Common use of Maximum Capital Expenditures Clause in Contracts

Maximum Capital Expenditures. Make or commit to make, or allow any of its Subsidiaries to make or commit to make, Capital Expenditures exceeding, in the aggregate for each Fiscal Year until the Termination Date, the greater of (A) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease and the NTFC Capital Lease (a) during Fiscal Year 2002 (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expenditures, the amount calculated in item (II) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year by an amount equal to the amount by which such maximum Capital Expenditures exceed such actual Capital Expenditures, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(i) only, Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, to the extent that payment made in respect of such litigation is equal to or greater than $5,000,000, the Borrower shall deliver to the Agent prior to the payment thereof, a statement that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the Parent.

Maximum Capital Expenditures. Make or commit to make, or allow any of its Subsidiaries to make or commit to make, Capital Expenditures exceeding, in the aggregate for each Fiscal Year until the Termination Date, the greater of (A) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease and the NTFC Capital Lease (a) during Fiscal Year 2002 (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expenditures, the amount calculated in item (II) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year by an amount equal to the amount by which such maximum Capital Expenditures exceed such actual Capital Expenditures, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(i) only, Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, to the extent that any such payment made in respect of such litigation is equal to or greater than $5,000,000, the Borrower shall deliver to the Agent prior to the payment thereof, a statement that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the Parent.

Maximum Capital Expenditures. Make The Parent and the Borrowers will, and will cause each Subsidiary to, not make Capital Expenditures on a consolidated basis that exceed $30,000,000 in any fiscal year (the “Base Capital Expenditure Amount”). Notwithstanding anything to the contrary, the Base Capital Expenditure Amount shall be increased by the following amounts: (i) to the extent that the aggregate amount of Capital Expenditures made by the Parent and its Subsidiaries in any fiscal year is less than the Base Capital Expenditure Amount, the amount of such difference may be carried forward and used to make Capital Expenditures in succeeding fiscal years, provided that in any fiscal year, the amount permitted to be applied to make Capital Expenditures pursuant to this clause (i) shall in no event exceed an amount equal to 75% of the unused portion of the Base Capital Expenditure Amount for such fiscal year (without giving effect to any prior adjustments), (ii) if no Default or commit to makeEvent of Default has occurred and is continuing, or allow any of would result after giving effect thereto, the Parent and its Subsidiaries may make additional Capital Expenditures to the extent that the amount of such excess is deducted from the Base Capital Expenditure Amount in succeeding fiscal years, provided that in any fiscal year, the amount permitted to be applied to make or commit to make, Capital Expenditures exceeding, pursuant to this clause (ii) shall in no event exceed an amount equal to 25% of the aggregate for each Fiscal Year until Base Capital Expenditure Amount (without giving effect to any prior adjustments) and (iii) the Termination Date, the greater of (A) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Base Capital Lease and the NTFC Capital Lease (a) during Fiscal Year 2002 (for purposes of calculating the maximum Expenditure Amount shall exclude any Capital Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or that are funded with the applicable Fiscal Year thereafter (for purposes Available Credits; provided that, at the time of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum such Capital Expenditures, the amount calculated in item (II) above Borrowers shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at deliver a certificate of a Financial Officer stating the end portion of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than that is being made from the maximum Capital Expenditures for Available Credit, and setting forth a calculation of the Available Credit immediately before and immediately after such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year by an amount equal to the amount by which such maximum Capital Expenditures exceed such actual Capital Expenditures, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(i) only, Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, to the extent that payment made in respect of such litigation is equal to or greater than $5,000,000, the Borrower shall deliver to the Agent prior to the payment thereof, a statement that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the Parent.

Maximum Capital Expenditures. Make or commit to make, or allow any of its The Borrower shall not and shall not permit the Restricted Subsidiaries to make or commit to make, any Capital Expenditures exceeding, in that would cause the aggregate for each Fiscal Year until amount of Capital Expenditures made by the Termination Date, the greater of (A) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease Borrower and the NTFC Restricted Subsidiaries in any fiscal year commencing with the fiscal year ending December 31, 2010 to exceed $185,000,000; provided that up to an aggregate amount of $65.0 million of Capital Lease Expenditures made by the Borrower and the Restricted Subsidiaries for improving worker safety conditions related to Orca infrastructure spending (a“Orca Infrastructure CapEx”) during Fiscal Year 2002 (incurred on or after January 1, 2012 shall be excluded for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expenditures, the amount calculated in item (II) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance determining compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal Year, commencing with Fiscal Year 20037.11(c). To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year by an amount equal Notwithstanding anything to the amount by which such maximum Capital Expenditures exceed such actual Capital Expenditurescontrary contained in clause (c)(i) above, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(i(x) only, Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, to the extent that payment the aggregate amount of Capital Expenditures made by the Borrower and the Restricted Subsidiaries in any fiscal year (for the avoidance of doubt, after giving effect to any CapEx Pull-Forward Amount utilized in the preceding year that reduced the amount of Capital Expenditures that could be made in such year but disregarding any Capital Expenditures made in reliance on any Rollover Amount utilized during such year) pursuant to such clause (i) is less than the amount set forth therein, the amount of such difference (the “Rollover Amount”) may be carried forward and used to make Capital Expenditures in the immediately succeeding fiscal year (with such Rollover Amount deemed utilized first in such succeeding year); provided that any Orca Infrastructure CapEx made prior to January 1, 2012 shall be excluded from the aggregate amount of Capital Expenditures made in a given fiscal year for purposes of determining the Rollover Amount and (y) for any fiscal year, the amount of Capital Expenditures that would otherwise be permitted in such fiscal year pursuant to this Section 7.11(c) (including as a result of the application of clause (x) of this clause (ii)) may be increased by an amount not to exceed $25,000,000 (the “CapEx Pull-Forward Amount”). The actual CapEx Pull-Forward Amount in respect of any such litigation is equal fiscal year shall reduce, on a dollar-for-dollar basis, the amount of Capital Expenditures that are permitted to or greater than $5,000,000be made in the immediately succeeding fiscal year; provided that any CapEx Pull-Forward Amount in respect of the Borrower’s fiscal year ending December 31, 2012 shall not reduce the amount of Capital Expenditures that are permitted to be made in the Borrower’s fiscal year ending December 31, 2013. In addition to the Capital Expenditures permitted pursuant to the preceding paragraphs (i) and (ii), the Borrower shall deliver and its Restricted Subsidiaries may make additional Capital Expenditures at any time in an amount not to exceed the Agent prior to portion, if any, of the payment thereof, a statement Cumulative Credit on the date of such Capital Expenditure that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the Parentelects to apply to this Section 7.11(c)(iii).

Maximum Capital Expenditures. Make or commit to make, or allow any of Holdings and its Subsidiaries to shall not make or commit to make, incur (a) Consolidated Capital Expenditures exceeding, in during any Fiscal Year if the aggregate amount of Consolidated Capital Expenditures for each Holdings and its Subsidiaries would exceed Thirty Million Dollars ($30,000,000) for Fiscal Year until 2002, Forty Million Dollars ($40,000,000) for Fiscal Year 2003 and Fifty Million Dollars ($50,000,000) for Fiscal Year 2004, and (b) Net Capital Expenditures during any Fiscal Year if the Termination Dateaggregate amount of Net Capital Expenditures for Holdings and its Subsidiaries would exceed Ten Million Dollars ($10,000,000) for Fiscal Year 2002, Twenty Million Dollars ($20,000,000) for Fiscal Year 2003 and Thirty Million Dollars for Fiscal Year 2004; provided that Holdings and its Subsidiaries may carry forward from one Fiscal Year to the greater immediately following Fiscal Year (i) the unused dollar amount of the Consolidated Capital Expenditures limitation (Awhich shall be the amount by which the dollar amount of Consolidated Capital Expenditures specified in clause (a) above for such Fiscal Year exceeds the Consolidated Capital Expenditures made or incurred during such Fiscal Year) for such Fiscal Year (the "Gross Carry Forward Amount") and (ii) any Net Capital Expenditures Proceeds received during such Fiscal Year and not used for the purpose of complying with the Net Capital Expenditure limitation for such Fiscal Year set forth in clause (b) above (the "Net Carry Forward Amount") if the following conditions have been satisfied: (1) the EBITDA Criteria has been met for such Fiscal Year, less (2) the sum amount of the Gross Carry Forward Amount being carried forward to the immediately following Fiscal Year plus the Net Carry Forward Amount being carried forward to the immediately following Fiscal Year does not exceed Ten Million Dollars (I$10,000,000), (3) cash interest expense for (A) the amount of the Consolidated Capital Expenditures made or incurred in such Fiscal Year, Year plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Consolidated Capital Lease and Expenditures made or incurred in the NTFC Capital Lease (a) during immediately preceding Fiscal Year 2002 (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, as the case may be), or does not exceed (B) $10,000,000 for 70,000,000 with respect to Fiscal Year 2003 and $15,000,000 for each 90,000,000 with respect to Fiscal Year thereafter. For purposes of calculating maximum Capital Expenditures2004, and (4) (A) the amount calculated in item (II) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at of the end of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Net Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for made or incurred in such Fiscal Year computed as aforesaid, plus the Borrower may increase Net Capital Expenditures for made or incurred in the subsequent immediately preceding Fiscal Year by an amount equal does not exceed (B) $30,000,000 with respect to the amount by which such maximum Capital Expenditures exceed such actual Capital Expenditures, but not by an amount which exceeds Fiscal Year 2003 and $5,000,00050,000,000 with respect to Fiscal Year 2004. For the purposes of this Section 5.02(q)(i) only, Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, to the extent that payment made in respect of such litigation is equal to or greater than $5,000,000, the Borrower shall deliver to the Agent prior to the payment thereof, a statement that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the Parent.126

