Common use of Consolidated Capital Expenditures Clause in Contracts

Consolidated Capital Expenditures. The sum of (a) Consolidated Capital Expenditures for any fiscal year less (b) the amount of payments of tenant incentives actually received by the Borrower and its subsidiaries during such fiscal year, shall be less than or equal to the amounts set forth in the table below opposite such fiscal year; provided that the maximum amount of Consolidated Capital Expenditures permitted in each fiscal year shall be increased by one hundred (100%) of the unused Consolidated Capital Expenditures from the immediately preceding fiscal year (calculated without reference to any amounts carried forward to such preceding year from any earlier year pursuant to this proviso); provided further, however, that to the extent that less than seventy percent (70%) of the permitted Consolidated Capital Expenditures for any fiscal year is utilized, the Borrower shall only be permitted to carry forward to the following fiscal year fifty percent (50%) of such unused Consolidated Capital Expenditures from such immediately preceding fiscal year (calculated without reference to any amounts carried forward from prior years pursuant to this proviso): Fiscal Year Amount Fiscal Year 2006 $24,200,000 Fiscal Year 2007 $22,300,000 Fiscal Year 2008 $28,900,000 Fiscal Year 2009 $28,900,000 Fiscal Year 2010 $23,500,000 Fiscal Year 2011 and thereafter $23,600,000 Notwithstanding the foregoing, the Borrower will not (and will not permit any of its Subsidiaries to) commit to open any new Restaurants (including without limitation entering into any lease, purchase agreement, construction contract or other agreement or arrangement relating to the lease, acquisition, build-out or refurbishment of any property in connection with the opening or anticipated opened of a new Restaurant (other than leases which are subject to a binding written commitment)) if at such time, the Consolidated Total Leverage Ratio as at the end of the most recently ended fiscal quarter for which the Borrower has delivered the required financial statements pursuant to Section 5.1(b) and a compliance certificate pursuant to Section 5.2(b) exceeds the Incurrence Ratio, or if any Default or Event of Default then exists or would result therefrom; provided, however, that if any time the Consolidated Total Leverage Ratio as at the end of the most recently ended fiscal quarter for which the Borrower has delivered the required financial statements pursuant to Section 5.1(b) and a compliance certificate pursuant to Section 5.2(b) exceeds the Incurrence Ratio, the Borrower shall use commercially reasonable efforts to minimize Consolidated Growth Capital Expenditures. Notwithstanding the above, the parties hereto acknowledge and agree that, for purposes of all calculations made in determining compliance for any applicable period with the financial covenants set forth in this Section 5.9 (including, without limitation for the purposes of the definition of “Pro Forma Basis” set forth in Section 1.1), (i) after consummation of any Permitted Acquisition, (A) income statement items and other balance sheet items (whether positive or negative) attributable to the Target acquired in such transaction shall be included in such calculations to the extent relating to such applicable period, subject to adjustments mutually acceptable to the Borrower and the Required Purchasers, and (B) Indebtedness of a Target which is retired in connection with the Acquisition or any Permitted Acquisition shall be excluded from such calculations and deemed to have been retired as of the first day of such applicable period and (ii) after any asset disposition permitted by Section 6.4(a)(vi), (A) income statement items, cash flow statement items and other balance sheet items (whether positive or negative) attributable to the property or assets disposed of shall be excluded in such calculations to the extent relating to such applicable period, subject to adjustments mutually acceptable to the Borrower and the Administrative Agent (after consultation with the Purchasers) and (B) Indebtedness that is repaid with the proceeds of such asset disposition shall be excluded from such calculations and deemed to have been repaid as of the first day of such applicable period.

Consolidated Capital Expenditures. The sum of (ai) Consolidated Capital Expenditures for any fiscal year less (b) the amount of payments of tenant incentives actually received by the Borrower and its subsidiaries during such fiscal yearCompany will not, shall be less than or equal to the amounts set forth in the table below opposite such fiscal year; provided that the maximum amount of Consolidated Capital Expenditures permitted in each fiscal year shall be increased by one hundred (100%) of the unused Consolidated Capital Expenditures from the immediately preceding fiscal year (calculated without reference to any amounts carried forward to such preceding year from any earlier year pursuant to this proviso); provided further, however, that to the extent that less than seventy percent (70%) of the permitted Consolidated Capital Expenditures for any fiscal year is utilized, the Borrower shall only be permitted to carry forward to the following fiscal year fifty percent (50%) of such unused Consolidated Capital Expenditures from such immediately preceding fiscal year (calculated without reference to any amounts carried forward from prior years pursuant to this proviso): Fiscal Year Amount Fiscal Year 2006 $24,200,000 Fiscal Year 2007 $22,300,000 Fiscal Year 2008 $28,900,000 Fiscal Year 2009 $28,900,000 Fiscal Year 2010 $23,500,000 Fiscal Year 2011 and thereafter $23,600,000 Notwithstanding the foregoing, the Borrower will not (and will not permit any of its Subsidiaries to) , make or commit to open make Consolidated Capital Expenditures in any new Restaurants Fiscal Year, except Consolidated Capital Expenditures which do not aggregate in excess of $8,000,000 in such Fiscal Year PLUS an additional aggregate amount equal to $10,000,000 in the aggregate for all such Consolidated Capital Expenditures made after the Closing Date; PROVIDED that (including a) if the aggregate amount of Consolidated Capital Expenditures actually made in any such Fiscal Year shall be less than the limit with respect thereto set forth above (before giving effect to any increase therein pursuant to this proviso) (the "BASE AMOUNT"), then the amount of such shortfall (up to an amount equal to 50% of the Base Amount for such Fiscal Year, without limitation entering into any lease, purchase agreement, construction contract or other agreement or arrangement relating giving effect to this proviso) may be added to the leaseamount of such Consolidated Capital Expenditures permitted for the immediately succeeding Fiscal Year and any such amount carried forward to a succeeding Fiscal Year shall be deemed to be used prior to Company and its Subsidiaries using the amount of capital expenditures permitted by this section in