Common use of Break Payment Clause in Contracts

Break Payment. 12.1 By way of compensation for any loss suffered by Telecity in connection with the preparation and negotiation of the Transaction, this Agreement and any other document and announcement relating to the Transaction, Equinix shall pay the Break Payment in the event that, following publication of the Announcement in accordance with Clause 2.1: (A) on or prior to the Longstop Date, Equinix invokes (and is permitted by the Panel to invoke) the Pre-Condition; or (B) on the Longstop Date, the Pre-Condition has not been satisfied or waived by Equinix, (each a “Break Payment Event”). 12.2 Equinix shall pay the Break Payment by electronic bank transfer to a bank account designated by Telecity within 7 days of the occurrence of the Break Payment Event. 12.3 The parties acknowledge and agree that, at the date of this Agreement, it is not possible to ascertain the amount of the overall loss that Telecity would incur as a result of the Break Payment Event and the Break Payment represents a genuine pre-estimate by the parties of the amount of the overall loss that Telecity would incur as a result of the Break Payment Event. 12.4 The parties intend and shall use all reasonable endeavours to secure that the Break Payment is not treated for VAT purposes as consideration for a taxable supply. If, however, the Break Payment is treated by Her Majesty’s Revenue & Customs or any other tax authority, in whole or in part, as consideration for a taxable supply, then the amount of the Break Payment shall be regarded as inclusive of VAT and Equinix shall be under no obligation to pay to TelecityGroup any additional amount in respect of such VAT. 12.5 In the event that the Break Payment is paid in accordance with this Clause 12 and this Agreement is terminated in accordance with its terms, other than in the case of fraud, Telecity’s right to receive the Break Payment shall be the sole and exclusive remedy of Telecity against Equinix for any and all losses and damages incurred or suffered in connection with this Agreement and the transactions contemplated by this Agreement. In no event shall Equinix be required to pay the Break Payment more than once or pay more than one Break Payment.

Break Payment. 12.1 9.1 By way of compensation for any loss or damage (including, but not limited to, incurring substantial costs and expenses, lost opportunity costs, business dislocation, reputational harm or adverse market reaction) that may be suffered by Telecity in connection with SABMiller or its shareholders on the preparation and negotiation occurrence of a Break Payment Event, subject to Clause 9.2, AB InBev shall pay, or shall procure the payment by a member of the TransactionAB InBev Group of, this Agreement and any other document and announcement relating to the Transaction, Equinix shall pay the Break Payment to SABMiller in the event that, following the publication of the Announcement in accordance with Clause 2.1: (Aa) the AB InBev Condition Resolutions are not passed by the AB InBev Shareholders by the AB InBev Shareholder Approval Longstop Date (irrespective of whether the AB InBev General Meeting has been held by AB InBev by such time or not); (b) at, or before the start of, the AB InBev General Meeting (or any adjournment thereof) (i) an AB InBev Adverse Recommendation Change occurs and within ten (10) Business Days of such change SABMiller confirms to AB InBev that it no longer intends to proceed with the Transaction; and (ii) the Panel (and BFSMA, if applicable) confirms that AB InBev shall no longer be required to proceed with the Transaction and the Transaction lapses or is withdrawn; (c) on or prior to the Longstop Long Stop Date, Equinix AB InBev invokes (and is permitted by the Panel to invoke) the any Pre-ConditionCondition and/or any Regulatory Condition so as to cause the Transaction not to proceed, to lapse or be withdrawn; or (Bd) on the Longstop Date, the any Pre-Condition and/or any Regulatory Condition has not been satisfied or waived by EquinixAB InBev by 11.59 p.m. (London time) on the date which is 14 days prior to the Long Stop Date, (each a “Break Payment Event”). 12.2 Equinix shall pay . The parties irrevocably agree, having taken appropriate advice, that the Break Payment constitutes a fair and reasonable amount payable by electronic bank transfer to a bank account designated by Telecity within 7 days of AB InBev on the occurrence of the a Break Payment Event. 12.3 The parties acknowledge and agree that, at the date (a) If a Break Payment Event occurs before or simultaneously with termination of this Agreement, it the Break Payment is payable. (b) No Break Payment shall be payable if at the time the relevant Break Payment Event occurs, this Agreement has already been terminated pursuant to Clause 11. For the avoidance of doubt: (i) if this Agreement is terminated pursuant to Clause 11 prior to the AB InBev Shareholder Approval Longstop Date and at such time of termination the AB InBev General Meeting has not possible yet occurred, no Break Payment Event is capable of occurring pursuant to ascertain Clause 9.1(a); and (ii) if this Agreement is terminated pursuant to Clause 11 prior to 11.59 p.m. (London time) on the amount date which is 14 days prior to the Long Stop Date, no Break Payment Event is capable of occurring pursuant to Clause 9.1(d). 