Common use of Competing Bids Clause in Contracts

Competing Bids. (a) On or before August 7, 1998 (the "Bidding Deadline"), third parties may submit proposals for Competing Transactions ("Competing Bids"), which proposals shall be delivered to such Seller and such other parties as may be specified in the Procedures Order. In order for any Seller to consider any Competing Bid, the Competing Bid must be: (i) in writing; (ii) identical in all material respects to the terms set forth in this Agreement (except that no other Person shall be entitled to the Purchaser's Liquidated Damages or to the expense reimbursement provided for in Section 6.05), the Ancillary Agreements and the Master Lease; (iii) accompanied by a deposit in cash or collected funds in the amount of $5,000,000 to be held by Seller; (iv) accompanied by evidence satisfactory to Seller, in its sole discretion that the bidder has sufficient financial resources to complete the transactions contemplated by this Agreement; and (v) reflect a cash purchase price of at least $178,000,000. If more than one Competing Bid is made before the Bidding Deadline, Sellers shall determine the Competing Bid that provides the greatest value to, and is in the best interests of the estate, which bid shall be the "Qualifying Competing Bid" for purposes of clauses (b) and (c) below. (b) Within five (5) calendar days after the Bidding Deadline, MobileMedia Communications on behalf of Sellers will promptly notify Purchaser and shall indicate in such notice the terms of the Qualifying Competing Bid, including the identity of the third party submitting the Qualifying Competing Bid (the "Qualifying Competing Bidder") and the consideration offered by the Qualifying Competing Bidder (a "Competing Bid Notice"). Upon delivery of a Competing Bid Notice, Purchaser shall have the right (a "Topping Right") to deliver to Sellers, within [five (5)] calendar days following the receipt by Purchaser of such Competing Bid Notice, a written offer (a "Topping Offer") to amend the terms of this Agreement in order to provide for a Purchase Price exceeding the Qualifying Competing Bid. A Topping Offer shall exceed the Qualifying Competing Bid by a minimum of $500,000. (c) In the event that Purchaser exercises such Topping Right, Sellers shall disclose such Topping Offer to the Qualifying Competing Bidder and, within three (3) calendar days following receipt by Sellers of Purchaser's notice of Topping Offer, Purchaser and Sellers shall enter into an amendment to this Agreement to reflect Sellers' acceptance of Purchaser's Topping Offer, unless, within such three (3) day period, the Qualifying Competing Bid is increased to exceed the Topping Offer by a minimum of $500,000, in which event Purchaser may again exercise its Topping Right. If, however, within the time period specified in clause (b) of this Section 6.03, Purchaser has failed to make a Topping Offer or has notified Sellers in writing that it does not intend to make a Topping Offer, Sellers may enter into a definitive agreement with the Qualifying Competing Bidder and Sellers' only obligation to Purchaser shall be the payment of Purchaser's Liquidated Damages as set forth in Section 6.04 and the return of the Deposit as provided for in Section 8.01(b). (d) Following the execution of any amendment to this Agreement pursuant to subsection (c) above, unless specifically amended in such amendments, the provisions of this Article VI shall remain in effect and the receipt by Seller of any other offers, proposals or inquiries relating to any Competing Bid shall be subject to the provisions of this Article VI.

