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 period indicated below, in an aggregate amount in excess of the corresponding amount (the "MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") set forth below under the column Maximum Capital Expenditures Amount opposite such period, subject to the following: (i) the Maximum Consolidated Capital Expenditures Amount for any Fiscal Year shall be increased by an amount equal to the excess, if any, of the Maximum Consolidated Capital Expenditures Amount (as adjusted in accordance with clause (ii) but without taking any adjustment made in accordance with this clause (i) into account) for the previous Fiscal Year over the actual amount of Consolidated Capital Expenditures for such previous Fiscal Year; provided, that in no event shall the amount of such increase exceed 25% of the Maximum Consolidated Capital Expenditures Amount for such previous Fiscal Year (as adjusted in accordance with clause (ii) but without taking any adjustment made in accordance with this clause (i) into account) and provided, further, that the amount of such increase may be spent by Company at anytime during the Fiscal year without regard to the six-month period referred to in clause (ii); (ii) the Maximum Consolidated Capital Expenditures Amount for each six-month period shown below shall be decreased by the product of two times the difference between the amount shown below under budgeted EBITDA and actual Consolidated EBITDA in each case for the twelve months ending on the date that is one year prior to the end of each six-month period (if such difference is a negative number, it shall be deemed to be zero); provided that in calculating such decrease for periods ending in 1998 based on the Fiscal Year ending in 1997, the product shall be four times such difference, which shall reduce the Maximum Capital Expenditures Amount for the periods ending in 1998 by a pro rata portion for each period; and (iii) the Maximum Consolidated Capital Expenditures Amount shall not be decreased in accordance with clause (ii) by an amount that is greater than the amount shown below under Maximum New Restaurant Capital Expenditures: Period Ending* Budgeted EBITDA** Maximum New Restaurant Capital Expenditures** Minimum/ Maintenance Capital Expenditures** Maximum Capital Expenditures Amount**

Consolidated Capital Expenditures. Company shall notWith respect to each fiscal year of the Borrowers set forth in the table below, and shall the Borrowers 4 -4- will not permit its Subsidiaries to, make or incur (a) Consolidated Capital Expenditures (other than Capital Expenditures incurred in any period indicated belowsuch fiscal year in connection with the acquisition and equipping of, and improvements to, the Borrowers' facilities in an aggregate Mexico, Missouri) to exceed the amount in excess of the corresponding amount (the "MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") set forth in the table below under opposite such fiscal year in the column headed "Maximum Consolidated Capital Expenditures" or (b) Consolidated New Cafe Capital Expenditures Amount to exceed the amount set forth in the table below opposite such period, subject to fiscal year in the followingcolumn headed "Maximum Consolidated New Cafe Capital Expenditures"; provided that: (i) with regard to any such fiscal year (other than the fiscal year ending on December 26, 1998), if Consolidated Adjusted Cash Flow for such fiscal year exceeds that amount set forth in the table below opposite such fiscal year in the column headed "100% Consolidated Adjusted Cash Flow," Maximum Consolidated Capital Expenditures Amount and Maximum Consolidated New Cafe Capital Expenditures permitted hereunder for any Fiscal Year such fiscal year shall be increased by an the amount equal of such excess; and (ii) with regard to any such fiscal year (other than the excessfiscal year ending on December 26, 1998), if any, of Consolidated Adjusted Cash Flow is less than that amount set forth in the table below opposite such fiscal year in the column headed "95% Consolidated Adjusted Cash Flow," Maximum Consolidated Capital Expenditures Amount (as adjusted in accordance with clause (ii) but without taking any adjustment made in accordance with this clause (i) into account) for the previous Fiscal Year over the actual amount of and Maximum Consolidated New Cafe Capital Expenditures permitted hereunder for such previous Fiscal Year; provided, that in no event shall the amount of such increase exceed 25% of the Maximum Consolidated Capital Expenditures Amount for such previous Fiscal Year (as adjusted in accordance with clause (ii) but without taking any adjustment made in accordance with this clause (i) into account) and provided, further, that the amount of such increase may be spent by Company at anytime during the Fiscal fiscal year without regard to the six-month period referred to in clause (ii); (ii) the Maximum Consolidated Capital Expenditures Amount for each six-month period shown below shall be decreased reduced by the product of two times the difference between the amount shown below under budgeted EBITDA set forth for such fiscal year in such column headed "95% Consolidated Net Income" and the actual Consolidated EBITDA in each case Adjusted Cash Flow for the twelve months ending on the date that is one year prior to the end of each six-month period (if such difference is fiscal year. ------------------------------------------------------------------------------------------------------------------ MAXIMUM CONSOLIDATED MAXIMUM CONSOLIDATED 100% CONSOLIDATED 95% CONSOLIDATED CAPITAL NEW CAFE CAPITAL ADJUSTED CASH ADJUSTED CASH FISCAL YEAR ENDING EXPENDITURES EXPENDITURES FLOW FLOW ------------------------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------------ 12/28/96 $17,500,000 $ 6,800,000 $18,600,000 $17,700,000 ------------------------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------------ 12/27/97 $24,000,000 $15,000,000 $21,700,000 $20,600,000 ------------------------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------------ 12/26/98 $26,000,000 $16,000,000 n/a negative number, it shall be deemed to be zero); provided that in calculating such decrease for periods ending in 1998 based on the Fiscal Year ending in 1997, the product shall be four times such difference, which shall reduce the Maximum Capital Expenditures Amount for the periods ending in 1998 by n/a pro rata portion for each period; and (iii) the Maximum Consolidated Capital Expenditures Amount shall not be decreased in accordance with clause (ii) by an amount that is greater than the amount shown below under Maximum New Restaurant Capital Expenditures: Period Ending* Budgeted EBITDA** Maximum New Restaurant Capital Expenditures** Minimum/ Maintenance Capital Expenditures** Maximum Capital Expenditures Amount**------------------------------------------------------------------------------------------------------------------

