Common use of Break Fee Clause in Contracts

Break Fee. YGC and Queenstake recognize and acknowledge that each will, by reason of this Agreement, incur substantial out-of-pocket costs and forego other investment opportunities, and that it would be impracticable or extremely difficult to calculate these costs, benefits and damages. As such, YGC and Queenstake hereby agree that if this Agreement is terminated: (a) pursuant to Sections 6.3(a) or (b) (as a result of a breach by Queenstake in any material respect of its covenants and representations and warranties contained in this Agreement), 6.3(d)(iv) or 6.3(d)(vii) (each a “Queenstake Triggering Event”), then Queenstake will pay to YGC an amount in cash equal to 5% of the market capitalization of Queenstake, determined as of the close of business on the last business date prior to the date on which the Queenstake Triggering Event occurred; or (b) pursuant to Sections 6.3(a) or (c) (as a result of a breach by YGC in any material respect of its covenants and representations and warranties contained in this Agreement), 6.3(d)(v) or 6.3(d)(vi) (each a “YGC Triggering Event”), then YGC will pay to Queenstake an amount in cash equal to 5% of the market capitalization of YGC, determined as of the close of business on the last business date prior to the date on which the YGC Triggering Event occurred. In either situation, such payment (the “Termination Fee”) shall be made by the paying party (the “Paying Party”) in immediately available funds to an account designated by the other party (the “Non-Paying Party”) and must be made concurrently with such termination or failure to proceed. The Paying Party hereby acknowledges that the Termination Fee is a payment of liquidated damages which are a genuine pre-estimate of the damages which the Non-Paying Party will suffer or incur as a result of the Queenstake Triggering Event or YGC Triggering Event, respectively, giving rise to such damages and the resultant non-completion of the Arrangement and are not penalties. The Paying Party hereby irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. Upon receipt of payment of the Termination Fee by the Non-Paying Party, the Non-Paying Party shall have no further claim against the Paying Party in respect of the failure to complete the Arrangement, provided that nothing herein shall preclude the Non-Paying Party from seeking injunctive relief to restrain any breach or threatened breach by the Paying Party of any of its obligations hereunder or otherwise to obtain specific performance without the necessity of posting bond or security in connection therewith. For certainty, a Termination Fee shall not be payable by a Paying Party upon a termination of this Agreement in the event of a failure by Queenstake to obtain the renegotiated agreement contemplated by Section 4.2(b)(x) of this Agreement or a failure by YGC to obtain the financing contemplated by Section 4.3(b)(xi) of this Agreement, provided that the respective party shall have used its reasonable commercial efforts to fulfill its obligations under the above mentioned provisions of this Agreement.

Break Fee. YGC To the extent that any term sheet, letter of intent or other agreement or understanding relating to the Required Financing (each a “Financing Term Sheet”) includes any break-fee, termination fee, or other expenses payable by the Purchaser upon termination thereof, to the proposed lender, financier, investment bank or agent (each a “Break-Fee”), despite the Parties’ best efforts to avoid such a requirement, each of the Purchaser and Queenstake recognize Sellers shall be responsible for fifty percent (50%) of any such Break-Fee. If so required by the lender, despite the Parties’ best efforts to avoid such a requirement, upon the entry into such Financing Term Sheet by the Purchaser, which Financing Term Sheet shall require the approval of the Sellers prior to the Purchaser’s execution thereof, the Purchaser and acknowledge that the Sellers shall each will, by reason place 50% of this Agreement, incur substantial outthe Break-ofFee into an interest-pocket costs and forego other investment opportunities, and that it would be impracticable or extremely difficult bearing escrow account to calculate these costs, benefits and damages. As such, YGC and Queenstake hereby agree that if this Agreement is terminated: (a) pursuant be used to Sections 6.3(a) satisfy any Break-Fee; or (b) (as a result to be returned to the advancing party upon completion of a breach by Queenstake such financing. For the sake of clarity, any amounts remaining in any material respect of its covenants and representations and warranties contained in this Agreement), 6.3(d)(iv) or 6.3(d)(vii) (each a “Queenstake Triggering Event”), then Queenstake will pay to YGC an amount in cash equal to 5% the escrow account upon completion of the market capitalization of Queenstake, determined as Required Financing or termination of the close of business on Financing Term Sheet (after the last business date prior to the date on which the Queenstake Triggering Event occurred; or (b) pursuant to Sections 6.3(a) or (c) (as a result of a breach by YGC in any material respect of its covenants and representations and warranties contained in this Agreement), 6.3(d)(v) or 6.3(d)(vi) (each a “YGC Triggering Event”), then YGC will pay to Queenstake an amount in cash equal to 5% of the market capitalization payment of YGC, determined as of the close of business on the last business date prior to the date on which the YGC Triggering Event occurred. In either situation, such payment (the “Termination an Break-Fee”) shall be made returned 50% to the Purchaser and 50% to the Seller. All interest shall accompany the principal on which it accrued. In the event that this Agreement is terminated by a Party pursuant to Section 7.1.1(x) hereof, the full amount of the applicable Break-Fee shall be paid by the paying party non-terminating (the “Paying i.e., breaching) Party”) , and any amount in immediately available funds to an account designated escrow provided by the other party (the “Non-Paying Party”) and must be made concurrently with such termination or failure to proceed. The Paying Party hereby acknowledges that the Termination Fee is a payment of liquidated damages which are a genuine pre-estimate of the damages which the Non-Paying Party will suffer or incur as a result of the Queenstake Triggering Event or YGC Triggering Event, respectively, giving rise to such damages and the resultant non-completion of terminating Party shall be released to the Arrangement and are not penalties. The Paying terminating Party hereby irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. Upon receipt of payment of the Termination Fee (together with amounts funded by the Nonterminating Party) to pay such Break-Paying Party, the Non-Paying Party shall have no further claim against the Paying Party in respect of the failure to complete the Arrangement, provided that nothing herein shall preclude the Non-Paying Party from seeking injunctive relief to restrain any breach or threatened breach by the Paying Party of any of its obligations hereunder or otherwise to obtain specific performance without the necessity of posting bond or security in connection therewith. For certainty, a Termination Fee shall not be payable by a Paying Party upon a termination of this Agreement in the event of a failure by Queenstake to obtain the renegotiated agreement contemplated by Section 4.2(b)(x) of this Agreement or a failure by YGC to obtain the financing contemplated by Section 4.3(b)(xi) of this AgreementFee, provided that the respective party non-terminating Party shall have used its reasonable commercial efforts to fulfill its obligations under also promptly pay the above mentioned provisions remainder of this Agreementthe Break-Fee.

