Common use of Overbid Requirements Clause in Contracts

Overbid Requirements. (a) Fee. The Bidding Procedures Order will provide, among other things, --- that, provided that Buyer otherwise was ready, willing and able to timely close the transactions contemplated hereunder, in the event all or any of the Purchased Assets are sold to a third party and Buyer did not default on its obligations under this Agreement, Buyer will be entitled to a break-up fee (the "Break-Up Fee") of $450,000, which obligation shall constitute an allowed claim ------------ against Seller under Sections 503 and 507(a) of the Bankruptcy Code and chargeable against and payable from the proceeds of a sale of all or any Purchased Assets. Such amount will be paid to Buyer on the earlier of (i) the consummation of one or more transactions involving the sale of all or any of the Purchased Assets (such amount to be paid out of and from the proceeds of such sale) and (ii) the confirmation of a plan of reorganization for Seller. So long as Seller complies with the terms of this Agreement on overbidding and with the terms of the Court order on overbidding, the Break-Up Fee when paid will satisfy in full any obligations of Seller or its affiliates to Buyer in connection with the transactions contemplated hereby. (b) Overbid. In addition, the Bidding Procedures Order will provide ------- minimum overbid requirements of (i) $450,000 over $12,650,000 for the initial bid and (ii) $100,000 over the then-highest bid for any additional bids. The Bidding Procedures Order also will provide that, for the purpose of determining which bid is the highest and best offer, an amount equal to the Break-Up Fee shall be added to Buyer's bid. Other auction requirements to be reasonably approved by Buyer in advance of the filing of the 363 Motion shall include (i) requirements regarding the ability of any potential bidders to consummate an alternative transaction, (ii) the nonexistence of financing and due diligence conditions, (iii) the requirement that all competing bids be on terms and conditions substantially similar to the terms and conditions set forth in this Agreement (except that such bid may include a provision that such overbidder will assume any collective bargaining agreement involving Seller) and (iv) that Buyer's bid shall be deemed null and void upon the acceptance of an alternative bid. The Bidding Procedures Order shall also incorporate the provisions of Section 5.3 (regarding non-solicitation). -----------

Overbid Requirements. A bid is a letter from a Qualified Bidder (a) Fee. The Bidding Procedures Order will provideother than Buyer, among other things, --- that, provided that Buyer otherwise was ready, willing and able to timely close whose participation as a Qualified Bidder shall be on the transactions contemplated hereunder, terms set forth in the event all or any of the Purchased Assets are sold to a third party and Buyer did not default on its obligations under this Agreement, Buyer will be entitled to a break-up fee ) stating that (the "Break-Up Fee") of $450,000, which obligation shall constitute an allowed claim ------------ against Seller under Sections 503 and 507(a) of the Bankruptcy Code and chargeable against and payable from the proceeds of a sale of all or any Purchased Assets. Such amount will be paid to Buyer on the earlier of (iX) the consummation of one or more transactions involving Qualified Bidder offers to purchase the sale of all or any of the Purchased Assets (such amount to be paid out of and from the proceeds of such sale) and (ii) the confirmation of a plan of reorganization for Seller. So long as Seller complies with the terms of this Agreement on overbidding and with the terms of the Court order on overbidding, the Break-Up Fee when paid will satisfy in full any obligations of Seller or its affiliates to Buyer in connection with the transactions contemplated hereby. (b) Overbid. In addition, the Bidding Procedures Order will provide ------- minimum overbid requirements of (i) $450,000 over $12,650,000 for the initial bid and (ii) $100,000 over the then-highest bid for any additional bids. The Bidding Procedures Order also will provide that, for the purpose of determining which bid is the highest and best offer, an amount equal to the Break-Up Fee shall be added to Buyer's bid. Other auction requirements to be reasonably approved by Buyer in advance of the filing of the 363 Motion shall include (i) requirements regarding the ability of any potential bidders to consummate an alternative transaction, (ii) the nonexistence of financing and due diligence conditions, (iii) the requirement that all competing bids be on terms and conditions substantially similar to Turbines upon the terms and conditions set forth in a copy of this Agreement attached to such letter, marked to show those amendments and modifications to this Agreement including price, terms, and assets to be acquired that the Qualified Bidder proposes (except a "Marked Agreement"), and (Y) the Qualified Bidder’s offer is irrevocable until the closing of the sale of the Turbines or such date as is specified in the Bid Procedures Order. Seller will consider a bid only if the bid: (A) provides