such succeeding Fiscal Year, without giving effect to such carryforward and (b) for any Fiscal Year (or portion thereof) following any acquisition of a business (whether through the purchase of assets or of shares of capital stock) permitted under Article 7, the Base Amount for such Fiscal Year (or portion) shall be increased, for each such acquisition, build-out or refurbishment by an amount equal to the product of any property in connection with (A) the opening or anticipated opened lesser of a new Restaurant (other than leases which are subject to a binding written commitment)x) if at such time, the Consolidated Total Leverage Ratio as at the end $5,000,000 and (y) 4% of revenues of the business acquired in such acquisition for the period of four Fiscal Quarters most recently ended fiscal quarter for which on or prior to the Borrower has delivered date of such Business Acquisition multiplied by (B) (x) in the required financial statements pursuant to Section 5.1(b) and case of any partial Fiscal Year, a compliance certificate pursuant to Section 5.2(b) exceeds the Incurrence Ratio, or if any Default or Event of Default then exists or would result therefrom; provided, however, that if any time the Consolidated Total Leverage Ratio as at the end of the most recently ended fiscal quarter for which the Borrower has delivered the required financial statements pursuant to Section 5.1(b) and a compliance certificate pursuant to Section 5.2(b) exceeds the Incurrence Ratiofraction, the Borrower shall use commercially reasonable efforts to minimize Consolidated Growth Capital Expenditures. Notwithstanding numerator of which is the above, the parties hereto acknowledge and agree that, for purposes number of all calculations made in determining compliance for any applicable period with the financial covenants set forth in this Section 5.9 (including, without limitation for the purposes of the definition of “Pro Forma Basis” set forth in Section 1.1), (i) after consummation of any Permitted Acquisition, (A) income statement items and other balance sheet items (whether positive or negative) attributable to the Target acquired days remaining in such transaction shall be included in Fiscal Year after the date of such calculations to the extent relating to such applicable period, subject to adjustments mutually acceptable to the Borrower Business Acquisition and the Required Purchasersdenominator of which is 365 (or 366 in a leap year), and (By) Indebtedness in the case of a Target which is retired in connection with the Acquisition or any Permitted Acquisition shall be excluded from such calculations and deemed to have been retired as of the first day of such applicable period and (ii) after any asset disposition permitted by Section 6.4(a)(vi)full Fiscal Year, (A) income statement items, cash flow statement items and other balance sheet items (whether positive or negative) attributable to the property or assets disposed of shall be excluded in such calculations to the extent relating to such applicable period, subject to adjustments mutually acceptable to the Borrower and the Administrative Agent (after consultation with the Purchasers) and (B) Indebtedness that is repaid with the proceeds of such asset disposition shall be excluded from such calculations and deemed to have been repaid as of the first day of such applicable period.1. 109

Consolidated Capital Expenditures. The sum of (a) Holdings shall not make or incur any Consolidated Capital Expenditures for and Company shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures, in any fiscal year less Fiscal Year indicated below, in an aggregate amount in excess of the corresponding amount (bthe "MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") set forth below opposite such Fiscal Year; provided that the amount of payments of tenant incentives actually received by the Borrower and its subsidiaries during such fiscal year, Maximum Consolidated Capital Expenditures Amount shall be less than or increased (i) by an amount equal to the amounts excess, if any (but in no event more than 20% of the Maximum Consolidated Capital Expenditures Amount for the immediately preceding Fiscal Year, as set forth in the table below opposite such fiscal year; provided that below) of the maximum Maximum Consolidated Capital Expenditures Amount for the previous Fiscal Year over the actual amount of Consolidated Capital Expenditures permitted for such previous Fiscal Year; (ii) by an amount up to, but in each fiscal year shall be increased by one hundred (100%) no event greater than, 15% of the unused Maximum Consolidated Capital Expenditures from Amount for the immediately preceding fiscal year following Fiscal Year, as set forth in the table below, which amount described in this clause (calculated without reference 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 amounts carried forward to 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 preceding year from any earlier year pursuant to this provisoFiscal Year (other than Asset Sales covered by clause (B) of subsection 2.4B(iii)(a); provided further, however, that ) to the extent that less than seventy percent 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 (70%iv) of the permitted Consolidated Capital Expenditures for any fiscal year is utilized, the Borrower shall only be permitted to carry forward by an amount equal to the following fiscal year fifty percent (50%) of Planned Improvement Financed Amount which has been applied by Company and its Subsidiaries during such unused Consolidated Capital Expenditures from such immediately preceding fiscal year (calculated without reference Fiscal Year to any amounts carried forward from prior years 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 this proviso): Fiscal Year Amount Fiscal Year 2006 $24,200,000 Fiscal Year 2007 $22,300,000 Fiscal Year 2008 $28,900,000 Fiscal Year 2009 $28,900,000 Fiscal Year 2010 $23,500,000 Fiscal Year 2011 and thereafter $23,600,000 Notwithstanding the foregoing, the Borrower will not subsections 2.4B(iii)(a) or (and will not permit any of its Subsidiaries to) commit to open any new Restaurants (including without limitation entering into any lease, purchase agreement, construction contract or other agreement or arrangement relating to the lease, acquisition, build-out or refurbishment of any property in connection with the opening or anticipated opened of a new Restaurant (other than leases which are subject to a binding written commitmentb)) if at such time, the Consolidated Total Leverage Ratio as at the end of the most recently ended fiscal quarter for which the Borrower has delivered the required financial statements pursuant to Section 5.1(b) and a compliance certificate pursuant to Section 5.2(b) exceeds the Incurrence Ratio, or if any Default or Event of Default then exists or would result therefrom; provided, however, that if any time the amount which may be added to the Maximum Consolidated Total Leverage Ratio as at the end of the most recently