Maximum Capital Expenditures. Make or commit to make, or allow any of its Subsidiaries to make or commit to make, Capital Expenditures exceeding, in the aggregate for each Fiscal Year until the Termination Date, the greater of (A) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease and the NTFC Capital Lease (a) during Fiscal Year 2002 (for purposes The aggregate amount of calculating the maximum Capital Expenditures made by Holdings, the Borrower and the Subsidiaries in any fiscal year shall not exceed the amount set forth below opposite such fiscal year: Notwithstanding the foregoing, the aggregate amount of Capital Expenditures set forth in the table above for Fiscal Year 2003) any of the 2007 fiscal year, the 2008 fiscal year, the 2009 fiscal year, the 2010 fiscal year, the 2011 fiscal year or the 2012 fiscal year shall be increased to $250,000,000 for so long as the Rent-Adjusted Leverage Ratio is less than 3.00 to 1.00. (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes The amount of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, as the case may be), or (Bset forth in Section 6.14(a) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes in respect of calculating maximum Capital Expenditures, the amount calculated in item (II) above any fiscal year shall be deemed increased (but not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(idecreased) shall be measured at the end of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year by an amount equal to 50% of (i) the amount by which such maximum of unused Capital Expenditures exceed such actual Capital Expenditures, but not by an for the immediately preceding fiscal year less (ii) the amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(i) only, unused Capital Expenditures shall not include the Contingent Payments and any payment made in respect of carried forward to such immediately preceding fiscal year pursuant to this paragraph, provided that certain litigation arising from or in relating no unused Capital Expenditures that are available in any way to fiscal year as a result of the use final sentence of rights Section 6.14(a) may increase the amount of way granted to Capital Expenditures available in any subsequent fiscal year at any time that the Borrower by Mississippi Power Company; provided, that, to the extent that payment made in respect of such litigation Rent-Adjusted Leverage Ratio is equal to or greater than $5,000,000, 3.00 to 1.00. (c) If any Capital Expenditure is made (or contractually committed to be made) during any fiscal year of the Borrower shall deliver to the Agent prior to the payment thereof, a statement at any time that the Borrower will have not Rent-Adjusted Leverage Ratio is less than $11,500,000 in cash and Cash Equivalents 3.00 to 1.00, so long as such Capital Expenditure was permitted to be made hereunder at such time, no Default shall arise under paragraph (excluding any insurance proceeds deposited with the Collateral Agent as described in clause a) or (Cb) of the proviso this Section with respect to such Capital Expenditure solely as a result of a subsequent increase in the definition of “Extraordinary Receipts”) after making Rent-Adjusted Leverage Ratio to 3.00 to 1.00 or greater during such payment, certified by the Chief Financial Officer fiscal year of the ParentBorrower.

Maximum Capital Expenditures. Make or commit to make, or allow any of its (i) Holdings and the Borrower shall not and shall not permit the Restricted Subsidiaries to make or commit to make, any Capital Expenditures exceeding, in that would cause the aggregate for each Fiscal Year until the Termination Date, the greater amount of (A) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease Expenditures made by Holdings and the NTFC Capital Lease (a) during Fiscal Year 2002 (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expenditures, the amount calculated Restricted Subsidiaries in item (II) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal Year, any fiscal year commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower 2011 fiscal year of Holdings to exceed $40,000,000 (which may increase Capital Expenditures for the subsequent Fiscal Year by an amount equal include restructuring expenditures). (ii) Notwithstanding anything to the amount by which such maximum Capital Expenditures exceed such actual Capital Expenditurescontrary contained in clause (c)(i) above, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(i(x) only, Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, to the extent that payment the aggregate amount of Capital Expenditures made by Holdings and the Restricted Subsidiaries in any fiscal year (for the avoidance of doubt, after giving effect to any CapEx Pull-Forward Amount utilized in the preceding year that reduced the amount of Capital Expenditures that could be made in such year but disregarding any Capital Expenditures made in reliance on any Rollover Amount utilized during such year) pursuant to such clause (i) is less than the amount set forth therein, the amount of such difference (the “Rollover Amount”) may be carried forward and used to make Capital Expenditures in the immediately succeeding fiscal year (with such Rollover Amount deemed utilized first in such succeeding year) and (y) for any fiscal year, the amount of Capital Expenditures that would otherwise be permitted in such fiscal year pursuant to this Section 7.10(c) (including as a result of the application of clause (x) of this clause (ii)) may be increased by an amount not to exceed 50% of the permitted Capital Expenditure limit in the immediately succeeding year (the “CapEx Pull-Forward Amount”). The actual CapEx Pull-Forward Amount in respect of any such litigation is equal to or greater than $5,000,000fiscal year shall reduce, on a dollar-for-dollar basis, the Borrower shall deliver amount of Capital Expenditures that are permitted to be made in the immediately succeeding fiscal year. (iii) In addition to the Agent prior Capital Expenditures permitted pursuant to the payment thereofpreceding paragraphs (i) and (ii), a statement Holdings the Restricted Subsidiaries may make additional Capital Expenditures in an amount not to exceed the portion, if any, of the Cumulative Credit on the date of such Capital Expenditure that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the Parentelects to apply to this Section 7.10(c)(iii).

Maximum Capital Expenditures. Make or commit During each Fiscal Year, Parent and its Subsidiaries on a consolidated basis shall not make Capital Expenditures (other than portions of such Capital Expenditures financed by the Lenders hereunder) during such Fiscal Year in excess of the amount set forth below opposite such Fiscal Year:$25,000,000. Notwithstanding the foregoing, to makethe extent that Parent and its Subsidiaries on a consolidated basis make Capital Expenditures of less than $25,000,000 during any Fiscal Year (the “Current Fiscal Year”), or allow any of the aggregate amount available for Parent and its Subsidiaries to make or commit to make, Capital Expenditures exceeding, in during the aggregate for each immediately subsequent Fiscal Year until the Termination Date, the greater of (A) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease and the NTFC Capital Lease pursuant to this clause (a) during Fiscal Year 2002 (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expenditures, the amount calculated in item (II) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year increased by an amount equal to the lesser of (x) the excess of $25,000,000 over the amount by which such maximum of Capital Expenditures exceed such actual Capital Expendituresmade by Parent and its Subsidiaries on a consolidated basis during the Current Fiscal Year, but not by an amount which exceeds and (y) $5,000,00012,500,000. For Notwithstanding the purposes of this Section 5.02(q)(iforegoing, (i) only, Capital Expenditures of Parent and its Subsidiaries made prior to the Closing Date during the 2009 Fiscal Year in connection with the purchase of Real Estate located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in an aggregate amount not to exceed $88,000,000, shall not include be counted toward the Contingent Payments aggregate amount available for Parent and any payment made in respect of that certain litigation arising from or in relating in any way its Subsidiaries to make Capital Expenditures during the use of rights of way granted to the Borrower by Mississippi Power Company; provided2009 Fiscal Year, that, and (ii) to the extent that payment made in respect Parent and its Subsidiaries on a consolidated basis make Capital Expenditures of such litigation is equal to or greater than $5,000,000, the Borrower shall deliver to the Agent prior to the payment thereof, a statement that the Borrower will have not less than $11,500,000 in cash 17,000,000 during any Fiscal Year (the “Current Fiscal Year”), the aggregate amount available for Parent and Cash Equivalents (excluding any insurance proceeds deposited with its Subsidiaries to make Capital Expenditures during the Collateral Agent as described in immediately subsequent Fiscal Year pursuant to this clause (Ca) shall be increased by an amount equal to the lesser of (x) the proviso in excess of $17,000,000 over the definition amount of “Extraordinary Receipts”Capital Expenditures made by Parent and its Subsidiaries on a consolidated basis during the Current Fiscal Year, and (y) after making such payment, certified by the Chief Financial Officer of the Parent$8,500,000.