Consolidated Capital Expenditures. Company shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures Expenditures, in any period Fiscal Year indicated below, in an aggregate amount in excess of the corresponding amount (the "MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") set forth below under the column Maximum Capital Expenditures Amount opposite such period, subject to the following: (i) Fiscal Year; provided that the Maximum Consolidated Capital Expenditures Amount for any Fiscal Year shall be increased (i) by an amount equal to the excess, if any, any (but in no event more than 25% of the Maximum Consolidated Capital Expenditures Amount for Fiscal Year 1996 as set forth in the table below and 15% of the Maximum Consolidated Capital Expenditures Amount for the immediately preceding Fiscal Year as set forth in the table below for each Fiscal Year thereafter) of the Maximum Consolidated Capital Expenditures Amount for the immediately preceding Fiscal Year (as adjusted in accordance with clause (iithis proviso) but without taking any adjustment made in accordance with this clause (i) into account) for the previous Fiscal Year over the actual amount of Consolidated Capital Expenditures for such previous Fiscal Year, (ii) by an amount up to, but in no event greater than, 10% of the Maximum Consolidated Capital Expenditures Amount for the 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 and (iii) by an amount equal to (but in no event greater than $25,000,000 for any Fiscal Year) the aggregate amount of Net Asset Sale Proceeds (other than insurance proceeds, condemnation awards, indemnity payments and Net Asset Sale Proceeds applied in accordance with subsection 2.4B(iii)(a)(v)) 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)(A); provided, however that in no event shall the amount which may be added to the Maximum Consolidated Capital Expenditures Amount pursuant to clauses (i) and (ii) of such increase the immediately preceding proviso shall not exceed 25for Fiscal Year 1997, 40% of the Maximum Consolidated Capital Expenditures Amount for Fiscal Year 1997 and for each Fiscal Year thereafter, 15% of the Maximum Consolidated Capital Expenditures Amount for such previous Fiscal Year (as adjusted set forth in accordance with clause (ii) but without taking any adjustment made in accordance with this clause (i) into account) and provided, further, that the amount of such increase may be spent by Company at anytime during the Fiscal year without regard table below: 157 165 MAXIMUM CONSOLIDATED FISCAL YEAR CAPITAL EXPENDITURES ---------------------------------- -------------------- Closing Date to the six-month period referred to in clause (ii); (ii) the Maximum Consolidated Capital Expenditures Amount for each six-month period shown below shall be decreased by the product of two times the difference between the amount shown below under budgeted EBITDA and actual Consolidated EBITDA in each case for the twelve months ending on the date that is one year prior to the end of each six-month period (if such difference is a negative number, it shall be deemed to be zero); provided that in calculating such decrease for periods ending in 1998 based on the 1996 Fiscal Year ending in 1997End $76,300,000 Fiscal Year 1997 64,100,000 Fiscal Year 1998 63,700,000 Fiscal Year 1999 63,300,000 Fiscal Year 2000 67,100,000 Fiscal Year 2001 73,100,000 Fiscal Year 2002 74,700,000 Fiscal Year 2003 76,200,000 Fiscal Year 2004 78,200,000 January 2, the product shall be four times such difference2005 to August 31, which shall reduce the Maximum Capital Expenditures Amount for the periods ending in 1998 by a pro rata portion for each period; and (iii) the Maximum Consolidated Capital Expenditures Amount shall not be decreased in accordance with clause (ii) by an amount that is greater than the amount shown below under Maximum New Restaurant Capital Expenditures: Period Ending* Budgeted EBITDA** Maximum New Restaurant Capital Expenditures** Minimum/ Maintenance Capital Expenditures** Maximum Capital Expenditures Amount**2005 55,000,000

Consolidated Capital Expenditures. Company shall not, and shall not permit (a) Permit it or any of its Subsidiaries to, make or incur any Consolidated Capital Expenditures, except that during any Fiscal Year, Borrower and its Subsidiaries may make Consolidated Capital Expenditures in so long as the aggregate amount so made by Borrower and its Subsidiaries (on a consolidated basis) during any period indicated belowsuch Fiscal Year does not exceed $75,000,000. (b) Notwithstanding the foregoing, in an aggregate amount in excess of the corresponding amount (event that the "MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") set forth below under the column Maximum Capital Expenditures Amount opposite such period, subject to the following: (i) the Maximum Consolidated Capital Expenditures Amount for any Fiscal Year shall be increased by an amount equal to the excess, if any, of the Maximum Consolidated Capital Expenditures Amount (as adjusted in accordance with clause (ii) but without taking any adjustment made in accordance with this clause (i) into account) for the previous Fiscal Year over the actual amount of Consolidated Capital Expenditures for permitted to be made by Borrower and its Subsidiaries pursuant to clause (a) above in any Fiscal Year (before giving effect to any increase in such previous permitted expenditure amount pursuant to this clause (b)) is greater than the amount of such Consolidated Capital Expenditures made by Borrower and its Subsidiaries during such Fiscal Year; provided, such excess (the "Rollover Amount") may be carried forward and utilized to make Consolidated Capital Expenditures in the next succeeding Fiscal Year, provided that in no event shall the aggregate amount of such increase Consolidated Capital Expenditures made by Borrower and its Subsidiaries during any Fiscal Year pursuant to this clause (b) exceed 25125% of the Maximum amount set forth in SECTION 9.2(A). (c) Notwithstanding the foregoing, Borrower and its Subsidiaries may