for a purchase price to Seller of at least two million one hundred forty-five thousand dollars ($2,145,000.00) over the Purchase Price; (B) is on terms that are substantially comparable to the terms of this Agreement, including the posting of an xxxxxxx money deposit in the amount of five percent (5%) of the purchase price proposed by such bidder either in the form of a deposit into an escrow account upon terms substantially similar to Deposit Escrow Agreement or of a letter of credit upon terms substantially equivalent to the Buyer Letter of Credit or; (C) is not conditioned on obtaining financing or on the outcome of unperformed due diligence by the bidder with respect to the assets sought to be acquired; (D) does not request or entitle the bidder to any topping fee, termination fee, expense reimbursement or similar type of payments; and (E) is received by the Bid Deadline. A bid received from a Qualified Bidder that meets the above requirements is a "Qualified Bid". A Qualified Bid will be valued based upon factors such as the net value provided by such bid may include a provision that such overbidder will assume (including consideration of any collective bargaining agreement involving Sellerobligations of Seller in respect of any Topping Fee and Expense Reimbursement) and (iv) that the likelihood and timing of consummating such transaction. Buyer's bid ’s offer contained in this Agreement shall be deemed null and void upon the acceptance of an alternative bid. The Bidding Procedures Order shall also incorporate the provisions of Section 5.3 (regarding non-solicitation). -----------constitute a Qualified Bid.

Overbid Requirements. A bid is a letter from a Qualified Bidder (a) Fee. The Bidding Procedures Order will provideother than the Buyer, among other things, --- that, provided that Buyer otherwise was ready, willing and able to timely close whose participation as a Qualified Bidder shall be on the transactions contemplated hereunder, terms set forth in the event all or any of the Purchased Assets are sold to a third party and Buyer did not default on its obligations under this Agreement, Buyer will be entitled to a break-up fee (the "Break-Up Fee") of $450,000, which obligation shall constitute an allowed claim ------------ against Seller under Sections 503 and 507(a) of the Bankruptcy Code and chargeable against and payable from the proceeds of a sale of all or any Purchased Assets. Such amount will be paid to Buyer on the earlier of stating that (i) the consummation of one or more transactions involving the sale of all or any of Qualified Bidder offers to purchase the Purchased Assets (such amount to be paid out of and from the proceeds of such sale) and (ii) the confirmation of a plan of reorganization for Seller. So long as Seller complies with the terms of this Agreement on overbidding and with the terms of the Court order on overbidding, the Break-Up Fee when paid will satisfy in full any obligations of Seller or its affiliates to Buyer in connection with the transactions contemplated hereby. (b) Overbid. In addition, the Bidding Procedures Order will provide ------- minimum overbid requirements of (i) $450,000 over $12,650,000 for the initial bid and (ii) $100,000 over the then-highest bid for any additional bids. The Bidding Procedures Order also will provide that, for the purpose of determining which bid is the highest and best offer, an amount equal to the Break-Up Fee shall be added to Buyer's bid. Other auction requirements to be reasonably approved by Buyer in advance of the filing of the 363 Motion shall include (i) requirements regarding the ability of any potential bidders to consummate an alternative transaction, (ii) the nonexistence of financing and due diligence conditions, (iii) the requirement that all competing bids be on terms and conditions substantially similar to Shares upon the terms and conditions set forth in a copy of this Agreement attached to such letter, marked to show those amendments and modifications to this Agreement, including price, terms, and assets to be acquired, that the Qualified Bidder proposes and (except ii) the Qualified Bidder's offer is irrevocable until the earlier of forty-eight (48) hours after the closing of the sale of the Purchased Assets and the Shares or March 1, 2003. A Qualified Bidder (other than the Buyer) shall accompany its bid with written evidence of a commitment for financing or other evidence of ability to consummate the transaction. Unless otherwise waived by the Sellers in writing, with the exception of subclause (A) below, which shall not be waivable by the Sellers, the Sellers will consider a bid only if the bid: (A) provides overall value for the Purchased Assets and the Shares to the Sellers of at least $500,000 over the Purchase Price in this Agreement; (B) is on terms that, in the Sellers' reasonable business judgment, are not materially more burdensome or conditional than the terms of this Agreement; (C) is not conditioned on obtaining financing or on the outcome of unperformed due diligence by the bidder with respect to the assets sought to be acquired; (D) does not request or entitle the bidder to any break-up fee, termination fee, expense reimbursement or