Common use of Break-Up Fee Clause in Contracts

Break-Up Fee. For the avoidance of doubt, at the First Closing, the Sellers shall hold full right, title, and interest in and to the Cash Deposit, and the 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 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 type in connection with the Provista Shares, Cash Deposit or Todos Deposit Shares or this transaction, regardless of any alleged conduct by Seller or anyone 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 this Agreement is not canceled and all payments due to Seller at the First Closing are made when required, all of the obligations, conditions and contingencies of Sellers hereunder will be deemed satisfied.

Break-Up Fee. For If, at any time after the avoidance date of doubtthe 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 First Closingtime of such transfer to Cardero Peru, the Sellers shall hold full right, title, be in good standing and interest in and to the Cash Deposit, and the 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 First Closing Date 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 rightsrequired reclamation, liens rehabilitation and encumbrances, without limitation. Additionally, restoration of the Property 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 may be required by Section 1.2.4 and 1.2.5, applicable Peruvian laws as a consequence of the Escrow Agent shall return the Provista Shares to Sellersactivities of Nanjinzhao thereon, and Sellers shall become the sole owners thereof. Buyer acknowledges will indemnify and agrees save harmless Cardero from any losses that the Sellers, their representatives and advisors have devoted significant time and efforts and have incurred significant expenses in reviewing and analyzing the terms may be occasioned by any failure 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 Nanjinzhao 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 meet such an event, Buyer will have absolutely no rights, claims or interest of any type in connection with the Provista Shares, Cash Deposit or Todos Deposit Shares or this transaction, regardless of any alleged conduct by Seller or anyone 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 this Agreement is not canceled and all payments due to Seller at the First Closing are made when required, all of the obligations, conditions and contingencies of Sellers hereunder will be deemed satisfied.

Break-Up Fee. For In the avoidance of doubt, at event that the First Closing, the Sellers shall hold full right, title, and interest in and to the Cash Deposit, and the 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 First Closing Date free and clear of (a) Escrow Agent has not received all rights, liens and encumbrances, without limitation. Additionally, Purchaser Escrow Deliverables (as set forth defined in the Escrow Agreement) within 2 Business Days (for the purpose of this Section ‎6.3, should Buyer fail to deliver as defined in the Second Cash Payment and/or Escrow Agreement) after it has received all Seller Escrow Deliverables (as defined in the Convertible Note by the Second Closing Date as required by Section 1.2.4 Escrow Agreement) and 1.2.5in addition, (b) the Escrow Agent shall return thereafter receives a letter signed by the Provista Shares Seller in the form attached as Schedule 2 to Sellersthe Escrow Agreement, and Sellers shall become then, without limitation of any other remedy available in law or in equity, 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 full amount of the Buyer in connection with Advance Payment (including all interest accrued thereon) shall be promptly paid by the Transaction Documents and transactions contemplated herebyEscrow Agent to the Seller, as agreed upon irrevocable liquidated damages. Buyer further agrees and understands that in In the event that the Buyer fails to deliver the Second Cash Payment and/or the Convertible Note all Seller Escrow Deliverables have been delivered to the Sellers at Escrow Agent and within two Business Days the Second Closing, the Cash Deposit and the Todos Deposit Shares shall be the property Seller receives from Purchaser a copy of a confirmation from bank of the SellersPurchaser that the full Purchase Price has been wired to the Escrow Account, and Sellers then Seller shall retain and hold full right, title, and interest not issue the letter referred to in and be clause (b) above prior to the sole owners expiration of seven Business Days from the date on which all Seller Escrow Deliverables have been delivered to the Escrow Agent. Each of the Cash Deposit, Parties acknowledges that the Todos Deposit Shares and 100% agreements contained in this Section ‎6.3 are an integral part of the Provista Shares. In such an event, Buyer will have absolutely no rights, claims or interest of any type in connection with the Provista Shares, Cash Deposit or Todos Deposit Shares or this transaction, regardless of any alleged conduct transactions contemplated by Seller or anyone else. Further, in such event Buyer irrevocably will be deemed to have canceled this Agreement and relinquished that, without these agreements, Seller would not have entered into this Agreement, and that the liquidated damages in such circumstances are a reasonable and appropriate measure of compensation. In the event that not all rights in and Seller Escrow Deliverables have been delivered to the Provista Shares, Cash Deposit and Todos Deposit Shares. In connection with the Provista Shares, Escrow Agent may release by November 30, 2010, and the Provista Shares to Sellers on the day after the Second Closing Date, unless Buyer Escrow Agent has complied with 1.2.4 and 1.2.5 hereof. If this Agreement is not canceled and all payments due to Seller at the First Closing are made when required, all received item (iii) of the obligationsPurchaser Escrow Deliverables and in addition the Escrow Agent thereafter receives a letter signed by the Purchaser in the form attached as Schedule 3 to the Escrow Agreement, conditions and contingencies the full amount of Sellers hereunder will the Advance Payment (including all interest accrued thereon) shall be deemed satisfiedpromptly paid by the Escrow Agent to the Purchaser.