make Consolidated Capital Expenditures Amount for such previous Fiscal Year (as adjusted which Consolidated Capital Expenditures will not be included in accordance with any determination under the foregoing clause (iia)) but without taking with the insurance or condemnation proceeds received by Borrower or any adjustment made of its Subsidiaries from any Recovery Event so long as such Consolidated Capital Expenditures are applied to replace or restore any properties or assets pursuant to SECTION 4.4(C). (d) Notwithstanding the foregoing, Borrower and its Subsidiaries may make Consolidated Capital Expenditures ("DESIGNATED CAPITAL EXPENDITURES") in accordance with an amount not to exceed $20,000,000 in the aggregate (which Consolidated Capital Expenditures will not be included in any determination under the foregoing CLAUSE (A)) PROVIDED that within thirty (30) days of the incurrence of any Consolidated Capital Expenditures which the Borrower wishes to be Designated Capital Expenditures Borrower shall deliver to Administrative Agent a certificate indicating that such Consolidated Capital Expenditures are to be considered Designated Capital Expenditures for the purpose of this clause SECTION 9.2(D). (ie) into account) and providedNotwithstanding the foregoing, further, that the amount of such increase may be spent by Company at anytime during the Fiscal year without regard to the six-month period referred to in clause (ii); (ii) the Maximum permitted Consolidated Capital Expenditures Amount for each six-month period shown below set forth in CLAUSE (A), without giving effect to any carryforward, shall be increased in the case of a Permitted Acquisition or decreased in the case of an Asset Disposition by an amount equal to 5.5% of the product of two times consolidated net sales with respect to the difference between business or assets acquired or disposed of, as the amount shown below under budgeted EBITDA and actual Consolidated EBITDA in each case may be, for the twelve months ending on the date that is one year prior to the end of each six-month period (if immediately preceding four Fiscal Quarter period, such difference is a negative number, it shall be deemed amount to be zero); provided that pro rated in calculating the year of such decrease for periods ending in 1998 acquisition or disposition based on the number of days remaining in the Fiscal Year ending of such event from the date of such event. A Responsible Officer shall deliver a certificate to the Administrative Agent setting forth the 128 calculation of the consolidated net sales as determined pursuant to the pro forma financial statements delivered in 1997, connection with any such Permitted Acquisition and as determined in good faith by the product shall be four times Borrower with respect to any such difference, which shall reduce the Maximum Capital Expenditures Amount for the periods ending in 1998 by a pro rata portion for each period; and (iii) the Maximum Consolidated Capital Expenditures Amount shall not be decreased in accordance with clause (ii) by an amount that is greater than the amount shown below under Maximum New Restaurant Capital Expenditures: Period Ending* Budgeted EBITDA** Maximum New Restaurant Capital Expenditures** Minimum/ Maintenance Capital Expenditures** Maximum Capital Expenditures Amount**Asset Disposition.

Consolidated Capital Expenditures. Holdings shall not make or incur any Consolidated Capital Expenditures and Company shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures Expenditures, in any period Fiscal Year indicated below, in an aggregate amount in excess of the corresponding amount (the "MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") set forth below under the column Maximum Capital Expenditures Amount opposite such period, subject to the following: (i) Fiscal Year; provided that the Maximum Consolidated Capital Expenditures Amount for any Fiscal Year shall be increased (i) by an amount equal to the excess, if any, any (but in no event more than 20% of the Maximum Consolidated Capital Expenditures Amount (for the immediately preceding Fiscal Year, as adjusted set forth in accordance with clause (iithe table below) but without taking any adjustment made in accordance with this clause (i) into account) of the Maximum Consolidated Capital Expenditures Amount for the previous Fiscal Year over the actual amount of Consolidated Capital Expenditures for such previous Fiscal Year; provided(ii) by an amount up to, that but in no event greater than, 15% of the Maximum Consolidated Capital Expenditures Amount for the 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) by an amount equal to (but in no event greater than $15,000,000 for any Fiscal 133 Year) the aggregate amount of proceeds (other than insurance proceeds, condemnation awards and indemnity payments) received by Company and its Subsidiaries from Asset Sales during such Fiscal Year (other than Asset Sales covered by clause (B) of subsection 2.4B(iii)(a)) 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; and (iv) by an amount equal to the Planned Improvement Financed Amount which has been applied by Company and its Subsidiaries during such Fiscal Year to remodel, expand, renovate or otherwise improve the stores located on the Planned Improvement Properties and which was not required to be used to prepay the Loans and/or permanently reduce Revolving Loan Commitments pursuant to subsections 2.4B(iii)(a) or (b); provided, however, that the amount which may be added to the Maximum Consolidated Capital Expenditures Amount pursuant to clauses (i) and (ii) of such increase the immediately preceding proviso shall not exceed 25for any Fiscal Year 20% of the Maximum Consolidated Capital Expenditures Amount for such previous Fiscal Year as set forth in the table below: MAXIMUM CONSOLIDATED FISCAL YEAR CAPITAL EXPENDITURES AMOUNT ----------- --------------------------- Fiscal Year 1996 $ 95,000,000 Fiscal Year 1997 $150,000,000 Fiscal Year 1998 $135,000,000 Fiscal Year 1999 $135,000,000 Fiscal Year 2000 and each Fiscal Year thereafter $100,000,000 I. RESTRICTION ON LEASES. Holdings shall not become liable in any way, whether directly or by assignment or as a guarantor or other surety, for the obligations of the lessee under any lease, whether an Operating Lease or a Capital Lease, and Company shall not, and shall not permit any of its Subsidiaries to, become liable in any way, whether directly or by assignment or as a guarantor or other surety, for the obligations of the