ended fiscal quarter for which the Borrower has delivered the required financial statements Capital Expenditures Amount pursuant to Section 5.1(b) and a compliance certificate pursuant to Section 5.2(b) exceeds the Incurrence Ratio, the Borrower shall use commercially reasonable efforts to minimize Consolidated Growth Capital Expenditures. Notwithstanding the above, the parties hereto acknowledge and agree that, for purposes of all calculations made in determining compliance for any applicable period with the financial covenants set forth in this Section 5.9 (including, without limitation for the purposes of the definition of “Pro Forma Basis” set forth in Section 1.1), clauses (i) after consummation of any Permitted Acquisition, (A) income statement items and other balance sheet items (whether positive or negative) attributable to the Target acquired in such transaction shall be included in such calculations to the extent relating to such applicable period, subject to adjustments mutually acceptable to the Borrower and the Required Purchasers, and (B) Indebtedness of a Target which is retired in connection with the Acquisition or any Permitted Acquisition shall be excluded from such calculations and deemed to have been retired as of the first day of such applicable period and (ii) after any asset disposition permitted by Section 6.4(a)(vi), (A) income statement items, cash flow statement items and other balance sheet items (whether positive or negative) attributable to the property or assets disposed of shall be excluded in such calculations to the extent relating to such applicable period, subject to adjustments mutually acceptable to the Borrower and the Administrative Agent (after consultation with the Purchasers) and (B) Indebtedness that is repaid with the proceeds of such asset disposition shall be excluded from such calculations and deemed to have been repaid as of the first day immediately preceding proviso shall not exceed for any Fiscal Year 20% of the Maximum Consolidated Capital Expenditures Amount for such applicable period.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

Consolidated Capital Expenditures. The sum of (a) 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, in any Fiscal Year indicated below, in an aggregate amount in excess of the corresponding amount (the "MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") set forth below opposite such Fiscal Year; provided that the Maximum Consolidated Capital Expenditures Amount (i) for any fiscal year less Fiscal Year (bother than Fiscal Year 1997) the may be increased by an amount of payments of tenant incentives actually received by the Borrower and its subsidiaries during such fiscal year, shall be less than or equal to the amounts 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 opposite such fiscal year; provided that below) of the maximum Maximum Consolidated Capital Expenditures Amount for the previous Fiscal Year (as adjusted in accordance with this proviso) over the actual amount of Consolidated Capital Expenditures permitted in each fiscal year shall for such previous Fiscal Year, (ii) for any Fiscal Year may be increased by one hundred (100%) an amount up to, but in no event greater than, 30% of the unused Maximum Consolidated Capital Expenditures from Amount for the immediately preceding fiscal year following Fiscal Year, as set forth in the table below, which amount described in this clause (calculated without reference 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 amounts carried forward to 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 preceding year from any earlier year pursuant to this proviso); provided further, however, that Fiscal Year to the extent that less than seventy percent (70%) such Net Cash Proceeds have been reinvested in new stores or the construction or remodeling of the permitted Consolidated Capital Expenditures for any fiscal year is utilized, the Borrower shall only be permitted to carry forward to the following fiscal year fifty percent (50%) stores of such unused Consolidated Capital Expenditures from such immediately preceding fiscal year (calculated without reference to any amounts carried forward from prior years pursuant to this proviso): Fiscal Year Amount Fiscal Year 2006 $24,200,000 Fiscal Year 2007 $22,300,000 Fiscal Year 2008 $28,900,000 Fiscal Year 2009 $28,900,000 Fiscal Year 2010 $23,500,000 Fiscal Year 2011 Company and thereafter $23,600,000 Notwithstanding the foregoing, the Borrower will not (and will not permit any of its Subsidiaries to) commit to open any new Restaurants (including without limitation entering into any lease, purchase agreement, construction contract or other agreement or arrangement relating to the lease, acquisition, build-out or refurbishment within 270 days of any property receipt in connection accordance with the opening or anticipated opened of a new Restaurant (other than leases which are subject to a binding written commitmentsubsection 2.4B(iii)(a)(i)) if at such time, the Consolidated Total Leverage Ratio as at the end of the most recently ended fiscal quarter for which the Borrower has delivered the required financial statements pursuant to Section 5.1(b) and a compliance certificate pursuant to Section 5.2(b) exceeds the Incurrence Ratio, or if any Default or Event of Default then exists or would result therefrom; provided, however, that if the amount which may be added to the Maximum Consolidated Capital Expenditures Amount for any time the Consolidated Total Leverage Ratio as at the end Fiscal Year pursuant to clauses (i) and (ii) of the most recently ended fiscal quarter immediately preceding proviso shall not exceed 30% of the Maximum Consolidated Capital Expenditures Amount for which the Borrower has delivered the required financial statements pursuant to Section 5.1(b) and a compliance certificate pursuant to Section 5.2(b) exceeds the Incurrence Ratio, the Borrower shall use commercially reasonable efforts to minimize Consolidated Growth Capital Expenditures. Notwithstanding the above, the parties hereto acknowledge and agree that, for purposes of all calculations made in determining compliance for any applicable period with the financial covenants such Fiscal Year as set forth in this Section 5.9 (including, without limitation for the purposes of 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 definition of “Pro Forma Basis” set forth in Section 1.1)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 consummation of the Closing Date with respect to any Permitted Acquisition, Store Land Property acquired after the Closing Date (A) income statement items and other balance sheet items (whether positive or negative) attributable to the Target acquired in such transaction which losses shall be included in calculated on or after the date of the sale or other disposition of such calculations to Store Land Property as the extent relating to purchase price of such Store Land Property minus the Cash Proceeds received by the applicable