Common use of Reverse Termination Fee Clause in Contracts

Reverse Termination Fee. If this Agreement is terminated by Parent or the Company pursuant to (i) Section 10.01(b)(i) and, at the time of such termination, the conditions set forth in Section 9.01(a) or Section 9.01(c) shall not have been satisfied (in each case, solely as a result of failure to obtain the expiration or termination of the applicable waiting period relating to the Merger under the HSR Act or the issuance of an injunction or order or application of Applicable Law or other legal prohibition, in each case relating to antitrust laws in the United States) or (ii) Section 10.01(b)(ii) (solely as a result of failure to obtain the expiration or termination of the applicable waiting period relating to the Merger under the HSR Act or the issuance of an injunction, order or decree relating to antitrust laws in the United States), and at the time of such termination referred to in clause (i) or (ii) above, the conditions set forth in Section 9.02(a) and Section 9.02(b) shall have been satisfied (assuming for the purpose of determining whether the conditions set forth in Section 9.02(a) and Section 9.02(b) have been satisfied in this clause, that all references to “Effective Time” in Section 9.02(a) and Section 9.02(b) shall be deemed to refer instead to the time of termination of this Agreement under this Section) or waived in accordance with this Agreement, then Parent shall promptly, but in no event later than two Business Days after the date of such termination, pay to the Company an amount equal to (i) $145,000,000 (the “Reverse Termination Fee”) in immediately available funds to an account designated by the Company minus (ii) the aggregate amount actually paid by Parent (or any of its Affiliates) pursuant to Section 8.01(b). For the avoidance of doubt, (i) the Reverse Termination Fee shall only be payable by Parent once hereunder and (ii) upon payment of the Reverse Termination Fee (minus the aggregate amount actually paid by Parent (or any of its Affiliates) pursuant to Section 8.01(b)), no amount shall be payable pursuant to Section 8.01(b). Notwithstanding anything to the contrary contained in this Agreement, except in the case of fraud or Willful Breach of this Agreement by Parent or Merger Sub, the Company’s receipt of the Reverse Termination Fee from Parent shall be the sole and exclusive remedy of the Company against Parent, Merger Sub and their Affiliates and their respective Representatives (each such Person, a “Parent Related Party”) for the loss suffered as a result of the failure of the Merger to be consummated or any loss suffered as a result of any breach of any covenant or agreement in this Agreement, and upon payment of such amount, none of Parent or any other Parent Related Party shall have any further liability or obligation relating to or arising out of this Agreement; provided, however, that the foregoing shall not limit the rights of the Company or any of its Affiliates, or any of its or their respective Representatives, or the obligations of Parent to pay or reimburse, any amounts payable or reimbursable by Parent under the Surviving Economic Provisions. Nothing in this Section 11.04(c) shall limit the rights of the Company under Section 11.13 (or otherwise with respect to injunctive or similar relief), in each case prior to the termination of this Agreement.

