Common use of Break-Up Fee Clause in Contracts

Break-Up Fee. If, at any time after the date of the receipt by Cardero Peru of the Deposit and prior to the date of the receipt of the Balance by Cardero Peru, Cardero delivers to Nanjinzhao a written notice ("the "Cardero Termination Notice") indicating that Cardero and Cardero Peru will not be proceeding with the Acquisition then, upon the earlier of: (a) if the determination of Cardero not to proceed with the Acquisition is due to the acceptance by Cardero of an alternative offer from a third party to purchase or acquire an interest in the Property (an "Alternative Transaction"), then within TEN (10) BUSINESS DAYS of the completion of the Alternative Transaction; or (b) if the determination of Cardero not to proceed with the Acquisition is not due to Cardero entering into an Alternative Transaction, then within TEN (10) BUSINESS DAYS of the delivery of the Cardero Termination Notice, Cardero will pay to Nanjinzhao the sum of US TWENTY MILLION (USD 20,000,000) DOLLARS as a break-up fee (the "Break-up Fee"). The Break-up Fee will serve as the sole and exclusive remedy to Nanjinzhao under this agreement in the event of the termination by Cardero of this agreement, for whatever reason, and Nanjinzhao will not be entitled to any other rights and remedies provided by law or in equity, it being agreed that the Break-up Fee is a genuine pre-estimate by the parties of the damages that will be suffered by Nanjinzhao in such event. Upon receipt by Nanjinzhao of the Break-up Fee and the repayment of the Deposit, Nanjinzhao will, within TEN (10) DAYS, retransfer, or cause to be retransferred, the Property to Cardero Peru, and the Property must, at the time of such transfer to Cardero Peru, be in good standing and free and clear of any liabilities or encumbrances arising by, through or under Nanjinzhao or any of its affiliates. If Nanjinzhao becomes required to retransfer the Property to Cardero Peru hereunder, Nanjinzhao will be responsible, at its sole cost and expense, for all required reclamation, rehabilitation and restoration of the Property as may be required by applicable Peruvian laws as a consequence of the activities of Nanjinzhao thereon, and will indemnify and save harmless Cardero from any losses that may be occasioned by any failure of Nanjinzhao to meet such obligations.

Break-Up Fee. IfFor the avoidance of doubt, at any time after the date of First Closing, the receipt by Cardero Peru of the Deposit Sellers shall hold full right, title, and prior interest in and to the date of the receipt of the Balance by Cardero Peru, Cardero delivers to Nanjinzhao a written notice ("the "Cardero Termination Notice") indicating that Cardero and Cardero Peru will not be proceeding with the Acquisition then, upon the earlier of: (a) if the determination of Cardero not to proceed with the Acquisition is due to the acceptance by Cardero of an alternative offer from a third party to purchase or acquire an interest in the Property (an "Alternative Transaction"), then within TEN (10) BUSINESS DAYS of the completion of the Alternative Transaction; or (b) if the determination of Cardero not to proceed with the Acquisition is not due to Cardero entering into an Alternative Transaction, then within TEN (10) BUSINESS DAYS of the delivery of the Cardero Termination Notice, Cardero will pay to Nanjinzhao the sum of US TWENTY MILLION (USD 20,000,000) DOLLARS as a break-up fee (the "Break-up Fee"). The Break-up Fee will serve as the sole and exclusive remedy to Nanjinzhao under this agreement in the event of the termination by Cardero of this agreement, for whatever reason, and Nanjinzhao will not be entitled to any other rights and remedies provided by law or in equity, it being agreed that the Break-up Fee is a genuine pre-estimate by the parties of the damages that will be suffered by Nanjinzhao in such event. Upon receipt by Nanjinzhao of the Break-up Fee and the repayment of the Cash Deposit, Nanjinzhao will, within TEN (10) DAYS, retransfer, or cause to be retransferred, the Property to Cardero Peru, and the Property must, at Todos Deposit Shares paid to Sellers or their designees and/or assignees pursuant to Section 1.2.1 and 1.2.2 hereunder on the time of such transfer to Cardero Peru, be in good standing and First Closing Date free and clear of all rights, liens and encumbrances, without limitation. Additionally, as set forth in the Escrow Agreement, should Buyer fail to deliver the Second Cash Payment and/or the Convertible Note by the Second Closing Date as required by Section 1.2.4 and 1.2.5, the Escrow Agent shall return the Provista Shares to Sellers, and Sellers shall become the sole owners thereof. Buyer acknowledges and agrees that the Sellers, their representatives and advisors have devoted significant time and efforts and have incurred significant expenses in reviewing and analyzing the terms of this Agreements and the business, assets and operations of the Buyer in connection with the Transaction Documents and transactions contemplated hereby. Buyer further agrees and understands that in the event that the Buyer fails to deliver the Second Cash Payment and/or the Convertible Note to the Sellers at the Second Closing, the Cash Deposit and the Todos Deposit Shares shall be the property of the Sellers, and Sellers shall retain and hold full right, title, and