period, subject to adjustments mutually acceptable to the Borrower and the Required Purchasers, and (B) Indebtedness Loan Party on or before such date of a Target which is retired calculation in connection with the Acquisition such sale or any Permitted Acquisition shall be excluded from such calculations and deemed to have been retired as of the first day of such applicable period other disposition); and (ii) after Company and its Subsidiaries shall not acquire any asset disposition permitted by Section 6.4(a)(vi), (A) income statement items, cash flow statement items Store Land Properties so long as a Potential Event of Default or Event of Default has occurred and other balance sheet items (whether positive is continuing or negative) attributable to the property or assets disposed of shall be excluded in such calculations to the extent relating to such applicable period, subject to adjustments mutually acceptable to the Borrower and the Administrative Agent (after consultation with the Purchasers) and (B) Indebtedness that is repaid with the proceeds of such asset disposition shall be excluded from such calculations and deemed to have been repaid occurs as of the first day of such applicable perioda result thereof.

Consolidated Capital Expenditures. The sum of (a) Each Borrower shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures for Expenditures, in any fiscal year less period indicated below, in an aggregate amount in excess of the corresponding amount (bthe "MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") the amount of payments of tenant incentives actually received by the Borrower and its subsidiaries during such fiscal year, shall be less than or equal to the amounts set forth in the table below opposite such fiscal yearperiod; provided that the maximum Maximum Consolidated Capital Expenditures Amount for any -------- period shall be increased by an amount equal to the excess (the "CARRY FORWARD AMOUNT"), if any, (provided however, that in no event shall the Carry Forward -------- Amount exceed 10% of the Maximum Consolidated Capital Expenditures Amount for such previous period) of the Maximum Consolidated Capital Expenditures Amount for the previous period over the actual amount of Consolidated Capital Expenditures permitted in each fiscal year shall be increased by one hundred for such previous period: MAXIMUM CONSOLIDATED PERIOD CAPITAL EXPENDITURES -------------------------------------- -------------------- Fiscal Year, 1998 $19,000,000 Fiscal Year, 1999 $29,100,000 Fiscal Year, 2000 $21,200,000 Fiscal Year, 2001 $21,100,000 Fiscal Year, 2002 $17,400,000 Fiscal Year, 2003 (100%1st Fiscal Quarter) of the unused Consolidated Capital Expenditures from the immediately preceding fiscal year $21,700,000 Fiscal Year, 2003 (calculated without reference to any amounts carried forward to such preceding year from any earlier year pursuant to this proviso); provided further, however, that to the extent that less than seventy percent (70%2nd Fiscal Quarter) of the permitted Consolidated Capital Expenditures for any fiscal year is utilized, the Borrower shall only be permitted to carry forward to the following fiscal year fifty percent (50%) of such unused Consolidated Capital Expenditures from such immediately preceding fiscal year (calculated without reference to any amounts carried forward from prior years pursuant to this proviso): Fiscal Year Amount Fiscal Year 2006 $24,200,000 Fiscal Year 2007 $22,300,000 Fiscal Year 2008 $28,900,000 Fiscal Year 2009 $28,900,000 Fiscal Year 2010 $23,500,000 Fiscal Year 2011 and thereafter $23,600,000 Notwithstanding the foregoing, the Borrower will not (and will not permit any of its Subsidiaries to) commit to open any new Restaurants (including without limitation entering into any lease, purchase agreement, construction contract or other agreement or arrangement relating to the lease, acquisition, build-out or refurbishment of any property in connection with the opening or anticipated opened of a new Restaurant (other than leases which are subject to a binding written commitment)) if at such time, the Consolidated Total Leverage Ratio as at the end of the most recently ended fiscal quarter for which the Borrower has delivered the required financial statements pursuant to Section 5.1(b) and a compliance certificate pursuant to Section 5.2(b) exceeds the Incurrence Ratio, or if any Default or Event of Default then exists or would result therefrom17,500,000 ; provided, however, that if the Maximum Consolidated Capital Expenditures Amount -------- ------- set forth above for any time period shall be increased by an amount (the Consolidated Total Leverage Ratio as at the end "INCREMENTAL ACQUISITION CAPITAL EXPENDITURE AMOUNT") equal to 5% of the most recently ended fiscal quarter for which the Borrower has delivered the required financial statements revenues attributable to permitted acquisitions made pursuant to Section 5.1(bsubsection 7.7(v) and a compliance certificate pursuant for the consecutive twelve-month period immediately preceding the date of such acquisition; provided further that with respect to Section 5.2(b) exceeds the Incurrence RatioFiscal Year in which such -------- ------- acquisition is made, the Borrower Incremental Acquisition Capital Expenditure Amount shall use commercially reasonable efforts to minimize Consolidated Growth Capital Expenditures. Notwithstanding the above, the parties hereto acknowledge and agree that, for purposes of all calculations made in determining compliance for any applicable period with the financial covenants set forth in this Section 5.9 (including, without limitation be pro-rated for the purposes of the definition of “Pro Forma Basis” set forth in Section 1.1), (i) after consummation of any Permitted Acquisition, (A) income statement items and other balance sheet items (whether positive or negative) attributable to the Target acquired in such transaction shall be included in such calculations to the extent relating to such applicable period, subject to adjustments mutually acceptable to the Borrower and the Required Purchasers, and (B) Indebtedness of a Target which is retired in connection with the Acquisition or any Permitted Acquisition shall be excluded from such calculations and deemed to have been retired as of the first day remaining portion of such applicable period and (ii) after any asset disposition permitted by Section 6.4(a)(vi), (A) income statement items, cash flow statement items and other balance sheet items (whether positive or negative) attributable to the property or assets disposed of shall be excluded in such calculations to the extent relating to such applicable period, subject to adjustments mutually acceptable to the Borrower and the Administrative Agent (after consultation with the Purchasers) and (B) Indebtedness that is repaid with the proceeds of such asset disposition shall be excluded from such calculations and deemed to have been repaid as of the first day of such applicable periodFiscal Year.