similar type of payments; and (E) is received by the Bid Deadline. A bid received from a Qualified Bidder that meets the above requirements is a "Qualified Bid." A Qualified Bid will be valued based upon factors such as the net value provided by such bid may include a provision that such overbidder will assume (including consideration of any collective bargaining agreement involving Sellerobligations of the Sellers in respect of any Termination Payments) and (iv) that Buyer's bid the likelihood and timing of consummating such transaction. For purposes hereof, this Agreement executed by the Buyer shall be deemed null and void upon the acceptance of an alternative bid. The Bidding Procedures Order shall also incorporate the provisions of Section 5.3 (regarding non-solicitation). -----------constitute a Qualified Bid.

Overbid Requirements. A bid is a letter from a Qualified Bidder (a) Fee. The Bidding Procedures Order will provideother than the Purchaser, among other things, --- that, provided that Buyer otherwise was ready, willing and able to timely close whose participation as a Qualified Bidder shall be on the transactions contemplated hereunder, terms set forth in the event all or any of the Purchased Assets are sold to a third party and Buyer did not default on its obligations under this Agreement, Buyer will be entitled to a break-up fee (the "Break-Up Fee") of $450,000, which obligation shall constitute an allowed claim ------------ against Seller under Sections 503 and 507(a) of the Bankruptcy Code and chargeable against and payable from the proceeds of a sale of all or any Purchased Assets. Such amount will be paid to Buyer on the earlier of stating that (i) the consummation of one or more transactions involving Qualified Bidder offers to purchase the sale of all or any of the Purchased Assets (such amount to be paid out of and from the proceeds of such sale) and (ii) the confirmation of a plan of reorganization for Seller. So long as Seller complies with the terms of this Agreement on overbidding and with the terms of the Court order on overbidding, the Break-Up Fee when paid will satisfy in full any obligations of Seller or its affiliates to Buyer in connection with the transactions contemplated hereby. (b) Overbid. In addition, the Bidding Procedures Order will provide ------- minimum overbid requirements of (i) $450,000 over $12,650,000 for the initial bid and (ii) $100,000 over the then-highest bid for any additional bids. The Bidding Procedures Order also will provide that, for the purpose of determining which bid is the highest and best offer, an amount equal to the Break-Up Fee shall be added to Buyer's bid. Other auction requirements to be reasonably approved by Buyer in advance of the filing of the 363 Motion shall include (i) requirements regarding the ability of any potential bidders to consummate an alternative transaction, (ii) the nonexistence of financing and due diligence conditions, (iii) the requirement that all competing bids be on terms and conditions substantially similar to Shares upon the terms and conditions set forth in a copy of this Agreement attached to such letter, marked to show those amendments and modifications to this Agreement, including price and terms, that the Qualified Bidder proposes and (except ii) that the Qualified Bidder's offer is irrevocable until the earlier of forty-eight (48) hours after the closing of the sale of the Shares or January 2003. A Qualified Bidder (other than the Purchaser) shall accompany its bid with written evidence of a commitment for financing or other evidence of ability to consummate the transaction. Unless otherwise waived by the Vendor in writing, with the exception of subclause (1) below (which shall not be waivable by the Vendor), the Vendor will consider a bid only if the bid: (1) provides overall value for the Shares to the Vendor of at least [$50,000] over the Purchase Price in this Agreement; (2) is on terms that, in the Vendor's reasonable business judgment, are not materially more burdensome or conditional than the terms of this Agreement; (3) is not conditioned on obtaining financing or on the outcome of unperformed due diligence by the bidder with respect to the assets sought to be acquired; (4) does not request or entitle the bidder to any break-up fee, termination fee, expense reimbursement or similar type of payments; and (5) is received by the Bid Deadline. A bid received from a Qualified Bidder that meets the above requirements is a "Qualified Bid." A Qualified Bid will be valued based upon factors such as the net value provided by such bid may include a provision that such overbidder will assume (including consideration of any collective bargaining agreement involving Sellerobligations of the Vendor in respect of any topping fees, expense reimbursements or similar payment obligations) and (iv) that Buyer's bid the likelihood and timing of consummating such transaction. For purposes hereof, this Agreement executed by the Purchaser shall be deemed null and void upon the acceptance of an alternative bid. The Bidding Procedures Order shall also incorporate the provisions of Section 5.3 (regarding non-solicitation). -----------constitute a Qualified Bid.