lessee under any lease, whether an Operating Lease or a Capital Lease (as adjusted other than intercompany leases between Company and its wholly-owned Subsidiaries), unless, immediately after giving effect to the incurrence of liability with respect to such lease, all amounts paid or payable under all Capital Leases and Operating Leases (net of sublease income) at the time in accordance with clause (ii) but without taking any adjustment made in accordance with this clause (i) into account) and provided, further, that the amount of such increase may be spent by Company at anytime effect during the Fiscal year without regard to the six-month period referred to in clause (ii); (ii) the Maximum Consolidated Capital Expenditures Amount for each six-month period shown below shall be decreased by the product of two times the difference between the amount shown below under budgeted EBITDA and actual Consolidated EBITDA in each case for the twelve months ending on the date that is one year prior to the end of each six-month period (if such difference is a negative number, it shall be deemed to be zero); provided that in calculating such decrease for periods ending in 1998 based on the then current Fiscal Year ending in 1997, the product shall be four times such difference, which shall reduce the Maximum Capital Expenditures Amount for the periods ending in 1998 by a pro rata portion for each period; and (iii) the Maximum Consolidated Capital Expenditures Amount shall not be decreased in accordance with clause (ii) by an exceed the corresponding amount that is greater than the amount shown set forth below under Maximum New Restaurant Capital Expendituresopposite such Fiscal Year: Period Ending* Budgeted EBITDA** Maximum New Restaurant Capital Expenditures** Minimum/ Maintenance Capital Expenditures** Maximum Capital Expenditures Amount**134 PERIOD MAXIMUM LEASE ------ PAYMENTS Fiscal Year 1997 $234,800,000 Fiscal Year 1998 $261,600,000 Fiscal Year 1999 $289,100,000 Fiscal Year 2000 $315,500,000 Fiscal Year 2001 $342,500,000 Fiscal Year 2002 $369,800,000 Fiscal Year 2003 and each Fiscal Year thereafter $389,900,000

Consolidated Capital Expenditures. Company (a) The Borrowers shall not, and shall not permit its their Restricted Subsidiaries to, make or incur Consolidated Capital Expenditures Expenditures, in any period indicated below, in an aggregate amount in excess of the corresponding amount (the "MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT"“Maximum Consolidated Capital Expenditures Amount”) set forth below under the column Maximum Capital Expenditures Amount opposite such period; provided that any such amount referred to below, subject to if not expended in the following: period in which it is permitted, may be carried over for expenditure in (ibut only in) the next succeeding such period; provided further that the Maximum Consolidated Capital Expenditures Amount for any period beginning January 1, 2005 or later and consisting of fewer than a full Fiscal Year shall be increased by an amount equal to pro rated for the excessnumber of days in such period: The Fiscal Year beginning January 1, if any2005 and ending December 31, 2005 $120,000,000 The Fiscal Year beginning January 1, 2006 and ending December 31, 2006 $90,000,000 Each subsequent Fiscal Year (or portion thereof) through the Final Completion Date $50,000,000 The period beginning on the day following the Final Completion Date and ending on December 31 of that calendar year, and each subsequent Fiscal Year (or, in the case of the Fiscal Year in which the Maturity Date occurs, portion thereof) through the Maturity Date $80,000,000 (b) Notwithstanding the foregoing, the Borrowers and their Restricted Subsidiaries may make or incur Consolidated Capital Expenditures (which Consolidated Capital Expenditures will not be included in any determination of Maximum Consolidated Capital Expenditures Amount under the foregoing clause (as adjusted a)) (i) with the proceeds of equity contributions to the Borrowers or any of their Restricted Subsidiaries by any Person other than a Borrower or any Restricted Subsidiary, provided that (x) no Event of Default or Potential Event of Default shall have occurred and be continuing when such Consolidated Capital Expenditure is made or incurred and (y) the applicable Borrower or Restricted Subsidiary notifies the Administrative Agent in accordance with clause writing that such proceeds (or applicable portion thereof) are to be used for Consolidated Capital Expenditures or (ii) but without taking with insurance proceeds received by the Borrowers or any adjustment made in accordance with this clause (i) into account) for the previous Fiscal Year over the actual amount of their Restricted Subsidiaries from any Event of Loss so long as such Consolidated Capital Expenditures for are to replace, repair or restore any properties or assets in respect of which such previous Fiscal Year; provided, that in no event shall the amount of such increase exceed 25% of the Maximum Consolidated Capital Expenditures Amount for such previous Fiscal Year (as adjusted in accordance with clause (ii) but without taking any adjustment made in accordance with this clause (i) into account) and provided, further, that the amount of such increase may be spent by Company at anytime during the Fiscal year without regard to the six-month period referred to in clause (ii); (ii) the Maximum Consolidated Capital Expenditures Amount for each six-month period shown below shall be decreased by the product of two times the difference between the amount shown below under budgeted EBITDA and actual Consolidated EBITDA in each case for the twelve months ending on the date that is one year prior to the end of each six-month period (if such difference is a negative number, it shall be deemed to be zero); provided that in calculating such decrease for periods ending in 1998 based on the Fiscal Year ending in 1997, the product shall be four times such difference, which shall reduce the Maximum Capital Expenditures Amount for the periods ending in 1998 by a pro rata portion for each period; and (iii) the Maximum Consolidated Capital Expenditures Amount shall not be decreased in accordance with clause (ii) by an amount that is greater than the amount shown below under Maximum New Restaurant Capital Expenditures: Period Ending* Budgeted EBITDA** Maximum New Restaurant Capital Expenditures** Minimum/ Maintenance Capital Expenditures** Maximum Capital Expenditures Amount**proceeds were paid.

