<PAGE>
As filed with the Securities and Exchange Commission on September 23, 1998
Registration No. 333-9943
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------------------------------------
POST-EFFECTIVE AMENDMENT NO. FIVE
TO
FORM S-11
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933, AS AMENDED
--------------------------------------------------------------
CNL HOSPITALITY PROPERTIES, INC.
(Exact Name of Registrant as Specified in Charter)
400 East South Street
Orlando, Florida 32801
Telephone: (407) 650-1000
(Address of principal executive offices)
JAMES M. SENEFF, JR.
Chief Executive Officer
400 East South Street
Orlando, Florida 32801
Telephone: (407) 650-1000
(Name and Address of Agent for Service)
COPIES TO:
THOMAS H. McCORMICK, ESQUIRE
PATRICK CONNORS, ESQUIRE
Shaw, Pittman, Potts & Trowbridge
2300 N Street, N.W.
Washington, D.C. 20037
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
PROSPECTUS
CNL HOSPITALITY PROPERTIES, INC.
Shares of Common Stock
Minimum Purchase -- 250 Shares ($2,500)
100 Shares ($1,000) for IRAs and Keogh and Pension Plans
(Minimum purchase may be higher in certain states)
CNL HOSPITALITY PROPERTIES, INC. (formerly CNL American Realty Fund,
Inc.) (the "Company") is a Maryland corporation which operates for federal
income tax purposes as a real estate investment trust (a "REIT"). The Company
may sell up to 16,500,000 Shares for a maximum of $165,000,000. The Company has
been formed primarily to acquire properties (the "Properties") located across
the United States to be leased on a long term, "triple-net" basis. The Company
intends to invest proceeds of this offering in hotel Properties to be leased to
operators of national and regional limited service, extended stay and full
service hotel chains (the "Hotel Chains") and in restaurant Properties to be
leased to operators of selected national and regional fast-food, family-style
and casual-dining restaurant chains (the "Restaurant Chains"). The Company is
not obligated to invest in both hotel Properties and restaurant Properties.
Under the Company's triple-net leases, the tenant generally will be responsible
for property costs associated with ongoing operations, including repairs,
maintenance, property taxes, utilities, and insurance. In addition, the leases
will be structured to require the tenant to pay base annual rent with (i)
automatic increases in the base rent and/or (ii) percentage rent based on gross
sales above a specified level. The Company may also provide mortgage financing
(the "Mortgage Loans") in the aggregate principal amount of approximately 5% to
10% of Gross Proceeds. The Company also intends to offer furniture, fixture and
equipment financing ("Secured Equipment Leases") to operators of Hotel Chains
and Restaurant Chains. Secured Equipment Leases will be funded from the proceeds
of financing to be obtained by the Company. The aggregate outstanding principal
amount of Secured Equipment Leases will not exceed 10% of Gross Proceeds. The
Company is not a mutual fund or other type of investment company within the
meaning of the Investment Company Act of 1940, and is not subject to regulation
thereunder. The Company is not affiliated with the United States Government.
There are significant risks associated with an investment in the
Company (see "Risk Factors" at Page 10), including the following:
o Both the number of Properties that the Company will acquire and the
diversification of its investments will be reduced to the extent that
the total proceeds of the offering are less than $165,000,000. As of
September 1, 1998, the total offering proceeds were $26,736,275.
o The Company will rely on CNL Real Estate Advisors, Inc. (the "Advisor")
with respect to all investment decisions subject to approval by the
Board of Directors in certain circumstances. The experience of the
Advisor and Directors of the Company with acquiring and leasing hotels,
mortgage financing and equipment leasing is limited, which could
adversely affect the Company's business.
o The Advisor and its Affiliates are or will be engaged in other
activities for other entities that will result in potential conflicts
of interest with the services that the Advisor and Affiliates will
provide to the Company, and could take actions that are more favorable
to such other entities than to the Company.