Maximum Capital Expenditures. Make or commit to make, or allow any of its (i) Holdings and the Borrower shall not and shall not permit the Restricted Subsidiaries to make or commit to make, any Capital Expenditures exceedingthat would cause the aggregate amount of Capital Expenditures made by Holdings and the Restricted Subsidiaries in any fiscal year commencing with the fiscal year ending December 31, 2010 to exceed $20,000,000.60,000,000. (ii) Notwithstanding anything to the contrary contained in clause (a)(i) above, (x) to the extent that the aggregate amount of Capital Expenditures made by Holdings and the Restricted Subsidiaries in any fiscal year (for the avoidance of doubt, after giving effect to any CapEx Pull-Forward Amount utilized in the aggregate for each Fiscal Year until preceding year that reduced the Termination Date, the greater amount of (A) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease and the NTFC Capital Lease (a) during Fiscal Year 2002 (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum that could be made in such year but disregarding any Capital Expenditures for Fiscal Year 2004 or made in reliance on any Rollover Amount utilized during such year) pursuant to such clause (i) is less than the applicable succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expendituresamount set forth therein, the amount calculated of such difference (the “Rollover Amount”) may be carried forward and used to make Capital Expenditures in item the immediately succeeding fiscal year (IIwith such Rollover Amount deemed utilized first in such succeeding year) and (y) for any fiscal year, the amount of Capital Expenditures that would otherwise be permitted in such fiscal year pursuant to this Section 7.10(c) (including as a result of the application of clause (x) of this clause (ii)) may be increased by an amount not to exceed 50% of the permitted Capital Expenditure limit in the immediately succeeding year (the “CapEx Pull-Forward Amount”). The actual CapEx Pull-Forward Amount in respect of any such fiscal year shall reduce, on a dollar-for-dollar basis, the amount of Capital Expenditures that are permitted to be made in the immediately succeeding fiscal year. (iii) Notwithstanding anything to the contrary contained in clause (c)(i) and (ii) above, in any year in which a Permitted Acquisition is made and in each subsequent year, the annual Capital Expenditure limit set forth in clause (c)(i) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year increased by an amount equal to the greater of (x) the average amount by which such maximum of annual Capital Expenditures exceed made by the target entity or target line of business during the immediately preceding three-year period prior to such actual Capital Expenditures, but acquisition (or such shorter period if the target does not by an amount which exceeds $5,000,000. For have three years of operations) and (y) 3.5% of the purposes of this Section 5.02(q)(itotal assets acquired in such acquisition. (iv) only, In addition to the Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way permitted pursuant to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, to the extent that payment made in respect of such litigation is equal to or greater than $5,000,000preceding paragraphs (i) (ii) and (iii), the Borrower shall deliver and its Restricted Subsidiaries may make additional Capital Expenditures in an amount not to exceed the Agent prior to portion, if any, of the payment thereof, a statement Cumulative Credit on the date of such Capital Expenditure that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the Parentelects to apply to this Section 7.10(c)(iv).

Maximum Capital Expenditures. Make or commit to make, or allow any of its (i) Holdings and the Borrower shall not and shall not permit the Restricted Subsidiaries to make or commit to make, any Capital Expenditures exceedingthat would cause the aggregate amount of Capital Expenditures made by Holdings and the Restricted Subsidiaries (x) in any fiscal year commencing with the fiscal year ending December 31, 2010 through the fiscal year ending December 31, 2014 to exceed $60,000,000 and (y) in any fiscal year thereafter, to exceed $25,000,000. (ii) Notwithstanding anything to the contrary contained in clause (c)(i) above, (x) to the extent that the aggregate amount of Capital Expenditures made by Holdings and the Restricted Subsidiaries in any fiscal year (for the avoidance of doubt, after giving effect to any CapEx Pull-Forward Amount utilized in the aggregate for each Fiscal Year until preceding year that reduced the Termination Date, the greater amount of (A) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease and the NTFC Capital Lease (a) during Fiscal Year 2002 (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum that could be made in such year but disregarding any Capital Expenditures for Fiscal Year 2004 or made in reliance on any Rollover Amount utilized during such year) pursuant to such clause (c)(i) is less than the applicable succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expendituresamount set forth therein, the amount calculated of such difference (the “Rollover Amount”) may be carried forward and used to make Capital Expenditures in item the immediately succeeding fiscal year (IIwith such Rollover Amount deemed utilized first in such succeeding year) and (y) for any fiscal year, the amount of Capital Expenditures that would otherwise be permitted in such fiscal year pursuant to this Section 7.10(c) (including as a result of the application of clause (x) of this clause (ii)) may be increased by an amount not to exceed 50% of the permitted Capital Expenditure limit in the immediately succeeding year (the “CapEx Pull-Forward Amount”). The actual CapEx Pull-Forward Amount in respect of any such fiscal year shall reduce, on a dollar-for-dollar basis, the amount of Capital Expenditures that are permitted to be made in the immediately succeeding fiscal year. (iii) Notwithstanding anything to the contrary contained in clause (c)(i) and (ii) above, in any year in which a Permitted Acquisition is made and in each subsequent year, the annual Capital Expenditure limit set forth in clause (c)(i) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year increased by an amount equal to the greater of (x) the average amount by which such maximum of annual Capital Expenditures exceed made by the target entity or target line of business during the immediately preceding three-year period prior to such actual Capital Expenditures, but acquisition (or such shorter period if the target does not by an amount which exceeds $5,000,000. For have three years of operations) and (y) 3.5% of the purposes of this Section 5.02(q)(itotal assets acquired in such acquisition. (iv) only, In addition to the Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way permitted pursuant to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, to the extent that payment made in respect of such litigation is equal to or greater than $5,000,000preceding paragraphs (i) (ii) and (iii), the Borrower shall deliver and its Restricted Subsidiaries may make additional Capital Expenditures in an amount not to exceed the aggregate amount of contributions to the Agent prior to the payment thereof, a statement that common capital of the Borrower will have not less (other than $11,500,000 from a Restricted Subsidiary) received in cash and Cash Equivalents after the Amendment No. 5 Effective Date (excluding any insurance proceeds deposited with other than from a Specified Equity Contribution) to the Collateral Agent as described in clause extent such contributions are designated by the Borrower to be used for Capital Expenditures (C) of the proviso in the definition of “Extraordinary ReceiptsDesignated CapEx Contributions”) after in a notice to the Administrative Agent; provided that the Designated CapEx Contributions shall not increase Consolidated EBITDA and the proceeds thereof may not be used for any purpose other than making such payment, certified by the Chief Financial Officer of the ParentCapital Expenditures.

Maximum Capital Expenditures. Make or commit to make(a) Holdings and the Borrowers will not, or allow and will not permit any of their Subsidiaries to, make any Capital Expenditures, except that during any fiscal period set forth below (taken as one accounting period), GWR and its Subsidiaries may make Capital Expenditures so long as the aggregate amount of such Capital Expenditures does not exceed in any fiscal period set forth below the amount set forth opposite such fiscal period below: Fiscal Period Amount ------------- ------ Fiscal Year ending December 31, 2000 $20,000,000 Fiscal Year ending December 31, 2001 $20,000,000 Fiscal Year ending December 31, 2002 $20,000,000 Fiscal Year ending December 31, 2003 $20,000,000 Fiscal Year ending December 31, 2004 $20,000,000 Fiscal Year ending December 31, 2005 $20,000,000 Fiscal Year ending December 31, 2006 $20,000,000 Fiscal Year ending December 31, 2007 $20,000,000 Fiscal Year ending December 31, 2008 $20,000,000 To the extent that the amount of Capital Expenditures (other than those described in clause (b) below) made by GWR and its Subsidiaries during any fiscal period set forth in the table above is less than the amount applicable to the respective fiscal period set forth in the table above (without giving effect to any increase in such amount as provided below in this clause (a)), such unused amount (the "Rollover Amount") may be carried forward and utilized by GWR and its Subsidiaries to make or commit to make, additional Capital Expenditures exceeding, in the aggregate for each Fiscal Year until immediately succeeding fiscal period, provided that no amount once carried forward to the Termination Datenext fiscal period may be carried forward to a fiscal period thereafter, the greater of (A) EBITDA for such Fiscal Yearand provided further, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease and the NTFC Capital Lease (a) during Fiscal Year 2002 (for purposes of calculating the maximum that Capital Expenditures for Fiscal Year 2003) or (b) made during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expenditures, the amount calculated in item (II) above any fiscal period shall be first deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year by an amount equal to the amount by which such maximum Capital Expenditures exceed such actual Capital Expenditures, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(i) only, Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or the Rollover Amount and then deemed made in relating in any way respect of the scheduled amount permitted for such fiscal period. (b) In addition to the use Capital Expenditures permitted to be made pursuant to clause (a) of rights this Section 8.07, GWR and its Subsidiaries may make Capital Expenditures (i) with the proceeds of way granted to the Borrower by Mississippi Power Company; provided, thatan equity issuance, to the extent that payment made in respect such proceeds are not required to be applied to repay Term Loans pursuant to Section 4.02(d), not applied to make a Permitted Acquisition and not applied to make a permitted investment pursuant to Section 8.05(xvi), (ii) with the proceeds of such litigation is equal to or greater than $5,000,000, the Borrower shall deliver Asset Sales to the Agent prior extent such proceeds are not required to be applied to repay Term Loans pursuant to Section 4.02(f), (iii) to the payment thereofextent that any Permitted Acquisition in accordance with Section 7.14 constitutes a Capital Expenditure, a statement that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited iv) with the Collateral Agent as described in clause proceeds of Recovery Events and (Cv) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the Parentrequired pursuant to Section 7.06.

