deleting the date November 7, 2016 contained therein and replacing it with “November 22, 2016”. |
| (g) | Section 7.1(e) of the Support Agreement is hereby amended by deleting the date November 10, 2016 contained therein and replacing it with “November 25, 2016”. |
| (h) | Section 7.1(f) of the Support Agreement is hereby amended by deleting the date November 30, 2016 contained therein and replacing it with “December 15, 2016”. |
| 3. | Ratification. Except as specifically provided for in this Amendment, no changes, amendments, or other modifications have been made on or prior to the date hereof or are being made to the terms of the Support Agreement or the rights and obligations of the parties thereunder, all of which such terms are hereby ratified and confirmed and remain in full force and effect. |
| 4. | Miscellaneous. |
| (a) | This Amendment shall not, except as expressly provided herein, alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Support Agreement. Nothing herein shall be deemed to entitle KGI to a waiver, amendment, modification, or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Support Agreement in similar or different circumstances, or any right to consent to any of the foregoing except as expressly set forth in the Support Agreement. |
| (b) | This Amendment shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable in the Province of British Columbia, without regard to principles of conflicts of law. Each Party submits to the jurisdiction of the courts located in Vancouver, British Columbia in any action or proceeding arising out of or relating to this Amendment. |
| CUSIP No. 00000X000 | SCHEDULE 13D/A | Page 3 of 8 Pages |
| (c) | Each Party hereby reaffirms its obligations under, and the term set forth in, the Support Agreement effective as of the Effective Date and as amended hereby. |
| (d) | This Amendment expresses the entire understanding of the parties hereto with respect to the transactions contemplated hereby. No prior negotiations or discussions shall limit, modify, or otherwise affect the provisions hereof. |
| (e) | Any determination that any provision of this Amendment or any application hereof is invalid, illegal or unenforceable in any respect and in any instance shall not affect the validity, legality, or enforceability of such provision in any other instance, or the validity, legality or enforceability of any other provisions of this Amendment. |
| (f) | This Amendment may be signed in counterparts, each of which, when taken together, shall be deemed an original. Execution of this Amendment is effective if a signature is delivered by facsimile transmission or electronic (e.g., pdf) transmission. |
[Signatures follow.]
| CUSIP No. 00000X000 | SCHEDULE 13D/A | Page 4 of 8 Pages |
This Amendment has been agreed and accepted as of July 15, 2016.
| XXXXXXXX GROUP INTERNATIONAL | ||
| By: | /s/ Xxxxx Xxxxxxxx | |
| Name: Xxxxx Xxxxxxxx | ||
| Title: CEO | ||
| CUSIP No. 00000X000 | SCHEDULE 13D/A | Page 5 of 8 Pages |
| Name of Supporting Party: |
Cyrus Opportunities Master Fund II, Ltd. Cyrus Select Opportunities Fund, X.X. Xxxxxxxx 0, X.X. XXX Fund, L.P. Cyrus Opportunities Fund II, L.P. CRS Master Fund, L.P. Cyrus Select Opportunities Master Fund Ltd.
By: Cyrus Capital Partners, L.P. Its: Investment Manager | ||
| By: |
/s/ Xxxxxx Xxxxxxxxxx | ||
| Name: Xxxxxx Xxxxxxxxxx | |||
| Title: Authorized Signatory | |||
| CUSIP No. 00000X000 | SCHEDULE 13D/A | Page 6 of 8 Pages |
| Name of Supporting Party: |
Oaktree Opportunities Fund IX, L.P. Oaktree Opportunities Fund IX (Parallel), L.P. Oaktree Opportunities Fund IX (Parallel 2), L.P.
By: Oaktree Opportunities Fund IX GP, L.P. Its: General Partner
By: Oaktree Opportunities Fund IX GP Ltd. Its: General Partner
By: Oaktree Capital Management, L.P. Its: Director | ||
|
By: |
/s/ Xxxxxx X’Xxxxx | ||
| Name: Xxxxxx X’Xxxxx | |||
|
Title: Managing Director
| |||
| By: | /s/ Xxxxx Xxxxxxxx | ||
| Name: Xxxxx Xxxxxxxx | |||
|
Title: Senior Vice President
| |||
|
Oaktree Value Opportunities Fund, L.P.
By: Oaktree Value Opportunities Fund GP, L.P. Its: General Partner
By: Oaktree Value Opportunities Fund GP Ltd. Its: General Partner
By: Oaktree Capital Management, L.P. Its: Director | |||
| By: | /s/ Xxxxxx X’Xxxxx | ||
| Name: Xxxxxx X’Xxxxx | |||
|
|
Title: Managing Director
| ||
| By: | /s/ Xxxxx Xxxxxxxx | ||
| Name: Xxxxx Xxxxxxxx | |||
|
Title: Senior Vice President
| |||
| CUSIP No. 00000X000 | SCHEDULE 13D/A | Page 7 of 8 Pages |
| Name of Supporting Party: |
XXXXXXX DISTRESSED OPPORTUNITY SPECIALTY FUND, X.X. XXXXXXXXX PARTNERS LLC – SERIES A BOSTON PATRIOT BATTERYMARCH ST LLC XXXXXXX DISTRESSED OPPORTUNITY FUND GLOBAL, L.P. | ||
| By: |
| ||
| Name: Xxxxxx Xxxxxxxxx Esq. | |||
| Title: Authorized Signatory | |||
| CUSIP No. 00000X000 | SCHEDULE 13D/A | Page 8 of 8 Pages |
| Name of Supporting Party: |
STONEHILL MASTER FUND LTD. STONEHILL INSTITUTIONAL PARTNERS, L.P.
By: Stonehill Capital Management LLC Its: Advisor | ||
| By: |
/s/ Xxxx Xxxxx | ||
| Name: Xxxx Xxxxx | |||
| Title: Authorized Signatory | |||