o Because as of September 1, 1998, the Company owned only two hotel
Properties, investors will not have the opportunity to evaluate all the
Properties that the Company will acquire.
o There is currently no public trading market for the Shares, and there
is no assurance that one will develop.
o If the Shares are not listed on a national securities exchange or
over-the-counter market ("Listing") within ten years of commencement of
the offering, as to which there can be no assurance, the Company will
commence the orderly sale of its assets and the distribution of the
proceeds. Listing does not assure liquidity.
o The Secured Equipment Lease program is dependent upon obtaining
financing.
o Market and economic conditions that the Company cannot control will
have an effect (either positive or negative) on the value of the
Company's investments and the amount of revenues that the Company
receives from tenants.
o The Company may incur debt, including debt to make Distributions to
stockholders in order to maintain its status as a REIT.
THE COMPANY'S PRIMARY INVESTMENT OBJECTIVES are to preserve, protect,
and enhance the Company's assets while (i) making quarterly Distributions ; (ii)
obtaining fixed income through the receipt of base rent, and increasing the
Company's income (and Distributions) and providing protection against inflation
through automatic increases in base rent and/or receipt of percentage rent, and
obtaining fixed income through the receipt of payments from Mortgage Loans and
Secured Equipment Leases; (iii) continuing to qualify as a REIT for federal
income tax purposes; and (iv) providing stockholders of the Company with
liquidity of their investment within five to ten years after commencement of the
offering, either in whole or in part, through (a) Listing, or (b) the
commencement of orderly sales of the Company's assets, and distribution of the
proceeds thereof (outside the ordinary course of business and consistent with
its objective of qualifying as a REIT). There can be no assurance that these
investment objectives will be met.
This Prospectus describes an investment in Shares of the Company. The
Company will use the proceeds from the sale of Shares to purchase Properties and
to make Mortgage Loans. The Company also intends to borrow money to purchase
Properties and finance Mortgage Loans as well as to fund Secured Equipment
Leases. No stockholder may hold more than 9.8% of the total Shares. Of the
proceeds from the sale of Shares, approximately 84% will be used to acquire
Properties and make Mortgage Loans, and approximately 9% will be paid in fees
and expenses to Affiliates of the Company for their services and as
reimbursement for Organizational and Offering Expenses incurred on behalf of the
Company; the balance will be used to pay other expenses of the offering. The
Company has registered an offering of 16,500,000 Shares, with 1,500,000 of such
Shares available only to stockholders purchasing Shares in this initial public
offering who receive a copy of this Prospectus and who elect to participate in
the Company's reinvestment plan (the "Reinvestment Plan"). Any participation in
such plan by a person who becomes a stockholder otherwise than by participating
in this offering must be made pursuant to a solicitation under a separate
prospectus. See "Summary of Reinvestment Plan."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
Price to Selling Proceeds to
Public Commissions(1) Company(2)
-------- -------------- ----------
Per Share.........................$ 10.00 $ 0.75 $ 9.25
- ---------
Total Maximum(3)................. $165,000,000 $12,375,000 $152,625,000
- -------------
(footnotes on following page)
CNL SECURITIES CORP.
September , 1998
<PAGE>
(1) CNL Securities Corp. (the "Managing Dealer") will receive Selling
Commissions of 7.5% on sales of Shares, subject to reduction in certain
circumstances. The Managing Dealer, which is an Affiliate of the
Company, may engage other broker-dealers that are members of the
National Association of Securities Dealers, Inc. or other entities
exempt from broker-dealer registration (collectively, the "Soliciting
Dealers") to sell Shares and reallow to them commissions of up to 7%
with respect to Shares which they sell. The amounts indicated for
Selling Commissions assume that reduced Selling Commissions are not
paid in connection with the purchase of any Shares and do not include a
0.5% marketing support and due diligence expense reimbursement fee
payable to the Managing Dealer, all or a portion of which may be
reallowed to certain Soliciting Dealers, with the prior written
approval from, and in the sole discretion of, the Managing Dealer. Such
amounts also do not include a Soliciting Dealer Servicing Fee payable
to the Managing Dealer by the Company (see "Management Compensation"),
all or a portion of which may be reallowed to certain Soliciting
Dealers with prior written approval from, and in the sole discretion
of, the Managing Dealer. See "The Offering Plan of Distribution" for a
discussion of the circumstances under which reduced Selling Commissions
may be paid and a description of the marketing support and due
diligence expense reimbursement fee payable to the Managing Dealer.