interest in and be the sole owners of the Cash Deposit, the Todos Deposit Shares and 100% of the Provista Shares. In such an event, Buyer will have absolutely no rights, claims or interest of any liabilities type in connection with the Provista Shares, Cash Deposit or encumbrances arising byTodos Deposit Shares or this transaction, through regardless of any alleged conduct by Seller or under Nanjinzhao or any of its affiliatesanyone else. Further, in such event Buyer irrevocably will be deemed to have canceled this Agreement and relinquished all rights in and to the Provista Shares, Cash Deposit and Todos Deposit Shares. In connection with the Provista Shares, Escrow Agent may release the Provista Shares to Sellers on the day after the Second Closing Date, unless Buyer has complied with 1.2.4 and 1.2.5 hereof. If Nanjinzhao becomes required this Agreement is not canceled and all payments due to retransfer Seller at the Property to Cardero Peru hereunderFirst Closing are made when required, Nanjinzhao all of the obligations, conditions and contingencies of Sellers hereunder will be responsible, at its sole cost and expense, for all required reclamation, rehabilitation and restoration of the Property as may be required by applicable Peruvian laws as a consequence of the activities of Nanjinzhao thereon, and will indemnify and save harmless Cardero from any losses that may be occasioned by any failure of Nanjinzhao to meet such obligationsdeemed satisfied.

Break-Up Fee. IfIf the Closing does not take place due to the Purchaser not being able to pay the Closing Amount, at any time after then the Purchaser shall pay the Sellers the sum of EURO 10 million as liquidated damages (Sw. “vite”). Such payment is to be made regardless of the Losses incurred by the Sellers. The aforesaid liquidated damages are deemed due and payable on the first Business Day following the date of the receipt by Cardero Peru required payment of the Deposit and prior to Closing Amount which should have been made in accordance with Clause 7.2; provided, that the date of Purchaser shall pay the receipt of the Balance by Cardero Peruaforementioned liquidated damages on July 1, Cardero delivers to Nanjinzhao a written notice ("the "Cardero Termination Notice") indicating that Cardero and Cardero Peru will not be proceeding with the Acquisition then, upon the earlier of: (a) 2004 if the determination of Cardero Closing has not to proceed with the Acquisition is taken place on or before June 30, 2004 solely due to the acceptance by Cardero of an alternative offer from a third party Purchaser not being able to purchase or acquire an interest in pay the Property (an "Alternative Transaction"), then within TEN (10) BUSINESS DAYS Closing Amount if all of the completion of the Alternative Transaction; or (b) if the determination of Cardero not to proceed with the Acquisition is not due to Cardero entering into an Alternative Transaction, then within TEN (10) BUSINESS DAYS of the delivery of the Cardero Termination Notice, Cardero will pay to Nanjinzhao the sum of US TWENTY MILLION (USD 20,000,000) DOLLARS as a break-up fee (the "Break-up Fee")conditions set out in Clause 5 have been satisfied. The BreakSellers are not entitled to make any claim for Losses in addition to the payment required under this Clause 9.5.5 with regard to the Purchaser’s non-up Fee will serve as ability to pay the Closing Amount and such payment shall be the Sellers’ sole and exclusive remedy remedy, except the Sellers’ right to Nanjinzhao under this agreement in enforce the event waivers and obligations of the termination by Cardero of Purchaser contained in this agreementClause 9.5.5. Further, for whatever reasonif the Closing does not take place due to the Purchaser not being able to pay the Closing Amount, and Nanjinzhao will not be entitled to any then the Purchaser hereby waives until June 30, 2006 the Purchaser’s pre-emption rights (but no other rights except as provided in this Clause 9.5.5) under the Scanraff Shareholders’ Agreement, Scanraff’s Articles of Association and remedies provided the Skandinaviska Raffinaderi Aktiebolaget Scanraff Processing Agreement, dated as of April 17, 2002 (the “Scanraff Processing Agreement”), in respect of a sale of the Scanraff Shares by law or in equity, it being the Shares Seller to a Third Party. It is further agreed that the Break-up Fee Purchaser’s and Scanraff’s right to withhold consent to the sale of any interest in Scanraff, whether directly or indirectly, to any Third Party, including under the Scanraff Shareholders’ Agreement and the Scanraff Processing Agreement, is limited to any sale to any Third Party not having the financial capabilities to fulfill all of its obligations under the aforementioned agreements, including, but not limited to, the ability to finance its allocable portion of the Isocracker upgrade costs involving the Scanraff refinery and to make all the other required payments as a genuine shareholder in Scanraff. For avoidance of doubt, the Parties acknowledge and agree that even if the Purchaser’s pre-estimate by emption rights have been waived pursuant to this Clause 9.5.5, the parties Purchaser and Scanraff shall continue to retain all of their other rights under the damages that will be suffered by Nanjinzhao in such event. Upon receipt by Nanjinzhao Scanraff Shareholders’ Agreement, Scanraff’s