Maximum Capital Expenditures. Make or commit to make, or allow any Permit the aggregate amount of its Subsidiaries to make or commit to make, all Capital Expenditures exceedingmade by Borrower and its Subsidiaries, in the aggregate for each Fiscal Year until the Termination Date, the greater of (A) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease and the NTFC Capital Lease (a) during Fiscal Year 2002 (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, determined as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expenditures, the amount calculated in item (II) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal Yearfiscal year set forth below, commencing with Fiscal Year 2003. To to be greater than the extent the Borrower’s actual amount set forth opposite such fiscal year: ; provided, that (i) anyBorrower may make Capital Expenditures for any Fiscal Year are less than the maximum made in such fiscal year using Specified Equity Proceeds and such Capital Expenditures shall not count towards the cap permitted for such Fiscal Year computed year, as aforesaidset forth in the above tablefor fiscal year 2021; provided, further, that all such exclusions permitted under this clause (i) shall not exceed $75,000,000 in the aggregate during the term of this Agreement; and (ii) if the amount of the Capital Expenditures permitted to be made in any fiscal year, as set forth in the above table, is greater thanBorrower may carry forward from fiscal year 2021 to fiscal year 2022 (but not to any fiscal year thereafter), the Borrower may increase sum of (x) amount by which the covenant amount set for the above for fiscal year 2021 exceeded the amount of the Capital Expenditures for the subsequent Fiscal Year by an amount equal to actually made in such fiscal year (the amount by which such maximum permitted amount of Capital Expenditures exceed for such actual Capital Expenditures, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(i) only, fiscal year (other than any Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, such fiscal year using Specified Equity Proceeds to the extent that payment permitted to be excluded pursuant to clause (i) hereof) exceedsplus (y) the amount of Capital Expenditures actually made for suchin fiscal year, the “Excess Amount”), then 100% of such Excess Amount (the “ 2021 using Specified Equity Proceeds, in an aggregate amount not to exceed $75,000,000 (the sum of clauses (x) and (y), the “2021 Carry-Over Amount”) may be carried forward to the next succeeding, which 2021 Carry-Over Amount shall not count towards the cap set forth for Ffiscal Yyear (the “Succeeding Fiscal Year”), so long as 2022 in table above (for the avoidance of doubt, the 2021 Carry-Over Amount equals $113,000,000); (i) such Specified Equity Proceeds are received by the Borrower in either fiscal year 2022 or fiscal year 2023, (ii) such Capital Expenditures are made in respect either fiscal year 2022 or fiscal year 2023 (but not in any fiscal year thereafter), (iii) no Default or Event of such litigation is equal to Default shall have occurred and be continuing or greater than $5,000,000, the Borrower shall deliver to the Agent prior to the payment thereof, a statement would result therefrom; provided further that the Borrower will have Carry-Over Amount applicable to a particular Succeeding Fiscal Year may not less than be used in that Fiscal Year until the amount permitted above to be expended in such Fiscal Year has first been used in full and the Carry-Over Amount applicable to a particular Succeeding Fiscal Year may not be carried forward to another fiscal year., and (iv) the aggregate amount such Specified Equity Proceeds shall not exceed $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the Parent400,000,000.

Maximum Capital Expenditures. Make The Parent and the Borrowers will, and will cause each Subsidiary to, not make Capital Expenditures on a consolidated basis that exceed $65,000,000 in any fiscal year (the “Base Capital Expenditure Amount”). Notwithstanding anything to the contrary, the Base Capital Expenditure Amount shall be increased by the following amounts: (i) to the extent that the aggregate amount of Capital Expenditures made by the Parent and its Subsidiaries in any fiscal year is less than the Base Capital Expenditure Amount, the amount of such difference may be carried forward and used to make Capital Expenditures in succeeding fiscal years, provided that in any fiscal year, the amount permitted to be applied to make Capital Expenditures pursuant to this clause (i) shall in no event exceed an amount equal to 75% of the unused portion of the Base Capital Expenditure Amount for such fiscal year (without giving effect to any prior adjustments), (ii) if no Default or commit to makeEvent of Default has occurred and is continuing, or allow any of would result after giving effect thereto, the Parent and its Subsidiaries may make additional Capital Expenditures to the extent that the amount of such excess is deducted from the Base Capital Expenditure Amount in succeeding fiscal years, provided that in any fiscal year, the amount permitted to be applied to make or commit to make, Capital Expenditures exceeding, pursuant to this clause (ii) shall in no event exceed an amount equal to 25% of the aggregate for each Fiscal Year until Base Capital Expenditure Amount (without giving effect to any prior adjustments) and (iii) the Termination Date, the greater of (A) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Base Capital Lease and the NTFC Capital Lease (a) during Fiscal Year 2002 (for purposes of calculating the maximum Expenditure Amount shall not include any Capital Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or that are funded with the applicable Fiscal Year thereafter (for purposes Available Credit; provided that, at the time of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum such Capital Expenditures, the amount calculated in item (II) above Borrowers shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at deliver a certificate of a Financial Officer stating the end portion of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than that is being made from the maximum Capital Expenditures for Available Credit, and setting forth a calculation of the Available Credit immediately before and immediately after such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year by an amount equal to the amount by which such maximum Capital Expenditures exceed such actual Capital Expenditures, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(i) only, Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, to the extent that payment made in respect of such litigation is equal to or greater than $5,000,000, the Borrower shall deliver to the Agent prior to the payment thereof, a statement that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the Parent.

Maximum Capital Expenditures. Make or commit to makeThe Company will not, or allow and will not permit any of its Subsidiaries to, make any Capital Expenditures, except that during any fiscal year of the Company set forth below (taken as one accounting period) (it being understood and agreed that for purposes of this clause (a) only, the period from September 30, 2004 through December 31, 2004 shall be deemed to be part of the fiscal year ending on December 31, 2005), the Company and its Subsidiaries may make or commit to make, Capital Expenditures exceedingso long as the aggregate amount of all such Capital Expenditures does not exceed in any fiscal year of the Company set forth below the amount set forth opposite such fiscal year below: Fiscal Year Ending On Amount --------------------- ------------- December 31, 2005 $ 115,000,000 December 31, 2006 $ 97,750,000 December 31, 2007 and thereafter $ 86,250,000 (i) Notwithstanding the foregoing, in the aggregate for each Fiscal Year until event that the Termination Date, amount of Capital Expenditures permitted to be made by the greater of (A) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 Company and all principal payments under the GECC Capital Lease and the NTFC Capital Lease its Subsidiaries pursuant to clause (a) during Fiscal Year 2002 above in any fiscal year of the Company (for purposes before giving effect to any increase in such permitted expenditure amount pursuant to this clause (i)) is greater than the amount of calculating the maximum such Capital Expenditures for Fiscal Year 2003actually made by the Company and its Subsidiaries during such fiscal year, such excess (the "Rollover Amount") or (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum may be carried forward and utilized to make Capital Expenditures for Fiscal Year 2004 or in the applicable immediately succeeding Fiscal Year, as the case may be), or fiscal year (B) $10,000,000 for Fiscal Year 2003 it being understood and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum agreed that such succeeding fiscal year Capital Expenditures, the amount calculated in item (II) above Expenditures shall be deemed not to have exceeded $20,000,000 been made first from the amount permitted for Fiscal Year 2004 such year pursuant to clause (a) above and shall be deemed not second from the Rollover Amount). (ii) In addition to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal Yearforegoing, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Company and its Subsidiaries may make Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year by an amount equal to with the amount of Excess Proceeds received by which the Company or any of its Subsidiaries from any Asset Sale so long as such maximum Capital Expenditures exceed Excess Proceeds are reinvested within 365 days following the date of such actual Capital ExpendituresAsset Sale, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(i) only, Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, only to the extent that payment made in respect of such litigation is equal Excess Proceeds are not otherwise required to or greater than $5,000,000, the Borrower shall deliver be applied to the Agent prior repay Term Loans pursuant to the payment thereof, a statement that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the ParentSection 2.10(c).

Maximum Capital Expenditures. Make or commit to make, or allow any of Borrower and its Restricted Subsidiaries to on a consolidated basis shall not make or commit to make, Capital Expenditures exceeding, during any Fiscal Year that exceed in the aggregate the amounts set forth opposite each such Fiscal Year below: ; provided, if the amount of all Capital Expenditures is less than the sum of the maximum amounts designated above for such period, Borrower may carry over such unused amount (the “Carry Over Amount”) for the next consecutive Fiscal Year; provided, further, that such Carry Over Amount may only be used in such succeeding Fiscal Year (it being understood that the Carry Over Amount shall be deemed to be used first in such succeeding Fiscal Year). In addition, for any Fiscal Year, the amount of Capital Expenditures that would otherwise be permitted in such Fiscal Year pursuant to this Section 7.10(a) (including as a result of any Carry Over Amount) may be increased by an amount not to exceed $100,000,000 (the “CapEx Pull-Forward Amount”). The actual CapEx Pull-Forward Amount in respect of any such Fiscal Year shall reduce, on a dollar-for-dollar basis, the amount of Capital Expenditures that would have been permitted to be made in the immediately succeeding Fiscal Year. Notwithstanding anything to the contrary in the foregoing, for each Permitted Acquisition consummated in any Fiscal Year, the amount set forth above next to each Fiscal Year until (the Termination Date, “Base Amount”) for such Fiscal Year (subject to the greater of second proviso in this sentence) and for every Fiscal Year thereafter shall be increased by an amount equal to (i) the quotient obtained by dividing (A) EBITDA for such Fiscal Year, less the sum amount of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease and the NTFC Capital Lease (a) during Fiscal Year 2002 (for purposes of calculating the maximum Capital Expenditures made by the acquired entity or business for Fiscal Year 2003the thirty-six (36) or month period immediately preceding the consummation of such Permitted Acquisition, by (bB) during Fiscal Year 2004 or the applicable Fiscal Year thereafter three (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, as the case may be3), or (Bii) $10,000,000 for if the information described in the foregoing clause (i)(A) is not available, 3.5% of the cumulative sales over the immediately preceding twelve (12) months of the acquired Person, division, line of business or other business unit, as determined in financial statements therefore prepared in accordance with the standards set forth in Section 5.1 (in either case, such amount, the “Acquired Permitted Capital Expenditure Amount”); provided, that, with respect to the Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expendituresduring which any such Permitted Acquisition occurs, the amount calculated in item (II) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with of Capital Expenditures permitted under this Section 5.02(q)(i7.10(a) shall be measured at the end of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for respect to such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year shall be increased by an amount equal to the amount by which such maximum product of (x) the Acquired Permitted Capital Expenditures exceed such actual Capital Expenditures, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(iExpenditure Amount and (y) only, Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, to the extent that payment made in respect of such litigation is equal to or greater than $5,000,000a fraction, the Borrower shall deliver to numerator of which is the Agent prior to number of days remaining in such Fiscal Year and the payment thereofdenominator of which is 365 or 366, a statement that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the Parentapplicable.