Consolidated Capital Expenditures. The sum of (a) Credit Parties shall not, and shall not permit their Subsidiaries to, make or incur Consolidated Capital Expenditures for any fiscal year less (b) the amount of payments of tenant incentives actually received by the Borrower and its subsidiaries during such fiscal year, shall be less than or equal to the amounts set forth in the table below opposite such fiscal year; provided that the maximum amount of Consolidated Capital Expenditures permitted in each fiscal year shall be increased by one hundred (100%) of the unused Consolidated Capital Expenditures from the immediately preceding fiscal year (calculated without reference to any amounts carried forward to such preceding year from any earlier year pursuant to this proviso); provided further, however, that to the extent that less than seventy percent (70%) of the permitted Consolidated Capital Expenditures for any fiscal year is utilized, the Borrower shall only be permitted to carry forward to the following fiscal year fifty percent (50%) of such unused Consolidated Capital Expenditures from such immediately preceding fiscal year (calculated without reference to any amounts carried forward from prior years pursuant to this proviso): Fiscal Year Amount Fiscal Year 2006 $24,200,000 Fiscal Year 2007 $22,300,000 Fiscal Year 2008 $28,900,000 Fiscal Year 2009 $28,900,000 Fiscal Year 2010 $23,500,000 Fiscal Year 2011 and thereafter $23,600,000 Notwithstanding the foregoing, the Borrower will not (and will not permit any of its Subsidiaries to) commit to open any new Restaurants (including without limitation entering into any lease, purchase agreement, construction contract or other agreement or arrangement relating to the lease, acquisition, build-out or refurbishment of any property in connection with the opening or anticipated opened of a new Restaurant (other than leases which are subject to a binding written commitment)) if at such time, the Consolidated Total Leverage Ratio as at the end of the most recently ended fiscal quarter for which the Borrower has delivered the required financial statements pursuant to Section 5.1(b) and a compliance certificate pursuant to Section 5.2(b) exceeds the Incurrence Ratio, or if any Default or Event of Default then exists or would result therefromExpenditures; provided, however, that if (x) in the 2021 Fiscal Year, the Credit Parties and their Subsidiaries may make Consolidated Capital Expenditures other than Consolidated Maintenance Capital Expenditures in an amount (together with any time Permitted Acquisitions or Permitted Franchise Acquisitions made pursuant Section 8.3(vi) in such Fiscal Year) not to exceed $20,000,000 (for the avoidance of doubt, Consolidated Total Leverage Ratio as at Maintenance Capital Expenditures will not count against the end of the most recently ended fiscal quarter for which the Borrower has delivered the required financial statements pursuant to Section 5.1(b$20,000,000 basket described in this clause (x)) and a compliance certificate pursuant to Section 5.2(b(y) exceeds the Incurrence Ratio, the Borrower shall use commercially reasonable efforts to minimize Consolidated Growth Capital Expenditures. Notwithstanding the above, the parties hereto acknowledge and agree that, for purposes of all calculations made in determining compliance for any applicable period subsequent Fiscal Year (commencing with the financial covenants set forth in this Section 5.9 (including, without limitation for the purposes of the definition of “Pro Forma Basis” set forth in Section 1.12022 Fiscal Year), (i) after consummation of the Credit Parties and their Subsidiaries shall not make any Permitted Acquisition, (A) income statement items and other balance sheet items (whether positive or negative) attributable to Consolidated Capital Expenditures if the Target acquired in such transaction shall be included in such calculations to the extent relating to such applicable period, subject to adjustments mutually acceptable to the Borrower and the Required Purchasers, and (B) Indebtedness of a Target which is retired in connection with the Acquisition or any Permitted Acquisition shall be excluded from such calculations and deemed to have been retired Consolidated Leverage Ratio as of the first day end of such applicable period the immediately preceding Fiscal Quarter (before and after giving effect to the proposed Consolidated Capital Expenditure on a Pro Forma Basis) is greater than or equal to 2.50:1.00, (ii) after the Credit Parties and their Subsidiaries may make Consolidated Capital Expenditures in any asset disposition permitted by Section 6.4(a)(vi), (A) income statement items, cash flow statement items and other balance sheet items (whether positive or negative) attributable such Fiscal Year in an amount not to exceed 75% of Consolidated EBITDA for the property or assets disposed of shall be excluded in such calculations to immediately preceding Fiscal Year if the extent relating to such applicable period, subject to adjustments mutually acceptable to the Borrower and the Administrative Agent (after consultation with the Purchasers) and (B) Indebtedness that is repaid with the proceeds of such asset disposition shall be excluded from such calculations and deemed to have been repaid Consolidated Leverage Ratio as of the first day end of the immediately CHAR1\1796769v6 preceding Fiscal Quarter (before and after giving effect to the proposed Consolidated Capital Expenditure on a Pro Forma Basis) is less than 2.50 to 1.00 but greater than or equal to 1.50:1.00 and (iii) the Credit Parties and their Subsidiaries may make Consolidated Capital Expenditures in any such applicable periodFiscal Year in an unlimited amount if the Consolidated Leverage Ratio as of the end of the immediately preceding Fiscal Quarter (before and after giving effect to the proposed Consolidated Capital Expenditure on a Pro Forma Basis) is less than 1.50:1.00. Nothing in this Section 8.14 will prohibit the Credit Parties and their Subsidiaries from making Consolidated Maintenance Capital Expenditures after the Seventh Amendment Effective Date.