Reverse Termination Fee. If Parent shall pay to the Company a termination fee of $3,000,000 in immediately available funds in the event that this Agreement is terminated (i) by either Parent or the Company pursuant to (iSection 8.1(b) Section 10.01(b)(i) and, at and either the time of such termination, Financing or the conditions set forth in Section 9.01(a) or Section 9.01(c) Alternative Financing shall not have been satisfied consummated, unless either (in each case, solely as a result of A) the failure to obtain consummate the expiration Financing or termination the Alternative Financing was not the principal cause of the applicable waiting period relating to failure of the Merger under to occur, or (B) the HSR Act failure to consummate the Financing or the issuance of an injunction or order or application of Applicable Law or other legal prohibition, in each case relating to antitrust laws in the United States) or (ii) Section 10.01(b)(ii) (solely as Alternative Financing was caused by a result of failure to obtain the expiration or termination of the applicable waiting period relating to the Merger under the HSR Act or the issuance of an injunction, order or decree relating to antitrust laws in the United States), and at the time of such termination referred to in clause (i) or (ii) above, the conditions set forth in Section 9.02(a) and Section 9.02(b) shall have been satisfied (assuming for the purpose of determining whether the conditions set forth in Section 9.02(a) and Section 9.02(b) have been satisfied in this clause, that all references to “Effective Time” in Section 9.02(a) and Section 9.02(b) shall be deemed to refer instead to the time of termination of this Agreement under this Section) or waived in accordance with this Agreement, then Parent shall promptly, but in no event later than two Business Days after the date of such termination, pay to the Company an amount equal to (i) $145,000,000 (the “Reverse Termination Fee”) in immediately available funds to an account designated breach by the Company minus (ii) the aggregate amount actually paid by Parent (or of any of its Affiliates) pursuant to Section 8.01(b). For the avoidance of doubtrepresentations, (i) the Reverse Termination Fee shall only be payable by Parent once hereunder and (ii) upon payment of the Reverse Termination Fee (minus the aggregate amount actually paid by Parent (warranties, covenants or any of its Affiliates) pursuant to Section 8.01(b)), no amount shall be payable pursuant to Section 8.01(b). Notwithstanding anything to the contrary contained agreements set forth in this Agreement, except in (ii) by the case of fraud Company pursuant to Section 8.1(i), or Willful Breach of this Agreement (iii) by Parent or Merger Sub, the Company’s receipt pursuant to Section 8.1(j). Payment of the Reverse Termination Fee from Parent full amount described in this Section 8.2(c) shall be the sole and exclusive remedy of the Company against Parentfor termination of this Agreement, Merger Sub and their Affiliates and their respective Representatives unless (each such Personi) this Agreement is terminated either (A) by Parent or Company pursuant Section 8.1(b), a “or (B) by the Parent Related Party”pursuant to Section 8.1(j), (ii) for the loss suffered as a result failure to consummate the Financing or the Alternative Financing was not the principal cause of the failure of the Merger to be consummated or any loss suffered as a result of any breach of any covenant or agreement in this Agreementoccur, and upon (iii) the Company has not rejected payment of such amount, none of Parent or any other Parent Related Party shall have any further liability or obligation relating to or arising out of this Agreement; provided, however, that the foregoing shall not limit the rights of the Company or any of its Affiliates, or any of its or their respective Representatives, or the obligations of Parent to pay or reimburse, any amounts payable or reimbursable by Parent under the Surviving Economic Provisions. Nothing amount described in this Section 11.04(c8.2(c) on or before the third (3rd) Business Day after delivery thereof. All payments under this Section 8.2(c) shall limit be made by wire transfer of immediately available funds to an account designated by the rights Company. Parent acknowledges that the agreements contained in this Section 8.2 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the Company under would not enter into this Agreement. Accordingly, if Parent fails promptly to pay any amount due to the other party pursuant to this Section 11.13 (or otherwise with respect to injunctive or similar relief)8.2 and, in each case prior order to obtain such payment, the Company commences a suit that results in a judgment against Parent for all or any portion of the amounts set forth in this Section 8.2, Parent shall pay to the termination Company its costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such suit, together with interest on the aggregate amount of this Agreementthe fees and expenses at a rate equal to the prime rate reported in The Wall Street Journal on the date such payment was required to be made plus 2%.

