Common use of Consolidated Capital Expenditures Clause in Contracts

Consolidated Capital Expenditures. Company shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures, in any Fiscal Year ending on a date set forth below (or any four quarter period ending on any date set forth below on or prior to December 31, 1998), in an aggregate amount in excess of the corresponding amount (the "Maximum Consolidated Capital Expenditures Amount") set forth below opposite such date; provided that the Maximum Consolidated Capital Expenditures Amount for any Fiscal Year, commencing with Fiscal Year 1999, shall be increased by an amount equal to the excess, if any, (but in no event more than 50% of the Maximum Consolidated Capital Expenditures Amount for the previous Fiscal Year (or, in the case of Fiscal Year 1999, for the four Fiscal Quarter period ending as of December 31, 1998) of the Maximum Consolidated Capital Expenditures Amount (as adjusted in accordance with this proviso) over the actual amount of Consolidated Capital Expenditure for the previous Fiscal Year (or, in the case of Fiscal Year 1999, for the four Fiscal Quarter period ending as of December 31, 1998): ============================================== Period Maximum Ending Consolidated Capital Expenditures ============================================== March 31, 1998 7,500,000 ---------------------------------------------- June 30, 1998 8,250,000 ---------------------------------------------- September 30, 1998 7,250,000 ---------------------------------------------- December 31, 1998 7,000,000 ---------------------------------------------- December 31, 1999 10,000,000 ---------------------------------------------- December 31, 2000 10,500,000 ---------------------------------------------- December 31, 2001 10,500,000 ---------------------------------------------- December 31, 2002 11,000,000 ============================================== Notwithstanding the foregoing, the Company and its Subsidiaries may fund Consolidated Capital Expenditures in excess of the foregoing limits from any proceeds of an additional issuance of Company common stock in a private issuance after the Closing Date. REVOLVING LOAN CREDIT AGREEMENT EXECUTION 126 134 7.9 Sales and Lease-Backs. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease, whether an Operating Lease or a Capital Lease, of any property (whether real, personal or mixed), whether now owned or hereafter acquired, (i) which Company or any of its Subsidiaries has sold or transferred or is to sell or transfer to any other Person (other than Company or any of its Subsidiaries) or (ii) which Company or any of its Subsidiaries intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by Company or any of its Subsidiaries to any Person (other than Company or any of its Subsidiaries) in connection with such lease.

Consolidated Capital Expenditures. Company shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures, in any Fiscal Year ending on a date set forth below (or any four quarter period ending on any date set forth below on or prior to December 31, 1998)indicated below, in an aggregate amount in excess of the corresponding amount (the "Maximum Consolidated Capital Expenditures AmountMAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") set forth below opposite such dateFiscal Year; provided that the Maximum Consolidated Capital Expenditures Amount for any Fiscal Year, commencing with Fiscal Year 1999, shall be increased by an amount equal to the excessup to, if any, (but in no event more greater than 50(i) the lesser of (A) the unused portion of the Maximum Consolidated Capital Expenditures Amount for the immediately preceding Fiscal Year as set forth in the table below for each Fiscal Year and (B) 30% of the Maximum Consolidated Capital Expenditures Amount for such immediately preceding Fiscal Year; (ii) 30% of the Maximum Consolidated Capital Expenditures Amount for the previous immediately following Fiscal Year, as set forth in the table below, which amount described in this clause (ii) shall reduce the Maximum Consolidated Capital Expenditures Amount for the immediately following Fiscal Year; (iii) the aggregate amount (but in no event greater than $30,000,000 for any Fiscal Year) of Net Asset Sale Proceeds (other than insurance proceeds, condemnation awards and indemnity payments) received by Company and its Subsidiaries during such Fiscal Year to the extent such proceeds have been reinvested in new stores or the construction or remodeling of stores of Company and its Subsidiaries within 270 days of receipt in accordance with subsection 2.4B(iii)(a)(i); and (or, in iv) for the case of Fiscal Year 19991997 only, for $19,000,000; provided, however that the four Fiscal Quarter period ending as amount which may be added to the Maximum Consolidated Capital Expenditures Amount pursuant to clauses (i) and (ii) of December 31, 1998) the immediately preceding proviso shall not exceed 30% of the Maximum Consolidated Capital Expenditures Amount (as adjusted in accordance with this proviso) over the actual amount of Consolidated Capital Expenditure for the previous such Fiscal Year: MAXIMUM CONSOLIDATED FISCAL YEAR CAPITAL EXPENDITURES Fiscal Year (or, in the case of 1997 $75,000,000 Fiscal Year 19991998 65,000,000 Fiscal Year 1999 70,000,000 Fiscal Year 2000 70,000,000 Fiscal Year 2001 70,000,000 Fiscal Year 2002 75,000,000 Fiscal Year 2003 80,000,000 Fiscal Year 2004 85,000,000 January 2, for the four Fiscal Quarter period ending as of December 312005 to May 1, 1998): ============================================== Period Maximum Ending Consolidated Capital Expenditures ============================================== March 31, 1998 7,500,000 ---------------------------------------------- June 30, 1998 8,250,000 ---------------------------------------------- September 30, 1998 7,250,000 ---------------------------------------------- December 31, 1998 7,000,000 ---------------------------------------------- December 31, 1999 10,000,000 ---------------------------------------------- December 31, 2000 10,500,000 ---------------------------------------------- December 31, 2001 10,500,000 ---------------------------------------------- December 31, 2002 11,000,000 ============================================== Notwithstanding the foregoing, the Company and its Subsidiaries may fund Consolidated Capital Expenditures in excess of the foregoing limits from any proceeds of an additional issuance of Company common stock in a private issuance after the Closing Date. REVOLVING LOAN CREDIT AGREEMENT EXECUTION 126 134 7.9 Sales and Lease-Backs. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease, whether an Operating Lease or a Capital Lease, of any property (whether real, personal or mixed), whether now owned or hereafter acquired, (i) which Company or any of its Subsidiaries has sold or transferred or is to sell or transfer to any other Person (other than Company or any of its Subsidiaries) or (ii) which Company or any of its Subsidiaries intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by Company or any of its Subsidiaries to any Person (other than Company or any of its Subsidiaries) in connection with such lease.2005 45,000,000