Consolidated Capital Expenditures. The sum of (ai) Consolidated Capital Expenditures for any fiscal year less (b) the amount of payments of tenant incentives actually received by the Borrower and its subsidiaries during such fiscal yearCompany will not, shall be less than or equal to the amounts set forth in the table below opposite such fiscal year; provided that the maximum amount of Consolidated Capital Expenditures permitted in each fiscal year shall be increased by one hundred (100%) of the unused Consolidated Capital Expenditures from the immediately preceding fiscal year (calculated without reference to any amounts carried forward to such preceding year from any earlier year pursuant to this proviso); provided further, however, that to the extent that less than seventy percent (70%) of the permitted Consolidated Capital Expenditures for any fiscal year is utilized, the Borrower shall only be permitted to carry forward to the following fiscal year fifty percent (50%) of such unused Consolidated Capital Expenditures from such immediately preceding fiscal year (calculated without reference to any amounts carried forward from prior years pursuant to this proviso): Fiscal Year Amount Fiscal Year 2006 $24,200,000 Fiscal Year 2007 $22,300,000 Fiscal Year 2008 $28,900,000 Fiscal Year 2009 $28,900,000 Fiscal Year 2010 $23,500,000 Fiscal Year 2011 and thereafter $23,600,000 Notwithstanding the foregoing, the Borrower will not (and will not permit any of its Subsidiaries to) , make or commit to open make Consolidated Capital Expenditures in any new Restaurants Fiscal year, except Consolidated Capital Expenditures which do not aggregate in excess of $8,000,000 in such Fiscal Year PLUS an additional aggregate amount equal to $10,000,000 over the term of this Agreement; PROVIDED that (including a) if the aggregate amount of Consolidated Capital Expenditures actually made in any such Fiscal Year shall be less than the limit with respect thereto set forth above (before giving effect to any increase therein pursuant to this proviso) (the "BASE AMOUNT"), then the amount of such shortfall (up to an amount equal to 50% of the Base Amount for such Fiscal Year, without limitation entering into any lease, purchase agreement, construction contract or other agreement or arrangement relating giving effect to this proviso) may be added to the leaseamount of such Consolidated Capital Expenditures permitted for the immediately succeeding Fiscal Year and any such amount carried forward to a succeeding Fiscal Year shall be deemed to be used prior to Company and its Subsidiaries using the amount of capital expenditures permitted by this section in such succeeding Fiscal Year, without giving effect to such carryforward and (b) for any Fiscal Year (or portion thereof) following any acquisition of a business (whether through the purchase of assets or of shares of capital stock) permitted under Article 7, the Base Amount for such Fiscal Year (or portion) shall be increased, for each such acquisition, build-out or refurbishment by an amount equal to the product of any property in connection with (A) the opening or anticipated opened lesser of a new Restaurant (other than leases which are subject to a binding written commitment)x) if at such time, the Consolidated Total Leverage Ratio as at the end $5,000,000 and (y) 4% of revenues of the business acquired in such acquisition for the period of four Fiscal Quarters most recently ended fiscal quarter for which on or prior to the Borrower has delivered date of such Business Acquisition multiplied by (B) (x) in the required financial statements pursuant to Section 5.1(b) and case of any partial Fiscal Year, a compliance certificate pursuant to Section 5.2(b) exceeds the Incurrence Ratio, or if any Default or Event of Default then exists or would result therefrom; provided, however, that if any time the Consolidated Total Leverage Ratio as at the end of the most recently ended fiscal quarter for which the Borrower has delivered the required financial statements pursuant to Section 5.1(b) and a compliance certificate pursuant to Section 5.2(b) exceeds the Incurrence Ratiofraction, the Borrower shall use commercially reasonable efforts to minimize Consolidated Growth Capital Expenditures. Notwithstanding numerator of which is the above, the parties hereto acknowledge and agree that, for purposes number of all calculations made in determining compliance for any applicable period with the financial covenants set forth in this Section 5.9 (including, without limitation for the purposes of the definition of “Pro Forma Basis” set forth in Section 1.1), (i) after consummation of any Permitted Acquisition, (A) income statement items and other balance sheet items (whether positive or negative) attributable to the Target acquired days remaining in such transaction shall be included in Fiscal Year after the date of such calculations to the extent relating to such applicable period, subject to adjustments mutually acceptable to the Borrower Business Acquisition and the Required Purchasersdenominator of which is 365 (or 366 in a leap year), and (By) Indebtedness in the case of a Target which is retired in connection with the Acquisition or any Permitted Acquisition shall be excluded from such calculations and deemed to have been retired as of the first day of such applicable period and (ii) after any asset disposition permitted by Section 6.4(a)(vi)full Fiscal Year, (A) income statement items, cash flow statement items and other balance sheet items (whether positive or negative) attributable to the property or assets disposed of shall be excluded in such calculations to the extent relating to such applicable period, subject to adjustments mutually acceptable to the Borrower and the Administrative Agent (after consultation with the Purchasers) and (B) Indebtedness that is repaid with the proceeds of such asset disposition shall be excluded from such calculations and deemed to have been repaid as of the first day of such applicable period1.