9.3 Subject to Clause 9.2, AB InBev shall pay or procure the overall loss that Telecity would incur as a result payment of the Break Payment Event and to SABMiller within 10 Business Days of the day on which the relevant Break Payment represents a genuine pre-estimate by the parties of the amount of the overall loss that Telecity would incur as a result of the Break Payment EventEvent occurs. 12.4 9.4 The parties intend anticipate, and shall use all reasonable endeavours to secure secure, that the Break Payment is not and will not be treated for VAT purposes as consideration for a taxable supplysupply for VAT purposes. If, however, the Break Payment is treated determined by Her Majesty’s Revenue & Customs or any other tax authority, Tax Authority to be consideration in whole or in part, as consideration part for a taxable supply for VAT purposes then: (a) SABMiller shall provide AB InBev with a valid VAT invoice in respect of that supply; and (b) if SABMiller (or the representative member of the VAT group of which SABMiller is a member) is liable to account for VAT in respect of that supply, then the amount of the Break Payment shall be regarded as inclusive of VAT and Equinix shall be under no obligation increased to pay to TelecityGroup any additional amount in respect take account of such recoverable VAT. 12.5 9.5 Such additional payment as may be required to be made by AB InBev pursuant to Clause 9.4 above shall be made, subject to the receipt of a valid VAT invoice, no later than five Business Days before the date on which SABMiller (or the representative member of the VAT group of which SABMiller is a member) is liable to account for such VAT (the Due Date) or, if later, the date falling five (5) Business Days after SABMiller has notified AB InBev in writing of the Due Date. 9.6 Payments pursuant to this Clause 9 shall be made in immediately available funds (without any deduction or withholding, save only as required by Law, and without regard to any lien, right of set-off, counterclaim or otherwise) to such bank account as may be notified to AB InBev by SABMiller for such purpose (such notification to be received no later than three (3) Business Days prior to the deadline for payment of the Break Payment). 9.7 In the event that a Break Payment has been paid pursuant to this Clause 9, except with respect to: (i) any amounts payable by AB InBev pursuant to the indemnity provision in Clause 9.8; and (ii) fraud, SABMiller’s receipt of the Break Payment is paid (plus any additional amounts in accordance with this respect of VAT under Clause 12 and this Agreement is terminated in accordance with its terms, other than in the case of fraud, Telecity’s right to receive the Break Payment 9.4) shall be the sole and exclusive remedy of Telecity against Equinix the SABMiller Group in respect of any and all costs and expenses incurred by the SABMiller Group arising out of or in connection with this Agreement (and/or any other agreement referred to or deemed to be referred to in Clause 17.1 (a Relevant Agreement)) and the transactions contemplated by this Agreement and/or any Relevant Agreement, and for any and all losses and damages incurred suffered arising out of or suffered in connection with this Agreement and/or any Relevant Agreement and the transactions contemplated by this Agreement and/or any Relevant Agreement. The parties irrevocably agree, having taken appropriate advice, that, in the event that a Break Payment Event occurs, the payment by AB InBev of the Break Payment (plus any additional amounts in respect of VAT under Clause 9.4) will constitute an adequate remedy for SABMiller for any and all costs and expenses incurred by the SABMiller Group arising out of or in connection with this Agreement and/or any Relevant Agreement and the transactions contemplated by this Agreement and/or any Relevant Agreement, and for any and all losses and damages suffered in connection with or arising out of this Agreement and/or any Relevant Agreement and the transactions contemplated by this Agreement and/or any Relevant Agreement, and SABMiller undertakes not to seek any other remedy arising out of or in connection with this Agreement and/or any Relevant Agreement and/or the transactions contemplated by this Agreement and/or any Relevant Agreement whether at law or in equity or otherwise. In no event shall Equinix AB InBev be required to pay the Break Payment more than once or pay more than one Break Payment. 9.8 AB InBev shall indemnify and hold harmless SABMiller (and each member of the SABMiller Group) on demand from and against any losses, liabilities and claims of whatever nature, and any costs and expenses suffered or incurred by SABMiller (or any member of the SABMiller Group) arising from actions taken by the SABMiller Group prior to the termination of this Agreement in compliance with their obligations under Clause 6.3 and Schedule 3 (including, without limitation, pursuant to any indemnification or similar provisions required to be undertaken by SABMiller or any other member of the SABMiller Group in favour of the Incorporation Agent or the Initial Directors), except to the extent such losses, liabilities, claims, costs and expenses are finally judicially determined to have arisen from the gross negligence, wilful misconduct, bad faith or fraud by a member of the SABMiller Group or any of its directors, officers or employees.

