Common use of Prepayments from Asset Sales Clause in Contracts

Prepayments from Asset Sales. If the Borrower or any Wholly-Owned Subsidiary of the Borrower receives any Material Sale Proceeds, then the Borrower shall prepay the Obligations, to the extent of such proceeds, promptly (but in any event within five Business Days) after the first date on which such Persons have received Material Sale Proceeds totaling an aggregate amount of $5 million or more and within five Business Days after each date thereafter when such Persons have received additional Material Sale Proceeds totaling an aggregate of $5 million or more; PROVIDED, HOWEVER, that during the pendency of an Event of Default all Material Sales Proceeds shall be payable upon the demand of the Agent. "MATERIAL SALE PROCEEDS" means, without duplication, (i) the cash or cash equivalent proceeds or marketable securities resulting from the sale or other disposition (including, without limitation, by a sale-leaseback transaction) of (A) assets or other tangible or intangible property or rights ("ASSETS") not constituting CP&L Property, Collateral or Mortgaged Property (unless Substitute Collateral has been provided pursuant to SECTION 9.13(c)) and having an aggregate fair market value in excess of $1 million for each separate transaction or series of related transactions involving the same seller or (B) any Collateral or Mortgaged Property (and including any Net Awards and Net Proceeds required to be paid to the Agent pursuant to the terms of the Mortgages), LESS (ii) the amount of income taxes payable and any direct costs or expenses incurred in connection with such sale or disposition, LESS (iii) the amount of indebtedness secured by such Assets that are sold, which indebtedness is required to be and is repaid upon such sale, but Material Sales Proceeds shall not include: (A) proceeds of inventory sold or otherwise disposed of in the ordinary course of business; (B) subject to the giving of notice to and deposit of funds with the Agent as provided below, proceeds of Assets not constituting Collateral or Mortgaged Property (unless Substitute Collateral has been provided pursuant to SECTION 9.13(c)), sold or exchanged to the extent such proceeds are utilized in connection with the replacement thereof within 180 days of the sale or exchange of such assets; (C) proceeds of Permitted Investments; (D) proceeds received by a Person which cannot be remitted to the Borrower or a Subsidiary of the Borrower as a result of any legal or contractual restriction applicable to such Person existing on the Closing Date and identified on SCHEDULE 3.4 hereto and any legal or contractual restriction contained in any Indebtedness which refinances any Indebtedness referenced on SCHEDULE 3.4 provided that the terms thereof are no more onerous to the Borrower or any Subsidiary than those existing on the Closing Date; (E) proceeds resulting from the payment of insurance with respect to such Assets provided such proceeds are used for the replacement of such Assets or are required to be applied to a purpose specified in a legal instrument applicable to such Assets or from the payment of business interruption insurance; (F) proceeds resulting from the sale or other disposition of Assets between the Borrower and any Wholly-Owned Subsidiary (other than a Restricted Subsidiary) of the Borrower or Stone-Canada or between any Wholly-Owned Subsidiaries (other than Restricted Subsidiaries) of the Borrower or Stone-Canada; (G) up to an aggregate amount of $300 million of net proceeds from the sale or other disposition of Assets not constituting Collateral or Mortgaged Property or Assets constituting Collateral or Mortgaged Property for which Substitute Collateral has been provided pursuant to SECTION 9.13(c), designated by the Borrower in writing to the Agent as being excluded from the prepayment requirements of this Section (any amount so designated being "EXCLUDED SALE PROCEEDS"); or (H) proceeds from the sale or other disposition of any Assets constituting collateral which secures the Indebtedness under the First Mortgage Note Documents. The cash, cash equivalent proceeds or marketable securities resulting from the repayment or other liquidation of the investments permitted by SECTION 5.2.7(i) shall be included within the meaning of "MATERIAL SALE PROCEEDS." Proceeds described in subpart (B) of the exclusion from the definition of Material Sale Proceeds shall be so excluded only if, within five (5) Business Days after such proceeds are received, the Borrower gives the Agent written notice of its intent to utilize such proceeds for replacement purposes and (to the extent such proceeds have not already been so utilized) delivers such proceeds to the Agent to be held in an account as security for the Obligations pursuant to documentation satisfactory to the Agent. During the period ending on the 180th day after receipt of such proceeds by the Borrower or one of its Subsidiaries, the Borrower may, so long as no Event of Default or Unmatured Event of Default shall have occurred and be continuing, withdraw funds from such account to pay or reimburse itself for such replacement costs. Funds in such account shall be held and invested in the manner prescribed for Deposited Monies pursuant to SECTION 3.5. All amounts remaining in such account at the conclusion of such 180 day period shall, subject to SECTION 3.6(f), be applied on such date as a prepayment pursuant to this Section and SECTIONS 3.5 and 3.6 as if constituting Material Sale Proceeds received on such date.