Consolidated Capital Expenditures. Company shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures, in any Fiscal Year ending on a date set forth below (or any four quarter period ending on any date set forth below on or prior to December 31, 1998), in an aggregate amount in excess of the corresponding amount (the "Maximum Consolidated Capital Expenditures AmountMAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") set forth below opposite such date; provided that the Maximum Consolidated Capital Expenditures Amount for any Fiscal Year, commencing with Fiscal Year 1999, shall be increased by an amount equal to the excess, if any, (but in no event more than 50% of the Maximum Consolidated Capital Expenditures Amount for the previous Fiscal Year (or, in the case of Fiscal Year 1999, for the four Fiscal Quarter period ending as of December 31, 1998) of the Maximum Consolidated Capital Expenditures Amount (as adjusted in accordance with this proviso) over the actual amount of Consolidated Capital Expenditure for the previous Fiscal Year (or, in the case of Fiscal Year 1999, for the four Fiscal Quarter period ending as of December 31, 1998): ============================== ============================= Period Maximum Ending Consolidated Capital Expenditures ================PERIOD MAXIMUM CONSOLIDATED CAPITAL ENDING EXPENDITURES ------------------------------ ----------------------------- September 30, 1998 $8,000,000 ------------------------------ ----------------------------- December 31, 1998 9,000,000 ------------------------------ ----------------------------- December 31, 1999 14,000,000 ------------------------------ ----------------------------- December 31, 2000 15,000,000 ------------------------------ ----------------------------- December 31, 2001 15,000,000 ------------------------------ ----------------------------- December 31, 2002 15,000,000 ============================== March 31, 1998 7,500,000 ---------------------------------------------- June 30, 1998 8,250,000 ---------------------------------------------- September 30, 1998 7,250,000 ---------------------------------------------- December 31, 1998 7,000,000 ---------------------------------------------- December 31, 1999 10,000,000 ---------------------------------------------- December 31, 2000 10,500,000 ---------------------------------------------- December 31, 2001 10,500,000 ---------------------------------------------- December 31, 2002 11,000,000 ============================================== Notwithstanding the foregoing, the Company and its Subsidiaries may fund Consolidated Capital Expenditures in excess of the foregoing limits from any proceeds of an additional issuance of Company common stock in a private issuance after the Closing Restatement Effective Date. REVOLVING LOAN CREDIT AGREEMENT EXECUTION 126 134 7.9 Sales and Lease-Backs. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease, whether an Operating Lease or a Capital Lease, of any property (whether real, personal or mixed), whether now owned or hereafter acquired, (i) which Company or any of its Subsidiaries has sold or transferred or is to sell or transfer to any other Person (other than Company or any of its Subsidiaries) or (ii) which Company or any of its Subsidiaries intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by Company or any of its Subsidiaries to any Person (other than Company or any of its Subsidiaries) in connection with such lease.

Consolidated Capital Expenditures. (i) Except as provided below, Company shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures, Expenditures in any Fiscal Year ending on a date set forth below (or any four quarter period ending on any date set forth below on or prior to December 31, 1998), specified portion thereof) in an aggregate amount in excess of the corresponding amount (the "Maximum Consolidated Capital Expenditures ----------------------------------------- Amount") set forth below opposite such dateFiscal Year (or such portion ------ thereof) as indicated below; provided provided, that (a) the Maximum Consolidated -------- Capital Expenditures Amount for any Fiscal Year, commencing with Fiscal Year 1999, shall be increased by an amount equal to the excess, if any, of (but in no event more than 50% of x) the Maximum Consolidated Capital Expenditures Amount for the previous Fiscal Year (orexcluding, in and without giving effect to, any increases thereto from any prior carryover of amounts pursuant to this clause for the case of previous Fiscal Year 1999, for the four Fiscal Quarter period ending (or specified portion thereof) but including any increases thereto as of December 31, 1998) a result of the Maximum Consolidated Capital Expenditures Amount application of the further proviso to this clause (as adjusted in accordance with this provisoi)) over (y) the actual amount of Consolidated Capital Expenditure Expenditures for the such previous Fiscal Year (or, or specified portion thereof) (the amount of such increase described in this proviso being the case "Carryforward" from such preceding Fiscal Year) and (b) ------------ Capital Expenditures made by the Malaysian Subsidiary prior to the Restatement Effective Date shall not be included for purposes of calculating the Maximum Consolidated Capital Expenditures Amount: Fiscal Year 1999, for the four Fiscal Quarter period ending as of December 31, 1998): Maximum Consolidated (or Portion Thereof) Capital Expenditures Amount =============================================================================== Period Maximum Ending Consolidated Capital Expenditures Fiscal Year 2000 $110,000,000 ------------------------------------------------------------------------------- 137 =============================================================================== March 31, 1998 7,500,000 ---------------------------------------------- June 30, 1998 8,250,000 ---------------------------------------------- September 30, 1998 7,250,000 ---------------------------------------------- December 31, 1998 7,000,000 ---------------------------------------------- December 31, 1999 10,000,000 ---------------------------------------------- December 31, 2000 10,500,000 ---------------------------------------------- December 31, 2001 10,500,000 ---------------------------------------------- December 31, 2002 11,000,000 Fiscal Year Maximum Consolidated (or Portion Thereof) Capital Expenditures Amount =============================================================================== Notwithstanding the foregoingFiscal Year 2001 $110,000,000 ------------------------------------------------------------------------------- Fiscal Year 2002 $135,000,000 ------------------------------------------------------------------------------- Fiscal Year 2003 $145,000,000 ------------------------------------------------------------------------------- Fiscal Year 2004 $165,000,000 ------------------------------------------------------------------------------- Fiscal Year 2005 and thereafter $185,000,000 =============================================================================== ; provided further that, the Company and its Subsidiaries may fund Maximum Consolidated Capital Expenditures in excess of the foregoing limits from any proceeds of an additional issuance of Company common stock in Expenditure -------- ------- Amount for each period during or after a private issuance after the Closing Date. REVOLVING LOAN CREDIT AGREEMENT EXECUTION 126 134 7.9 Sales and Lease-Backs. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease, whether an Operating Lease or a Capital Lease, of any property (whether real, personal or mixed), whether now owned or hereafter acquired, (i) which Company or any of its Subsidiaries has sold or transferred or is to sell or transfer to any other Person Permitted Acquisition (other than Company or any the Purchase) occurs shall be increased by an amount equal to the Acquired Capital Expenditures Percentage of its Subsidiaries) or (ii) which Company or any of its Subsidiaries intends to use such Maximum Capital Expenditure Amount for substantially the same purpose as any other property which has been or is to be sold or transferred by Company or any of its Subsidiaries to any Person (other than Company or any of its Subsidiaries) in connection with such leaseperiod.

Consolidated Capital Expenditures. Company shall not, and The Borrower shall not permit its Subsidiaries to, make or incur Consolidated the --------------------------------- aggregate amount of Maintenance Capital Expenditures, in any Fiscal Year ending on a date Improvement Capital Expenditures and New Site Capital Expenditures for itself and its Subsidiaries during the periods set forth below (or any four quarter period ending on any date set forth below on or prior to December 31, 1998), in an aggregate amount in excess of be greater than the corresponding amount (the "Maximum Consolidated Capital Expenditures Amount") set forth below amounts opposite such date; provided that the Maximum Consolidated Capital Expenditures Amount for any Fiscal Year, commencing with Fiscal Year 1999, shall be increased by an amount equal to the excess, if any, (but in no event more than 50% of the Maximum Consolidated Capital Expenditures Amount for the previous Fiscal Year (or, in the case of Fiscal Year 1999, for the four Fiscal Quarter period ending as of December 31, 1998) of the Maximum Consolidated Capital Expenditures Amount (as adjusted in accordance with this proviso) over the actual amount of Consolidated Capital Expenditure for the previous Fiscal Year (or, in the case of Fiscal Year 1999, for the four Fiscal Quarter period ending as of December 31, 1998): periods: ============================================================================ Period Maximum Ending Consolidated Capital Expenditures PERIOD AMOUNT AMOUNT AMOUNT ------ ------ ------ ------ ============================================================================ March 31Maintenance Improvement New Site ---------------------------------------------------------------------------- Closing Date $4,300,000 $5,200,000 $ 8,700,000 through Fiscal Year end 1997 ---------------------------------------------------------------------------- Fiscal year 1998 $4,300,000 $3,600,000 $25,600,000 ---------------------------------------------------------------------------- Fiscal year 1999 $4,300,000 $1,300,000 $11,600,000 ---------------------------------------------------------------------------- Fiscal year 2000 $4,300,000 $0 $3,900,000 ---------------------------------------------------------------------------- Fiscal year 2001 $4,300,000 $0 $1,300,000 ---------------------------------------------------------------------------- Fiscal Years Thereafter $4,300,000 $0 $1,300,000 ---------------------------------------------------------------------------- Capital Expenditures not spent in a given year may be carried over and added to the applicable basket only for the immediately following year (after first utilizing the amount of Capital Expenditures permitted for such fiscal year), 1998 7,500,000 ---------------------------------------------- June 30each such carry over not to exceed one year. The unused portion of Maintenance Capital Expenditures for any fiscal year may be added to the aggregate amount of permitted Improvement Capital Expenditures or New Site Capital Expenditures for the same year, 1998 8,250,000 ---------------------------------------------- September 30but not for any subsequent year. In addition, 1998 7,250,000 ---------------------------------------------- December 31, 1998 7,000,000 ---------------------------------------------- December 31, 1999 10,000,000 ---------------------------------------------- December 31, 2000 10,500,000 ---------------------------------------------- December 31, 2001 10,500,000 ---------------------------------------------- December 31, 2002 11,000,000 ============================================== Notwithstanding in the foregoingevent the Borrower or any Subsidiary disposes of any assets in accordance with (S)12.5.2 hereof, the Company and its Subsidiaries may fund Consolidated amount of the cash proceeds received by the Borrower or such Subsidiary from such disposition shall increase the amount of the permitted Capital Expenditures as set forth in excess of (S)12.5.2 for the foregoing limits from any proceeds of an additional issuance of Company common stock twelve month period immediately following the date in a private issuance after the Closing Date. REVOLVING LOAN CREDIT AGREEMENT EXECUTION 126 134 7.9 Sales and Lease-Backs. Company shall notwhich such disposition occurred, and shall not permit any of its Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease, whether an Operating Lease or a Capital Lease, of any property (whether real, personal or mixed), whether now owned or hereafter acquired, (i) which Company or any of its Subsidiaries has sold or transferred or is to sell or transfer to any other Person (other than Company or any of its Subsidiaries) or (ii) which Company or any of its Subsidiaries intends to use for substantially the same purpose as any other property which has been or is be deemed to be sold or transferred by Company or any the first portion of its Subsidiaries to any Person (other than Company or any of its Subsidiaries) in connection with such leaseCapital Expenditures utilized for such period.