Reverse Termination Fee. If (a) In the event that (i) this Agreement is terminated by Parent or the Company pursuant to (i) Section 10.01(b)(i) and, at the time of such termination, the conditions set forth in Section 9.01(a9.01(b) or Section 9.01(c9.01(e), (ii) shall neither Seller nor its Affiliates materially breached their obligations under Section 6.08, (iii) the only condition to Closing that is not have been satisfied (or could not be satisfied by the Termination Date) is Section 7.01(a) or Section 7.01(b) (and with respect to Section 7.01(b), only if the applicable order, decision or injunction arises in connection with the failure of any waiting period (or extension thereof) applicable to the transactions contemplated by this Agreement to expire or be terminated or any approval or consent to be obtained, in each case, solely as a result of failure to obtain the expiration under or termination of the applicable waiting period relating in relation to the Merger under the HSR Act or the issuance of an injunction or order or application of Applicable Law or other legal prohibition, in each case relating to antitrust laws in the United States) or (ii) Section 10.01(b)(ii) (solely as a result of failure to obtain the expiration or termination of the applicable waiting period relating to the Merger under the HSR Act or the issuance of an injunction, order or decree relating to antitrust laws in the United StatesAct), and at (iv) the time of such termination referred to conditions in clause (iSection 7.01(a) or (iiSection 7.01(b) above, the conditions set forth in Section 9.02(a) and Section 9.02(b) shall would have been satisfied (assuming for if Buyer agreed or committed to divest, hold separate or take or commit to take action that limits its freedom of action with respect to, or its ability to retain any of the purpose businesses, services, or assets of determining whether the conditions set forth in Section 9.02(a) Buyer that, taken as a whole, would not have a material and Section 9.02(b) have been satisfied in this clause, that all references adverse effect on Buyer and Buyer elected not to “Effective Time” in Section 9.02(a) and Section 9.02(b) shall be deemed to refer instead to the time of termination of this Agreement under this Section) or waived in accordance with this Agreementtake such actions, then Parent shall promptlyBuyer will, but in no event later than two Business Days after the date by way of such terminationcompensation, pay to the Company an amount equal to (i) $145,000,000 25,100,000 (the “Reverse Termination Fee”) in immediately available funds by wire transfer (to an account designated by the Company minus Company) of immediately available funds (iix) prior to or concurrently with such termination in the aggregate amount actually paid event of a termination by Parent Buyer or (y) no later than five Business Days following such termination in the event of a termination by Seller or any of its Affiliates) pursuant the Company. In no event will Buyer be required to Section 8.01(b). For the avoidance of doubt, (i) pay the Reverse Termination Fee shall only other than in the instance described in this Section 9.02 and in no event will Buyer be payable by Parent once hereunder and (ii) upon payment of required to pay the Reverse Termination Fee (minus the aggregate amount actually paid by Parent (or any of its Affiliates) pursuant to Section 8.01(b)), no amount shall be payable pursuant to Section 8.01(b)on more than one occasion. Notwithstanding anything to the contrary contained in this Agreement, except in the case of fraud or Willful Breach of this Agreement by Parent or Merger Sub, the Company’s receipt of The Parties acknowledge that the Reverse Termination Fee from Parent shall be the sole and exclusive remedy of the Company against Parentwill not constitute a penalty but is liquidated damages, Merger Sub and their Affiliates and their respective Representatives (each such Person, in a “Parent Related Party”) reasonable amount that will compensate Seller for the loss suffered as a result of the failure of the Merger to be consummated or any loss suffered as a result of any breach of any covenant or agreement efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement, and upon payment of such amount, none of Parent or any other Parent Related Party shall have any further liability or obligation relating which amount would otherwise be impossible to or arising out of this Agreement; provided, however, that the foregoing shall not limit the rights of the Company or any of its Affiliates, or any of its or their respective Representatives, or the obligations of Parent to pay or reimburse, any amounts payable or reimbursable by Parent under the Surviving Economic Provisions. Nothing in this Section 11.04(c) shall limit the rights of the Company under Section 11.13 (or otherwise calculate with respect to injunctive or similar relief), in each case prior to the termination of this Agreementprecision.