Prepayments from Asset Sales. If (i) cility, effect a permanent reduction in the availability under such revolving credit facility (whether or not such prepayment and/or commitment reduction is required), (B) to make an investment in Replacement Assets or (C) a combination of prepayment and investment permitted by the foregoing clauses (A) and (B). On the 361st day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Borrower or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (A), (B) and (C) of the next preceding sentence (each, a "Net Proceeds Offer Trigger Date"), such aggregate amount of Net Cash Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (A), (B) and (C) of the next preceding sentence (each a "Net Proceeds Offer Amount") shall be applied by the Borrower or such Restricted Subsidiary to make an offer to prepay the Loans at a price in cash equal to the principal amount thereof, plus accrued and unpaid interest, if any, to the date of prepayment (the "Net Proceeds Offer") on a date (the "Net Proceeds Offer Payment Date") in accordance with the procedures set forth in Sections 3.3 through 3.5; provided, however, that if at any time any non-cash consideration received by the Borrower or any Wholly-Owned Subsidiary of Restricted Subsidiary, as the Borrower receives any Material Sale Proceedscase may be, then the Borrower shall prepay the Obligations, to the extent of such proceeds, promptly (but in any event within five Business Days) after the first date on which such Persons have received Material Sale Proceeds totaling an aggregate amount of $5 million or more and within five Business Days after each date thereafter when such Persons have received additional Material Sale Proceeds totaling an aggregate of $5 million or more; PROVIDED, HOWEVER, that during the pendency of an Event of Default all Material Sales Proceeds shall be payable upon the demand of the Agent. "MATERIAL SALE PROCEEDS" means, without duplication, (i) the cash or cash equivalent proceeds or marketable securities resulting from the sale or other disposition (including, without limitation, by a sale-leaseback transaction) of (A) assets or other tangible or intangible property or rights ("ASSETS") not constituting CP&L Property, Collateral or Mortgaged Property (unless Substitute Collateral has been provided pursuant to SECTION 9.13(c)) and having an aggregate fair market value in excess of $1 million for each separate transaction or series of related transactions involving the same seller or (B) any Collateral or Mortgaged Property (and including any Net Awards and Net Proceeds required to be paid to the Agent pursuant to the terms of the Mortgages), LESS (ii) the amount of income taxes payable and any direct costs or expenses incurred in connection with such sale any Asset Sale is converted into or disposition, LESS (iii) the amount of indebtedness secured by such Assets that are sold, which indebtedness is required to be and is repaid upon such sale, but Material Sales Proceeds shall not include: (A) proceeds of inventory sold or otherwise disposed of for cash, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 3.2(a). The Borrower may defer the ordinary course Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of business; $2.0 million resulting from one or more Asset Sales (Bat which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $2.0 million, shall be applied as required pursuant to this paragraph). (ii) subject In the event of the transfer of substantially all (but not all) of the Property of the Borrower and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 7.1, the giving successor corporation shall be deemed to have sold the Properties of notice to the Borrower and deposit its Restricted Subsidiaries not so transferred for purposes of funds this Section 3.2(a), and shall comply with the Agent provisions of this Section 3.2(a) with respect to such deemed sale as provided belowif it were an Asset Sale. In addition, proceeds the fair market value of Assets not constituting Collateral such Properties of the Borrower or Mortgaged Property its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 3.2(a). (unless Substitute Collateral has been provided pursuant iii) Notwithstanding the two immediately preceding paragraphs, the Borrower and its Restricted Subsidiaries will be permitted to SECTION 9.13(c)), sold or exchanged consummate an Asset Sale without complying with such paragraphs to the extent such proceeds are utilized in connection with the replacement thereof within 180 days (i) at least 75% of the sale or exchange of consideration for such assetsAsset Sale constitutes Replacement Assets and (ii) such Asset Sale is for fair market value; (C) proceeds of Permitted Investments; (D) proceeds provided that any consideration constituting cash and Cash 33 -28- Equivalents received by a Person which cannot be remitted to the Borrower or a Subsidiary of the Borrower as a result of any legal or contractual restriction applicable to such Person existing on