Consolidated Capital Expenditures. The Company shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures, Expenditures in any Fiscal Year ending on a date set forth below (or any four quarter period ending on any date set forth below on or prior to December 31, 1998), specified portion thereof) in an aggregate amount in excess of the corresponding amount (the "Maximum Consolidated Capital Expenditures Amount") set forth below opposite such dateFiscal Year (or such portion thereof) as indicated below; provided provided, that the Maximum Consolidated Capital Expenditures Amount for any Fiscal Year, commencing with Fiscal Year 1999, shall be increased by an amount equal to 50% of the excess, if any, of (but in no event more than 50% of the Maximum Consolidated Capital Expenditures Amount for the previous Fiscal Year (or, in the case of Fiscal Year 1999, for the four Fiscal Quarter period ending as of December 31, 1998i) of the Maximum Consolidated Capital Expenditures Amount (as adjusted in accordance with excluding, and without giving effect to, any increases thereto from any prior carry over of amounts pursuant to this provisosubsection) for the previous Fiscal Year (or specified portion thereof) over (ii) the actual amount of Consolidated Capital Expenditure Expenditures for the such previous Fiscal Year (or, in the case of or specified portion thereof): ----------------------------------------------------------- Fiscal Year 1999, for the four Fiscal Quarter period ending as of December 31, 1998): ============================================== Period Maximum Ending Consolidated (or Portion Thereof) Capital Expenditures ============================================== March 31, Amount ----------------------------------------------------------- 1998 7,500,000 ---------------------------------------------- June 30, 1998 8,250,000 ---------------------------------------------- September 30, 1998 7,250,000 ---------------------------------------------- December 31, 1998 $15,000,000 ----------------------------------------------------------- 1999 $13,000,000 ----------------------------------------------------------- 2000 $7,000,000 ---------------------------------------------- December 31, 1999 10,000,000 ---------------------------------------------- December 31, 2000 10,500,000 ---------------------------------------------- December 31, ----------------------------------------------------------- ----------------------------------------------------------- 113 ----------------------------------------------------------- 2001 10,500,000 ---------------------------------------------- December 31, 2002 11,000,000 ============================================== Notwithstanding and thereafter $6,000,000 ----------------------------------------------------------- In addition to the foregoingforegoing amounts, the Company and its Subsidiaries may fund make or incur Consolidated Capital Expenditures in excess of connection with (i) the foregoing limits from any proceeds of State Contract for the Northern Kentucky Emissions Testing Program, BP010138, awarded in June 1998, in an additional issuance of Company common stock in a private issuance after aggregate amount not to exceed $5,700,000 (including, without limitation, all amounts incurred or expended prior to the Closing Date. REVOLVING LOAN CREDIT AGREEMENT EXECUTION 126 134 7.9 Sales and Lease-Backs. Company ), which amounts shall notnot be subject to the foregoing proviso, and shall not permit any of its Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease, whether an Operating Lease or a Capital Lease, of any property (whether real, personal or mixed), whether now owned or hereafter acquired, (i) which Company or any of its Subsidiaries has sold or transferred or is to sell or transfer to any other Person (other than Company or any of its Subsidiaries) or (ii) the build-out of Permitted Testing Center Assets, commencing in Fiscal Year 1999, in an aggregate amount not to exceed the sum of (x) $25,000,000 plus (y) if, and so long as the Leverage Ratio is less than 3.0:1.0 after giving effect thereto, $10,000,000, of which sum not more than $15,000,000 may be made or incurred in any Fiscal Year, and which amounts shall not be subject to the foregoing proviso. Notwithstanding anything to the contrary contained herein, the Company and its Domestic Subsidiaries shall not make or any incur Consolidated Capital Expenditures in property, plant or equipment which is not located in the United States of its Subsidiaries intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by Company or any of its Subsidiaries to any Person (other than Company or any of its Subsidiaries) in connection with such leaseAmerica.