Break Payment. 12.1 By 11.1 If a Break Payment Event occurs, by way of compensation for any loss suffered costs incurred by Telecity Cambian in connection with the preparation and negotiation of the Transaction, this Agreement and any other document and announcement relating to the Transaction, Equinix subject to Clause 11.2, CareTech shall pay pay, or procure the payment by a member of the CareTech Group of, the Break Payment in the event that, following publication of the Announcement in accordance with Clause 2.1: (A) to Cambian on or prior to the Longstop Date, Equinix invokes (and is permitted by the Panel to invoke) the Pre-Condition; or (B) on the Longstop Date, the Pre-Condition has not been satisfied or waived by Equinix, (each a “Break Payment Event”). 12.2 Equinix shall pay before the Break Payment by electronic bank transfer to a bank account designated by Telecity within 7 days of Deadline. CareTech agrees, having taken legal advice, that the occurrence amount of the Break Payment Eventis fair and reasonable. 12.3 The parties acknowledge and agree that, at the date of this Agreement, it is not possible to ascertain the amount of the overall loss that Telecity would incur as a result of the 11.2 No Break Payment Event and the Break Payment represents a genuine pre-estimate by the parties of the amount of the overall loss that Telecity would incur as a result of shall be payable if, prior to the Break Payment Event, any event set out in Clause 13.1 (other than Clauses 13.1.3(h) to 13.1.3(l) (inclusive)) has occurred (or as otherwise agreed between Cambian and CareTech). 12.4 11.3 The parties intend anticipate, and shall use all reasonable endeavours to secure ensure, that the Break Payment is outside of the scope of VAT and is not and will not be treated for VAT purposes as consideration for a taxable supplysupply for VAT purposes. If, however, the Break Payment is treated by Her Majesty’s Revenue & Customs or any other tax authority, Tax Authority in whole or in part, part as consideration for a taxable supply for VAT purposes then: (i) Cambian shall provide CareTech with a valid VAT invoice in respect of the supply; and (ii) if Cambian (or the representative member of the VAT group of which Cambian is a member) is liable to account for VAT in respect of that supply, then the CareTech shall pay Cambian (in addition to any other consideration for that supply) an amount of the Break Payment shall be regarded as inclusive of VAT and Equinix shall be under no obligation equal to pay to TelecityGroup any such VAT. Any such additional amount in respect of VAT shall be paid no later than five Business Days before the date on which Cambian (or the representative member of the VAT group of which Cambian is a member) is liable to account for such VATVAT (the "Due Date") or, if later, the date falling five Business Days after Cambian has notified CareTech in writing of the Due Date. 12.5 11.4 Any payment pursuant to this Clause 11 shall be made in immediately available funds (without any deduction or withholding, save as required by applicable Law, and without any regard to any lien, right of set-off, counterclaim or otherwise) to such bank account as may be notified in writing to CareTech by Cambian for such purpose (such notice to be received no later than one Business Day prior to the Break Payment Deadline). 11.5 In the event that the a Break Payment is paid in accordance Event occurs, except with this Clause 12 and this Agreement is terminated in accordance with its terms, other than in the case of respect to fraud, Telecity’s ▇▇▇▇▇▇▇'s right to receive the Break Payment (plus any additional amounts in respect of VAT under Clause 11.3) shall be the sole and exclusive remedy of Telecity Cambian against Equinix CareTech for any and all losses and damages incurred (including costs and expenses) suffered arising out of or suffered in connection with this Agreement and the transactions contemplated by this Agreement. In no event shall Equinix CareTech be required to pay the Break Payment more than once or pay more than one Break Payment.