the Closing Date and identified on SCHEDULE 3.4 hereto and any legal or contractual restriction contained in any Indebtedness which refinances any Indebtedness referenced on SCHEDULE 3.4 provided that the terms thereof are no more onerous to the Borrower or any Subsidiary than those existing on the Closing Date; (E) proceeds resulting from the payment of insurance its Restricted Subsidiaries in connection with respect to such Assets provided such proceeds are used for the replacement of such Assets or are required any Asset Sale permitted to be applied consummated under this paragraph shall constitute Net Cash Proceeds subject to a purpose specified in a legal instrument applicable to such Assets or from the payment of business interruption insurance; (F) proceeds resulting from the sale or other disposition of Assets between the Borrower and any Wholly-Owned Subsidiary (other than a Restricted Subsidiary) provisions of the Borrower or Stone-Canada or between any Wholly-Owned Subsidiaries (other than Restricted Subsidiaries) of the Borrower or Stone-Canada; (G) up to an aggregate amount of $300 million of net proceeds from the sale or other disposition of Assets not constituting Collateral or Mortgaged Property or Assets constituting Collateral or Mortgaged Property for which Substitute Collateral has been provided pursuant to SECTION 9.13(c), designated by the Borrower in writing to the Agent as being excluded from the prepayment requirements of this Section (any amount so designated being "EXCLUDED SALE PROCEEDS"); or (H) proceeds from the sale or other disposition of any Assets constituting collateral which secures the Indebtedness under the First Mortgage Note Documents. The cash, cash equivalent proceeds or marketable securities resulting from the repayment or other liquidation of the investments permitted by SECTION 5.2.7(i) shall be included within the meaning of "MATERIAL SALE PROCEEDStwo preceding paragraphs." Proceeds described in subpart (B) of the exclusion from the definition of Material Sale Proceeds shall be so excluded only if, within five (5) Business Days after such proceeds are received, the Borrower gives the Agent written notice of its intent to utilize such proceeds for replacement purposes and (to the extent such proceeds have not already been so utilized) delivers such proceeds to the Agent to be held in an account as security for the Obligations pursuant to documentation satisfactory to the Agent. During the period ending on the 180th day after receipt of such proceeds by the Borrower or one of its Subsidiaries, the Borrower may, so long as no Event of Default or Unmatured Event of Default shall have occurred and be continuing, withdraw funds from such account to pay or reimburse itself for such replacement costs. Funds in such account shall be held and invested in the manner prescribed for Deposited Monies pursuant to SECTION 3.5. All amounts remaining in such account at the conclusion of such 180 day period shall, subject to SECTION 3.6(f), be applied on such date as a prepayment pursuant to this Section and SECTIONS 3.5 and 3.6 as if constituting Material Sale Proceeds received on such date.

Prepayments from Asset Sales. If No later than the Borrower fifth (5th) Business Day following the date of receipt by Holdings or any Wholly-Owned Subsidiary of the Borrower receives Subsidiaries of Cash Proceeds of any Material Sale ProceedsAsset Sale, then the Borrower shall prepay the ObligationsHoldings shall, to the extent that (x) it or any of the Subsidiaries is not required to offer such Net Cash Proceeds to redeem or otherwise prepay the Senior Secured Notes or the Opco Term Loans (or following such offer, to apply such Net Cash Proceeds to so redeem or otherwise prepay the Senior Secured Notes or the Opco Term Loan) and (y) the Distribution of such proceeds, promptly (but in any event within five Business Days) after the first date on which such Persons have received Material Sale Cash Proceeds totaling an aggregate amount of $5 million or more and within five Business Days after each date thereafter when such Persons have received additional Material Sale Proceeds totaling an aggregate of $5 million or more; PROVIDED, HOWEVER, that during the pendency of an Event of Default all Material Sales Proceeds shall be payable upon the demand of the Agent. "MATERIAL SALE PROCEEDS" means, without duplication, (i) the cash or cash equivalent proceeds or marketable securities resulting from the sale or other disposition (including, without limitation, by a sale-leaseback transaction) of (A) assets or other tangible or intangible property or rights ("ASSETS") not constituting CP&L Property, Collateral or Mortgaged Property (unless Substitute Collateral has been provided pursuant to SECTION 9.13(c)) and having an aggregate fair market value in excess of $1 million for each separate transaction or series of related transactions involving the same seller or (B) any Collateral or Mortgaged Property (and including any Net Awards and Net Proceeds