Consolidated Capital Expenditures. The sum of (ai) Consolidated Capital Expenditures for any fiscal year less (b) the amount of payments of tenant incentives actually received by the Borrower and its subsidiaries during such fiscal yearCompany will not, shall be less than or equal to the amounts set forth in the table below opposite such fiscal year; provided that the maximum amount of Consolidated Capital Expenditures permitted in each fiscal year shall be increased by one hundred (100%) of the unused Consolidated Capital Expenditures from the immediately preceding fiscal year (calculated without reference to any amounts carried forward to such preceding year from any earlier year pursuant to this proviso); provided further, however, that to the extent that less than seventy percent (70%) of the permitted Consolidated Capital Expenditures for any fiscal year is utilized, the Borrower shall only be permitted to carry forward to the following fiscal year fifty percent (50%) of such unused Consolidated Capital Expenditures from such immediately preceding fiscal year (calculated without reference to any amounts carried forward from prior years pursuant to this proviso): Fiscal Year Amount Fiscal Year 2006 $24,200,000 Fiscal Year 2007 $22,300,000 Fiscal Year 2008 $28,900,000 Fiscal Year 2009 $28,900,000 Fiscal Year 2010 $23,500,000 Fiscal Year 2011 and thereafter $23,600,000 Notwithstanding the foregoing, the Borrower will not (and will not permit any of its Subsidiaries to) , make or commit to open make Consolidated Capital Expenditures in any new Restaurants Fiscal Year, except Consolidated Capital Expenditures which do not aggregate in excess of $8,000,000 in such Fiscal Year PLUS an additional aggregate amount equal to $10,000,000 in the aggregate for all such Consolidated Capital Expenditures made after the Closing Date; PROVIDED that (including a) if the aggregate amount of Consolidated Capital Expenditures actually made in any such Fiscal Year shall be less than the limit with respect thereto set forth above (before giving effect to any increase therein pursuant to this proviso) (the "BASE AMOUNT"), then the amount of such shortfall (up to an amount equal to 50% of the Base Amount for such Fiscal Year, without limitation entering into any lease, purchase agreement, construction contract or other agreement or arrangement relating giving effect to this proviso) may be added to the leaseamount of such Consolidated Capital Expenditures permitted for the immediately succeeding Fiscal Year and any such amount carried forward to a 121 succeeding Fiscal Year shall be deemed to be used prior to Company and its Subsidiaries using the amount of capital expenditures permitted by this section in such succeeding Fiscal Year, without giving effect to such carryforward and (b) for any Fiscal Year (or portion thereof) following any acquisition of a business (whether through the purchase of assets or of shares of capital stock) permitted under Article 7, the Base Amount for such Fiscal Year (or portion) shall be increased, for each such acquisition, build-out or refurbishment by an amount equal to the product of any property in connection with (A) the opening or anticipated opened lesser of a new Restaurant (other than leases which are subject to a binding written commitment)x) if at such time, the Consolidated Total Leverage Ratio as at the end $5,000,000 and (y) 4% of revenues of the business acquired in such acquisition for the period of four Fiscal Quarters most recently ended fiscal quarter for which on or prior to the Borrower has delivered date of such Business Acquisition multiplied by (B) (x) in the required financial statements pursuant to Section 5.1(b) and case of any partial Fiscal Year, a compliance certificate pursuant to Section 5.2(b) exceeds the Incurrence Ratio, or if any Default or Event of Default then exists or would result therefrom; provided, however, that if any time the Consolidated Total Leverage Ratio as at the end of the most recently ended fiscal quarter for which the Borrower has delivered the required financial statements pursuant to Section 5.1(b) and a compliance certificate pursuant to Section 5.2(b) exceeds the Incurrence Ratiofraction, the Borrower shall use commercially reasonable efforts to minimize Consolidated Growth Capital Expenditures. Notwithstanding numerator of which is the above, the parties hereto acknowledge and agree that, for purposes number of all calculations made in determining compliance for any applicable period with the financial covenants set forth in this Section 5.9 (including, without limitation for the purposes of the definition of “Pro Forma Basis” set forth in Section 1.1), (i) after consummation of any Permitted Acquisition, (A) income statement items and other balance sheet items (whether positive or negative) attributable to the Target acquired days remaining in such transaction shall be included in Fiscal Year after the date of such calculations to the extent relating to such applicable period, subject to adjustments mutually acceptable to the Borrower Business Acquisition and the Required Purchasersdenominator of which is 365 (or 366 in a leap year), and (By) Indebtedness in the case of a Target which is retired in connection with the Acquisition or any Permitted Acquisition shall be excluded from such calculations and deemed to have been retired as of the first day of such applicable period and (ii) after any asset disposition permitted by Section 6.4(a)(vi)full Fiscal Year, (A) income statement items, cash flow statement items and other balance sheet items (whether positive or negative) attributable to the property or assets disposed of shall be excluded in such calculations to the extent relating to such applicable period, subject to adjustments mutually acceptable to the Borrower and the Administrative Agent (after consultation with the Purchasers) and (B) Indebtedness that is repaid with the proceeds of such asset disposition shall be excluded from such calculations and deemed to have been repaid as of the first day of such applicable period1.