(2) Before deducting (i) organizational and offering expenses of the
Company estimated to be 3% of gross offering proceeds computed at
$10.00 per Share sold ("Gross Proceeds") and (ii) the marketing support
and due diligence expense reimbursement fee. Organizational and
offering expenses exclude Selling Commissions and the marketing support
and due diligence reimbursement fee.
(3) Includes 1,500,000 Shares which may be issued pursuant to the Company's
Reinvestment Plan. Those stockholders who elect to participate in the
Reinvestment Plan will have their Distributions reinvested in
additional Shares.
NEITHER THE ATTORNEY GENERAL OF THE STATE OF NEW YORK NOR THE ATTORNEY
GENERAL OF THE STATE OF NEW JERSEY OR THE BUREAU OF SECURITIES OF THE STATE OF
NEW JERSEY HAS PASSED ON OR ENDORSED THE MERITS OF THIS OFFERING. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
-----------------------------------------------------------------------
All subscription funds for Shares will be deposited in an
interest-bearing escrow account with SouthTrust Asset Management Company of
Florida, N.A., which will act as the escrow agent for this offering. On July 9,
1997, the Company commenced this offering and as of October 15, 1997, the
Company had received aggregate subscription proceeds of $2,774,580, which
exceeded the minimum offering amount of $2,500,000, and $2,652,330 of the funds,
excluding funds from Pennsylvania investors, were released from escrow. As of
December 4, 1997, the Company had received aggregate subscription proceeds of
$8,253,530, and funds from Pennsylvania investors were released from escrow. As
of September 1, 1998, the Company had received total subscription proceeds of
$26,736,275 (2,673,628 Shares), including $9,704 (970 Shares) issued pursuant to
the Reinvestment Plan. No sale of Shares shall be completed until at least five
business days after the date on which the subscriber receives a copy of this
Prospectus. The Company has elected to extend the offering of Shares until a
date no later than July 9, 1999 (two years after the initial date of this
Prospectus), in states that permit such extension.
NO PERSON HAS BEEN AUTHORIZED IN CONNECTION WITH THIS OFFERING TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION IN
ANY STATE IN WHICH SUCH OFFER OR SALE WOULD BE UNLAWFUL, AND NO SUBSCRIPTION
WILL BE ACCEPTED FROM ANY PERSON WHO DOES NOT MEET THE SUITABILITY STANDARDS SET
FORTH HEREIN. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE HEREUNDER
SHALL CREATE, UNDER ANY CIRCUMSTANCES, AN IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. IF, HOWEVER, ANY
MATERIAL CHANGE OCCURS WHILE THIS PROSPECTUS IS REQUIRED BY LAW TO BE DELIVERED,
THIS PROSPECTUS WILL BE AMENDED OR SUPPLEMENTED ACCORDINGLY.
THE USE OF FORECASTS IN THIS OFFERING IS PROHIBITED. ANY
REPRESENTATIONS TO THE CONTRARY, AND ANY PREDICTIONS, WRITTEN OR ORAL, AS TO THE
AMOUNT OR CERTAINTY OF ANY PRESENT OR FUTURE CASH BENEFIT OR TAX CONSEQUENCE
WHICH MAY FLOW FROM AN INVESTMENT IN THIS COMPANY IS PROHIBITED.