Reverse Termination Fee. If In the event that this Agreement is terminated by Parent or the Company pursuant to (i) Section 10.01(b)(i) and, at the time of such termination, the conditions set forth in Section 9.01(a6.1(c)(iii) or by RG pursuant to Section 9.01(c6.1(b)(ii) at a time when (a) the Company would have the right to terminate this Agreement pursuant to Section 6.1(c)(iii) and (b) the Company had provided the notice contemplated by Section 6.1(c)(iii)(D), then RG shall not have been satisfied (in each case, solely as a result pay the Company the Reverse Termination Fee less the amount of failure to obtain the expiration or termination of the applicable waiting period relating any expenses previously reimbursed to the Merger under the HSR Act or the issuance of an injunction or order or application of Applicable Law or other legal prohibition, in each case relating Company pursuant to antitrust laws in the United States) or (ii) Section 10.01(b)(ii) (solely as a result of failure 6.3(b). Any payment required to obtain the expiration or termination of the applicable waiting period relating be made pursuant to this Section 6.4 shall be made to the Merger under the HSR Act or the issuance of an injunction, order or decree relating to antitrust laws in the United States), and at the time of such termination referred to in clause (i) or (ii) above, the conditions set forth in Section 9.02(a) and Section 9.02(b) shall have been satisfied (assuming for the purpose of determining whether the conditions set forth in Section 9.02(a) and Section 9.02(b) have been satisfied in this clause, that all references to “Effective Time” in Section 9.02(a) and Section 9.02(b) shall be deemed to refer instead to the time of Company promptly following termination of this Agreement under this Section) or waived (and in accordance with this Agreement, then Parent shall promptly, but in no any event not later than two (2) Business Days after the date of such termination, pay to the Company an amount equal to (i) $145,000,000 (the “Reverse Termination Fee”) in and such payment shall be made by wire transfer of immediately available funds to an account to be designated by the Company minus (ii) Company. The parties hereto acknowledge that the aggregate amount actually paid by Parent (or any damages resulting from termination of its Affiliates) pursuant to Section 8.01(b). For the avoidance of doubt, (i) this Agreement under circumstances in which the Reverse Termination Fee shall only be is payable by Parent once hereunder are uncertain and (ii) upon payment incapable of accurate calculation and that the Reverse Termination Fee (minus the aggregate amount actually paid by Parent (or any of its Affiliates) pursuant to Section 8.01(b)), no amount shall be amounts payable pursuant to this Section 8.01(b). Notwithstanding anything to 6.4 are reasonable forecasts of the contrary contained in this Agreementactual damages which may be incurred, except and in the case of fraud or Willful Breach of event that the Company shall receive full payment pursuant to this Agreement by Parent or Merger SubSection 6.4, the Company’s receipt of the Reverse Termination Fee from Parent shall be the sole and exclusive remedy of the Company against Parent, Merger Sub and their Affiliates and their respective Representatives (each such Person, a “Parent Related Party”) for the loss suffered as a result of the failure of the Merger deemed to be consummated liquidated damages, and not a penalty, for any and all losses or damages suffered or incurred by the Company, any of its Subsidiaries or Affiliates or any loss suffered as a result of other Person in connection with this Agreement (and the termination hereof), the Transactions (and the abandonment thereof) or any breach of any covenant or agreement in this Agreementmatter forming the basis for such termination, and upon such payment of such amount, amount none of Parent RG or any other Parent Related Party of its Subsidiaries, Affiliates or Representatives shall have any further liability or obligation relating to or arising out of this Agreement; provided, however, that the foregoing shall not limit the rights of the Company or any of its Affiliates, or any of its or their respective Representatives, Agreement or the obligations of Parent Transactions. Under no circumstances shall RG be obligated to pay or reimburse, any amounts payable or reimbursable by Parent under the Surviving Economic Provisionsmore than one (1) Reverse Termination Fee. Nothing in this Section 11.04(c) shall limit the rights of the Company under Section 11.13 (or otherwise with respect to injunctive or similar relief), in each case prior to the termination of this Agreement.ARTICLE VII