Competing Bids. (a) On Seller shall not have received any higher or before August 7, 1998 better offers by the conclusion of the District Court hearing on the approval of a Contemplated Transaction (the "Bidding DeadlineSale Hearing"); provided, third parties may submit proposals for Competing Transactions ("Competing Bids")however, which proposals shall that any bids must be delivered made subject to such Seller bidding procedures approved by order of the District Court. To be considered a higher and such other parties as may be specified in better offer, competing bids made at the Procedures Order. In order for any Seller to consider any Competing Bid, Sale Hearing must satisfy all of the Competing Bid must befollowing: (i) in writing; (ii) identical in all material respects as a prerequisite to the terms set forth in this Agreement making an offer, each bidder (except that Buyer) must provide to counsel for the Trustee no other Person shall be entitled to later than the Purchaser's Liquidated Damages or to business day before the expense reimbursement provided for in Section 6.05)Sale Hearing, the Ancillary Agreements and the Master Lease; (iii) accompanied by a deposit in cash or collected funds in the amount of $5,000,000 1,300,000 (10% of the cash portion of the Purchase Price) in available funds, plus financial information to the Trustee evidencing, in the Trustee's judgment, that such bidder has the ability to comply with the terms and conditions of this Agreement as it may be held modified at the Sale Hearing (the "Modified Agreement"), including but not limited to the Successful Bidder's ability to (1) pay, at Closing of the Modified Agreement, the full balance of the consideration specified in the Modified Agreement, and (2) consummate the transaction contemplated by Sellerthe Modified Agreement on the Closing Date of the Modified Agreement; (ii) the initial competing bid at the Sale Hearing (the "Initial Bid") must be in an amount at least $1,500,000 (inclusive of the Break Up Fee as defined in Section 9.4) more than the cash portion of the Purchase Price (i.e., $14,500,000); (iii) if an Initial Bid is accepted by the Trustee, each bid thereafter must be in an amount no less than $500,000 more than the last bid accepted by the Trustee; (iv) accompanied by evidence satisfactory other than the cash portion of the Purchase Price, each bid must conform to Sellerall terms and conditions of the Modified Agreement, in its sole discretion that the bidder has sufficient financial resources including with respect to complete the transactions contemplated by this AgreementAssumed Liabilities and Excluded Assets; and (v) reflect a cash purchase price the maker of at least $178,000,000. If more than one Competing Bid is made before the Bidding Deadline, Sellers shall determine last bid (1) accepted by the Competing Bid that provides the greatest value toTrustee after no further offers are received, and is in (2) approved by the best interests of the estateDistrict Court, which bid shall be the "Qualifying Competing Bid" for purposes of clauses (b) and (c) below. (b) Within five (5) calendar days after the Bidding DeadlineSuccessful Bidder, MobileMedia Communications on behalf of Sellers will promptly notify Purchaser and shall indicate stipulate and agree on the record in such notice open court at the Sale Hearing to be bound by all the terms of the Qualifying Competing BidModified Agreement. Any offer that fails to meet these factors, including the identity of the third party submitting the Qualifying Competing Bid (the "Qualifying Competing Bidder") and the consideration offered as they may be modified by the Qualifying Competing Bidder (a "Competing Bid Notice"). Upon delivery of a Competing Bid NoticeDistrict Court, Purchaser shall have the right (a "Topping Right") to deliver to Sellers, within [five (5)] calendar days following the receipt by Purchaser of such Competing Bid Notice, a written offer (a "Topping Offer") to amend the terms of this Agreement in order to provide for a Purchase Price exceeding the Qualifying Competing Bid. A Topping Offer shall exceed the Qualifying Competing Bid by a minimum of $500,000. (c) In the event that Purchaser exercises such Topping Right, Sellers shall disclose such Topping Offer to the Qualifying Competing Bidder and, within three (3) calendar days following receipt by Sellers of Purchaser's notice of Topping Offer, Purchaser and Sellers shall enter into an amendment to this Agreement to reflect Sellers' acceptance of Purchaser's Topping Offer, unless, within such three (3) day period, the Qualifying Competing Bid is increased to exceed the Topping Offer by a minimum of $500,000, in which event Purchaser may again exercise its Topping Right. If, however, within the time period specified in clause (b) of this Section 6.03, Purchaser has failed to make a Topping Offer or has notified Sellers in writing that it does not intend to make a Topping Offer, Sellers may enter into a definitive agreement with the Qualifying Competing Bidder and Sellers' only obligation to Purchaser shall be the payment of Purchaser's Liquidated Damages as set forth in Section 6.04 deemed to be not a higher and the return of the Deposit as provided for in Section 8.01(b)better offer. (d) Following the execution of any amendment to this Agreement pursuant to subsection (c) above, unless specifically amended in such amendments, the provisions of this Article VI shall remain in effect and the receipt by Seller of any other offers, proposals or inquiries relating to any Competing Bid shall be subject to the provisions of this Article VI.