Common use of Excluded Subsidiary Clause in Contracts

Excluded Subsidiary. The Borrower shall not, nor shall it permit any of its Subsidiaries, other than the Excluded Subsidiary, to (a) create, assume, incur or suffer to exist any Lien on or in respect of any of its Property for the benefit of the Excluded Subsidiary, (b) sell, assign, pledge, or otherwise transfer any of its properties to the Excluded Subsidiary, other than as permitted pursuant to Section 9.05(l), (c) make or permit to exist any loans, advances, or capital contributions to, or make any Investment in, or purchase or commit to purchase any Equity Interests or evidences of Debt of or interests in, the Excluded Subsidiary or in any properties of the Excluded Subsidiary, other than as permitted pursuant to Section 9.05(l), or (d) permit the Excluded Subsidiary to conduct any material business activities or own any material Property other than the following (and activities incidental thereto): (i) ownership and maintenance of the corporate headquarters of the Borrower and the Borrower’s Subsidiaries and the management of the use and access of the corporate headquarters by the Borrower and the Borrower’s Subsidiaries, (ii) the maintenance of its legal existence (including the ability to incur fees, costs and expenses relating to such maintenance and performance of activities relating to its officers, directors, managers and employees and the filing of tax reports and paying taxes and other customary obligations related thereto in the ordinary course (and contesting any taxes)), (iii) financing activities related to the foregoing, (iv) participating in tax, accounting and other administrative matters as a member of the consolidated group of the Borrower and its Subsidiaries, including compliance with applicable law and legal, tax and accounting matters related thereto and activities relating to its officers, directors, managers and employees, (v) holding any cash and Cash Equivalents, (vi) entering into and performance of obligations with respect to contracts and other arrangements entered into in connection with the activities contemplated by this Section 9.21, and (vii) the performance of obligations under and compliance with its organizational documents, any demands or requests from or requirements of a Governmental Authority or any applicable law, ordinance, regulation, rule, order, judgment, decree or permit.

Excluded Subsidiary. The Borrower shall notAny Person which is as of the date of this Agreement, nor shall it permit or becomes after the date of this Agreement, a Subsidiary of Parent which is prohibited from guaranteeing the Indebtedness of any of its Subsidiaries, other than the Excluded Subsidiary, Person pursuant to (a) createany document, assumeinstrument or agreement evidencing Secured Debt permitted by this Agreement or (b) a provision of such Subsidiary’s organizational documents, incur or suffer as a condition to exist any Lien the extension of such Secured Debt. Excluded Taxes. Any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in respect each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any of Lender, its Property for applicable lending office located in, the benefit of the Excluded Subsidiaryjurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) sellin the case of a Lender, assignUnited States federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to an Applicable Law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under §4.15 as a result of costs sought to be reimbursed pursuant to §4.4 or under §18.9) or (ii) such Lender changes its lending office, pledge, or otherwise transfer any of its properties except in each case to the Excluded Subsidiaryextent that, other than as permitted pursuant to Section 9.05(l)§4.4, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) make or permit Taxes attributable to exist any loans, advances, or capital contributions to, or make any Investment in, or purchase or commit such Recipient’s failure to purchase any Equity Interests or evidences of Debt of or interests in, the Excluded Subsidiary or in any properties of the Excluded Subsidiary, other than as permitted pursuant to Section 9.05(lcomply with §4.4(g), or and (d) permit the Excluded Subsidiary to conduct any material business activities or own any material Property other than the following U.S. United States federal withholding Taxes imposed under FATCA. Existing Revolving Credit Commitments. The Revolving Credit Commitments (and activities incidental thereto): (i) ownership and maintenance of the corporate headquarters of the Borrower and the Borrower’s Subsidiaries and the management of the use and access of the corporate headquarters by the Borrower and the Borrower’s Subsidiaries, (ii) the maintenance of its legal existence (including the ability to incur fees, costs and expenses relating to such maintenance and performance of activities relating to its officers, directors, managers and employees and the filing of tax reports and paying taxes and other customary obligations related thereto as defined in the ordinary course Original Credit Agreement). Existing Term Loan Commitments. The Term Loan Commitments (and contesting any taxesas defined in the Original Credit Agreement)), (iii) financing activities related to the foregoing, (iv) participating in tax, accounting and other administrative matters as a member of the consolidated group of the Borrower and its Subsidiaries, including compliance with applicable law and legal, tax and accounting matters related thereto and activities relating to its officers, directors, managers and employees, (v) holding any cash and Cash Equivalents, (vi) entering into and performance of obligations with respect to contracts and other arrangements entered into in connection with the activities contemplated by this Section 9.21, and (vii) the performance of obligations under and compliance with its organizational documents, any demands or requests from or requirements of a Governmental Authority or any applicable law, ordinance, regulation, rule, order, judgment, decree or permit.