-----------------------------------------------------------------------
- ii -
<PAGE>
TABLE OF CONTENTS
TABLE OF CONTENTS.........................................................iii
SUMMARY.....................................................................1
CNL Hospitality Properties, Inc...................................1
Risk Factors.......................................................2
Estimated Use of Proceeds..........................................3
Conflicts of Interest..............................................3
Management.........................................................4
Management Compensation............................................4
Summary of Reinvestment Plan.......................................5
Business...........................................................6
Investment Objectives And Policies.................................6
Description of Shares..............................................7
Distribution Policy................................................8
Prior Performance of Affiliates....................................8
Tax Status Of The Company..........................................8
The Offering.......................................................9
Definitions........................................................9
RISK FACTORS................................................................9
Investment Risks...................................................9
Possible Lack of Diversification..........................9
Limited Experience of Management.........................10
Reliance on Management...................................10
Reliance on Advisor......................................10
Leverage.................................................10
Conflicts of Interest....................................10
Competing Demands on Officers and
Directors....................................10
Timing of Sales and Acquisitions Impact.........10
Property Development............................11
The Company May Invest With Affiliates of
the Advisor..................................11
No Independent Review of the Company or
the Prospectus by Managing Dealer............11
No Separate Counsel for the Company,
Affiliates and Investors.....................11
Lack of Liquidity of Shares..............................11
Lack of Control over Joint Ventures......................11
Lack of Control of Property Management...................11
Mortgage Loans...........................................12
Real Estate Market Conditions...................12
Interest Rate Fluctuations......................12
Delays in Liquidating Defaulted Mortgage
Loans........................................12
Regulation......................................12
Secured Equipment Leases.................................12
Default by Lessee...............................12
Regulation......................................12
Tax Risks.......................................12
Impact of Inflation......................................12
Binding Nature of Majority Stockholder Vote..............13
Significant Flexibility of the Board of Directors........13
Restrictions on Transfer Relating to REIT Status.........13
- iii -
<PAGE>
Limited Liability of Officers and Directors..............13
Possible Effect of ERISA.................................13
Insufficient Working Capital.............................13
Ability to use Leverage to Make Distributions............13
Real Estate and Financing Risks...................................14
An Unspecified Property Offering ......................14
Inability of Potential Investors to Evaluate
Properties...................................14
No Limitation on Number of
Properties of a Particular Chain.............14
No Assurance of Obtaining Suitable
Investments..................................14
Conflicts of Interest...........................14
Possible Delays in Investment............................14
Lack of Control Over Properties Under
Construction..........................................15
Ground Lease Property Risks..............................15
Impasse or Conflicts with Joint Venture Partner..........15
Impasse with Joint Venture Partner..............15
Interests of Joint Venture Partner..............15
Limitations on the Ability of the Company to
Liquidate.............................................15
Inability to Control the Sale of Certain Properties......16
Real Property Investments................................16
Lack of Control Over Market and Business
Conditions...................................16
Multiple Property Leases or Mortgage Loans
with Individual Tenants or Borrowers.........16
Re-leasing of Properties........................16
Third Party Franchise Agreements................16
Lack of Adequate Insurance......................16
Impact of Adverse Trends.................................17
Competition..............................................17
Seasonality of Hotel Industry............................17
Possible Environmental Liabilities.......................17
Permanent Financing......................................17
Unspecified Secured Equipment Leases.....................18
Tax Risks.........................................................18
REIT Qualification.......................................18
Secured Equipment Lease Treatment........................18
Effect of REIT Disqualification..........................18
Effect of Distribution Requirements......................19
Restrictions on Maximum Share Ownership..................19
Other Tax Liabilities....................................19
Changes in Tax Laws......................................19
SUITABILITY STANDARDS AND HOW TO SUBSCRIBE.................................19
