LIMITED WAIVER AGREEMENT RELATING TO PURCHASE AND CONTINUATION AGREEMENT
Exhibit 10.1
LIMITED WAIVER AGREEMENT RELATING TO PURCHASE AND CONTINUATION AGREEMENT
THIS LIMITED WAIVER AGREEMENT RELATING TO PURCHASE AND CONTINUATION AGREEMENT (this “Agreement”) is made and entered into effective as of February 15, 2011, by and among CAMAC ENERGY INC. (formerly, Pacific Asia Petroleum, Inc.), a Delaware corporation (“CEI”), CAMAC PETROLEUM LIMITED, a company incorporated in the Federal Republic of Nigeria and a wholly-owned subsidiary of CEI (“CPL,” and together with CEI, the “CEI Parties”), CAMAC ENERGY HOLDINGS LIMITED, a Cayman Islands company (“CEHL”), ALLIED ENERGY PLC (formerly, Allied Energy Resources Nigeria Limited), a company incorporated in the Federal Republic of Nigeria and a wholly-owned subsidiary of CEHL (“Allied”), and CAMAC INTERNATIONAL (NIGERIA) LIMITED, a company incorporated in the Federal Republic of Nigeria and a wholly-owned subsidiary of CEHL (“CINL,” and together with CEHL and Allied, the “CAMAC Parties”). Each of the Parties to this Agreement is individually referred to herein as a “Party” and collectively as the “Parties.”
R E C I T A L S:
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4. Remedies for Failure to Cure Breach.
(a) If the CAMAC Parties fail to discharge the Lien, deliver the Data and perform their obligations under Section 3 of this Agreement by the date ten business days after receipt of the Closing Cash Consideration, CEI shall have the right, at its sole option, by notice to CEHL, to either (i) rescind and terminate the Purchase Agreement, subject to NAE’s agreement to terminate or rescind the novation of the Contract Rights to the CEI Parties under the Novation Agreement (the “NAE Approval”), in which case Section 4(b) below shall apply, or (ii) pursue any and all rights and remedies it may have against the CAMAC Parties with respect to the Breach, including a claim for indemnification under Section 10.2 of the Purchase Agreement; provided, that Section 10.4(a) of the Purchase Agreement shall not apply to any claim for indemnification that CEI has with respect to the Breach. In addition, each of the CAMAC Parties hereby waives any defense that any of the CAMAC Parties may have with respect to its obligation to indemnify CEI for the Breach based on the fact that the CEI Parties have knowledge of the Breach on or prior to the Closing Date.
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(b) If CEI elects to rescind and terminate the Purchase Agreement pursuant to Section 4(a)(i) above, within two business days following CEHL’s receipt of CEI’s notice of such rescission and termination, the CAMAC Parties shall refund the Closing Cash Consideration in full to CEI, plus interest on the Closing Cash Consideration at the Interest Rate from the date of CEI’s payment of the Closing Cash Consideration to the date of such refund, by wire transfer of immediately available funds to an account to be designated by CEI, and the CAMAC Parties agree to use their reasonable best efforts to promptly attain the NAE Approval. Upon receipt of the NAE Approval and effectiveness of the termination or rescission of the novation of the Contract Rights, the Contract Rights shall revert back to CAMAC. In the event the NAE Approval is not obtained within thirty calendar days, CEI shall have the right, at its sole option, to retain the refunded Closing Cash Consideration in full, plus interest received, and pursue it rights under Section 4(a)(ii) above, with any cash recovery being reduced by the value of the Closing Cash Consideration previously refunded by the CAMAC Parties to CEI. “Interest Rate” shall mean two percent per annum above the “prime rate” or other comparable index or reference rate reported in the Money Rates column or section of The Wall Street Journal as of the date of CEI’s payment of the Closing Cash Consideration.
(a) It is duly organized, validly existing and in good standing under the laws of its respective jurisdiction of formation. It has all requisite power and authority to execute, deliver and perform its obligations under this Agreement.
(b) The execution, delivery and performance by it of this Agreement have been duly authorized and approved by its board of directors or other governing body, and such authorizations and approvals remain in effect and have not been rescinded or qualified in any respect, and no other proceedings on the part of any such entities are necessary to authorize this Agreement. This Agreement will be duly executed and delivered by it and constitutes the valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or similar laws of general application now or hereafter in effect affecting the rights and remedies of creditors and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
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6. Reference to and Effect on the Transaction Documents.
(a) Upon the effectiveness of this Agreement, each reference in the Purchase Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import, and each reference in the Transaction Documents shall mean and be a reference to the Purchase Agreement as supplemented hereby.
(b) Except as specifically supplemented or modified above, the Purchase Agreement and all other Transaction Documents shall remain in full force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided herein, operate as a waiver of any right of any CEI Party under any of the Transaction Documents.
8. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.
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CAMAC ENERGY INC. By: /s/ Xxxxx X. Xxxx Xxxxx X. Xxxx President and Chief Executive Officer
Address for Notice 0000 Xxxx Xxx Xxxx. Xxxxx 0000 Xxxxxxx, Xxxxx 00000
CAMAC PETROLEUM LIMITED By: /s/ Xxxxx X. Xxxx Xxxxx X. Xxxx Director
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGES FOR CAMAC PARTIES FOLLOW]
CAMAC ENERGY HOLDINGS LIMITED
By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Director
Address for Notice c/o CAMAC International Corporation 0000 Xxxx Xxx Xxxx. Xxxxx 0000 Xxxxxxx, Xxxxx 00000
CAMAC INTERNATIONAL (NIGERIA) LIMITED
By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Director
Address for Notice c/o CAMAC International Corporation 0000 Xxxx Xxx Xxxx. Xxxxx 0000 Xxxxxxx, Xxxxx 00000
[SIGNATURES FOR CAMAC PARTIES CONTINUE]
ALLIED ENERGY PLC
By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Director
Address for Notice c/o CAMAC International Corporation 0000 Xxxx Xxx Xxxx. Xxxxx 0000 Xxxxxxx, Xxxxx 00000