Maximum Capital Expenditures. Make or commit to make, or allow any of its (i) The Borrower shall not and shall not permit the Restricted Subsidiaries to make or commit to make, any Capital Expenditures exceeding, in that would cause the aggregate for each Fiscal Year until amount of Capital Expenditures made by the Termination Date, the greater of (A) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease Borrower and the NTFC Restricted Subsidiaries to exceed $185,000,000 in any fiscal year; provided that up to an aggregate amount of $65.0 million of Capital Lease Expenditures made by the Borrower and the Restricted Subsidiaries for improving worker safety conditions related to Orca infrastructure spending (a“Orca Infrastructure CapEx”) during Fiscal Year 2002 (incurred on or after January 1, 2012 shall be excluded for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expenditures, the amount calculated in item (II) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance determining compliance with this Section 5.02(q)(i7.11(c). (ii) shall be measured at the end of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year by an amount equal Notwithstanding anything to the amount by which such maximum Capital Expenditures exceed such actual Capital Expenditurescontrary contained in clause (c)(i) above, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(i(x) only, Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, to the extent that payment the aggregate amount of Capital Expenditures made by the Borrower and the Restricted Subsidiaries in any fiscal year (for the avoidance of doubt, after giving effect to any CapEx Pull-Forward Amount utilized in the preceding year that reduced the amount of Capital Expenditures that could be made in such year but disregarding any Capital Expenditures made in reliance on any Rollover Amount utilized during such year) pursuant to such clause (i) is less than the amount set forth therein, the amount of such difference (the “Rollover Amount”) may be carried forward and used to make Capital Expenditures in any succeeding fiscal year (with such Rollover Amount deemed utilized first); provided that any Orca Infrastructure CapEx made prior to January 1, 2012 shall be excluded from the aggregate amount of Capital Expenditures made in a given fiscal year for purposes of determining the Rollover Amount and (y) for any fiscal year, the amount of Capital Expenditures that would otherwise be permitted in such fiscal year pursuant to this Section 7.11(c) (including as a result of the application of clause (x) of this clause (ii)) may be increased by an amount not to exceed $25,000,000 (the “CapEx Pull-Forward Amount”). The actual CapEx Pull-Forward Amount in respect of any such litigation is equal fiscal year shall reduce, on a dollar-for-dollar basis, the amount of Capital Expenditures that are permitted to or greater than $5,000,000be made in the immediately succeeding fiscal year; provided that any CapEx Pull-Forward Amount in respect of the Borrower’s fiscal year ending December 31, 2012 shall not reduce the amount of Capital Expenditures that are permitted to be made in the Borrower’s fiscal year ending December 31, 2013. (iii) In addition to the Capital Expenditures permitted pursuant to the preceding paragraphs (i) and (ii), the Borrower shall deliver and its Restricted Subsidiaries may make additional Capital Expenditures at any time in an amount not to exceed the Agent prior to portion, if any, of the payment thereof, a statement Cumulative Credit on the date of such Capital Expenditure that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the Parentelects to apply to this Section 7.11(c)(iii).

Maximum Capital Expenditures. Make or commit to make, or allow any of U.S. Borrower and its Subsidiaries to on a consolidated basis shall not make or commit to makeCapital Expenditures during any Fiscal Year in excess of the Dollar Equivalent of $22,000,000 in the aggregate; provided, however, that solely for the purpose of this Section (a), Capital Expenditures exceeding, in shall exclude the aggregate for each Fiscal Year until the Termination Date, the greater of (A) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) following amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease and the NTFC Capital Lease (a) during Fiscal Year 2002 (for purposes of calculating the maximum which otherwise constitute Capital Expenditures for Fiscal Year 2003(i) or (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes portion of calculating the maximum Capital Expenditures financed by lenders other than Lenders, (ii) the portion of Capital Expenditures not to exceed $5,000,000 for Fiscal Year 2004 Denver Warehouse Real Estate which is not financed by lenders other than Lenders and (iii) Capital Expenditures paid for with proceeds from sales of fixed assets that are reinvested as permitted hereby in any business activity conducted by one or more Samsonite Entities (excluding any proceeds from sales of Denver Warehouse Real Estate in connection with completion of the applicable succeeding Fiscal Year, as the case may beDenver Warehouse Real Estate project), or (B) $10,000,000 for Fiscal Year 2003 ; and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expenditures, further provided that the amount calculated in item (II) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual permitted Capital Expenditures for referenced above will be increased in any Fiscal Year are less than year by the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year by an positive amount equal to the amount difference obtained by which such maximum taking the Capital Expenditures exceed limit specified above for the immediately prior period minus the actual amount of any Capital Expenditures expended during such actual Capital Expendituresprior period (the "Carry Over Amount"), but not by an amount which exceeds $5,000,000. For the and for purposes of this Section 5.02(q)(i) onlymeasuring compliance herewith, the Carry Over Amount shall be deemed to be the last amount spent on Capital Expenditures in that succeeding year. The foregoing limitation on Capital Expenditures shall not include apply with respect to any Fiscal Year (the Contingent Payments and any payment made in respect "Relevant Fiscal Year") for which the ratio of that certain litigation arising from or in relating in any way to (x) the use Total Net Debt as of rights the end of way granted to last day of the Borrower by Mississippi Power Company; provided, that, to the extent that payment made in respect of such litigation is equal to or greater than $5,000,000, the Borrower shall deliver to the Agent Fiscal Year ended immediately prior to the payment thereof, a statement that Relevant Fiscal Year to (y) EBITDA for the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with Fiscal Year ended immediately prior to the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the ParentRelevant Fiscal Year exceeds 3.5 to 1.0.

Maximum Capital Expenditures. Make or commit to make, or allow any of its (i) Holdings and the Borrower shall not and shall not permit the Restricted Subsidiaries to make or commit to make, any Capital Expenditures exceedingthat would cause the aggregate amount of Capital Expenditures made by Holdings and the Restricted Subsidiaries in any fiscal year commencing with the fiscal year ending December 31, 2010 to exceed $20,000,000. (ii) Notwithstanding anything to the contrary contained in clause (a)(i) above, (x) to the extent that the aggregate amount of Capital Expenditures made by Holdings and the Restricted Subsidiaries in any fiscal year (for the avoidance of doubt, after giving effect to any CapEx Pull-Forward Amount utilized in the aggregate for each Fiscal Year until preceding year that reduced the Termination Date, the greater amount of (A) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease and the NTFC Capital Lease (a) during Fiscal Year 2002 (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum that could be made in such year but disregarding any Capital Expenditures for Fiscal Year 2004 or made in reliance on any Rollover Amount utilized during such year) pursuant to such clause (i) is less than the applicable succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expendituresamount set forth therein, the amount calculated of such difference (the “Rollover Amount”) may be carried forward and used to make Capital Expenditures in item the immediately succeeding fiscal year (IIwith such Rollover Amount deemed utilized first in such succeeding year) and (y) for any fiscal year, the amount of Capital Expenditures that would otherwise be permitted in such fiscal year pursuant to this Section 7.10(c) (including as a result of the application of clause (x) of this clause (ii)) may be increased by an amount not to exceed 50% of the permitted Capital Expenditure limit in the immediately succeeding year (the “CapEx Pull-Forward Amount”). The actual CapEx Pull-Forward Amount in respect of any such fiscal year shall reduce, on a dollar-for-dollar basis, the amount of Capital Expenditures that are permitted to be made in the immediately succeeding fiscal year. (iii) Notwithstanding anything to the contrary contained in clause (c)(i) and (ii) above, in any year in which a Permitted Acquisition is made and in each subsequent year, the annual Capital Expenditure limit set forth in clause (c)(i) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year increased by an amount equal to the greater of (x) the average amount by which such maximum of annual Capital Expenditures exceed made by the target entity or target line of business during the immediately preceding three-year period prior to such actual Capital Expenditures, but acquisition (or such shorter period if the target does not by an amount which exceeds $5,000,000. For have three years of operations) and (y) 3.5% of the purposes of this Section 5.02(q)(itotal assets acquired in such acquisition. (iv) only, In addition to the Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way permitted pursuant to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, to the extent that payment made in respect of such litigation is equal to or greater than $5,000,000preceding paragraphs (i) (ii) and (iii), the Borrower shall deliver and its Restricted Subsidiaries may make additional Capital Expenditures in an amount not to exceed the Agent prior to portion, if any, of the payment thereof, a statement Cumulative Credit on the date of such Capital Expenditure that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the Parentelects to apply to this Section 7.10(c)(iv).