Consolidated Capital Expenditures. Company shall notWith respect to each fiscal year of the Borrowers set forth in the table below, the Borrowers will not permit (a) Consolidated Capital Expenditures (other than Capital Expenditures incurred in such fiscal year in connection with the acquisition and equipping of, and shall not permit its Subsidiaries improvements to, make or incur the Borrowers' facilities in Mexico, Missouri) to exceed the amount set forth in the table below opposite such fiscal year in the column headed "Maximum Consolidated Capital Expenditures, " or (b) Consolidated New Cafe Capital Expenditures to exceed the amount set forth in the table below opposite such fiscal year in the column headed "Maximum Consolidated New Cafe Capital Expenditures"; provided that with regard to any Fiscal Year such fiscal year (other than the fiscal year ending on a date set forth below (or any four quarter period ending on any date set forth below on or prior to December 3126, 1998), if Consolidated Adjusted Cash Flow for such fiscal year is less than that amount set forth in an aggregate amount the table below opposite such fiscal year in excess of the corresponding amount (the column headed "Consolidated Adjusted Cash Flow," Maximum Consolidated Capital Expenditures Amount") and Maximum Consolidated New Cafe Capital Expenditures permitted hereunder for such fiscal year shall be reduced by the difference between the amount set forth below opposite for such date; provided that the Maximum fiscal year in such column headed " Consolidated Capital Expenditures Amount for any Fiscal Year, commencing with Fiscal Year 1999, shall be increased by an amount equal to the excess, if any, (but in no event more than 50% of the Maximum Consolidated Capital Expenditures Amount for the previous Fiscal Year (or, in the case of Fiscal Year 1999, for the four Fiscal Quarter period ending as of December 31, 1998) of the Maximum Consolidated Capital Expenditures Amount (as adjusted in accordance with this proviso) over Adjusted Cash Flow" and the actual amount of Consolidated Capital Expenditure Adjusted Cash Flow for the previous Fiscal Year (or, in the case of Fiscal Year 1999, for the four Fiscal Quarter period ending as of December 31, 1998): ============================================== Period Maximum Ending Consolidated Capital Expenditures ============================================== March 31, 1998 7,500,000 ---------------------------------------------- June 30, 1998 8,250,000 ---------------------------------------------- September 30, 1998 7,250,000 ---------------------------------------------- December 31, 1998 7,000,000 ---------------------------------------------- December 31, 1999 10,000,000 ---------------------------------------------- December 31, 2000 10,500,000 ---------------------------------------------- December 31, 2001 10,500,000 ---------------------------------------------- December 31, 2002 11,000,000 ============================================== Notwithstanding the foregoing, the Company and its Subsidiaries may fund Consolidated Capital Expenditures in excess of the foregoing limits from any proceeds of an additional issuance of Company common stock in such fiscal year. ---------------------------------------------------------------- MAXIMUM MAXIMUM CONSOLIDATED CONSOLIDATED NEW CONSOLIDATED FISCAL YEAR CAPITAL CAFE CAPITAL ADJUSTED CASH ENDING EXPENDITURES EXPENDITURES FLOW ---------------------------------------------------------------- 12/28/96 $14,000,000 $4,000,000 $15,300,000 ---------------------------------------------------------------- 12/27/97 $20,000,000 $9,000,000 $22,000,000 ---------------------------------------------------------------- 12/26/98 $26,000,000 $16,000,000 n/a private issuance after the Closing Date. REVOLVING LOAN CREDIT AGREEMENT EXECUTION 126 134 7.9 Sales and Lease-Backs. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease, whether an Operating Lease or a Capital Lease, of any property (whether real, personal or mixed), whether now owned or hereafter acquired, (i) which Company or any of its Subsidiaries has sold or transferred or is to sell or transfer to any other Person (other than Company or any of its Subsidiaries) or (ii) which Company or any of its Subsidiaries intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by Company or any of its Subsidiaries to any Person (other than Company or any of its Subsidiaries) in connection with such lease.----------------------------------------------------------------

Consolidated Capital Expenditures. Company The Borrowers shall not, and shall not permit its their Restricted Subsidiaries to, make or incur Consolidated Capital Expenditures, in any Fiscal Year ending on a date set forth below (or any four quarter period ending on any date set forth below on or prior to December 31, 1998)indicated below, in an aggregate amount in excess of the corresponding amount (the "Maximum Consolidated Capital Expenditures AmountMAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") set forth below opposite such dateperiod; provided PROVIDED that any such amount referred to below, if not expended in the period in which it is permitted, may be carried over for expenditure in (but only in) the next succeeding such period; PROVIDED FURTHER that the Maximum Consolidated Capital Expenditures Amount for any Fiscal Yearperiod beginning January 1, commencing with 2005 or later and consisting of fewer than a full Fiscal Year 1999, shall be increased by an amount equal to the excess, if any, (but in no event more than 50% of the Maximum Consolidated Capital Expenditures Amount pro rated for the previous Fiscal Year (or, number of days in the case of Fiscal Year 1999, for the four Fiscal Quarter period ending as of December 31, 1998) of the Maximum Consolidated Capital Expenditures Amount (as adjusted in accordance with this proviso) over the actual amount of Consolidated Capital Expenditure for the previous Fiscal Year (or, in the case of Fiscal Year 1999, for the four Fiscal Quarter period ending as of December 31, 1998): such period: ================================================================ Period Maximum Ending Consolidated Capital Expenditures FOUR FISCAL QUARTER MAXIMUM PERIOD CONSOLIDATED CAPITAL EXPENDITURES AMOUNT ================================================================ March 31The Fiscal Year beginning January 1, 1998 7,500,000 ---------------------------------------------- June 30, 1998 