Break Payment. 12.1 By way of compensation for any loss suffered by Telecity in connection with the preparation and negotiation of the Transaction, this Agreement and any other document and announcement relating 9.1 Target undertakes to the Transaction, Equinix shall pay the Break Payment in the event that, following publication of the Announcement to Offeror in accordance with this Clause 2.1: 9 (ABreak Payment) on or prior a sum that is equal to £38,000,000 (the Longstop Date, Equinix invokes (and is permitted by the Panel to invoke) the Pre-Condition; or (B) on the Longstop Date, the Pre-Condition has not been satisfied or waived by Equinix, (each a “Break Payment”), by way of compensation, if the Announcement is released and after such release a Competing Offer becomes effective, or is declared or becomes unconditional in all respects (the “Payment Event”). 12.2 Equinix shall 9.2 On or before the date falling five (5) Business Days following the Announcement, Target agrees to pay a sum equal to the Break Payment into an escrow account in the joint names of Offeror and Target by electronic bank transfer way of security for its obligations under Clause 9.1 under irrevocable instructions that an amount equal to a bank account designated by Telecity within 7 days of the Break Payment shall be automatically released to Offeror upon the occurrence of the Break Payment Event. Any payment in discharge of such obligations shall be made within 10 Business Days after the date of the Payment Event. 12.3 The parties acknowledge 9.3 Offeror and Target agree that the irrevocable instructions in respect of the escrow account referred to in Clause 9.2 above shall also provide that, at provided a Payment Event has not already occurred, all amounts standing to the date credit of this Agreement, it the escrow account shall be automatically released to Target upon either: (i) the later of the Acquisition lapsing or being withdrawn in accordance with its terms (provided that such lapse is not possible to ascertain the amount of the overall loss that Telecity would incur as a result of a Competing Offer becoming or being declared wholly unconditional) and all Competing Offers having lapsed or been withdrawn in accordance with their terms; or (ii) the Acquisition becoming or being declared wholly unconditional. 9.4 All sums payable under Clause 9.1 above shall be paid in full free from any deduction or withholding whatsoever (save only as may be required by law) and without regard to any lien, right of set-off, counterclaim or otherwise. 9.5 The parties intend that the Break Payment, being compensatory in nature, is not consideration for a taxable supply for VAT purposes. Unless and until Offeror notifies Target that, acting in good faith, Offeror considers the Break Payment Event and the Break Payment represents to be consideration for a genuine pre-estimate by taxable supply (a “VAT Notification”), the parties of the amount of the overall loss that Telecity would incur as a result of the Break Payment Event. 12.4 The parties intend and shall use all reasonable endeavours to secure that the Break Payment is not treated for VAT purposes as consideration for a taxable supplysupply for VAT purposes. If, however, If the Offeror serves a VAT Notification or the Break Payment is treated determined by Her Majesty’s Revenue & Customs or any other tax authority, Tax Authority to be consideration in whole or in part, as consideration part for a taxable supplysupply for VAT purposes then if Offeror is required to account for VAT in respect of that supply Target will use all reasonable endeavours to recover such VAT and: 9.5.1 to the extent that such VAT is not recoverable by Target by repayment or credit, then no additional amount shall be paid by Target to Offeror in respect of such non- recoverable VAT; and 9.5.2 to the extent that such VAT is recoverable by Target by repayment or credit, the amount of the Break Payment shall be regarded as inclusive increased to take account of VAT and Equinix shall be under no obligation such recoverable VAT, such that the total amount of the Break Payment paid to pay to TelecityGroup any additional Offeror (including the amount in respect of VAT), less the amount of such VAT. 12.5 In repayment or credit, is equal to the event amount that the Break Payment is paid in accordance with this Clause 12 and this Agreement is terminated in accordance with its terms, other than would have been in the case absence of fraud, Telecity’s right VAT. 9.6 Target shall pay to receive Offeror the Break Payment shall be amount (if any) set out in Clause 9.5.2 above within five Business Days of obtaining a credit or repayment in respect of the sole and exclusive remedy of Telecity against Equinix for any and all losses and damages incurred or suffered in connection with this Agreement and the transactions contemplated by this Agreement. In no event shall Equinix be required to pay the Break Payment more than once or pay more than one Break Paymentrelevant VAT.