Overbid Requirements. A bid is a letter from a Qualified Bidder (a) Fee. The Bidding Procedures Order will provideother than the Buyer, among other things, --- that, provided that Buyer otherwise was ready, willing and able to timely close whose participation as a Qualified Bidder shall be on the transactions contemplated hereunder, terms set forth in the event all or any of the Purchased Assets are sold to a third party and Buyer did not default on its obligations under this Agreement, Buyer will be entitled to a break-up fee (the "Break-Up Fee") of $450,000, which obligation shall constitute an allowed claim ------------ against Seller under Sections 503 and 507(a) of the Bankruptcy Code and chargeable against and payable from the proceeds of a sale of all or any Purchased Assets. Such amount will be paid to Buyer on the earlier of stating that (i) the consummation of one or more transactions involving the sale of all or any of Qualified Bidder offers to purchase the Purchased Assets (such amount to be paid out of and from the proceeds of such sale) and (ii) the confirmation of a plan of reorganization for Seller. So long as Seller complies with the terms of this Agreement on overbidding and with the terms of the Court order on overbidding, the Break-Up Fee when paid will satisfy in full any obligations of Seller or its affiliates to Buyer in connection with the transactions contemplated hereby. (b) Overbid. In addition, the Bidding Procedures Order will provide ------- minimum overbid requirements of (i) $450,000 over $12,650,000 for the initial bid and (ii) $100,000 over the then-highest bid for any additional bids. The Bidding Procedures Order also will provide that, for the purpose of determining which bid is the highest and best offer, an amount equal to the Break-Up Fee shall be added to Buyer's bid. Other auction requirements to be reasonably approved by Buyer in advance of the filing of the 363 Motion shall include (i) requirements regarding the ability of any potential bidders to consummate an alternative transaction, (ii) the nonexistence of financing and due diligence conditions, (iii) the requirement that all competing bids be on terms and conditions substantially similar to upon the terms and conditions set forth in a copy of this Agreement attached to such letter, marked to show those amendments and modifications to this Agreement, including price, terms, and assets to be acquired, that the Qualified Bidder proposes and (ii) the Qualified Bidder's offer is irrevocable until the earlier of forty-eight (48) hours after the closing of the sale of the Purchased Assets or such date as is specified in the Bidding Procedures Order. Two or more separate bids together shall not constitute a Qualified Bid. A Qualified Bidder (other than the Buyer) shall accompany its bid with written evidence of a commitment for financing or other evidence of ability to consummate the transaction. The Sellers will consider a bid only if the bid provides overall value for the Purchased Assets of at least six hundred thousand dollars ($600,000) over the Purchase Price bid in the Sale Agreement. In addition, the Sellers will consider a bid only if the bid: (A) is on terms that, in the Sellers' reasonable business judgment, are not materially more burdensome or conditional than the terms of this Agreement; (B) is not conditioned on obtaining financing or on the outcome of unperformed due diligence by the bidder with respect to the assets sought to be acquired; (C) does not request or entitle the bidder to any break-up fee, termination fee, expense reimbursement or similar type of payments; and (D) is received by the Bid Deadline, except that the Sellers may waive this requirement in writing with the written approval of the Prepetition Agent. A bid received from a Qualified Bidder that meets the above requirements is a "Qualified Bid." A Qualified Bid will be valued based upon factors such as the net value provided by such bid may include a provision that such overbidder will assume (including consideration of any collective bargaining agreement involving Sellerobligations of the Sellers in respect of any Termination Payments) and (iv) that Buyer's bid the likelihood and timing of consummating such transaction. For purposes hereof, this Agreement executed by the Buyer shall be deemed null and void upon the acceptance of an alternative bid. The Bidding Procedures Order shall also incorporate the provisions of Section 5.3 (regarding non-solicitation). -----------constitute a Qualified Bid.