8,250,000 ---------------------------------------------- September 30, 1998 7,250,000 ---------------------------------------------- 2005 $80,000,000 and ending December 31, 1998 7,000,000 ---------------------------------------------- 2005 ---------------------------------------------------------------- Each subsequent Fiscal Year (or portion $50,000,000 thereof) through the Final Completion Date ---------------------------------------------------------------- The period beginning on the day following the $60,000,000 Final Completion Date and ending on December 3131 of that calendar year, 1999 10,000,000 ---------------------------------------------- December 31and each subsequent Fiscal Year (or, 2000 10,500,000 ---------------------------------------------- December 31in the case of the Fiscal Year in which the Maturity Date occurs, 2001 10,500,000 ---------------------------------------------- December 31, 2002 11,000,000 portion thereof) through the Maturity Date ============================================== Notwithstanding the foregoing, the Company and its Subsidiaries may fund Consolidated Capital Expenditures in excess of the foregoing limits from any proceeds of an additional issuance of Company common stock in a private issuance after the Closing Date. REVOLVING LOAN CREDIT AGREEMENT EXECUTION 126 134 7.9 Sales and Lease-Backs. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease, whether an Operating Lease or a Capital Lease, of any property (whether real, personal or mixed), whether now owned or hereafter acquired, (i) which Company or any of its Subsidiaries has sold or transferred or is to sell or transfer to any other Person (other than Company or any of its Subsidiaries) or (ii) which Company or any of its Subsidiaries intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by Company or any of its Subsidiaries to any Person (other than Company or any of its Subsidiaries) in connection with such lease.===================

Consolidated Capital Expenditures. (i) Except as provided below, Company shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures, Expenditures in any Fiscal Year ending on a date set forth below (or any four quarter period ending on any date set forth below on or prior to December 31, 1998), specified portion thereof) in an aggregate amount in excess of the corresponding amount (the "Maximum Consolidated Capital Expenditures ----------------------------------------- Amount") set forth below opposite such dateFiscal Year (or such portion ------ thereof) as indicated below; provided provided, that the Maximum Consolidated -------- Capital Expenditures Amount for any Fiscal Year, commencing with Fiscal Year 1999, shall be increased by an amount equal to the excess, if any, of (but in no event more than 50% of the Maximum Consolidated Capital Expenditures Amount for the previous Fiscal Year (or, in the case of Fiscal Year 1999, for the four Fiscal Quarter period ending as of December 31, 1998x) of the Maximum Consolidated Capital Expenditures Amount (as adjusted in accordance with excluding, and without giving effect to, any increases thereto from any prior carry over of amounts pursuant to this provisoclause for the previous Fiscal Year (or specified portion thereof)) over (y) the actual amount of Consolidated Capital Expenditure Expenditures for the such previous Fiscal Year (or, or specified portion thereof) (the amount of such increase described in this proviso being the case of "Carryforward" ------------ from such preceding Fiscal Year): Fiscal Year 1999, for the four Fiscal Quarter period ending as of December 31, 1998): Maximum Consolidated (or Portion Thereof) Capital Expenditures Amount ============================================================== Period Maximum Ending Consolidated Capital Expenditures Fiscal Year 2000 $7,000,000 -------------------------------------------------------------- Fiscal Year 2001 $7,000,000 -------------------------------------------------------------- Fiscal Year 2002 $7,000,000 -------------------------------------------------------------- Fiscal Year 2003 and thereafter $8,000,000 ============================================================== March 31, 1998 7,500,000 ---------------------------------------------- June 30, 1998 8,250,000 ---------------------------------------------- September 30, 1998 7,250,000 ---------------------------------------------- December 31, 1998 7,000,000 ---------------------------------------------- December 31, 1999 10,000,000 ---------------------------------------------- December 31, 2000 10,500,000 ---------------------------------------------- December 31, 2001 10,500,000 ---------------------------------------------- December 31, 2002 11,000,000 ============================================== Notwithstanding the foregoing; provided that, the Company and its Subsidiaries may fund Maximum Consolidated Capital Expenditures in excess Expenditure Amount for -------- each period during or after a Permitted Acquisition occurs shall be increased by an amount equal to the greatest of the foregoing limits from any proceeds of an additional issuance of Company common stock in a private issuance after the Closing Date. REVOLVING LOAN CREDIT AGREEMENT EXECUTION 126 134 7.9 Sales and Lease-Backs. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety (x) historical capital expenditures made with respect to any lease, whether an Operating Lease the person or a Capital Lease, assets acquired (the "Acquired Business") during the twelve-month period most recently ended prior to consummation of any property (whether real, personal or mixed), whether now owned or hereafter acquiredthe related Permitted Acquisition, (iy) which Company the average historical capital expenditures made with respect to the Acquired Business for the last two fiscal years applicable to such person or any assets ending prior to consummation of its Subsidiaries has sold or transferred or is the related Permitted Acquisition and (z) 25% of the expenditures made with respect to sell or transfer research and development for the Acquired Business for the twelve-month period most recently ended prior to any other Person (other than Company or any consummation of its Subsidiaries) or (ii) which Company or any of its Subsidiaries intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by Company or any of its Subsidiaries to any Person (other than Company or any of its Subsidiaries) in connection with such leasePermitted Acquisition.