Consolidated Capital Expenditures. Holdings, Company and each Borrower shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures Expenditures, in any period Fiscal Year indicated below, in an aggregate amount in excess of the corresponding amount (the "MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") set forth below under the column Maximum Capital Expenditures Amount opposite such period, subject to the following: (i) Fiscal Year; provided that the Maximum Consolidated Capital Expenditures Amount for any Fiscal Year shall be increased by an amount equal to the excess, if any, of the Maximum Consolidated Capital Expenditures Amount (as adjusted in accordance with clause (ii) but without taking any adjustment made in accordance with this clause (i) into account) for the previous Fiscal Year (without giving effect to any adjustment in accordance with this proviso) over the actual amount of Consolidated Capital Expenditures for such previous Fiscal Year; provided, further that in no event shall the amount of such increase exceed 2550% of the Maximum Consolidated Capital Expenditures Amount for such previous Fiscal Year (as adjusted prior to any adjustment in accordance with clause (ii) but without taking any adjustment made the foregoing proviso); provided, further, notwithstanding anything in accordance with this clause (i) into account) subsection 7.8 to the contrary, Holdings, Company and each Borrower shall not, and shall not permit its Subsidiaries to, make or incur 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, further, that in addition to such amount set forth in the amount foregoing proviso, for the portion of such increase may be spent by Company at anytime during the Fiscal year without regard to the six-twelve month period referred that occurs in Fiscal Year 2009, Holdings, Company, each Borrower and each of their respective Subsidiaries may make or incur Consolidated Capital Expenditures in an amount not to in clause (ii); (ii) exceed the excess, if any, of the Maximum Consolidated Capital Expenditures Amount for each six-month period shown below Fiscal Year 2008 (without giving effect to any adjustment in accordance with the first proviso of this subsection) over the actual amount of Consolidated Capital Expenditures for Fiscal Year 2008; provided, further, that in no event shall be decreased by the product of two times the difference between the amount shown below under budgeted EBITDA and actual Consolidated EBITDA in each case for the twelve months ending on the date that is one year prior to the end of each six-month period (if such difference is a negative number, it shall be deemed to be zero); provided that in calculating such decrease for periods ending in 1998 based on the Fiscal Year ending in 1997, the product shall be four times such difference, which shall reduce the Maximum Capital Expenditures Amount for the periods ending in 1998 by a pro rata portion for each period; and (iii) increase exceed 50% of the Maximum Consolidated Capital Expenditures 128 Expenditure Amount shall not be decreased for Fiscal Year 2008 (prior to any adjustment in accordance with clause (ii) by an amount that is greater than the amount shown below under Maximum New Restaurant Capital Expenditures: Period Ending* Budgeted EBITDA** Maximum New Restaurant Capital Expenditures** Minimum/ Maintenance Capital Expenditures** Maximum Capital Expenditures Amount**first proviso of this subsection for such Fiscal Year):

Consolidated Capital Expenditures. Holdings shall not make or incur any Consolidated Capital Expenditures and Company shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures Expenditures, in any period Fiscal Year indicated below, in an aggregate amount in excess of the corresponding amount (the "MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") set forth below under the column Maximum Capital Expenditures Amount opposite such period, subject to the following: (i) Fiscal Year; provided that the Maximum Consolidated Capital Expenditures Amount (i) for any Fiscal Year shall (other than Fiscal Year 1997) may be increased by an amount equal to the excess, if any, (but in no event more than 30% of the Maximum Consolidated Capital Expenditures Amount for the immediately preceding Fiscal Year, as set forth in the table below) of the Maximum Consolidated Capital Expenditures Amount for the previous Fiscal Year (as adjusted in accordance with clause (iithis proviso) but without taking any adjustment made in accordance with this clause (i) into account) for the previous Fiscal Year over the actual amount of Consolidated Capital Expenditures for such previous Fiscal Year, (ii) for any Fiscal Year may be increased by an amount up to, but in no event greater than, 30% of the Maximum Consolidated Capital Expenditures Amount for the 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 and (iii) for any Fiscal Year may be increased by an amount equal to (but in no event greater than $10,000,000 for any Fiscal Year) the aggregate amount of 143 151 Net Cash Proceeds (other than insurance proceeds, condemnation awards and indemnity payments) received by Company and its Subsidiaries from Asset Sales of stores during such Fiscal Year to the extent such Net Cash 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); provided, however, that in no event shall the amount which may be added to the Maximum Consolidated Capital Expenditures Amount for any Fiscal Year pursuant to clauses (i) and (ii) of such increase the immediately preceding proviso shall not exceed 2530% of the Maximum Consolidated Capital Expenditures Amount for such previous Fiscal Year as set forth in the table below: MAXIMUM CONSOLIDATED CAPITAL FISCAL YEAR EXPENDITURES AMOUNT ----------- ---------------------------- Fiscal Year 1997 $75,000,000 Fiscal Year 1998 $70,000,000 Fiscal Year 1999 $70,000,000 Fiscal Year 2000 $75,000,000 Fiscal Year 2001 $75,000,000 Fiscal Year 2002 $80,000,000 Fiscal Year 2003 $38,000,000 Notwithstanding anything to the contrary contained herein, (i) the aggregate cumulative amount of purchase price with respect to all Store Land Properties shall not exceed at any time $25,000,000 minus the aggregate cumulative amount of losses incurred by Loan Parties after the Closing Date with respect to any Store Land Property acquired after the Closing Date (which losses shall be calculated on or after the date of the sale or other disposition of such Store Land Property as adjusted the purchase price of such Store Land Property minus the Cash Proceeds received by the applicable Loan Party on or before such date of calculation in accordance connection with clause such sale or other disposition); and (ii) but without taking any adjustment made in accordance with this clause (i) into account) Company and provided, further, that the amount of such increase may be spent by Company at anytime during the Fiscal year without regard to the six-month period referred to in clause (ii); (ii) the Maximum Consolidated Capital Expenditures Amount for each six-month period shown below shall be decreased by the product of two times the difference between the amount shown below under budgeted EBITDA and actual Consolidated EBITDA in each case for the twelve months ending on the date that is one year prior to the end of each six-month period (if such difference is a negative number, it shall be deemed to be zero); provided that in calculating such decrease for periods ending in 1998 based on the Fiscal Year ending in 1997, the product shall be four times such difference, which shall reduce the Maximum Capital Expenditures Amount for the periods ending in 1998 by a pro rata portion for each period; and (iii) the Maximum Consolidated Capital Expenditures Amount its Subsidiaries shall not be decreased in accordance with clause (ii) by an amount that acquire any Store Land Properties so long as a Potential Event of Default or Event of Default has occurred and is greater than the amount shown below under Maximum New Restaurant Capital Expenditures: Period Ending* Budgeted EBITDA** Maximum New Restaurant Capital Expenditures** Minimum/ Maintenance Capital Expenditures** Maximum Capital Expenditures Amount**continuing or occurs as a result thereof.