Consolidated Capital Expenditures. The sum Company shall not, and shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures, in any Fiscal Year (or in the case of Fiscal Year 2001, the six-month period) indicated below, in an aggregate amount in excess of the corresponding amount (a) the "Maximum Consolidated Capital Expenditures for any fiscal year less (bAmount") the amount of payments of tenant incentives actually received by the Borrower and its subsidiaries during such fiscal year, shall be less than or equal to the amounts set forth in the table below opposite such fiscal yearFiscal Year (or such six- month period); provided that the maximum Maximum Consolidated Capital Expenditures -------- Amount for any Fiscal Year shall be increased by an amount equal to the excess, if any, (but in no event more than $3,000,000) of the Maximum Consolidated Capital Expenditures Amount for the previous Fiscal Year (or such six-month period) over the actual amount of Consolidated Capital Expenditures permitted in each fiscal year shall be increased by one hundred for such previous Fiscal Year (100%or such six-month period) of the unused ("Carryover Amount"); provided -------- that (1) Consolidated Capital Expenditures from the immediately preceding fiscal year (calculated without reference to in any amounts carried forward to such preceding year from any earlier year pursuant to this proviso); provided further, however, that Fiscal Year shall be applied to the extent yearly limit set forth below before being applied to the Carryover Amount for such Fiscal Year, and (2) any Carryover Amount which is not expended in a Fiscal Year shall not be included in calculating the Carryover Amount for any following Fiscal Year; and provided further that less than seventy percent (70%if any portion of Net Asset -------- ------- Sale Proceeds in respect of any Asset Sale consisting of machinery or equipment is applied to prepay the Term Loans under subsection 2.4B(iii)(a) and Company or any of its Subsidiaries makes capital expenditures in other machinery or equipment within 180 days of the permitted date of such Asset Sale, then the amount of such capital expenditures up to the amount of such prepayment of the Term Loans shall not be included in the calculation of Consolidated Capital Expenditures for any fiscal year is utilized, purposes of this subsection 7.8 so long as the Borrower shall only be permitted to carry forward to aggregate amount of all such capital expenditures that are not so included in the following fiscal year fifty percent (50%) calculation of such unused Consolidated Capital Expenditures from such immediately preceding fiscal year (calculated without reference to any amounts carried forward from prior years pursuant to shall not exceed $3,000,000 over the term of this proviso): Agreement: Maximum Consolidated Period Capital Expenditures ------ -------------------- Six-Month Period ending December 31, 2001 $10,000,000 Fiscal Year Amount ending December 31, 2002 and each $12,000,000 Fiscal Year 2006 $24,200,000 Fiscal Year 2007 $22,300,000 Fiscal Year 2008 $28,900,000 Fiscal Year 2009 $28,900,000 Fiscal Year 2010 $23,500,000 Fiscal Year 2011 and thereafter $23,600,000 Notwithstanding the foregoing, the Borrower will not (and will not permit any of its Subsidiaries to) commit to open any new Restaurants (including without limitation entering into any lease, purchase agreement, construction contract or other agreement or arrangement relating to the lease, acquisition, build-out or refurbishment of any property in connection with the opening or anticipated opened of a new Restaurant (other than leases which are subject to a binding written commitment)) if at such time, the Consolidated Total Leverage Ratio as at the end of the most recently ended fiscal quarter for which the Borrower has delivered the required financial statements pursuant to Section 5.1(b) and a compliance certificate pursuant to Section 5.2(b) exceeds the Incurrence Ratio, or if any Default or Event of Default then exists or would result therefrom; provided, however, that if any time the Consolidated Total Leverage Ratio as at the end of the most recently ended fiscal quarter for which the Borrower has delivered the required financial statements pursuant to Section 5.1(b) and a compliance certificate pursuant to Section 5.2(b) exceeds the Incurrence Ratio, the Borrower shall use commercially reasonable efforts to minimize Consolidated Growth Capital Expenditures. Notwithstanding the above, the parties hereto acknowledge and agree that, for purposes of all calculations made in determining compliance for any applicable period with the financial covenants set forth in this Section 5.9 (including, without limitation for the purposes of the definition of “Pro Forma Basis” set forth in Section 1.1), (i) after consummation of any Permitted Acquisition, (A) income statement items and other balance sheet items (whether positive or negative) attributable to the Target acquired in such transaction shall be included in such calculations to the extent relating to such applicable period, subject to adjustments mutually acceptable to the Borrower and the Required Purchasers, and (B) Indebtedness of a Target which is retired in connection with the Acquisition or any Permitted Acquisition shall be excluded from such calculations and deemed to have been retired as of the first day of such applicable period and (ii) after any asset disposition permitted by Section 6.4(a)(vi), (A) income statement items, cash flow statement items and other balance sheet items (whether positive or negative) attributable to the property or assets disposed of shall be excluded in such calculations to the extent relating to such applicable period, subject to adjustments mutually acceptable to the Borrower and the Administrative Agent (after consultation with the Purchasers) and (B) Indebtedness that is repaid with the proceeds of such asset disposition shall be excluded from such calculations and deemed to have been repaid as of the first day of such applicable period.thereafter