Reverse Termination Fee. If this Agreement is terminated by Parent or (a) In the Company pursuant to event that (i) Seller shall validly terminate this Agreement pursuant to Section 10.01(b)(i) and12.1(f), at the time of such termination, the conditions set forth in Section 9.01(a) or Section 9.01(c) shall not have been satisfied (in each case, solely as a result of failure to obtain the expiration or termination of the applicable waiting period relating to the Merger under the HSR Act or the issuance of an injunction or order or application of Applicable Law or other legal prohibition, in each case relating to antitrust laws in the United States) or (ii) either party terminates pursuant to Section 10.01(b)(ii12.1(e) (solely as a result of failure to obtain the expiration or termination when all of the applicable waiting period relating conditions in Article IX and X (other than Section 9.4 and those conditions that by their nature are to be satisfied by actions at Closing or can only be satisfied if the Merger under the HSR Act or the issuance of an injunction, order or decree relating to antitrust laws in the United States), and at the time of such termination referred to in clause (i) or (ii) above, the conditions set forth in Section 9.02(a) and Section 9.02(b) shall have Financing has been satisfied (assuming for the purpose of determining whether the conditions set forth in Section 9.02(a) and Section 9.02(breceived) have been satisfied in this clause, that all references to “Effective Time” in Section 9.02(aor waived or (iii) and Section 9.02(b) shall be deemed to refer instead to the time of termination of either party validly terminates this Agreement under this Section) or waived in accordance with this Agreementpursuant to Section 12.1(g), then Parent shall promptly, but in no event later than two Business Days five (5) business days after the date such termination if such termination is by Seller or immediately prior to such termination if such termination is by Buyer, Buyer shall pay or cause to be paid to Seller a termination fee of such termination, pay to the Company an amount equal to Fifteen Million Dollars (i$15,000,000) $145,000,000 (the “Reverse Termination Fee”) in immediately available funds cash. If Buyer shall fail to an account designated by the Company minus (ii) the aggregate amount actually paid by Parent (or any of its Affiliates) pursuant to Section 8.01(b). For the avoidance of doubt, (i) the Reverse Termination Fee shall only be payable by Parent once hereunder and (ii) upon payment of pay the Reverse Termination Fee (minus the aggregate amount actually paid by Parent (or any of its Affiliatesportion thereof) pursuant when due, Buyer shall (a) pay to Section 8.01(b)), no amount shall be payable pursuant to Section 8.01(b). Notwithstanding anything to the contrary contained in this Agreement, except in the case of fraud or Willful Breach of this Agreement by Parent or Merger Sub, the Company’s receipt of Seller interest on the Reverse Termination Fee from Parent shall be the sole and exclusive remedy date five (5) business days after such termination to the date of payment thereof at the Company against Parent, Merger Sub and their Affiliates and their respective Representatives rate of five percent (each such Person, a “Parent Related Party”5%) for the loss suffered as a result of the failure of the Merger to be consummated or any loss suffered as a result of any breach of any covenant or agreement in this Agreementper annum, and upon payment (b) reimburse Seller for all reasonable and documented out-of-pocket costs and expenses actually incurred by Seller (including reasonable expenses of such amount, none of Parent or any other Parent Related Party shall have any further liability or obligation relating to or arising out counsel) in connection with the enforcement of this Agreement; providedSection 12.3. Each of Buyer and Seller further acknowledges that, however, that without the foregoing shall not limit Reverse Termination Fee and the rights other provisions of the Company or any of its Affiliates, or any of its or their respective Representatives, or the obligations of Parent to pay or reimburse, any amounts payable or reimbursable by Parent under the Surviving Economic Provisions. Nothing in this Section 11.04(c) shall limit the rights of the Company under Section 11.13 (or otherwise with respect to injunctive or similar relief)12.3, in each case prior to the termination of Seller would not have entered into this Agreement.