Consolidated Capital Expenditures. Company shall not, and shall not permit its Subsidiaries to, make Make or incur Consolidated Capital Expenditures in during any period indicated below, Fiscal Year in an aggregate amount in excess of (1) $20,000,000 (as adjusted in accordance with the corresponding amount (provisos hereto, the "MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT"), plus (2) set forth below under the column Maximum amount of any Consolidated Capital Expenditures Amount opposite made or incurred during such period, subject to Fiscal Year in connection with the following: construction and outfitting of one new production facility in the United States (iprovided that the amount of all Consolidated Capital Expenditures permitted by this clause (2) CREDIT AND GUARANTY AGREEMENT EXECUTION 824610-New York Server 7A during the term of this Agreement shall not exceed $10,000,000 in the aggregate); provided that the Maximum Consolidated Capital Expenditures Amount for any such Fiscal Year shall be increased by an amount equal to the excess, if any, of the Maximum Consolidated Capital Expenditures Amount (as adjusted in accordance with clause (ii) but without taking any adjustment made in accordance with this clause (i) into account) for the previous Fiscal Year (other than Fiscal Year 2003) (prior to adjustment in accordance with this proviso) over the actual amount of Consolidated Capital Expenditures for such previous Fiscal Year; provided, that in no event shall the amount of such increase exceed 25% of the Maximum Consolidated Capital Expenditures Amount for such previous Fiscal Year (as adjusted in accordance with clause (ii) but without taking any adjustment made in accordance with this clause (i) into account) and provided, further, that the amount of such increase may be spent by Company at anytime during the Fiscal year without regard to the six-month period referred to in clause (ii); (ii) the Maximum Consolidated Capital Expenditures Amount for each six-month period shown below Fiscal Year shall be decreased increased (1) with the proceeds of any issuances of Securities not required to prepay the Loans (other than Permitted Cure Securities) pursuant to Section 2.13(b) received by the product Company or any of two times the difference between the amount shown below under budgeted EBITDA its Subsidiaries during such Fiscal Year or used to make Restricted Junior Payments; and actual (2) by that part of Consolidated EBITDA in each case Excess Cash Flow calculated for the twelve months ending on the date that is one year prior to the end of each six-month period (if such difference is a negative number, it shall be deemed immediately preceding Fiscal Year not required to be zeroused to prepay the Loans pursuant to Section 2.13(d); provided provided, further, that in calculating such decrease for periods ending in 1998 based on the Fiscal Year ending in 1997, the product shall be four times such difference, which shall reduce the Maximum Capital Expenditures Amount for the periods ending in 1998 by a pro rata portion for each period; and (iii) the Maximum Consolidated Capital Expenditures Amount for any Fiscal Year shall not be decreased in accordance with clause (ii) further increased upon the consummation of a Permitted Acquisition by an amount that is greater than equal to 5% of the amount shown below under Maximum New Restaurant Capital Expenditures: Period Ending* Budgeted EBITDA** Maximum New Restaurant Capital Expenditures** Minimum/ Maintenance Capital Expenditures** Maximum Capital Expenditures Amount**enterprise value of the assets acquired in connection with such Permitted Acquisition.

Consolidated Capital Expenditures. Company (i) Each of Parent and Borrower shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures net of any proceeds received by Borrower from the sale of scaffolding (other than new scaffolding), in any period Fiscal Year indicated below, in an aggregate amount in excess of the corresponding amount (the "MAXIMUM CONSOLIDATED NET CAPITAL EXPENDITURES AMOUNT") set forth below under the column Maximum Capital Expenditures Amount opposite such period, subject to the following: (i) Fiscal Year; provided that the Maximum Consolidated Net Capital Expenditures Amount for any Fiscal Year shall be increased by an amount equal to the excess, if any, of the Maximum Consolidated Net Capital Expenditures Amount (as adjusted in accordance with clause (ii) but without taking any adjustment made in accordance with this clause (i) into account) for the previous Fiscal Year over the actual amount of Consolidated Capital Expenditures (net of any proceeds received by Borrower or any Subsidiary from the sale of scaffolding equipment (other than scaffolding inventory held for sale in the ordinary course of business)) for such previous Fiscal Year; provided, further, that in no event shall the amount of such increase exceed 2550% of the Maximum Consolidated Net Capital Expenditures Amount for such previous Fiscal Year (as adjusted in accordance with clause (ii) but without taking prior to any adjustment made in accordance with this clause (i) into account) proviso): 117 MAXIMUM CONSOLIDATED NET FISCAL YEAR CAPITAL EXPENDITURES ----------- ------------------------ 2002 $20,000,000 2003 $20,000,000 2004 $20,000,000 2005 and provided, further, that the amount of such increase may be spent by Company at anytime during the each Fiscal year without regard to the six-month period referred to in clause (ii);Year thereafter $25,000,000 (ii) Notwithstanding anything contained herein to the Maximum contrary, Borrower and its Subsidiaries may make or incur Consolidated Capital Expenditures Amount for each six-month period shown below shall be decreased actually made or incurred with cash capital contributions made after the Closing Date to Borrower or any of its Subsidiaries by Equity Investors (through Holdings and Parent) and specifically identified in a certificate delivered by an Officer of Borrower to Administrative Agent on or about the product of two times the difference between the amount shown below under budgeted EBITDA and actual Consolidated EBITDA in each case for the twelve months ending on the date that time such capital contribution is one year prior to the end of each six-month period (if such difference is a negative number, it shall be deemed to be zero)made; provided that in calculating the aggregate amount of all such decrease for periods ending in 1998 based on the Fiscal Year ending in 1997, the product shall be four times such difference, which shall reduce the Maximum Capital Expenditures Amount for the periods ending in 1998 by a pro rata portion for each period; and (iii) the Maximum Consolidated Capital Expenditures Amount made or incurred after the Closing Date shall not be decreased in accordance with clause (ii) by an amount that is greater than the amount shown below under Maximum New Restaurant Capital Expenditures: Period Ending* Budgeted EBITDA** Maximum New Restaurant Capital Expenditures** Minimum/ Maintenance Capital Expenditures** Maximum Capital Expenditures Amount**exceed $20,000,000.