required to be paid to the Agent Holdings is permitted pursuant to the terms of the Mortgages)Opco Credit Agreement, LESS the Revolving Credit Documents and the Senior Secured Documents, prepay the Term Loans (iiand associated accrued interest and prepayment fees, if any) the as provided in subsection 2.4C in an amount of income taxes payable and any direct costs or expenses incurred in connection with such sale or disposition, LESS (iii) the amount of indebtedness secured by such Assets that are sold, which indebtedness is required to be and is repaid upon such sale, but Material Sales Proceeds shall not include: (A) proceeds of inventory sold or otherwise disposed of in the ordinary course of business; (B) subject equal to the giving of notice to and deposit of funds with the Agent as provided below, proceeds of Assets not constituting Collateral or Mortgaged Property (unless Substitute Collateral has been provided pursuant to SECTION 9.13(c)), sold or exchanged to the extent such proceeds are utilized in connection with the replacement thereof within 180 days of the sale or exchange of such assetsNet Cash Proceeds received; (C) proceeds of Permitted Investments; (D) proceeds received by a Person which cannot be remitted to the Borrower or a Subsidiary of the Borrower as a result of any legal or contractual restriction applicable to such Person existing on the Closing Date and identified on SCHEDULE 3.4 hereto and any legal or contractual restriction contained in any Indebtedness which refinances any Indebtedness referenced on SCHEDULE 3.4 provided that the terms thereof are no more onerous to the Borrower or any Subsidiary than those existing on the Closing Date; (E) proceeds resulting from the payment of insurance with respect to such Assets provided such proceeds are used for the replacement of such Assets or are required to be applied to a purpose specified in a legal instrument applicable to such Assets or from the payment of business interruption insurance; (F) proceeds resulting from the sale or other disposition of Assets between the Borrower and any Wholly-Owned Subsidiary (other than a Restricted Subsidiary) of the Borrower or Stone-Canada or between any Wholly-Owned Subsidiaries (other than Restricted Subsidiaries) of the Borrower or Stone-Canada; (G) up to an aggregate amount of $300 million of net proceeds from the sale or other disposition of Assets not constituting Collateral or Mortgaged Property or Assets constituting Collateral or Mortgaged Property for which Substitute Collateral has been provided pursuant to SECTION 9.13(c), designated by the Borrower in writing to the Agent as being excluded from the prepayment requirements of this Section (any amount so designated being "EXCLUDED SALE PROCEEDS"); or (H) proceeds from the sale or other disposition of any Assets constituting collateral which secures the Indebtedness under the First Mortgage Note Documents. The cash, cash equivalent proceeds or marketable securities resulting from the repayment or other liquidation of the investments permitted by SECTION 5.2.7(i) shall be included within the meaning of "MATERIAL SALE PROCEEDS." Proceeds described in subpart (B) of the exclusion from the definition of Material Sale Proceeds shall be so excluded only if, within five (5) Business Days after such proceeds are received, the Borrower gives the Agent written notice of its intent to utilize such proceeds for replacement purposes and (to the extent such proceeds have not already been so utilized) delivers such proceeds to the Agent to be held in an account as security for the Obligations pursuant to documentation satisfactory to the Agent. During the period ending on the 180th day after receipt of such proceeds by the Borrower or one of its Subsidiaries, the Borrower may, so long as no Event of Default or Unmatured Event of Default shall have occurred and be continuing, withdraw funds from Holdings shall have the option, directly or through one or more of the Subsidiaries, to invest such account to pay or reimburse itself for such replacement costs. Funds Net Cash Proceeds, within three hundred sixty (360) days of receipt thereof, in such account shall be held and invested long-term productive assets of the general type used in the manner prescribed for Deposited Monies pursuant business of Holdings and the Subsidiaries and, to SECTION 3.5. All the extent not so invested, shall apply such amounts remaining as provided in subsection 2.4C; provided further, that none of Holdings or any of the Subsidiaries shall have such account at right to invest Net Cash Proceeds that (x) are arising from an Asset Sale of an asset of Holdings or (y) are distributed to Holdings in compliance with the conclusion of such 180 day period shallRevolving Credit Agreement, subject to SECTION 3.6(f), be applied on such date as a prepayment pursuant to this Section the Opco Credit Agreement and SECTIONS 3.5 and 3.6 as if constituting Material Sale Proceeds received on such datethe Senior Secured Note Documents.