BANKRUPTCY PETITION AGAINST ANY OF THE TRANSACTION PARTIES, MANAGER, OR ANY
CLOSE AFFILIATE OF ANY OF THE TRANSACTION PARTIES.
(12)
DISTRIBUTIONS.
(I) NO BORROWER PARTY SHALL MAKE
ANY DISTRIBUTION IF SUCH DISTRIBUTION WOULD CAUSE SUCH PERSON TO BE IN VIOLATION
OF THE MANDATORY PREPAYMENT REQUIREMENTS SET FORTH IN SECTION 3.3; (II) CNL REIT
SHALL NOT MAKE, DECLARE OR BECOME LIABLE FOR ANY DISTRIBUTION TO THE EXTENT THAT
SUCH DISTRIBUTION EXCEEDS THE SUM OF (A) $75,000,000, AND (B) THE AGGREGATE CASH
AVAILABLE FOR DISTRIBUTION FOR EACH FISCAL QUARTER ENDED SINCE THE CLOSING DATE,
LESS THE SUM OF (C) ALL DISTRIBUTIONS PAID OR DECLARED BY CNL REIT, OR FOR WHICH
CNL REIT IS LIABLE, ON OR AFTER THE CLOSING DATE, AND (D) ALL FUNDS UTILIZED ON
OR AFTER THE CLOSING DATE BY CNL REIT OR ANY OF ITS AFFILIATES TO PURCHASE,
REDEEM OR RETIRE ANY CAPITAL STOCK OF CNL REIT; PROVIDED, HOWEVER, THAT THIS
CLAUSE (II) SHALL NOT RESTRICT ANY DISTRIBUTIONS NECESSARY TO MAINTAIN CNL
REIT'S STATUS AS A REIT; OR (III) IN THE EVENT CNL REIT HAS BECOME A PUBLIC
COMPANY, CNL REIT SHALL NOT MAKE, DECLARE OR BECOME LIABLE FOR ANY DISTRIBUTIONS
DURING ANY PERIOD WHILE A NOTICED EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING; OR (IV) IN THE EVENT CNL REIT HAS NOT BECOME A PUBLIC COMPANY, CNL
REIT SHALL NOT MAKE, DECLARE OR BECOME LIABLE FOR (A) ANY DISTRIBUTIONS AFTER
THE OCCURRENCE OF A MONETARY EVENT OF DEFAULT (PROVIDED ADMINISTRATIVE AGENT HAS
DELIVERED WRITTEN NOTICE THEREOF TO THE BORROWER PARTIES); OR (B) ANY
DISTRIBUTIONS AFTER THE OCCURRENCE OF ANY OTHER NOTICED EVENT OF DEFAULT, UNLESS
SUCH DISTRIBUTIONS: (X) ARE NECESSARY TO MAINTAIN CNL REIT'S STATUS AS A REIT,
OR (Y) ARE PAID IN ACCORDANCE WITH EACH OF THE FOLLOWING RESTRICTIONS: (1) THE
DISTRIBUTION IS A PAYMENT OF DIVIDENDS CONSISTENT WITH CNL REIT'S DIVIDEND
POLICY IN EFFECT AS OF THE CLOSING DATE, AND (2) THE
34
Distribution does not exceed a dividend of $0.775 per share.]
Nothing contained
in this Section 7.2(12)
shall constitute a limitation on any remedies
Administrative Agent or Lenders may have under any guaranty or security
instrument provided in connection with the Loan (including the Guaranties and
the Pledge Agreements), other than the restrictions on the right to make
Distributions as proved herein.
(13)
MANAGER.
(A)
THE BORROWER REPRESENTS, WARRANTS AND COVENANTS
ON BEHALF OF ITSELF, EACH MORTGAGED PROPERTY OWNER AND OPERATING AFFILIATE THAT
THE MORTGAGED PROPERTY SHALL AT ALL TIMES BE MANAGED BY AN ACCEPTABLE MANAGER
PURSUANT TO AN ACCEPTABLE MANAGEMENT AGREEMENT, EXCEPT TO THE EXTENT PROVISIONS
RELATING TO MANAGEMENT OF THE MORTGAGED PROPERTY ARE INCORPORATED INTO AN
OPERATING LEASE IN EFFECT ON THE CLOSING DATE OR OTHERWISE APPROVED BY
ADMINISTRATIVE AGENT.
(B)
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY
CONTAINED HEREIN OR IN THE OTHER LOAN DOCUMENTS, EXCEPT AS PROVIDED IN THIS
SECTION 7.2(13), THE BORROWER MAY NOT MODIFY OR WAIVE ANY TERMS UNDER ANY
MANAGEMENT AGREEMENT (OR PERMIT ANY SUCH ACTION) WITHOUT THE CONSENT OF THE
ADMINISTRATIVE AGENT.
WITHOUT THE CONSENT