Consolidated Capital Expenditures. Company shall not, The Borrower and its Subsidiaries shall not permit make any Capital Expenditures after the Initial Borrowing Date, except as expressly permitted pursuant to the following clauses: (a) The Borrower and its Subsidiaries to, may make or incur Consolidated Capital Expenditures so long as the aggregate amount thereof, in any Fiscal Year, does not exceed the amount set forth below for such Fiscal Year: Fiscal Year Amount ----------- ---------- 1998 -- 1999 $40,000,000 2000 $30,000,000 2001 $20,000,000 2002 $20,000,000 2003 $22,000,000 2004 $22,000,000 2005 $20,000,000 2006 $20,000,000 (b) In the event that the maximum amount which is permitted to be expended in respect of Capital Expenditures during any fiscal period indicated belowset forth in Section 5.16(a) (without giving effect to this clause (b)) is not fully expended during such fiscal period, the maximum amount which may be expended during any succeeding fiscal period set forth in an aggregate amount in excess of the corresponding Section 5.16(a) shall be increased by such unutilized amount (the "MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNTCarryover Amount") set forth below under ), provided that the column Maximum Capital Expenditures Carryover Amount opposite expended in any such period, subject to the following:subsequent Fiscal Year shall not exceed $35,000,000. (ic) the Maximum The Borrower and its Wholly-Owned Subsidiaries may make additional Consolidated Capital Expenditures Amount for any Fiscal Year shall be increased by an amount equal to the excess, if any, of the Maximum Consolidated Capital Expenditures Amount (as adjusted constituting Permitted Acquisitions effected in accordance with clause the requirements of Section 5.15(xii). (iid) but without taking any adjustment made in accordance with this clause (i) into account) for the previous Fiscal Year over the actual amount of Consolidated The Borrower and its Subsidiaries may make additional Capital Expenditures for with Retained Asset Sale Proceeds of Asset Sales to the extent such previous Fiscal Year; provided, that in no event shall the amount proceeds are not required to be applied as a mandatory repayment of Term Loans pursuant to Section 2.10(d) and such increase exceed 25% of the Maximum Consolidated proceeds are reinvested as required by Section 2.10(d). (e) The Borrower and its Subsidiaries may make additional Capital Expenditures Amount for with Major Casualty Proceeds to the extent such previous Fiscal Year (proceeds are not required to be applied as adjusted in accordance with clause (ii) but without taking any adjustment made in accordance with this clause (i) into accounta mandatory repayment of Term Loans pursuant to Section 2.10(f) and provided, further, that the amount of such increase may be spent proceeds are reinvested as required by Company at anytime during the Fiscal year without regard to the six-month period referred to in clause (iiSection 2.10(f);. (iif) the Maximum Consolidated The Borrower and its Subsidiaries may make additional Capital Expenditures Amount for each six-month period shown below shall be decreased by the product of two times the difference between the amount shown below under budgeted EBITDA and actual Consolidated EBITDA in each case for the twelve months ending on the date that is one year prior to the end of each six-month period (if such difference is a negative number, it shall be deemed to be zero); provided that in calculating such decrease for periods ending in 1998 based on the Fiscal Year ending in 1997, the product shall be four times such difference, which shall reduce the Maximum Capital Expenditures Amount for the periods ending in 1998 by a pro rata portion for each period; and (iii) the Maximum Consolidated Capital Expenditures Amount shall not be decreased in accordance with clause (ii) by an amount that is greater than not to exceed the amount shown below under Maximum New Restaurant Capital Expenditures: Period Ending* Budgeted EBITDA** Maximum New Restaurant Capital Expenditures** Minimum/ Maintenance Capital Expenditures** Maximum Capital Expenditures Available ECF Amount**.

Consolidated Capital Expenditures. Company A. Credit Agreement Parties shall not, and shall not permit its their respective Subsidiaries to, make or incur Consolidated Capital Expenditures Expenditures, in any period Fiscal Year indicated below, in an aggregate amount in excess of the corresponding amount (as adjusted in accordance with the provisos hereto, the "MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNTMaximum Consolidated Capital Expenditures Amount") set forth in the table below under the column Maximum Capital Expenditures Amount opposite such period, subject to Fiscal Year; provided that in the following: (i) event that the Maximum Consolidated Capital Expenditures Amount for any Fiscal Year shall (before giving effect to any increase pursuant to this proviso) exceeds the amount of Consolidated Capital Expenditures actually made or incurred by Credit Agreement Parties and their respective Subsidiaries in such Fiscal Year, 50% of such excess may be increased carried forward and utilized by an amount equal Credit Agreement Parties and their respective Subsidiaries to the excessmake Consolidated Capital Expenditures in any subsequent Fiscal Year: Maximum Consolidated Fiscal Year Capital Expenditures ----------- -------------------- 2003 $ 45,000,000 2004 $ 45,000,000 2005 $ 45,000,000 2006 $ 47,500,000 2007 $ 50,000,000 2008 $ 50,000,000 2009 $ 50,000,000 2010 $ 50,000,000 ; provided, if anyhowever, that solely for purposes of the determination of Maximum Consolidated Capital Expenditures Amount pursuant to this subsection 7.8A, Credit Agreement Parties may exclude from Consolidated Capital Expenditures Capital Leases covering one or more of Borrower's or its Subsidiaries' leased distribution centers in an aggregate amount not to exceed $5,000,000 at any time. B. Notwithstanding anything in this subsection to the contrary, so long as no Event of Default or Potential Event of Default shall have occurred and be continuing or shall be caused thereby, Borrowers and their respective Subsidiaries may make Consolidated Capital Expenditures at any time in an aggregate amount equal to the Excess Proceeds Amount at such time (as adjusted which Consolidated Capital Expenditures shall not be included in accordance with clause (ii) but without taking any adjustment made in accordance with this clause (i) into account) for the previous Fiscal Year over the actual amount determination of Consolidated