Shake Shack 2015 Annual Report Download - page 122

“ Maintenance Capital Expenditures ”3
means, with respect to any Consolidated Party, Capital Expenditures made in the ordinary course of
business to repair, replace or otherwise maintain fixed or capital assets of such Person (and, for the avoidance of doubt, shall not include any Capital
Expenditure in connection with the initial build-out of any restaurant or unit).
“ Material Adverse Effect ”
means a material adverse effect on (a) the business, assets, operations or condition, financial or otherwise, of the
Borrower and the other Loan Parties taken as a whole, (b) the ability of the Loan Parties to perform any of their respective obligations under the Loan
Documents to which it is a party, (c) the Collateral, or the Administrative Agent’
s Liens (on behalf of itself and the Lenders) on the Collateral or the
priority of such Liens, or (d) the rights of or benefits available to the Lender Parties under the Loan Documents.
“ Material Indebtedness ”
means any item of Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more
Swap Agreements, of any one or more of the Loan Parties in an aggregate principal amount exceeding $3,500,000. For purposes of determining Material
Indebtedness, the “obligations”
of any Loan Party in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect
to any netting agreements) that such Loan Party would be required to pay if such Swap Agreement were terminated at such time.
“ Maturity Date ”
means, with respect to (a) Revolving Loans, (i) five (5) years after the Effective Date or (ii) any earlier date on which the
Commitments are reduced to zero or otherwise terminated pursuant to the terms hereof and (b) Letters of Credit (i) five (5) years after the Effective Date
or (ii) any earlier date on which the LC Sublimit is to zero or otherwise terminated pursuant to the terms hereof.
“ Maximum Liability ” has the meaning assigned to such term in Section 10.10.
“ Moody’s ” means Moody’s Investors Service, Inc.
“ Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“ Net Income ”
means, for any period, the net income (or loss) of the Consolidated Parties calculated after eliminations for intercompany
transactions; provided
that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Loan Party or a
Subsidiary of a Loan Party or is merged into or consolidated with a Loan Party or a Subsidiary of a Loan Party, (b) the income (or deficit) of any Person
(other than a Subsidiary of a Loan Party) in which a Loan Party has an ownership interest, except to the extent that any such income is actually received
by such Loan Party in the form of dividends or similar distributions and (c) the undistributed earnings of any Subsidiary of a Loan Party to the extent that
the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any contractual obligation
(other than under any Loan Document) or Requirement of Law applicable to such Subsidiary.
“ Net Proceeds ”
means, with respect to any event, (a) the cash proceeds received in respect of such event including (i) any cash received in
respect of any non-cash proceeds (including any cash payments received by way of deferred payment of principal pursuant to a note or installment
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