Suitability Standards.............................................19
How to Subscribe..................................................21
ESTIMATED USE OF PROCEEDS..................................................22
MANAGEMENT COMPENSATION....................................................23
CONFLICTS OF INTEREST......................................................30
Prior and Future Programs.........................................30
Acquisition of Properties.........................................30
Sales of Properties...............................................31
- iv -
<PAGE>
Joint Investment With An Affiliated Program.......................32
Competition for Management Time...................................32
Compensation of the Advisor.......................................32
Relationship with Managing Dealer.................................32
Legal Representation..............................................33
Certain Conflict Resolution Procedures............................33
SUMMARY OF REINVESTMENT PLAN...............................................34
General...........................................................35
Investment of Distributions.......................................36
Participant Accounts, Fees, and Allocation of Shares..............36
Reports to Participants...........................................37
Election to Participate or Terminate Participation................37
Federal Income Tax Considerations.................................37
Amendments and Termination........................................38
REDEMPTION OF SHARES.......................................................38
BUSINESS...................................................................39
General...........................................................39
Investment of Offering Proceeds...................................43
Property Acquisitions.............................................43
Pending Investments...............................................43
Site Selection and Acquisition of Properties......................44
Standards for Investment in Properties............................48
Description of Properties.........................................49
Description of Property Leases....................................50
Joint Venture Arrangements........................................54
Mortgage Loans....................................................55
Management Services...............................................56
Borrowing.........................................................56
Sale of Properties, Mortgage Loans and Secured
Equipment Leases...............................................58
Franchise Regulation..............................................58
Competition.......................................................59
Regulation of Mortgage Loans and Secured Equipment
Leases.........................................................59
SELECTED FINANCIAL DATA....................................................60
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION OF THE COMPANY......................................61
Liquidity and Capital Resources...................................61
Results of Operations.............................................63
MANAGEMENT.................................................................64
General...........................................................64
Fiduciary Responsibility of the Board of Directors................65
Directors and Executive Officers..................................66
Independent Directors.............................................69
Committees of the Board of Directors..............................69
Compensation of Directors and Executive Officers..................69
Management Compensation...........................................70
THE ADVISOR AND THE ADVISORY AGREEMENT.....................................70
The Advisor.......................................................70
The Advisory Agreement............................................70
CERTAIN TRANSACTIONS.......................................................73
PRIOR PERFORMANCE INFORMATION..............................................73
- v -
<PAGE>
INVESTMENT OBJECTIVES AND POLICIES.........................................79
General...........................................................79
Certain Investment Limitations....................................80
DISTRIBUTION POLICY........................................................82
General...........................................................82
Distributions.....................................................82
SUMMARY OF THE ARTICLES OF INCORPORATION
AND BYLAWS..............................................................83
General...........................................................83
Description of Capital Stock......................................83
Board of Directors................................................84
Stockholder Meetings..............................................85
Advance Notice for Stockholder Nominations for
Directors and Proposals of New Business........................85
Amendments to the Articles of Incorporation.......................85
Mergers, Combinations, and Sale of Assets.........................85
Termination of the Company and REIT Status........................86
Restriction of Ownership..........................................86
Responsibility of Directors.......................................87
Limitation of Liability and Indemnification.......................87
Removal of Directors..............................................88
Inspection of Books and Records...................................88
Restrictions on "Roll-Up" Transactions............................89