Maximum Capital Expenditures. Make or commit to make(a) Holdings and the Borrower will not, or allow and will not permit any of their Subsidiaries to, make any Capital Expenditures, except that during any fiscal period set forth below (taken as one accounting period), the Borrower and its Subsidiaries may make Capital Expenditures so long as the aggregate amount of such Capital Expenditures does not exceed in any fiscal period set forth below the amount set forth opposite such fiscal period below: May 1, 2004 through December 31, 2004 $ 32,500,000 Fiscal Year ending December 31, 2005 $ 47,500,000 Fiscal Year ending December 31, 2006 $ 47,500,000 Fiscal Year ending December 31, 2007 $ 47,500,000 Fiscal Year ending December 31, 2008 $ 47,500,000 To the extent that the amount of Capital Expenditures made by the Borrower and its Subsidiaries during any fiscal period set forth in the table above is less than the amount applicable to the respective fiscal period set forth in the table above (without giving effect to any increase in such amount as provided below in this clause (a)), such unused amount (the “Rollover Amount”) may be carried forward and utilized by the Borrower and its Subsidiaries to make or commit to make, additional Capital Expenditures exceeding, in the aggregate for each Fiscal Year until immediately succeeding fiscal period, provided that no amount once carried forward to the Termination Datenext fiscal period may be carried forward to a fiscal period thereafter, and provided, further, that Capital Expenditures made during any fiscal period shall be first deemed made in respect of the greater Rollover Amount and then deemed made in respect of (A) EBITDA the scheduled amount permitted for such Fiscal Year, less fiscal period. Notwithstanding anything to the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under contrary contained in this Section 2.03 and all principal payments under the GECC Capital Lease and the NTFC Capital Lease (a) during Fiscal Year 2002 (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expenditures9.07, the amount calculated of all cash Capital Expenditures incurred during any fiscal period set forth in item (II) the table above in connection with the purchase of capital assets which are subsequently sold during such period shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at excluded from the end calculation of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year purpose of this Section 9.07, to the extent of the net cash proceeds received by the Borrower and/or its respective Subsidiary in respect of such sale. (b) In addition to the Capital Expenditures permitted to be made pursuant to clause (a) of this Section 9.07, the Borrower and its Subsidiaries may make Capital Expenditures (i) with the proceeds of Asset Sales to the extent such proceeds are not required to be applied to repay Term Loans pursuant to Section 4.02(e), (ii) to the extent that any Permitted Acquisition in accordance with Section 8.14 constitutes a Capital Expenditure, (iii) in an amount equal to the amount by which such maximum Capital Expenditures exceed such actual Capital Expenditures, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(ithen Available Retained ECF Amount and (iv) only, Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, to the extent that payment made in respect of such litigation is equal to or greater than $5,000,000, the Borrower shall deliver to the Agent prior to the payment thereof, a statement that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) proceeds of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the Parentinsurance.

Maximum Capital Expenditures. Make or commit to make, or allow any of Borrower and its Subsidiaries to subsidiaries (other than the Excluded Subsidiaries) on a consolidated basis shall not make or commit to make, Capital Expenditures exceeding, in the aggregate for each Fiscal Year until the Termination Date, the greater of (A) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease and the NTFC Capital Lease (a) during Fiscal Year 2002 (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expenditures, the amount calculated in item (II) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal YearQuarter set forth below for the 12-month period then ended, commencing that exceed the respective amounts set forth opposite such periods: Period Ending On Maximum Capital Expenditures ---------------- ---------------------------- June 28, 2002 $65,000,000 September 27, 2002 $75,000,000 December 27, 2002 $75,000,000 March 28, 2003 $80,000,000 June 27, 2003 $80,000,000 provided; that, beginning with the Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures ending June 28, 2002, and for any each Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year by an amount equal to the amount by which such maximum Capital Expenditures exceed such actual Capital Expenditures, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(i) only, Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, thatthereafter, to the extent that payment the maximum capital expenditure amount identified above (the "Maximum Capital Expenditure") for any such Fiscal Year (i.e., Year 1) exceeds the amount of Capital Expenditures actually made in respect by Borrower and such Subsidiaries during such Fiscal Year (such excess being the "Excess Amount"), then the amount of such litigation is permitted Capital Expenditures for each period above that ends during the immediately succeeding Fiscal Year (i.e., Year 2) will be increased by the positive amount (the "Carry Over Amount") equal to or greater than $5,000,000(i) the lesser of (A) the Excess Amount and (B) 25% of the amount of the Maximum Capital Expenditure for such Fiscal Year (i.e., Year 1), minus (ii) that portion of the Excess Amount, if any, expended during a previous period during such succeeding Fiscal Year. For purposes of measuring compliance herewith, the Borrower Carry Over Amount shall deliver be deemed to be the Agent prior to the payment thereof, a statement that the Borrower will have not less than $11,500,000 last amount spent on Capital Expenditures in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the ParentFiscal Quarter.

Maximum Capital Expenditures. Make or commit to make, or allow any of Borrower and its Subsidiaries to (other than the Excluded Subsidiaries) on a consolidated basis shall not make or commit to make, Capital Expenditures exceeding, in the aggregate for each Fiscal Year until the Termination Date, the greater of (A) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease and the NTFC Capital Lease (a) during Fiscal Year 2002 (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expenditures, the amount calculated in item (II) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal YearQuarter set forth below for the 12-month period then ended (or with respect to the Fiscal Quarters ending on or before July 2, 2004, for the period commencing on June 28, 2003, and ending on the last day of such Fiscal Quarter) that exceed the respective amounts set forth opposite such periods: Maximum Capital Period Ending On Expenditures ---------------- --------------- September 26, 2003 $**** December 26, 2003 $**** March 26, 2004 $**** July 2, 2004 $**** September 24, 2004 $**** December 24, 2004, and the end of each Fiscal Quarter thereafter $**** provided; that, beginning with 12-month period ending as of the end of the 2004 Fiscal Year 2003. To (i.e., July 2, 2004), and for each 12-month period that ends as of the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the end of a subsequent Fiscal Year by an amount equal to the amount by which such maximum Capital Expenditures exceed such actual Capital Expenditures, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(i) only, Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, thatYear, to the extent that payment the maximum capital expenditure amount identified above (the "Maximum Capital Expenditure") for any such Fiscal Year (i.e., Year 1) exceeds the amount of Capital Expenditures actually made in respect by Borrower and such Subsidiaries during such Fiscal Year (such excess being the "Excess Amount"), then the amount of such litigation is permitted Capital Expenditures for each period above that ends during the immediately succeeding Fiscal Year (i.e., Year 2) will be * Material has been omitted pursuant to a request for confidential treatment. increased by the positive amount (the "Carry Over Amount") equal to or greater than $5,000,000(i) the lesser of (A) the Excess Amount and (B) 25% of the amount of the Maximum Capital Expenditure for such Fiscal Year (i.e., Year 1), minus (ii) that portion of the Excess Amount, if any, expended during a previous period during such succeeding Fiscal Year. For purposes of measuring compliance herewith, the Borrower Carry Over Amount shall deliver be deemed to be the Agent prior to the payment thereof, a statement that the Borrower will have not less than $11,500,000 last amount spent on Capital Expenditures in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the ParentFiscal Quarter.

Maximum Capital Expenditures. Make or commit to Not make, or allow permit any of its Subsidiaries to make or commit to make, any Capital Expenditures exceedingthat would cause the aggregate of all Capital Expenditures made by the MLP and its Subsidiaries in any period set forth below to exceed the amount set forth below for such period (the “Scheduled Amount”): December 31, 2010* $ 17,000,000 December 31, 2011 $ 43,000,000 December 31, 2012 $ 45,000,000 December 31, 2013 $ 45,000,000 December 31, 2014 $ 40,000,000 * For the period of such Fiscal Year from the Effective Date on. provided, however, that (i) the amount of Capital Expenditures that may be made in any Fiscal Year shall be increased above the Scheduled Amount by the aggregate amount of Net Cash Proceeds received in such Fiscal Year from the issuance of equity of the MLP (the “Equity Proceeds”) and, to the extent the Equity Proceeds are not spent in such Fiscal Year (such unspent amount, the “Unused Equity Proceeds”), the amount of Capital Expenditures that may be made in the aggregate immediately succeeding Fiscal Year, and only for each such immediately succeeding Fiscal Year, shall be increased above the Scheduled Amount by the amount of such Unused Equity Proceeds and (ii) if, for any Fiscal Year until the Termination Dateset forth above, the greater of (A) EBITDA Scheduled Amount specified for such Fiscal YearYear exceeds the aggregate amount of Capital Expenditures made by the MLP and its Subsidiaries during such Fiscal Year which are applied to the Scheduled Amount (the amount of such excess being the “Excess Amount”), less the sum of (I) cash interest expense for such Borrower and its Subsidiaries shall be entitled to make additional Capital Expenditures in the immediately succeeding Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease and the NTFC Capital Lease (a) during only for such immediately succeeding Fiscal Year 2002 (Year, in an amount equal to such Excess Amount, but not to exceed $10,000,000; provided that, solely for purposes of calculating the maximum Capital Expenditures for Excess Amount with regard to the Fiscal Year 2003) or (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal YearEnding December 31, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expenditures2010, the amount calculated in item (II) above Scheduled Amount shall be deemed not to have exceeded be $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year by an amount equal to the amount by which such maximum Capital Expenditures exceed such actual Capital Expenditures, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(i) only, Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, to the extent that payment made in respect of such litigation is equal to or greater than $5,000,000, the Borrower shall deliver to the Agent prior to the payment thereof, a statement that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the Parent15,000,000.