Reverse Termination Fee. (i) If this Agreement is terminated (A) by Parent Buyers or the Company Sellers pursuant to Section 6.1(b) as a result of the failure to satisfy the conditions set forth in Section 5.1(b) or Section 5.1(c), (iB) by Buyers or the Sellers pursuant to Section 10.01(b)(i6.1(c) or (C) by Buyers or Sellers pursuant to Section 6.1(d) as a result of a Final Regulatory Action in respect of approvals required under the HSR Act to consummate the transaction contemplated by this Agreement or a Gaming Approval and, in the case of clauses (A) or (B), at the time of such termination, the condition to Closing set forth in Section 5.1(a) (unless Section 5.1(a) has not been satisfied due to an injunction or other order that has been entered in respect of the approvals required under the HSR Act or a Gaming Approval) has been satisfied and, in the case of clauses (A), (B) or (C), at the time of such termination, the conditions to Closing set forth in Section 9.01(a) or Section 9.01(c) shall not have been satisfied 5.2 (in each case, solely other than such conditions that by their nature are to be satisfied at the Closing or are conditioned on the Closing occurring) have been satisfied or waived, Buyers shall pay to the Sellers the Reverse Termination Fee, it being understood that in no event shall Buyers be required to pay the Reverse Termination Fee on more than one occasion; provided, however, that Buyers shall not be obligated to pay the Reverse Termination Fee to Sellers, or otherwise have any liability to the Sellers as a result of the termination of this Agreement, if (x) the Buyers are not otherwise in material breach of their obligations under Section 4.4 and (y) the transactions contemplated by this Agreement are not consummated by the Outside Date due to a failure to obtain the expiration or termination of the applicable waiting period relating to the Merger under the HSR Act or the issuance of an injunction or order or application of Applicable Law or other legal prohibition, in each case relating to antitrust laws in the United States) or (ii) Section 10.01(b)(ii) (solely as a result of failure to obtain the expiration or termination of the applicable waiting period relating to the Merger under the HSR Act or the issuance of an injunction, order or decree relating to antitrust laws in the United States), and at the time of such termination referred to in clause (i) or (ii) above, satisfy the conditions set forth in Section 9.02(a5.1(b) and and/or Section 9.02(b5.1(c) shall have been satisfied that is primarily caused by the failure of Sellers or Caesars or any of Sellers’ or Caesars’ Affiliates, including Parent or any Subsidiary or Affiliate of Parent, to receive any regulatory or governmental approvals or approvals of a Governmental Entity necessary to consummate Parent’s proposed combination with Caesars (assuming for each such circumstance in which Buyers are not obligated to pay the purpose of determining whether the conditions set forth in Section 9.02(a) and Section 9.02(b) have been satisfied in this clause, that all references to “Effective Time” in Section 9.02(a) and Section 9.02(b) shall be deemed to refer instead to the time of termination of this Agreement under this Section) or waived in accordance with this Agreement, then Parent shall promptly, but in no event later than two Business Days after the date of such termination, pay to the Company an amount equal to (i) $145,000,000 (the “Reverse Termination Fee”) in immediately available funds to an account designated by the Company minus (ii) the aggregate amount actually paid by Parent (or any of its Affiliates) pursuant to Section 8.01(b). For the avoidance of doubt, (i) the Reverse Termination Fee shall only be payable by Parent once hereunder and (ii) upon payment of the Reverse Termination Fee (minus the aggregate amount actually paid by Parent (or any of its Affiliates) pursuant to Section 8.01(b)), no amount shall be payable pursuant to Section 8.01(b). Notwithstanding anything to the contrary contained in this Agreement, except in the case of fraud or Willful Breach of this Agreement by Parent or Merger Sub, the Company’s receipt of the Reverse Termination Fee from Parent shall be the sole and exclusive remedy of the Company against Parent, Merger Sub and their Affiliates and their respective Representatives (each such Person, a “Parent Related PartyBuyer Expense Reimbursement Event”) for the loss suffered as a result of the failure of the Merger to be consummated or any loss suffered as a result of any breach of any covenant or agreement in this Agreement, and upon payment of such amount, none of Parent or any other Parent Related Party shall have any further liability or obligation relating to or arising out of this Agreement; provided, however, that the foregoing shall not limit the rights of the Company or any of its Affiliates, or any of its or their respective Representatives, or the obligations of Parent to pay or reimburse, any amounts payable or reimbursable by Parent under the Surviving Economic Provisions. Nothing in this Section 11.04(c) shall limit the rights of the Company under Section 11.13 (or otherwise with respect to injunctive or similar relief), in each case prior to the termination of this Agreement.