Break Fee. YGC To the extent that any term sheet, letter of intent or other agreement or understanding relating to the Required Financing (each a “Financing Term Sheet”) includes any break-fee, termination fee, or other expenses payable by the Purchaser upon termination thereof, to the proposed lender, financier, investment bank or agent (each a “Break-Fee”), despite the Parties’ best efforts to avoid such a requirement, each of the Purchaser and Queenstake recognize Sellers shall be responsible for fifty percent (50%) of any such Break-Fee. If so required by the lender, despite the Parties’ best efforts to avoid such a requirement, upon the entry into such Financing Term Sheet by the Purchaser, which Financing Term Sheet shall require the approval of the Sellers prior to the Purchaser’s execution thereof, the Purchaser and acknowledge that the Sellers shall each will, by reason place 50% of this Agreement, incur substantial outthe Break-ofFee into an interest-pocket costs and forego other investment opportunities, and that it would be impracticable or extremely difficult bearing escrow account to calculate these costs, benefits and damages. As such, YGC and Queenstake hereby agree that if this Agreement is terminated: (a) pursuant be used to Sections 6.3(a) satisfy any Break-Fee; or (b) (as a result to be returned to the advancing party upon completion of a breach by Queenstake such financing. For the sake of clarity, any amounts remaining in any material respect of its covenants and representations and warranties contained in this Agreement), 6.3(d)(iv) or 6.3(d)(vii) (each a “Queenstake Triggering Event”), then Queenstake will pay to YGC an amount in cash equal to 5% the escrow account upon completion of the market capitalization of Queenstake, determined as Required Financing or termination of the close of business on Financing Term Sheet (after the last business date prior to the date on which the Queenstake Triggering Event occurred; or (b) pursuant to Sections 6.3(a) or (c) (as a result of a breach by YGC in any material respect of its covenants and representations and warranties contained in this Agreement), 6.3(d)(v) or 6.3(d)(vi) (each a “YGC Triggering Event”), then YGC will pay to Queenstake an amount in cash equal to 5% of the market capitalization payment of YGC, determined as of the close of business on the last business date prior to the date on which the YGC Triggering Event occurred. In either situation, such payment (the “Termination an Break-Fee”) shall be made returned 50% to the Purchaser and 50% to the Seller. All interest shall accompany the principal on which it accrued. In the event that this Agreement is terminated by a Party pursuant to Section9.1.1(x) hereof, the full amount of the applicable Break-Fee shall be paid by the paying party non-terminating (the “Paying i.e., breaching) Party”) , and any amount in immediately available funds to an account designated escrow provided by the other party (the “Non-Paying Party”) and must be made concurrently with such termination or failure to proceed. The Paying Party hereby acknowledges that the Termination Fee is a payment of liquidated damages which are a genuine pre-estimate of the damages which the Non-Paying Party will suffer or incur as a result of the Queenstake Triggering Event or YGC Triggering Event, respectively, giving rise to such damages and the resultant non-completion of terminating Party shall be released to the Arrangement and are not penalties. The Paying terminating Party hereby irrevocably waives any right it may have to raise as a defence that any such liquidated damages are excessive or punitive. Upon receipt of payment of the Termination Fee (together with amounts funded by the Nonterminating Party) to pay such Break-Paying Party, the Non-Paying Party shall have no further claim against the Paying Party in respect of the failure to complete the Arrangement, provided that nothing herein shall preclude the Non-Paying Party from seeking injunctive relief to restrain any breach or threatened breach by the Paying Party of any of its obligations hereunder or otherwise to obtain specific performance without the necessity of posting bond or security in connection therewith. For certainty, a Termination Fee shall not be payable by a Paying Party upon a termination of this Agreement in the event of a failure by Queenstake to obtain the renegotiated agreement contemplated by Section 4.2(b)(x) of this Agreement or a failure by YGC to obtain the financing contemplated by Section 4.3(b)(xi) of this AgreementFee, provided that the respective party non-terminating Party shall have used its reasonable commercial efforts to fulfill its obligations under also promptly pay the above mentioned provisions remainder of this Agreementthe Break-Fee.