Maximum Capital Expenditures. Make or commit to make(a) The Borrower will not, or allow and will not permit any of its Subsidiaries to to, make or commit to make, any Capital Expenditures exceedingincluding Maintenance Capital Expenditures required to be made pursuant to Section 8.14, in except that during any fiscal period set forth below (taken as one accounting period) the Borrower and its Subsidiaries may make Capital Expenditures so long as the aggregate for each amount of such Capital Expenditures including Maintenance Capital Expenditures required to be made pursuant to Section 8.14 made under this Section 9.07(a) does not exceed in any period set forth below the amount set forth opposite such period below: Period Amount ------ ------ Initial Borrowing Date to $26,000,000 and including the last day of the Fiscal Year until the Termination Dateending December 31, the greater of 2001 Fiscal Year ending $28,500,000 December 31, 2002 Fiscal Year ending $29,500,000 December 31, 2003 Fiscal Year ending $30,500,000 December 31, 2004 Fiscal Year ending $31,500,000 December 31, 2005 Fiscal Year ending $32,500,000 December 31, 2006 Fiscal Year ending $33,500,000 December 31, 2007 (Ab) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC In addition to Capital Lease and the NTFC Capital Lease Expenditures permitted to clause (a) during Fiscal Year 2002 (for purposes of calculating above, the maximum Borrower and its Subsidiaries may make Capital Expenditures for Fiscal Year 2003in connection with (i) or the Facilities Expansion provided that the aggregate amount thereof shall not exceed $110,000,000, (ii) the construction of covered parking at the Kansas City facility, provided that the aggregate amount thereof shall not exceed $20,000,000, (iii) the renovation of the Council Bluffs Facility, provided that the aggregate amount thereof shall not exceed $8,000,000 and (iv) the renovation of the Vicksburg Facility provided that the aggregate amount thereof shall not exceed $9,500,000. (c) In addition to the Capital Expenditures permitted pursuant to preceding clauses (a) and (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expenditures, the amount calculated in item (II) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year by an amount equal to the amount by which such maximum Capital Expenditures exceed such actual Capital Expenditures, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(i) only, Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, thatabove, to the extent that payment the Capital Expenditures made by the Borrower and its Subsidiaries in any period set forth in clause (a) above are less than the amount permitted to be made in respect such period (without giving effect to any additional amount available as a result of this clause (c), clause (b) above or clause (d) below), up to 50% of the amount of such litigation is equal difference may be carried forward and used to or greater than $5,000,000make Capital Expenditures in the succeeding fiscal year of the Borrower. (d) In addition to the Capital Expenditures permitted pursuant to preceding clauses (a), (b) and (c), the Borrower shall deliver and its Subsidiaries may make additional Capital Expenditures consisting of (i) the reinvestment of Net Asset Sale Proceeds of Asset Sales not required to be applied to prepay the Agent prior Loans pursuant to Section 4.02(A)(h) as a result of a Reinvestment Election and (ii) the payment thereof, a statement that reinvestment of proceeds of Recovery Events not required to be applied to repay the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the ParentLoans pursuant to Section 4.02(A)(j).

Maximum Capital Expenditures. Make or commit to make, or allow any of its (i) The Borrower shall not and shall not permit the Restricted Subsidiaries to make or commit to make, any Capital Expenditures exceeding, in that would cause the aggregate for each Fiscal Year until amount of Capital Expenditures made by the Termination Date, the greater of (A) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease Borrower and the NTFC Restricted Subsidiaries in any fiscal year commencing with the fiscal year ending December 31, 2010 to exceed $185,000,000 in any fiscal year; provided that up to an aggregate amount of $65.0 million of Capital Lease Expenditures made by the Borrower and the Restricted Subsidiaries for improving worker safety conditions related to Orca infrastructure spending (a“Orca Infrastructure CapEx”) during Fiscal Year 2002 (incurred on or after January 1, 2012 shall be excluded for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expenditures, the amount calculated in item (II) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance determining compliance with this Section 5.02(q)(i7.11(c). (ii) shall be measured at the end of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year by an amount equal Notwithstanding anything to the amount by which such maximum Capital Expenditures exceed such actual Capital Expenditurescontrary contained in clause (c)(i) above, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(i(x) only, Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, to the extent that payment the aggregate amount of Capital Expenditures made by the Borrower and the Restricted Subsidiaries in any fiscal year (for the avoidance of doubt, after giving effect to any CapEx Pull-Forward Amount utilized in the preceding year that reduced the amount of Capital Expenditures that could be made in such year but disregarding any Capital Expenditures made in reliance on any Rollover Amount utilized during such year) pursuant to such clause (i) is less than the amount set forth therein, the amount of such difference (the “Rollover Amount”) may be carried forward and used to make Capital Expenditures in the immediatelyany succeeding fiscal year (with such Rollover Amount deemed utilized first in such succeeding year); provided that any Orca Infrastructure CapEx made prior to January 1, 2012 shall be excluded from the aggregate amount of Capital Expenditures made in a given fiscal year for purposes of determining the Rollover Amount and (y) for any fiscal year, the amount of Capital Expenditures that would otherwise be permitted in such fiscal year pursuant to this Section 7.11(c) (including as a result of the application of clause (x) of this clause (ii)) may be increased by an amount not to exceed $25,000,000 (the “CapEx Pull-Forward Amount”). The actual CapEx Pull-Forward Amount in respect of any such litigation is equal fiscal year shall reduce, on a dollar-for-dollar basis, the amount of Capital Expenditures that are permitted to or greater than $5,000,000be made in the immediately succeeding fiscal year; provided that any CapEx Pull-Forward Amount in respect of the Borrower’s fiscal year ending December 31, 2012 shall not reduce the amount of Capital Expenditures that are permitted to be made in the Borrower’s fiscal year ending December 31, 2013. (iii) In addition to the Capital Expenditures permitted pursuant to the preceding paragraphs (i) and (ii), the Borrower shall deliver and its Restricted Subsidiaries may make additional Capital Expenditures at any time in an amount not to exceed the Agent prior to portion, if any, of the payment thereof, a statement Cumulative Credit on the date of such Capital Expenditure that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the Parentelects to apply to this Section 7.11(c)(iii).

Maximum Capital Expenditures. Make or commit to make(a) The Loan Parties and their Restricted Subsidiaries on a consolidated basis shall not make Capital Expenditures in an aggregate amount in excess of (i) during the period from the Restatement Date through and including December 31, or allow 2020, $7,500,000 and (ii) during any fiscal year of its Subsidiaries to make or commit to makeParent thereafter, $15,000,000; provided that, Capital Expenditures exceedingfinanced with the Available Amount and the Net Proceeds from any issuance or sale of Qualified Equity Interests of Parent, in the aggregate for each Fiscal Year until the Termination DateHoldings, the greater Borrower or any of the Restricted Subsidiaries shall be excluded for purposes of measuring compliance with this Section 6.13. (Ab) EBITDA for If the Loan Parties and their Restricted Subsidiaries do not utilize the entire amount of Capital Expenditures permitted in any fiscal year, the Loan Parties and their Subsidiaries may carry forward to the immediately succeeding fiscal year only, 100% of such Fiscal Yearunutilized amount; provided that, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) no amounts paid under Section 2.03 and carried forward into a subsequent fiscal year may be used until all principal payments under the GECC Capital Lease and the NTFC Capital Lease Expenditures permitted pursuant to clause (a) during Fiscal Year 2002 above for such subsequent fiscal year are first used in full. (for purposes c) For any fiscal year, if the Loan Parties and their Restricted Subsidiaries utilize the entire amount of calculating the maximum Capital Expenditures for Fiscal Year 2003) or that would otherwise be permitted in such fiscal year pursuant to this Section 6.13 (including as a result of the application of clause (b) during Fiscal Year 2004 or ); such amount, the applicable Fiscal Year thereafter (for purposes “CapEx Base Amount”), such CapEx Base Amount may be increased by an amount not to exceed 100% of calculating the maximum amount of Capital Expenditures for Fiscal Year 2004 or that would otherwise be permitted in the applicable immediately succeeding Fiscal Yearfiscal year (the “CapEx Pull-Forward Amount”); provided that, as the case may be)Cap-Ex Pull Forward Amount in respect of any such fiscal year shall reduce, or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expenditureson a dollar-for-dollar basis, the amount calculated in item (II) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year by an amount equal that would otherwise have been permitted to the amount by which such maximum Capital Expenditures exceed such actual Capital Expenditures, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(i) only, Capital Expenditures shall not include the Contingent Payments and any payment be made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, to the extent that payment made in respect of such litigation is equal to or greater than $5,000,000, the Borrower shall deliver to the Agent prior to the payment thereof, a statement that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the Parentimmediately succeeding fiscal year.

