Shake Shack 2015 Annual Report Download - page 186

any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, (iv) the failure of the Borrower to
deliver to the Administrative Agent the required receipts or other required documentary evidence with respect to a payment made by the Borrower for
Taxes pursuant to Section 2.15, or (v) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether
based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, penalties, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee;
provided
further
that this Section 9.03(b) shall not apply with respect to Taxes other than Taxes that represent losses, claims , damages, etc. arising from any non-
Tax
claim.
(f)
To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent or the Issuing Bank under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent or the Issuing Bank, as the case may be, such
Lender’
s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided
that the unreimbursed expense or indemnified loss, claim, damage, penalty, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent or the Issuing Bank in its capacity as such.
(g)
To the extent permitted by applicable law, no Loan Party shall assert, and each hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof.
(h)
All amounts due under this Section shall be payable promptly after written demand therefor.
SECTION 9.04.
Successors and Assigns . (1) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except
that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and
any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its
rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that
issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason
of this Agreement.
(e)
(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Persons (other than an Ineligible
Assignee) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Revolving Commitment and the
81