Break-Up Fee. For In the avoidance of doubt, at event that the First Closing, the Sellers shall hold full right, title, and interest in and to the Cash Deposit, and the 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 First Closing Date free and clear of (a) Escrow Agent has not received all rights, liens and encumbrances, without limitation. Additionally, Purchaser Escrow Deliverables (as set forth defined in the Escrow Agreement) within 2 Business Days (for the purpose of this Section 6.3, should Buyer fail to deliver as defined in the Second Cash Payment and/or Escrow Agreement) after it has received all Seller Escrow Deliverables (as defined in the Convertible Note by the Second Closing Date as required by Section 1.2.4 Escrow Agreement) and 1.2.5in addition, (b) the Escrow Agent shall return thereafter receives a letter signed by the Provista Shares Seller in the form attached as Schedule 2 to Sellersthe Escrow Agreement, and Sellers shall become then, without limitation of any other remedy available in law or in equity, 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 full amount of the Buyer in connection with Advance Payment (including all interest accrued thereon) shall be promptly paid by the Transaction Documents and transactions contemplated herebyEscrow Agent to the Seller, as agreed upon irrevocable liquidated damages. Buyer further agrees and understands that in In the event that the Buyer fails to deliver the Second Cash Payment and/or the Convertible Note all Seller Escrow Deliverables have been delivered to the Sellers at Escrow Agent and within two Business Days the Second Closing, the Cash Deposit and the Todos Deposit Shares shall be the property Seller receives from Purchaser a copy of a confirmation from bank of the SellersPurchaser that the full Purchase Price has been wired to the Escrow Account, and Sellers then Seller shall retain and hold full right, title, and interest not issue the letter referred to in and be clause (b) above prior to the sole owners expiration of seven Business Days from the date on which all Seller Escrow Deliverables have been delivered to the Escrow Agent. Each of the Cash Deposit, Parties acknowledges that the Todos Deposit Shares and 100% agreements contained in this Section 6.3 are an integral part of the Provista Shares. In such an event, Buyer will have absolutely no rights, claims or interest of any type in connection with the Provista Shares, Cash Deposit or Todos Deposit Shares or this transaction, regardless of any alleged conduct transactions contemplated by Seller or anyone else. Further, in such event Buyer irrevocably will be deemed to have canceled this Agreement and relinquished that, without these agreements, Seller would not have entered into this Agreement, and that the liquidated damages in such circumstances are a reasonable and appropriate measure of compensation. In the event that not all rights in and Seller Escrow Deliverables have been delivered to the Provista Shares, Cash Deposit and Todos Deposit Shares. In connection with the Provista Shares, Escrow Agent may release by November 30, 2010, and the Provista Shares to Sellers on the day after the Second Closing Date, unless Buyer Escrow Agent has complied with 1.2.4 and 1.2.5 hereof. If this Agreement is not canceled and all payments due to Seller at the First Closing are made when required, all received item (iii) of the obligationsPurchaser Escrow Deliverables and in addition the Escrow Agent thereafter receives a letter signed by the Purchaser in the form attached as Schedule 3 to the Escrow Agreement, conditions and contingencies the full amount of Sellers hereunder will the Advance Payment (including all interest accrued thereon) shall be deemed satisfiedpromptly paid by the Escrow Agent to the Purchaser.

Break-Up Fee. If the Closing does not take place due to the Purchaser not being able to pay the Closing Amount, 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 required payment of the Closing Amount which should have been made in accordance with Clause 7.2; provided, that the Purchaser shall pay the aforementioned liquidated damages on July 1, 2004 if the Closing has not taken place on or before June 30, 2004 solely due to the Purchaser not being able to pay the Closing Amount if all of the conditions set out in Clause 5 have been satisfied. The Sellers 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-ability to pay the Closing Amount and such payment shall be the Sellers’ sole and exclusive remedy, except the Sellers’ right to enforce the waivers and obligations of the Purchaser contained in this Clause 9.5.5. Further, if the Closing does not take place due to the Purchaser not being able to pay the Closing Amount, 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 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 the Shares Seller to a Third Party. It is further agreed that the 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 shareholder in Scanraff. For the avoidance of doubt, at the First ClosingParties acknowledge and agree that even if the Purchaser’s pre-emption rights have been waived pursuant to this Clause 9.5.5, the Sellers Purchaser and Scanraff shall hold full rightcontinue to retain all of their other rights under the Scanraff Shareholders’ Agreement, titleScanraff’s Articles of Association and the Scanraff Processing Agreement. Furthermore, and interest in and if the Closing does not take place due to the Cash DepositPurchaser not being able to pay the Closing Amount, then the Purchaser hereby undertakes until June 30, 2006 to use its commercially reasonable efforts in assisting the Sellers to sell the Scanraff Assets and the 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 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 Scanraff Shares to Sellersa Third Party; provided, and Sellers shall become the sole owners thereof. Buyer acknowledges and agrees that the Sellerssuch efforts are at a de minimis cost, 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 expense or other obligation 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 type in connection with the Provista Shares, Cash Deposit or Todos Deposit Shares or this transaction, regardless of any alleged conduct by Seller or anyone 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 this Agreement is not canceled and all payments due to Seller at the First Closing are made when required, all of the obligations, conditions and contingencies of Sellers hereunder will be deemed satisfiedPurchaser.