Maximum Capital Expenditures. Make or commit to make(a) The U.S. Borrower will not, or allow nor will it permit any of its Subsidiaries to to, incur or make or commit to make, any Capital Expenditures exceedingduring any Fiscal Year set forth below in an amount exceeding the amount set forth opposite such Fiscal Year: Fiscal Year Maximum Capital Expenditures ----------- ---------------------------- -145- 2005 $100,000,000 2006 $100,000,000 2007 $100,000,000 2008 $105,000,000 2009 $110,000,000 2010 $115,000,000 2011 $120,000,000 (b) The amount of any Capital Expenditures permitted to be made in respect of any Fiscal Year shall be increased by the unused amount of Capital Expenditures that were permitted to be made during the immediately preceding Fiscal Year pursuant to Section 10.14(a). Capital Expenditures in any Fiscal Year shall be deemed to use (i) first, any amount carried forward to such Fiscal Year pursuant to this Section 10.14(b) and (ii) second, the amount for such Fiscal Year set forth in Section 10.14(a). (c) The amount of any Capital Expenditures permitted to be made in respect of any Fiscal Year shall be further increased, after the consummation of any Permitted Acquisition, in an amount equal to 100% of the aggregate amount of capital expenditures made by the Person or business so acquired during the fiscal year of such Person or business most recently completed prior to such Permitted Acquisition, as reflected in the financial statements of such Person or business (such amount, the "Acquired Business Annual Capital Expenditure Amount"), provided that, with respect to the Fiscal Year of the U.S. Borrower during which any such Permitted Acquisition occurs (the "Acquisition Fiscal Year"), the amount of Capital Expenditures permitted to be made during the Acquisition Fiscal Year shall only be increased by the amount equal to the Acquired Business Annual Capital Expenditure Amount less the amount of capital expenditures made by such Person or business during the Acquisition Fiscal Year. (d) In addition to the Capital Expenditures permitted pursuant to the preceding paragraphs (a) through (c), Foreign Subsidiaries may make additional Capital Expenditures as part of an acquisition or strategic development of assets which, together with investments made under Section 10.04(p), do not exceed $60,000,000 in the aggregate for each Fiscal Year until the Termination Date, the greater of (A) EBITDA for all such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease and the NTFC Capital Lease (a) during Fiscal Year 2002 (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or and investments made since the applicable Fiscal Year thereafter (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expenditures, the amount calculated in item (II) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year by Effective Date plus an amount equal to the amount by which such maximum Capital Expenditures exceed such actual Capital Expenditures, but not by an amount which exceeds $5,000,000. For the purposes any returns of this Section 5.02(q)(i) only, Capital Expenditures shall not include the Contingent Payments and any payment made capital actually received in cash in respect of that certain litigation arising from or in relating in any way to investments made under Section 10.04(p) (which amount shall not exceed the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, to the extent that payment made in respect amount of such litigation is equal to or greater than $5,000,000, investment at the Borrower shall deliver to the Agent prior to the payment thereof, a statement that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making time such payment, certified by the Chief Financial Officer of the Parentinvestment was made).

Maximum Capital Expenditures. Make or commit to make, or allow any of Holdings and its Subsidiaries to on a consolidated basis shall not make or commit to make, Capital Expenditures exceeding, during the following periods that exceed in the aggregate for the amounts set forth opposite each of such periods: Period Maximum Capital Expenditures per Period Fiscal Year until the Termination Date, the greater of (A) EBITDA for such Fiscal Year, less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease and the NTFC Capital Lease (a) during 2008 $ 65,000,000 Fiscal Year 2002 (for purposes of calculating the maximum Capital Expenditures for 2009 $ 60,000,000 Fiscal Year 2003) or (b) during 2010 $ 70,000,000 Fiscal Year 2004 or the applicable 2011 $ 80,000,000 Fiscal Year thereafter (for purposes of calculating the maximum Capital Expenditures for 2012 $ 90,000,000 Fiscal Year 2004 or the applicable succeeding Fiscal Year2013 $ 95,000,000 provided, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expenditures, the amount calculated in item (II) above shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year by an amount equal to the amount by which such maximum Capital Expenditures exceed such actual Capital Expenditures, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(i) only, Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; providedhowever, that, to the extent that payment the amount of Capital Expenditures made by Holdings and its Subsidiaries during any Fiscal Year is less than the aggregate amount permitted (including after giving effect to this proviso) for such Fiscal Year, then such unutilized amount may be carried forward and utilized by Holdings and its Subsidiaries to make Capital Expenditures in the immediately succeeding Fiscal Year, provided that, for purposes of measuring compliance herewith, the amount carried over shall be deemed to be the last amount spent on Capital Expenditures in that succeeding year. Notwithstanding anything to the contrary with respect to any Fiscal Year during which a Permitted Acquisition is consummated and for each Fiscal Year subsequent thereto, the amount of Capital Expenditures permitted under the preceding sentence applicable to each such Fiscal Year shall be increased by an amount equal to 5% of the purchase price of each Permitted Acquisition (the “Acquired Permitted Capital Expenditure Amount”); provided, however, with respect to the Fiscal Year during which any such Permitted Acquisition occurs, the amount of additional Capital Expenditures permitted as a result of this sentence shall be an amount equal to the product of (x) the Acquired Permitted Capital Expenditure Amount and (y) a fraction, the numerator of which is the number of days remaining in such Fiscal Year after the date such Permitted Acquisition is consummated and the denominator of which is the actual number of days in such Fiscal Year. Notwithstanding anything to the contrary contained above, for any Fiscal Year, the amount of Capital Expenditures that would otherwise be permitted in such Fiscal Year pursuant to this clause (a) (including as a result of the carry-forward described in the proviso to the first sentence of the proviso above) may be increased by an amount not to exceed $5,000,000 (the “CapEx Pull-Forward Amount”). The actual CapEx Pull-Forward Amount in respect of any such litigation is equal to or greater than $5,000,000Fiscal Year shall reduce, on a dollar-for-dollar basis, the Borrower shall deliver amount of Capital Expenditures that would have been permitted to the Agent prior to the payment thereof, a statement that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso be made in the definition of “Extraordinary Receipts”) after making immediately succeeding Fiscal Year (provided that Holdings and its Subsidiaries may apply the CapEx Pull-Forward Amount in such payment, certified by the Chief Financial Officer of the Parentimmediately succeeding Fiscal Year).

Maximum Capital Expenditures. Make or commit to make, or allow any of Borrower and its Subsidiaries to on a consolidated basis shall not make or commit to make, Capital Expenditures exceeding, during the following periods that exceed in the aggregate the amounts set forth opposite each of such periods: Period Maximum Capital Expenditures per Period ------ --------------------------------------- The 12-month period ending December 31, 2004 $13,650,000 The 12-month period ending December 31, 2005 $14,332,500 The 12-month period ending December 31, 2006 $15,049,125 The 12-month period ending December 31, 2007 $15,801,581. The 12-month period ending December 31, 2008 $16,591,660 The 12-month period ending December 31, 2009 $17,421,243 provided, however, (i) so long as no Event of Default has occurred and is continuing, Borrower may make Capital Expenditures in an amount equal to $6,000,000 at Borrower's operations located in Fresno, California and Turlock, California and such amounts shall not be included in the calculation of Capital Expenditures for the 24-month period ending December 31, 2005; (ii) so long as no Event of Default has occurred and is continuing, Borrower may make Capital Expenditures in an amount up to $5,000,000 in each Fiscal Year until the Commitment Termination Date, for purposes of upgrading Borrower's technology or information systems at its plants, and such amounts shall not be included in the greater calculation of Capital Expenditures, (iii) to the extent any component of the purchase price of any Permitted Acquisition constitutes Capital Expenditures, such amounts shall not be included in the calculation of Capital Expenditures, and (iv) the amount of permitted Capital Expenditures referenced above will be increased in any period by the positive amount equal to the lesser of (A) EBITDA $2,000,000, and (B) the amount (if any), equal to the difference obtained by taking the Capital Expenditures limit specified above for the immediately prior period minus the actual amount of any Capital Expenditures expended during such Fiscal Yearprior period (the "Carry Over Amount"), less the sum of (I) cash interest expense for such Fiscal Year, plus (II) amounts paid under Section 2.03 and all principal payments under the GECC Capital Lease and the NTFC Capital Lease (a) during Fiscal Year 2002 (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or the applicable Fiscal Year thereafter (for purposes of calculating the maximum Capital Expenditures for Fiscal Year 2004 or the applicable succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For purposes of calculating maximum Capital Expendituresmeasuring compliance herewith, the amount calculated in item (II) above Carry Over Amount shall be deemed not to have exceeded $20,000,000 for Fiscal Year 2004 and shall be deemed not to have exceeded $30,000,000 for Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall be measured at the end of each Fiscal Year, commencing with Fiscal Year 2003. To the extent the Borrower’s actual last amount spent on Capital Expenditures for any Fiscal Year are less than the maximum Capital Expenditures for such Fiscal Year computed as aforesaid, the Borrower may increase Capital Expenditures for the subsequent Fiscal Year by an amount equal to the amount by which such maximum Capital Expenditures exceed such actual Capital Expenditures, but not by an amount which exceeds $5,000,000. For the purposes of this Section 5.02(q)(i) only, Capital Expenditures shall not include the Contingent Payments and any payment made in respect of that certain litigation arising from or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, that, to the extent that payment made in respect of such litigation is equal to or greater than $5,000,000, the Borrower shall deliver to the Agent prior to the payment thereof, a statement that the Borrower will have not less than $11,500,000 in cash and Cash Equivalents (excluding any insurance proceeds deposited with the Collateral Agent as described in clause (C) of the proviso in the definition of “Extraordinary Receipts”) after making such payment, certified by the Chief Financial Officer of the Parentsucceeding year.