Overbid Requirements. A bid is a letter from a Qualified Bidder (a) Fee. The Bidding Procedures Order will provideother than the Buyer, among other things, --- that, provided that Buyer otherwise was ready, willing and able to timely close whose participation as a Qualified Bidder shall be on the transactions contemplated hereunder, terms set forth in the event all or any of the Purchased Assets are sold to a third party and Buyer did not default on its obligations under this Agreement, Buyer will be entitled to a break-up fee (the "Break-Up Fee") of $450,000, which obligation shall constitute an allowed claim ------------ against Seller under Sections 503 and 507(a) of the Bankruptcy Code and chargeable against and payable from the proceeds of a sale of all or any Purchased Assets. Such amount will be paid to Buyer on the earlier of stating that (i) the consummation of one or more transactions involving the sale of all or any of Qualified Bidder offers to purchase the Purchased Assets (such amount to be paid out of and from the proceeds of such sale) and (ii) the confirmation of a plan of reorganization for Seller. So long as Seller complies with the terms of this Agreement on overbidding and with the terms of the Court order on overbidding, the Break-Up Fee when paid will satisfy in full any obligations of Seller or its affiliates to Buyer in connection with the transactions contemplated hereby. (b) Overbid. In addition, the Bidding Procedures Order will provide ------- minimum overbid requirements of (i) $450,000 over $12,650,000 for the initial bid and (ii) $100,000 over the then-highest bid for any additional bids. The Bidding Procedures Order also will provide that, for the purpose of determining which bid is the highest and best offer, an amount equal to the Break-Up Fee shall be added to Buyer's bid. Other auction requirements to be reasonably approved by Buyer in advance of the filing of the 363 Motion shall include (i) requirements regarding the ability of any potential bidders to consummate an alternative transaction, (ii) the nonexistence of financing and due diligence conditions, (iii) the requirement that all competing bids be on terms and conditions substantially similar to Shares upon the terms and conditions set forth in a copy of this Agreement attached to such letter, marked to show those amendments and modifications to this Agreement, including price, terms, and assets to be acquired, that the Qualified Bidder proposes and (except ii) the Qualified Bidder's offer is irrevocable until the earlier of forty-eight (48) hours after the closing of the sale of the Purchased Assets and the Shares or March 1, 2003. A Qualified Bidder (other than the Buyer) shall accompany its bid with written evidence of a commitment for financing or other evidence of ability to consummate the transaction. Unless otherwise waived by the Sellers in writing, with the exception of subclause (A) below, which shall not be waivable by the Sellers, the Sellers will consider a bid only if the bid: (A) provides overall value for the Purchased Assets and the Shares to the Sellers of at least $500,000 over the Purchase Price in this Agreement; (B) is on terms that, in the Sellers' reasonable business judgment, are not materially more burdensome or conditional than the terms of this Agreement; (C) is not conditioned on obtaining financing or on the outcome of unperformed due diligence by the bidder with respect to the assets sought to be acquired; (D) does not request or entitle the bidder to any break-up fee, termination fee, expense reimbursement or similar type of payments; and (E) is received by the Bid Deadline. A bid received from a Qualified Bidder that meets the above requirements is a "Qualified Bid." A Qualified Bid will be valued based upon factors such as the net value provided by such bid may include a provision that such overbidder will assume (including consideration of any collective bargaining agreement involving Sellerobligations of the Sellers in respect of any Termination Payments) and (iv) that Buyer's bid the likelihood and timing of consummating such transaction. For purposes hereof, this Agreement executed by the Buyer shall be deemed null and void upon the acceptance of an alternative bid. The Bidding Procedures Order shall also incorporate the provisions of Section 5.3 (regarding non-solicitation). -----------constitute a Qualified Bid.