Consolidated Capital Expenditures. Company BCC shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures, in any Fiscal Year ending on a date set forth below (or any four quarter period ending on any date set forth below on or prior to December 31, 1998)indicated below, in an aggregate amount in excess of the corresponding amount (the "Maximum Consolidated Capital Expenditures AmountMAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") set forth below opposite such dateperiod; provided that the Maximum Consolidated Capital Expenditures Amount for any Fiscal Year, commencing with Fiscal Year 1999, such period shall be increased by an amount equal to (i) the excess, if any, of the Maximum Consolidated Capital Expenditures Amount for the previous period over the actual amount of Consolidated Capital Expenditures for such previous period and/or, (but ii) at Company's option, a portion of the amount of Maximum Consolidated Capital Expenditures Amount for the immediately succeeding period (which, to the extent of such increase shall reduce the amount of the Maximum Consolidated Capital Expenditure Amount for such succeeding period); provided that in no event more than shall (a) the amount of any increase to the Maximum Consolidated Capital Expenditures Amount pursuant to the foregoing clause (i) in any period exceed 50% of the Maximum Consolidated Capital Expenditures Amount for the previous Fiscal Year period and (or, b) the amount of any increase to the Maximum Consolidated Capital Expenditures Amount pursuant to the foregoing clause (ii) in the case of Fiscal Year 1999, for the four Fiscal Quarter any period ending as of December 31, 1998) exceed 50% of the Maximum Consolidated Capital Expenditures Amount (as adjusted in accordance with this proviso) over the actual amount of Consolidated Capital Expenditure for the previous Fiscal Year (or, in the case of Fiscal Year 1999, for the four Fiscal Quarter period ending as of December 31, 1998): immediately succeeding period. ================================================================================== Period Maximum Ending Consolidated Capital Expenditures FISCAL YEAR (OR OTHER MAXIMUM CONSOLIDATED SPECIFIED PERIOD) CAPITAL EXPENDITURES ================================================================================== March 31, ---------------------------------------------------------------------------------- 1998 7,500,000 ---------------------------------------------- June 30, 1998 8,250,000 ---------------------------------------------- September 30, 1998 7,250,000 ---------------------------------------------- December 31, 1998 7,000,000 ---------------------------------------------- December 31, $9,000,000 ---------------------------------------------------------------------------------- 1999 $9,000,000 ---------------------------------------------------------------------------------- 2000 $9,000,000 ---------------------------------------------------------------------------------- 2001 $10,000,000 ---------------------------------------------- December 31, 2000 10,500,000 ---------------------------------------------- December 31, 2001 10,500,000 ---------------------------------------------- December 31, ---------------------------------------------------------------------------------- 2002 11,000,000 $11,500,000 ---------------------------------------------------------------------------------- 2003 and each year thereafter $8,500,000 ================================================================================== Notwithstanding the foregoing, the Company and its Subsidiaries may fund Consolidated Capital Expenditures in excess of the foregoing limits from any proceeds of an additional issuance of Company common stock in a private issuance after the Closing Date. REVOLVING LOAN CREDIT AGREEMENT EXECUTION 126 134 7.9 Sales and Lease-Backs. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease, whether an Operating Lease or a Capital Lease, of any property (whether real, personal or mixed), whether now owned or hereafter acquired, (i) which Company or any of its Subsidiaries has sold or transferred or is to sell or transfer to any other Person (other than Company or any of its Subsidiaries) or (ii) which Company or any of its Subsidiaries intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred by Company or any of its Subsidiaries to any Person (other than Company or any of its Subsidiaries) in connection with such lease.105

Consolidated Capital Expenditures. Company Except as set forth in subparagraph 2 of this Paragraph D, Borrower shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures, in any Fiscal Year ending on a date set forth below (fiscal year or any four quarter period ending on any date set forth below on or prior to December 31, 1998)indicated below, in an aggregate amount in excess of the corresponding amount (the ("Maximum Consolidated Capital Expenditures AmountMAXIMUM CONSOLIDATED CAPITAL EXPENDITURES ----------------------------------------- AMOUNT") set forth in the chart below opposite such datefiscal year or ------ period; provided that with respect to the Maximum Consolidated Capital Expenditures -------- Expenditure Amount for any Fiscal Yearfiscal year or period, commencing with Fiscal Year 1999, shall at Borrower=s option such amount may be increased (a) by an amount equal a portion (not to the excess, if any, (but in no event more than 50% of the Maximum Consolidated Capital Expenditures Amount for the previous Fiscal Year (or, in the case of Fiscal Year 1999, for the four Fiscal Quarter period ending as of December 31, 1998exceed 20%) of the Maximum Consolidated Capital Expenditures Expenditure amount for the immediately preceding fiscal year which was not utilized during such preceding fiscal year, and (b) by a portion (not to exceed 15%) of the amount of Maximum Consolidated Capital Expenditure Amount for the immediately succeeding year (as adjusted which, to the extent of such increase shall reduce the amount of the Maximum Consolidated Capital Expenditure Amount for such succeeding year), provided that in accordance with this provisono -------- event shall the aggregate amount of the increases to the Maximum Consolidated Capital Expenditure Amount pursuant to the foregoing clauses (a) over and (b) in any fiscal year or period exceed $10,000,000; provided further that the actual Maximum Consolidated Capital Expenditure -------- ------- Amount for each fiscal year set forth below shall be increased by the amount of Consolidated Capital Expenditure Excess Cash flow for the previous Fiscal Year (or, in immediately preceding fiscal year not required to be used to prepay Loans pursuant to subsection 2.4B(iii)(f) of the case of Fiscal Year 1999, for the four Fiscal Quarter period ending as of December 31, 1998): Existing Credit Facility Loan Agreement. ============================================== Period MAXIMUM CONSOLIDATED FISCAL CAPITAL EXPENDITURES YEAR/PERIOD AMOUNT ---------------------------------------------- 5/21/97 to end of 1997 fiscal year $40,000,000 ---------------------------------------------- 1998 $35,000,000 ---------------------------------------------- 1999 $35,000,000 ---------------------------------------------- 2000 $35,000,000 ---------------------------------------------- 2001 $35,000,000 ---------------------------------------------- 2002 $35,000,000 ---------------------------------------------- ; provided that each of the Maximum Ending Consolidated Capital Expenditures ============================================== March 31, 1998 7,500,000 ---------------------------------------------- June 30, 1998 8,250,000 ---------------------------------------------- September 30, 1998 7,250,000 ---------------------------------------------- December 31, 1998 7,000,000 ---------------------------------------------- December 31, 1999 10,000,000 ---------------------------------------------- December 31, 2000 10,500,000 ---------------------------------------------- December 31, 2001 10,500,000 ---------------------------------------------- December 31, 2002 11,000,000 ============================================== Notwithstanding the foregoing, the Company and its Subsidiaries may fund Consolidated Capital Expenditures in excess Expenditure Amounts -------- provided for above shall be increased by an aggregate amount equal to 15% of the foregoing limits from any proceeds of an additional issuance of Company common stock in a private issuance after the Closing Date. REVOLVING LOAN CREDIT AGREEMENT EXECUTION 126 134 7.9 Sales and Lease-Backs. Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or other surety with respect to any lease, whether an Operating Lease or a Capital Lease, of any property (whether real, personal or mixed), whether now owned or hereafter acquired, (i) which Company or any of its Subsidiaries has sold or transferred or is to sell or transfer to any other Person (other than Company or any of its Subsidiaries) or (ii) which Company or any of its Subsidiaries intends to use for substantially the same purpose as any other property which has been or is to be sold or transferred purchase price paid by Company or any of its Subsidiaries to any Person (other than Company or any of its Subsidiaries) in connection with any Permitted Acquisition; provided further that such leaseaggregate amount shall be allocated pro rata among -------- ------- the remaining periods set forth above after the consummation of the Permitted Acquisition.