Articles of the Break-up Fee Association and the repayment of Scanraff Processing Agreement. Furthermore, if the DepositClosing does not take place due to the Purchaser not being able to pay the Closing Amount, Nanjinzhao willthen the Purchaser hereby undertakes until June 30, within TEN (10) DAYS, retransfer, or cause 2006 to be retransferred, use its commercially reasonable efforts in assisting the Property Sellers to Cardero Peru, sell the Scanraff Assets and the Property mustScanraff Shares to a Third Party; provided, that such efforts are at a de minimis cost, expense or other obligation to the time of such transfer to Cardero Peru, be in good standing and free and clear of any liabilities or encumbrances arising by, through or under Nanjinzhao or any of its affiliates. If Nanjinzhao becomes required to retransfer the Property to Cardero Peru hereunder, Nanjinzhao will be responsible, at its sole cost and expense, for all required reclamation, rehabilitation and restoration of the Property as may be required by applicable Peruvian laws as a consequence of the activities of Nanjinzhao thereon, and will indemnify and save harmless Cardero from any losses that may be occasioned by any failure of Nanjinzhao to meet such obligationsPurchaser.

Break-Up Fee. If, at any time after In the date of event that the receipt by Cardero Peru of the Deposit and prior to the date of the receipt of the Balance by Cardero Peru, Cardero delivers to Nanjinzhao a written notice ("the "Cardero Termination Notice") indicating that Cardero and Cardero Peru will not be proceeding with the Acquisition then, upon the earlier of: (a) if the determination of Cardero Escrow Agent has not to proceed with the Acquisition is due to the acceptance by Cardero of an alternative offer from a third party to purchase or acquire an interest received all Purchaser Escrow Deliverables (as defined in the Property Escrow Agreement) within 2 Business Days (an "Alternative Transaction")for the purpose of this Section ‎6.3, then within TEN as defined in the Escrow Agreement) after it has received all Seller Escrow Deliverables (10as defined in the Escrow Agreement) BUSINESS DAYS of the completion of the Alternative Transaction; or and in addition, (b) if the determination of Cardero not to proceed with Escrow Agent thereafter receives a letter signed by the Acquisition is not due to Cardero entering into an Alternative Transaction, then within TEN (10) BUSINESS DAYS of the delivery of the Cardero Termination Notice, Cardero will pay to Nanjinzhao the sum of US TWENTY MILLION (USD 20,000,000) DOLLARS as a break-up fee (the "Break-up Fee"). The Break-up Fee will serve as the sole and exclusive remedy to Nanjinzhao under this agreement Seller in the event form attached as Schedule 2 to the Escrow Agreement, then, without limitation of the termination by Cardero of this agreement, for whatever reason, and Nanjinzhao will not be entitled to any other rights and remedies provided by remedy available in law or in equity, it being the full amount of the Advance Payment (including all interest accrued thereon) shall be promptly paid by the Escrow Agent to the Seller, as agreed upon irrevocable liquidated damages. In the event that all Seller Escrow Deliverables have been delivered to the Escrow Agent and within two Business Days the Seller receives from Purchaser a copy of a confirmation from bank of the Purchaser that the Break-up Fee is a genuine pre-estimate by full Purchase Price has been wired to the parties Escrow Account, then Seller shall not issue the letter referred to in clause (b) above prior to the expiration of seven Business Days from the date on which all Seller Escrow Deliverables have been delivered to the Escrow Agent. Each of the Parties acknowledges that the agreements contained in this Section ‎6.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, Seller would not have entered into this Agreement, and that the liquidated damages that will be suffered by Nanjinzhao in such eventcircumstances are a reasonable and appropriate measure of compensation. Upon receipt In the event that not all Seller Escrow Deliverables have been delivered to the Escrow Agent by Nanjinzhao of the Break-up Fee and the repayment of the DepositNovember 30, Nanjinzhao will, within TEN (10) DAYS, retransfer, or cause to be retransferred, the Property to Cardero Peru2010, and the Property must, at the time of such transfer to Cardero Peru, be in good standing and free and clear of any liabilities or encumbrances arising by, through or under Nanjinzhao or any of its affiliates. If Nanjinzhao becomes required to retransfer the Property to Cardero Peru hereunder, Nanjinzhao will be responsible, at its sole cost and expense, for all required reclamation, rehabilitation and restoration Escrow Agent has received item (iii) of the Property Purchaser Escrow Deliverables and in addition the Escrow Agent thereafter receives a letter signed by the Purchaser in the form attached as may be required by applicable Peruvian laws as a consequence Schedule 3 to the Escrow Agreement, the full amount of the activities of Nanjinzhao Advance Payment (including all interest accrued thereon, and will indemnify and save harmless Cardero from any losses that may ) shall be occasioned promptly paid by any failure of Nanjinzhao the Escrow Agent to meet such obligationsthe Purchaser.