Break Payment. 12.1 9.1 By way of compensation for any loss or damage (including, but not limited to, incurring substantial costs and expenses, lost opportunity costs, business dislocation, reputational harm or adverse market reaction) that may be suffered by Telecity in connection with SABMiller or its shareholders on the preparation and negotiation occurrence of a Break Payment Event, subject to Clause 9.2, AB InBev shall pay, or shall procure the payment by a member of the TransactionAB InBev Group of, this Agreement and any other document and announcement relating to the Transaction, Equinix shall pay the Break Payment to SABMiller in the event that, following the publication of the Announcement in accordance with Clause 2.1: (Aa) the AB InBev Condition Resolutions are not passed by the AB InBev Shareholders by the AB InBev Shareholder Approval Longstop Date (irrespective of whether the AB InBev General Meeting has been held by AB InBev by such time or not); (b) at, or before the start of, the AB InBev General Meeting (or any adjournment thereof) (i) an AB InBev Adverse Recommendation Change occurs and within ten (10) Business Days of such change SABMiller confirms to AB InBev that it no longer intends to proceed with the Transaction; and (ii) the Panel (and BFSMA, if applicable) confirms that AB InBev shall no longer be required to proceed with the Transaction and the Transaction lapses or is withdrawn; (c) on or prior to the Longstop Long Stop Date, Equinix AB InBev invokes (and is permitted by the Panel to invoke) the any Pre-ConditionCondition and/or any Regulatory Condition so as to cause the Transaction not to proceed, to lapse or be withdrawn; or (Bd) on the Longstop Date, the any Pre-Condition and/or any Regulatory Condition has not been satisfied or waived by EquinixAB InBev by 11.59 p.m. (London time) on the date which is 14 days prior to the Long Stop Date, (each a “Break Payment Event”). 12.2 Equinix shall pay . The parties irrevocably agree, having taken appropriate advice, that the Break Payment constitutes a fair and reasonable amount payable by electronic bank transfer to a bank account designated by Telecity within 7 days of AB InBev on the occurrence of the a Break Payment Event. 12.3 The parties acknowledge and agree that, at the date (a) If a Break Payment Event occurs before or simultaneously with termination of this Agreement, it is not possible to ascertain the amount of the overall loss that Telecity would incur as a result of the Break Payment Event and the Break Payment represents a genuine pre-estimate by the parties of the amount of the overall loss that Telecity would incur as a result of the Break Payment Event. 12.4 The parties intend and shall use all reasonable endeavours to secure that the Break Payment is not treated for VAT purposes as consideration for a taxable supply. If, however, the Break Payment is treated by Her Majesty’s Revenue & Customs or any other tax authority, in whole or in part, as consideration for a taxable supply, then the amount of the payable. (b) No Break Payment shall be regarded as inclusive of VAT and Equinix shall be under no obligation to pay to TelecityGroup any additional amount in respect of such VAT. 12.5 In payable if at the event that time the relevant Break Payment is paid in accordance with this Clause 12 and Event occurs, this Agreement is has already been terminated in accordance with its terms, other than in the case of fraud, Telecity’s right pursuant to receive the Break Payment shall be the sole and exclusive remedy of Telecity against Equinix for any and all losses and damages incurred or suffered in connection with this Agreement and the transactions contemplated by this Agreement. In no event shall Equinix be required to pay the Break Payment more than once or pay more than one Break Payment.Clause