Consolidated Capital Expenditures. Holdings, Company and each Borrower shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures, in any Fiscal Year ending on a date set forth below (or any four quarter period ending on any date set forth below on or prior to December 31, 1998)indicated below, in an aggregate amount in excess of the corresponding amount (the "Maximum Consolidated Capital Expenditures AmountMAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") set forth below opposite such dateFiscal Year; provided that the Maximum Consolidated Capital Expenditures Amount for any Fiscal Year, commencing with Fiscal Year 1999, shall be increased by an amount equal to the excess, if any, (but in no event more than 50% of the Maximum Consolidated Capital Expenditures Amount for the previous Fiscal Year (or, in the case of Fiscal Year 1999, for the four Fiscal Quarter period ending as of December 31, 1998) of the Maximum Consolidated Capital Expenditures Amount (as adjusted without giving effect to any adjustment in accordance with this proviso) over the actual amount of Consolidated Capital Expenditure Expenditures for such previous Fiscal Year; provided, further that in no event shall the amount of such increase exceed 50% of the Maximum Consolidated Capital Expenditures Amount for such previous Fiscal Year (orprior to any adjustment in accordance with the foregoing proviso); provided, further, notwithstanding anything in this subsection 7.8 to the case of Fiscal Year 1999contrary, for the four Fiscal Quarter period ending as of December 31Holdings, 1998): ============================================== Period Maximum Ending Consolidated Capital Expenditures ============================================== March 31, 1998 7,500,000 ---------------------------------------------- June 30, 1998 8,250,000 ---------------------------------------------- September 30, 1998 7,250,000 ---------------------------------------------- December 31, 1998 7,000,000 ---------------------------------------------- December 31, 1999 10,000,000 ---------------------------------------------- December 31, 2000 10,500,000 ---------------------------------------------- December 31, 2001 10,500,000 ---------------------------------------------- December 31, 2002 11,000,000 ============================================== Notwithstanding the foregoing, the Company and its Subsidiaries may fund Consolidated Capital Expenditures in excess of the foregoing limits from any proceeds of an additional issuance of Company common stock in a private issuance after the Closing Date. REVOLVING LOAN CREDIT AGREEMENT EXECUTION 126 134 7.9 Sales and Lease-Backs. Company each Borrower shall not, and shall not permit any of its Subsidiaries to, directly make or indirectlyincur Consolidated Capital Expenditures for the twelve month period ending on the Stated Maturity Date in an aggregate amount in excess of $47,000,000; provided, become further, that in addition to such amount set forth in the foregoing proviso, for the portion of such twelve month period that occurs in Fiscal Year 2009, Holdings, Company, each Borrower and each of their respective Subsidiaries may make or remain liable as lessee or as a guarantor or other surety with respect incur Consolidated Capital Expenditures in an amount not to exceed the excess, if any, of the Maximum Consolidated Capital Expenditures Amount for Fiscal Year 2008 (without giving effect to any leaseadjustment in accordance with the first proviso of this subsection) over the actual amount of Consolidated Capital Expenditures for Fiscal Year 2008; provided, whether an Operating Lease or a further, that in no event shall the amount of such increase exceed 50% of the Maximum Consolidated Capital Lease, of any property 128 Expenditure Amount for Fiscal Year 2008 (whether real, personal or mixed), whether now owned or hereafter acquired, (i) which Company or any of its Subsidiaries has sold or transferred or is to sell or transfer prior to any other Person (other than Company or any adjustment in accordance with the first proviso of its Subsidiaries) or (ii) which Company or any of its Subsidiaries intends to use this subsection for substantially the same purpose as any other property which has been or is to be sold or transferred by Company or any of its Subsidiaries to any Person (other than Company or any of its Subsidiaries) in connection with such lease.Fiscal Year): MAXIMUM CONSOLIDATED FISCAL YEAR CAPITAL EXPENDITURES ----------- -------------------- 2002 $25,000,000 2003 $30,000,000 2004 $32,000,000 2005 $35,000,000 2006 $37,500,000 2007 $40,000,000 2008 $42,000,000