Break-Up Fee. If, at any time after In the date of event that the receipt by Cardero Peru of the Deposit and prior to the date of the receipt of the Balance by Cardero Peru, Cardero delivers to Nanjinzhao a written notice ("the "Cardero Termination Notice") indicating that Cardero and Cardero Peru will not be proceeding with the Acquisition then, upon the earlier of: (a) if the determination of Cardero Escrow Agent has not to proceed with the Acquisition is due to the acceptance by Cardero of an alternative offer from a third party to purchase or acquire an interest received all Purchaser Escrow Deliverables (as defined in the Property Escrow Agreement) within 2 Business Days (an "Alternative Transaction")for the purpose of this Section 6.3, then within TEN as defined in the Escrow Agreement) after it has received all Seller Escrow Deliverables (10as defined in the Escrow Agreement) BUSINESS DAYS of the completion of the Alternative Transaction; or and in addition, (b) if the determination of Cardero not to proceed with Escrow Agent thereafter receives a letter signed by the Acquisition is not due to Cardero entering into an Alternative Transaction, then within TEN (10) BUSINESS DAYS of the delivery of the Cardero Termination Notice, Cardero will pay to Nanjinzhao the sum of US TWENTY MILLION (USD 20,000,000) DOLLARS as a break-up fee (the "Break-up Fee"). The Break-up Fee will serve as the sole and exclusive remedy to Nanjinzhao under this agreement Seller in the event form attached as Schedule 2 to the Escrow Agreement, then, without limitation of the termination by Cardero of this agreement, for whatever reason, and Nanjinzhao will not be entitled to any other rights and remedies provided by remedy available in law or in equity, it being the full amount of the Advance Payment (including all interest accrued thereon) shall be promptly paid by the Escrow Agent to the Seller, as agreed upon irrevocable liquidated damages. In the event that all Seller Escrow Deliverables have been delivered to the Escrow Agent and within two Business Days the Seller receives from Purchaser a copy of a confirmation from bank of the Purchaser that the Break-up Fee is a genuine pre-estimate by full Purchase Price has been wired to the parties Escrow Account, then Seller shall not issue the letter referred to in clause (b) above prior to the expiration of seven Business Days from the date on which all Seller Escrow Deliverables have been delivered to the Escrow Agent. Each of the Parties acknowledges that the agreements contained in this Section 6.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, Seller would not have entered into this Agreement, and that the liquidated damages that will be suffered by Nanjinzhao in such eventcircumstances are a reasonable and appropriate measure of compensation. Upon receipt In the event that not all Seller Escrow Deliverables have been delivered to the Escrow Agent by Nanjinzhao of the Break-up Fee and the repayment of the DepositNovember 30, Nanjinzhao will, within TEN (10) DAYS, retransfer, or cause to be retransferred, the Property to Cardero Peru2010, and the Property must, at the time of such transfer to Cardero Peru, be in good standing and free and clear of any liabilities or encumbrances arising by, through or under Nanjinzhao or any of its affiliates. If Nanjinzhao becomes required to retransfer the Property to Cardero Peru hereunder, Nanjinzhao will be responsible, at its sole cost and expense, for all required reclamation, rehabilitation and restoration Escrow Agent has received item (iii) of the Property Purchaser Escrow Deliverables and in addition the Escrow Agent thereafter receives a letter signed by the Purchaser in the form attached as may be required by applicable Peruvian laws as a consequence Schedule 3 to the Escrow Agreement, the full amount of the activities of Nanjinzhao Advance Payment (including all interest accrued thereon, and will indemnify and save harmless Cardero from any losses that may ) shall be occasioned promptly paid by any failure of Nanjinzhao the Escrow Agent to meet such obligationsthe Purchaser.