FEDERAL INCOME TAX CONSIDERATIONS..........................................90
Introduction......................................................90
Taxation of the Company...........................................90
Taxation of Stockholders..........................................95
State and Local Taxes.............................................98
Characterization of Property Leases...............................99
Characterization of Secured Equipment Leases.....................100
Investment in Joint Ventures.....................................100
REPORTS TO STOCKHOLDERS...................................................101
THE OFFERING..............................................................102
General..........................................................102
Plan of Distribution.............................................102
Subscription Procedures..........................................105
Escrow Arrangements..............................................107
ERISA Considerations.............................................107
Determination of Offering Price..................................109
SUPPLEMENTAL SALES MATERIAL...............................................109
LEGAL OPINIONS............................................................109
EXPERTS...................................................................109
ADDITIONAL INFORMATION....................................................109
DEFINITIONS...............................................................110
Form of Reinvestment Plan..........................................Exhibit A
Financial Information..............................................Exhibit B
Prior Performance Tables...........................................Exhibit C
Subscription Agreement.............................................Exhibit D
Statement of Estimated Taxable Operating Results
Before Dividends Paid Deduction.................................Exhibit E
- vi -
<PAGE>
SUMMARY
THIS SECTION SUMMARIZES CERTAIN INFORMATION CONTAINED ELSEWHERE IN THIS
PROSPECTUS AND IS INTENDED FOR QUICK REFERENCE ONLY. THIS IS NOT A COMPLETE
DESCRIPTION OF THE INVESTMENT. POTENTIAL STOCKHOLDERS MUST READ AND EVALUATE THE
FULL TEXT OF THIS PROSPECTUS AND ALL SUPPORTING DOCUMENTS ATTACHED AS EXHIBITS
HERETO IN ORDER TO EVALUATE AN INVESTMENT IN THE COMPANY. THE FOLLOWING SUMMARY
THEREFORE IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE FULL TEXT OF THIS
PROSPECTUS AND THE SUPPORTING DOCUMENTS. CAPITALIZED TERMS NOT OTHERWISE DEFINED
HEREIN SHALL HAVE THE MEANINGS SET FORTH IN THE "DEFINITIONS" SECTION OF THE
PROSPECTUS.
CNL HOSPITALITY PROPERTIES, INC.
CNL Hospitality Properties, Inc. (formerly CNL American Realty Fund,
Inc.) (the "Company") is a Maryland corporation which operates for federal
income tax purposes as a real estate investment trust (a "REIT"). On June 15,
1998, the Company formed CNL Hospitality Partners, LP, a wholly owned Delaware
limited partnership (the "Partnership"). Properties acquired are expected to be
held by the partnership and, as a result, owned by the Company through the
Partnership. The term "Company" includes CNL Hospitality Properties, Inc. and
its subsidiaries, CNL Hospitality GP Corp., CNL Hospitality LP Corp. and CNL
Hospitality Partners, LP. The Company's address is 400 East South Street,
Orlando, Florida 32801, telephone (407) 650-1000 or toll free (800) 522-3863.
The Company has been formed primarily to acquire properties (the
"Properties") to be leased on a long-term (generally, 10 to 20 years, plus
renewal options for an additional 10 to 20 years), "triple-net" basis, which
means that the tenant generally will be responsible for repairs, maintenance,
property taxes, utilities, and insurance. The Company intends to invest proceeds
of this offering in hotel Properties, which may include furniture, fixtures and
equipment, to be leased to operators of national and regional limited service,
extended stay and full service hotel chains (the "Hotel Chains") and in
restaurant Properties located across the United States to be leased to operators
of selected national and regional fast-food, family-style and casual-dining
restaurant chains (the "Restaurant Chains"). It is not obligated, however, to
invest in both types of Properties. The Company expects to structure the leases
of its Properties to provide for payment of base annual rent with (i) automatic
increases in base rent and/or (ii) percentage rent based on gross sales above a
certain level. The Company may also offer mortgage financing (the "Mortgage
Loans"), generally for the purchase of buildings by tenants that lease the
underlying land from the Company. However, because it prefers to focus on
investing in Properties, which have the potential to appreciate, the Company
currently expects to provide Mortgage Loans in the aggregate principal amount of
approximately 5% to 10% of Gross Proceeds. The Company expects that the interest
rate and terms (generally, 10 to 20 years) of any Mortgage Loans will be similar
to those of its leases. To a lesser extent, the Company also will offer
furniture, fixtures and equipment ("Equipment") financing to operators of
Restaurant Chains and Hotel Chains through loans or direct financing leases
(collectively, the "Secured Equipment Leases"). The aggregate outstanding
principal amount of Secured Equipment Leases will not exceed 10% of Gross
Proceeds. See "Business" for information regarding the Company's existing
Properties, a description of the types of Properties that may be selected by CNL
Real Estate Advisors, Inc. (the "Advisor"), the Property selection and
acquisition processes, and the nature of the Mortgage Loans and Secured
Equipment Leases.
