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 makeThe Parent and the Borrower will, or allow any of its Subsidiaries to and will cause each Consolidated Subsidiary to, not make or commit to make, Capital Expenditures exceedingon a consolidated basis that exceed $30,000,000 in any fiscal year (the “Base Capital Expenditure Amount”). Notwithstanding anything to the contrary, in the Base Capital Expenditure Amount shall be increased by the following amounts: (i) to the extent that 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 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 made by the applicable Fiscal Year thereafter (for purposes of calculating Parent and its Consolidated Subsidiaries in any fiscal year is less than the maximum Base 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 ExpendituresExpenditure Amount, the amount calculated of such difference may be carried forward and used to make Capital Expenditures in item succeeding fiscal years, provided that in any fiscal year, the amount permitted to be applied to make Capital Expenditures pursuant to this clause (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)(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 in no event exceed an amount equal to 75% of the amount by which unused portion of the Base Capital Expenditure Amount for such maximum fiscal year (without giving effect to any prior adjustments), (ii) if no Default or Event of Default has occurred and is continuing, or would result after giving effect thereto, the Parent and its Consolidated Subsidiaries may make additional 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 the amount of such litigation 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 Capital Expenditures pursuant to this clause (ii) shall in no event exceed an amount equal to or greater than $5,000,00025% of the Base Capital Expenditure Amount (without giving effect to any prior adjustments) and (iii) the Base Capital Expenditure Amount shall exclude any Capital Expenditures that are funded with the Available Credits; provided that, at the time of such Capital Expenditures, the Borrower shall deliver to a certificate of a Financial Officer stating the Agent prior to portion of Capital Expenditures that is being made from the payment thereofAvailable Credit, and setting forth 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) calculation of the proviso in the definition of “Extraordinary Receipts”) Available Credit immediately before and immediately after making such payment, certified by the Chief Financial Officer of the ParentCapital Expenditures.

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; 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 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 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 or commit to Not make, or allow permit any of its Subsidiaries to make or commit to make, any Capital Expenditures exceeding, in that would cause the aggregate of all Capital Expenditures made by the Borrower and its Subsidiaries in any period set forth below to exceed the amount set forth below for each such period: Amount per annum Fiscal Year until the Termination DateEnding $200,000,000 December 31, the greater of 2007 $250,000,000 December 31, 2008 $175,000,000 December 31, 2009 $115,000,000 December 31, 2010 $100,000,000 December 31, 2011 $100,000,000 December 31, 2012 ; provided, however, that (Ai) 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) set forth 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 shall be increased by the aggregate amount of net cash proceeds received by the Borrower in such Fiscal Year from the issuance of equity of the Borrower or of the MLP (to the extent, in the case of equity issuance by the MLP, such proceeds are less than contributed to, or otherwise used or received by, the maximum Capital Expenditures Borrower or any Restricted Subsidiary) and (ii) if, for any Fiscal Second Amended and Restated Alliance Credit Agreement Year set forth above, the amount specified above for such Fiscal Year computed as aforesaidexceeds the aggregate amount of Capital Expenditures made by the Borrower and its Subsidiaries during such Fiscal Year (the amount of such excess being the “Excess Amount”), the Borrower may increase and its Subsidiaries shall be entitled to make additional Capital Expenditures for in the subsequent immediately succeeding Fiscal Year by in an amount equal to such Excess Amount, in which case the amount by which such maximum Capital Expenditures exceed made by the Borrower and its Subsidiaries in 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, immediately succeeding year shall first be applied to such Excess Amount before such Capital Expenditures shall not include reduce and be applied against the Contingent Payments and any payment made in respect amount 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 Capital Expenditures otherwise permitted during 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 year.

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 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.

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 make, or allow any of its Borrowers and their Domestic Subsidiaries to on a consolidated basis shall not make or commit to make, Capital Expenditures exceeding, (other than Non-Budgeted Capital Expenditures) during the following periods (but only with respect to the periods ending after the Amendment Effective Date) that exceed in the aggregate for the amounts set forth opposite each of such periods: For the Fiscal Year until Quarter Ended: Maximum Amount: December 31, 2003 $ 10,513,253 March 31, 2004 $ 9,450,000 June 30, 2004 $ 12,931,862 September 30, 2004 $ 13,080,054 December 31, 2004 $ 11,343,415 March 31, 2005 $ 11,326,070 June 30, 2005 $ 11,367,600 September 30, 2005 $ 11,855,752 ; provided, however, that 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 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 not including Non-Budgeted Capital Expenditures, ) actually made by the amount calculated in item (II) Borrowers and their Domestic Subsidiaries during any period set forth 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 is less than the maximum amount that is permitted to be made during such period (including, subject to the final sentence of this paragraph, periods prior to the Amendment Effective Date (but using the numbers set forth above for such prior periods with regard to Capital Expenditures for made by the Borrowers and their Domestic Subsidiaries during such Fiscal Year computed as aforesaidperiods), then the Borrower unused portion thereof may increase be carried forward to subsequent periods and additional Capital Expenditures for the subsequent Fiscal Year by an (not including Non-Budgeted Capital Expenditures) may be made with such carried forward amount equal at any time prior to the amount by which such maximum Capital Expenditures exceed such actual Commitment Termination Date. In addition to the foregoing, Borrowers and their Domestic Subsidiaries may make Non-Budgeted 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 In addition to the use of rights of way granted to the Borrower by Mississippi Power Company; provided, thatforegoing, to the extent that payment made ordered by the Bankruptcy Court, the Borrowers are permitted to make cash payments in an amount not to exceed $33,000,000 in the aggregate in respect of such litigation is equal to or greater than $5,000,000, Capital Expenditures which were incurred by the Borrower shall deliver to the Agent Borrowers prior to the payment thereofPetition Date. Notwithstanding the foregoing, in no event shall the Borrowers or their Domestic Subsidiaries be entitled to carry-forward unused permitted amounts from periods prior to the Amendment Effective Date unless and until Mirant delivers to Agent 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) detailed description of the proviso in amount of Capital Expenditures (other than Non-Budgeted Capital Expenditures) actually made by Mirant and its Domestic Subsidiaries and the definition of “Extraordinary Receipts”) after making such payment, certified by MAG Entities during the Chief Financial Officer of periods prior to the ParentAmendment Effective Date.

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”): Period of Fiscal Year Ending Capital Expenditure 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, 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 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 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 to be greater than the amount set forth opposite such fiscal year: Fiscal Year 2003. To the extent the Borrower’s actual Maximum Capital Expenditures for any Fiscal Year are less than the maximum 2021 $360,000,000 2022 $85,000,000 2023 $150,000,000 2024 $95,000,000 2025 $95,000,000 2026 $95,000,000 ; provided, that (i) anyBorrower may make Capital Expenditures 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 for such fiscal year (other than any Capital Expenditures made in such fiscal year using Specified Equity Proceeds to the extent 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); provided, further, that Borrower may make Capital Expenditures using Specified Equity Proceeds and 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 count towards the Contingent Payments and any payment made in respect of that certain litigation arising from cap set forth above for fiscal year 2022 or in relating in any way to the use of rights of way granted to the Borrower by Mississippi Power Company; providedfiscal year 2023, thatas applicable, 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.so long as