Excluded Subsidiary. The Borrower shall not, nor shall it permit any of its Subsidiaries, other than the Excluded Subsidiary, to (a) create, assume, incur or suffer to exist any Lien on or in respect of any of its Property for the benefit of the Excluded each Foreign Subsidiary, (b) sellany Subsidiaries that are not-for-profit entities or captive insurance Subsidiaries, assign, pledge, or otherwise transfer and any of its properties to the Excluded Immaterial Subsidiary, other than as permitted pursuant to Section 9.05(l), (c) make any other Subsidiary of the Borrowers whose guarantee of the Secured Obligations would result in an adverse tax consequence to Holdings or permit any of its Subsidiaries (including as a result of the operation of Section 956 of the Code or any similar law or regulation in any applicable jurisdiction) as reasonably determined by the Lead Borrower, (d) any other Subsidiary that is a direct or indirect Subsidiary of a Foreign Subsidiary, (e) any Subsidiary that is prohibited by Applicable Law or by any contractual obligation existing on the Restatement Date or existing at the time of acquisition thereof after the Restatement Date, in each case, from becoming a Guarantor or which would require governmental (including regulatory) or contractual party consent, approval, license or authorization to exist provide a guarantee hereunder unless such consent, approval, license or authorization has been received (but without an obligation by any loansSubsidiary or Borrower to seek the same), advances(f) an Unrestricted Subsidiary, (g) any other Subsidiary to the extent that the cost or burden of making it a Guarantor hereunder is excessive in relation to the value afforded thereby (as reasonably determined by the Agent and the Lead Borrower), and (h) any Disregarded Domestic Person. Excluded Tax: with respect to the Agent, any Lender, the Issuing Bank or any other recipient of a payment to be made by or on account of any Obligation of any Obligor hereunder or under any other Loan Document, (a) Taxes imposed on or measured by its overall net or gross income (however denominated), capital Taxes and franchise Taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or has a permanent establishment or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, or capital contributions as a result of any other present or former connection between the jurisdiction imposing such Tax and such recipient (other than a connection arising solely as a result of having executed, delivered, been a party to, performed its obligations or make any Investment inreceived a payment under, or purchase or commit to purchase enforced any Equity Interests or evidences of Debt of or interests in, the Excluded Subsidiary or in Loan Document); (b) any properties branch profits Taxes imposed under Section 884(a) of the Excluded SubsidiaryCode or any similar Tax, imposed by any other jurisdiction described in clause (a); (c) in the case of a Lender or Issuing Bank (other than an assignee pursuant to a request by the Agent or the Lead Borrower under Section 12.4), solely with respect to any U.S. Secured Obligation or Canadian Secured Obligation, any U.S. federal or Canadian federal or provincial withholding Tax that is required pursuant to laws in effect at the time such Lender or Issuing Bank becomes a Lender or Issuing Bank (or designates a new Lending Office) hereunder with respect to any U.S. Secured Obligation or Canadian Secured Obligation, as permitted applicable, except to the extent that such Lender or Issuing Bank (or its assignor, if any) was entitled, immediately prior to the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrowers with respect to such withholding Taxes pursuant to Section 9.05(l), or 5.8; (d) permit withholding Tax attributable to a Lender’s or Issuing Bank’s failure to comply with Section 5.9 and (e) any U.S. federal withholding Tax imposed pursuant to FATCA. Existing Canadian Letters of Credit: the Excluded Subsidiary to conduct any material business activities or own any material Property other than letters of credit under the following (and activities incidental thereto): (i) ownership and maintenance of the corporate headquarters of the Borrower and the Borrower’s Subsidiaries and the management of the use and access of the corporate headquarters by the Borrower and the Borrower’s Subsidiaries, (ii) the maintenance of its legal existence (including the ability to incur fees, costs and expenses relating to such maintenance and performance of activities relating to its officers, directors, managers and employees and the filing of tax reports and paying taxes and other customary obligations related thereto in the ordinary course (and contesting any taxes)), (iii) financing activities related Second Amended Credit Agreement outstanding prior to the foregoing, (ivThird Restatement Date and set forth on Schedule 1.1(a) participating in tax, accounting and other administrative matters identified as a member Existing Canadian Letters of the consolidated group of the Borrower and its Subsidiaries, including compliance with applicable law and legal, tax and accounting matters related thereto and activities relating to its officers, directors, managers and employees, (v) holding any cash and Cash Equivalents, (vi) entering into and performance of obligations with respect to contracts and other arrangements entered into in connection with the activities contemplated by this Section 9.21, and (vii) the performance of obligations under and compliance with its organizational documents, any demands or requests from or requirements of a Governmental Authority or any applicable law, ordinance, regulation, rule, order, judgment, decree or permitCredit.