Capital Expenditures for such previous Fiscal Year; providedunder subsections 7.8A and 7.8C). C. Notwithstanding anything in this subsection to the contrary, that in so long as no event Event of Default or Potential Event of Default shall the amount of such increase exceed 25% of the Maximum have occurred and be continuing or shall be caused thereby, Borrower and its Subsidiaries may make Consolidated Capital Expenditures Amount for such previous Fiscal Year at any time in an aggregate amount not to exceed $35,000,000 in respect to leasehold improvements of the WRC (as adjusted in accordance with clause (ii) but without taking any adjustment made in accordance with this clause (i) into account) and provided, further, that the amount of such increase may be spent by Company at anytime during the Fiscal year without regard to the six-month period referred to in clause (ii); (ii) the Maximum which Consolidated Capital Expenditures Amount for each six-month period shown below shall not be decreased by the product included in any determination of two times the difference between the amount shown below under budgeted EBITDA and actual Consolidated EBITDA in each case for the twelve months ending on the date that is one year prior to the end of each six-month period (if such difference is a negative number, it shall be deemed to be zero); provided that in calculating such decrease for periods ending in 1998 based on the Fiscal Year ending in 1997, the product shall be four times such difference, which shall reduce the Maximum Capital Expenditures Amount for the periods ending in 1998 by a pro rata portion for each period; and (iii) the Maximum Consolidated Capital Expenditures Amount shall not be decreased in accordance with clause (ii) by an amount that is greater than the amount shown below under Maximum New Restaurant Capital Expenditures: Period Ending* Budgeted EBITDA** Maximum New Restaurant Capital Expenditures** Minimum/ Maintenance Capital Expenditures** Maximum Capital Expenditures Amount**subsection 7.8A and 7.8B).

Consolidated Capital Expenditures. A. The Company and the Borrower shall not, and shall not permit its Subsidiaries any other Loan Party to, make or incur Consolidated Capital Expenditures Expenditures, in any period indicated belowFiscal Year, in an aggregate amount in excess of the corresponding amount sum of (a) the "MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT"Base Capital Expenditures Amount, plus (b) set forth below under if the column Maximum Four Seasons Opening Date has occurred, the Four Seasons Capital Expenditures Amount, plus (c) if the Venetian Macao Opening Date has occurred, the Venetian Macao Capital Expenditures Amount, plus (d) if any Casino Operation Project Opening Date has occurred, the Casino Operation Project Capital Expenditures Amount opposite for each such periodCasino Operation Project, subject to plus (e) if any Cotai Strip Excluded Subsidiary has been designated as a Restricted Subsidiary and the following: related Cotai Strip Investment Opening Date has occurred, the Cotai Strip Investment Project Capital Expenditures Amount for each such Cotai Strip Investment Project, plus (if) if the Podium Expansion Opening Date has occurred, the Podium Expansion Capital Expenditures Amount (such sum, the “Maximum Consolidated Capital Expenditures Amount”); provided that any portion of such Maximum Consolidated Capital Expenditures Amount, 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 Project Capital Expenditures Amount for related to any Project during a Fiscal Year in which the Opening Date for such Project occurs shall be increased by an amount equal to pro rated for the excessnumber of days in such Fiscal Year following the Opening Date of such Project. B. Notwithstanding the foregoing, if any, the Loan Parties may make or incur Consolidated Capital Expenditures (which Consolidated Capital Expenditures will not be included in any determination of the Maximum Consolidated Capital Expenditures Amount under the foregoing clause (as adjusted A)) (i) with the proceeds of equity contributions to the Loan Parties by any Person other than a Loan Party, provided that (x) no Event of Default or Potential Event of Default shall have occurred and be continuing when such Consolidated Capital Expenditure is made or incurred and (y) the applicable Loan Party notifies the Administrative Agent in accordance with clause writing that such proceeds (or applicable portion thereof) are to be used for Consolidated Capital Expenditures, (ii) but without taking with insurance or other similar proceeds received by the Company or any adjustment other Loan Party from any Event of Loss so long as such Consolidated Capital Expenditures are to replace, repair or restore any properties or assets in respect of which such proceeds were paid, or (iii) required to be made in accordance with this clause (i) into account) for the previous Fiscal Year over the actual amount of Consolidated Capital Expenditures for such previous Fiscal Year; provided, that in no event shall the amount of such increase exceed 25% of the Maximum Consolidated Capital Expenditures Amount for such previous Fiscal Year (as adjusted in accordance with clause (ii) but without taking any adjustment made in accordance with this clause (i) into account) and provided, further, that the amount of such increase may be spent by Company at anytime during the Fiscal year without regard to the six-month period referred to in clause (ii); (ii) the Maximum Consolidated Capital Expenditures Amount for each six-month period shown below shall be decreased by the product of two times the difference between the amount shown below under budgeted EBITDA and actual Consolidated EBITDA in each case for the twelve months ending on the date that is one year prior to the end of each six-month period (if such difference is a negative number, it shall be deemed to be zero); provided that in calculating such decrease for periods ending in 1998 based on the Fiscal Year ending in 1997, the product shall be four times such difference, which shall reduce the Maximum Capital Expenditures Amount for the periods ending in 1998 by a pro rata portion for each period; and (iii) the Maximum Consolidated Capital Expenditures Amount shall not be decreased in accordance with clause (ii) by an amount that is greater than the amount shown below under Maximum New Restaurant Capital Expenditures: Period Ending* Budgeted EBITDA** Maximum New Restaurant Capital Expenditures** Minimum/ Maintenance Capital Expenditures** Maximum Capital Expenditures Amount**applicable Macau law.