INCLUDING, WITHOUT LIMITATION, IN
CONNECTION WITH BANKRUPTCY, INSOLVENCY, LIQUIDATION, REORGANIZATION, MORATORIUM
OR OTHER SIMILAR PROCEEDINGS INVOLVING ANY TRANSACTION PARTY OR A "WORKOUT" OF
THE OBLIGATIONS.
THE OBLIGATIONS OF THE BORROWER UNDER THIS SECTION 7.1(23)
SHALL SURVIVE PAYMENT OF ALL OTHER OBLIGATIONS.
(24)
REIT STATUS.
CNL REIT SHALL MAINTAIN ITS STATUS
AS A REIT.
ALL OF THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 6.18
SHALL REMAIN TRUE AND CORRECT AT ALL TIMES. BORROWER WILL DO OR CAUSE TO BE DONE
ALL THINGS NECESSARY TO CAUSE IT TO BE TREATED AS EITHER A PARTNERSHIP OR A
DISREGARDED ENTITY FOR PURPOSES OF FEDERAL INCOME TAXATION AND THE TAX LAWS OF
ANY STATE OR LOCALITY IN WHICH BORROWER IS SUBJECT TO TAXATION BASED ON ITS
INCOME.
31
(25)
SUBORDINATION.
(A)
EACH TRANSACTION PARTY (EACH A "SUBORDINATED
CREDITOR") HEREBY ABSOLUTELY AND IRREVOCABLY SUBORDINATES, BOTH IN RIGHT OF
PAYMENT AND IN TIME OF PAYMENT, (A) IN THE CASE OF THE GUARANTORS AND THE
OPERATING AFFILIATES, ANY AND ALL PRESENT OR FUTURE OBLIGATIONS AND LIABILITIES
OF THE BORROWER TO SUCH PERSONS, AND (B) IN THE CASE OF THE BORROWER, ANY AND
ALL PRESENT AND FUTURE OBLIGATIONS AND LIABILITIES OF THE GUARANTORS AND THE
OPERATING AFFILIATES TO THE BORROWER (SUCH OBLIGATIONS AND LIABILITIES REFERRED
TO IN CLAUSES (A) OR (B) BEING "SUBORDINATED INDEBTEDNESS"), TO THE PRIOR
PAYMENT IN FULL IN CASH OF THE OBLIGATIONS OR THE OBLIGATIONS OF THE GUARANTORS
UNDER THE GUARANTIES, AS APPLICABLE. EACH SUBORDINATED CREDITOR AGREES TO MAKE
NO CLAIM FOR, OR RECEIVE PAYMENT WITH RESPECT TO, SUCH SUBORDINATED INDEBTEDNESS
UNTIL ALL OBLIGATIONS AND SUCH OBLIGATIONS HAVE BEEN FULLY DISCHARGED IN CASH.
NOTWITHSTANDING THE FOREGOING, THE BORROWER SHALL BE ENTITLED TO DECLARE AND PAY
DIVIDENDS OR MAKE DISTRIBUTIONS TO EQUITY HOLDERS WITH RESPECT TO THEIR CAPITAL
STOCK, AS LONG AS NO NOTICED EVENT OF DEFAULT THEN EXISTS, BUT SUBJECT TO
SECTION 7.1(25) AND SECTION 7.2(12), AND THE TRANSACTION PARTIES MAY AT ANY TIME
PRIOR TO A NOTICED EVENT OF DEFAULT REPAY INTERCOMPANY ADVANCES BETWEEN AND
AMONG THEMSELVES AND THEIR WHOLLY OWNED SUBSIDIARIES.
(B)
ALL AMOUNTS AND OTHER ASSETS THAT MAY FROM
TIME TO TIME BE PAID OR DISTRIBUTED TO OR OTHERWISE RECEIVED BY ANY SUBORDINATED
CREDITOR IN RESPECT OF SUBORDINATED INDEBTEDNESS IN VIOLATION OF THIS
SECTION 7.1(25) SHALL BE SEGREGATED AND HELD IN TRUST BY THE SUBORDINATED
CREDITOR FOR THE BENEFIT OF THE LENDERS AND PROMPTLY PAID OVER TO THE
ADMINISTRATIVE AGENT.
(C)
EACH SUBORDINATED CREDITOR FURTHER AGREES NOT
TO ASSIGN ALL OR ANY PART OF THE SUBORDINATED INDEBTEDNESS UNLESS THE
ADMINISTRATIVE AGENT IS GIVEN PRIOR NOTICE AND SUCH ASSIGNMENT IS EXPRESSLY MADE
SUBJECT TO THE TERMS OF THIS AGREEMENT.
IF THE ADMINISTRATIVE AGENT SO
REQUESTS, (A) ALL INSTRUMENTS EVIDENCING THE SUBORDINATED INDEBTEDNESS SHALL BE
DULY ENDORSED AND DELIVERED TO THE ADMINISTRATIVE AGENT, (B) ALL SECURITY FOR
THE SUBORDINATED INDEBTEDNESS SHALL BE DULY ASSIGNED AND DELIVERED TO
ADMINISTRATIVE AGENT FOR THE BENEFIT OF THE LENDERS, (C) THE SUBORDINATED
INDEBTEDNESS SHALL BE ENFORCED, COLLECTED AND HELD BY THE RELEVANT SUBORDINATED
CREDITOR AS TRUSTEE FOR