Excluded Subsidiary. The Any Subsidiary of the Borrower shall notwhich is prohibited from guaranteeing the Indebtedness of any other Person pursuant to (i) any document, nor shall it permit instrument or agreement evidencing Secured Indebtedness permitted by this Agreement or (ii) a provision of such Subsidiary’s organizational documents, which provision is included as a condition to the extension of such Secured Indebtedness. Notwithstanding the foregoing, the Excluded Subsidiaries as of the date hereof also include: Supertel Hospitality Management, Inc.; E&P Financing Limited Partnership; and E&P REIT Trust; provided that any of its Subsidiaries, such Subsidiaries shall no longer be an Excluded Subsidiary if it shall own any asset (other than immaterial assets) or engage in any business operations. Excluded Taxes. Any of the Excluded Subsidiaryfollowing Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, to (a) create, assume, incur or suffer to exist any Lien Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in respect each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any of Lender, its Property for applicable lending office located in, the benefit of the Excluded Subsidiaryjurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) sellin the case of a Lender, assignU.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or its Commitment pursuant to an Applicable Law in effect on the date on which (i) such Lender acquires such interest in the Loan or its Commitment (other than pursuant to an assignment request by the Borrower under §4.14 as a result of costs sought to be reimbursed pursuant to §4.3) or (ii) such Lender changes its lending office, pledge, or otherwise transfer any of its properties except in each case to the Excluded Subsidiaryextent that, other than as permitted pursuant to Section 9.05(l)§4.3, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) make or permit Taxes attributable to exist any loans, advances, or capital contributions to, or make any Investment in, or purchase or commit such Recipient’s failure to purchase any Equity Interests or evidences of Debt of or interests in, the Excluded Subsidiary or in any properties of the Excluded Subsidiary, other than as permitted pursuant to Section 9.05(l), or comply with §4.3(g) and (d) permit the Excluded Subsidiary to conduct any material business activities or own any material Property other than the following (and activities incidental thereto): (i) ownership and maintenance of the corporate headquarters of the Borrower and the Borrower’s Subsidiaries and the management of the use and access of the corporate headquarters by the Borrower and the Borrower’s SubsidiariesU.S. federal withholding Taxes imposed under FATCA. 17 102175686\V-9 102175686\V-9 US_Active\114487228114490487\V-17 Existing Shareholders. IRSA Inversiones y Representaciones Sociedad Anónima, (ii) the maintenance of its legal existence (including the ability to incur feesReal Estate Strategies, costs and expenses relating to such maintenance and performance of activities relating to its officersL.P., directorsStepStone Group LP, managers and employees and the filing of tax reports and paying taxes and other customary obligations related thereto in the ordinary course (and contesting any taxes))SREP III Flight-Investco, (iii) financing activities related to the foregoing, (iv) participating in tax, accounting and other administrative matters as a member of the consolidated group of the Borrower and its Subsidiaries, including compliance with applicable law and legal, tax and accounting matters related thereto and activities relating to its officers, directors, managers and employees, (v) holding any cash and Cash Equivalents, (vi) entering into and performance of obligations with respect to contracts and other arrangements entered into in connection with the activities contemplated by this Section 9.21L.P., and (vii) the performance of obligations under and compliance with as to each such Person its organizational documents, any demands or requests from or requirements of a Governmental Authority or any applicable law, ordinance, regulation, rule, order, judgment, decree or permitrespective Affiliates. Extension Request See §2.12(a)(i).