Overbid Requirements. A bid is a letter from a Qualified Bidder (aother than the Buyers, whose participation as a Qualified Bidder shall be on the terms set forth in this Agreement) Fee. The Bidding Procedures Order will provide, among other things, --- that, provided stating that Buyer otherwise was ready, willing and able (A) the Qualified Bidder offers to timely close the transactions contemplated hereunder, in the event all or any of purchase the Purchased Assets are sold to a third party and Buyer did not default on its obligations under this Agreement, Buyer will be entitled to a break-up fee (the "Break-Up Fee") of $450,000, which obligation shall constitute an allowed claim ------------ against Seller under Sections 503 and 507(a) of the Bankruptcy Code and chargeable against and payable from the proceeds of a sale of all or any Purchased Assets. Such amount will be paid to Buyer on the earlier of (i) the consummation of one or more transactions involving the sale of all or any of the Purchased Assets (such amount to be paid out of and from the proceeds of such sale) and (ii) the confirmation of a plan of reorganization for Seller. So long as Seller complies with the terms of this Agreement on overbidding and with the terms of the Court order on overbidding, the Break-Up Fee when paid will satisfy in full any obligations of Seller or its affiliates to Buyer in connection with the transactions contemplated hereby. (b) Overbid. In addition, the Bidding Procedures Order will provide ------- minimum overbid requirements of (i) $450,000 over $12,650,000 for the initial bid and (ii) $100,000 over the then-highest bid for any additional bids. The Bidding Procedures Order also will provide that, for the purpose of determining which bid is the highest and best offer, an amount equal to the Break-Up Fee shall be added to Buyer's bid. Other auction requirements to be reasonably approved by Buyer in advance of the filing of the 363 Motion shall include (i) requirements regarding the ability of any potential bidders to consummate an alternative transaction, (ii) the nonexistence of financing and due diligence conditions, (iii) the requirement that all competing bids be on terms and conditions substantially similar to Shares upon the terms and conditions set forth in a copy of this Agreement attached to such letter, marked to show those amendments and modifications to this Agreement, including price, terms, and assets to be acquired, that the Qualified Bidder proposes (except that such bid may include a provision that such overbidder will assume any collective bargaining agreement involving Seller"Marked Agreement") and (ivB) the Qualified Bidder's offer is irrevocable until the earlier of forty-eight (48) hours after the closing of the sale of the Purchased Assets and the Shares or such date as is specified in the Bid Procedures Order. A Qualified Bidder (other than the Buyers) shall accompany its bid with written evidence of a commitment for financing or other evidence of ability to consummate the transaction. The Sellers will consider a bid only if the bid: (A) provides overall value for the Purchased Assets and the Shares to the Sellers of at least $1,500,000 over the Purchase Price in the Asset Purchase Agreement; (B) is on terms that, in the Sellers' reasonable business judgment, are not materially more burdensome or conditional than the terms of this Agreement; lvi (C) is not conditioned on obtaining financing or on the outcome of unperformed due diligence by the bidder with respect to the assets sought to be acquired; (D) does not request or entitle the bidder to any topping fee, termination fee, expense reimbursement or similar type of payments; and (E) is received by the Bid Deadline. A bid received from a Qualified Bidder (as defined in the Overbid Procedures) that Buyer's meets the above requirements is a "Qualified Bid." A Qualified Bid will be valued based upon factors such as the net value provided by such bid shall be deemed null (including consideration of any obligations of the Sellers in respect of any Topping Fee) and void upon the acceptance likelihood and timing of an alternative bidconsummating such transaction. The Bidding Procedures Order Buyers' offer contained in this Agreement shall also incorporate the provisions of Section 5.3 (regarding non-solicitation). -----------constitute a Qualified Bid.