The Company intends to borrow money to acquire Properties, Mortgage
Loans, and Secured Equipment Leases (collectively, the "Assets"), and to pay
certain fees. The Company plans to obtain one or more revolving lines of credit
(collectively, the "Line of Credit") in an aggregate amount up to $45,000,000.
On July 31, 1998, the Company entered into an initial $30,000,000 revolving Line
of Credit to be used by the Company to acquire hotel Properties. In addition to
the Line of Credit, the Company may obtain other financing (the "Permanent
Financing"). The Board of Directors anticipates that the aggregate amount of the
Permanent Financing will not exceed 30% of the Company's total assets. However,
in accordance with the Company's Articles of Incorporation, the aggregate
maximum amount the Company may borrow is 300% of Net Assets, unless any
borrowing over such 300% level is approved by a majority of the Independent
Directors and disclosed to stockholders in the next quarterly report of the
Company, along with the justification for such excess. In general, Net Assets
are the Company's total assets (other than intangibles), calculated at cost,
less total liabilities. The Company has not yet obtained a commitment for any
Permanent Financing, and there is no assurance that the Company will obtain any
Permanent
<PAGE>
Financing on satisfactory terms. The Company may repay the Line of Credit with
offering proceeds, working capital or with Permanent Financing. The Line of
Credit and Permanent Financing will be used to acquire Assets and are the only
source of funds for making Secured Equipment Leases. The Board of Directors may
elect to encumber Assets in connection with any borrowing.
Under the Company's Articles of Incorporation, the Company will
automatically terminate and dissolve on December 31, 2007, unless the shares of
Common Stock of the Company, including the shares offered hereby (the "Shares"),
are listed on a national securities exchange or over-the-counter market
("Listing"), in which event the Company automatically will become a perpetual
life entity. If Listing does not occur by December 31, 2007, the Company will
undertake, outside the ordinary course of business and consistent with its
objective of qualifying as a REIT, the orderly Sale of the Company's assets, the
distribution of Net Sales Proceeds of such Sales to stockholders and the
limitation of its activities to those related to its orderly liquidation, or
unless the stockholders owning a majority of the Shares elect to amend the
Articles of Incorporation to extend the duration of the Company. See "Risk
Factors - Real Estate and Financing Risks" for a complete discussion of risks
relating to future disposition of the Company's assets. As a perpetual life
entity following Listing, the Company would not be required to dissolve and
return capital to stockholders. If Listing occurs, in order to liquidate their
investment, stockholders would have to sell their Shares in the market on which
the Shares are traded. Listing is no assurance of liquidity. See "Risk Factors -
Investment Risks" for a discussion of risks associated with the lack of
liquidity of the Shares and with borrowing. In addition, following Listing the
Company intends to reinvest proceeds from Sales of assets rather than distribute
such proceeds to stockholders.
RISK FACTORS
The "Risk Factors" section discusses in detail the more important risks
associated with an investment in the Company, including risks associated with an
investment in a real estate investment trust such as the Company, risks
associated with an investment in real estate such as the Properties, risks
associated with the Mortgage Loans, risks associated with Secured Equipment
Leases, risks associated with borrowing and tax risks. These risks include the
following:
o The Company will acquire a reduced number of Properties and will have
reduced diversification of its investments if the Company raises less
than $165,000,000 from sales of Shares.
o The Company may not diversify between restaurant Properties and hotel
Properties. The Company is not obligated to invest in both types of
Properties.
o The Company will rely on the Advisor and the Board of Directors, which
together will have responsibility for the management of the Company and
its investments, subject to the ability of the stockholders to elect
the Directors.
o The services to be performed by the Advisor and its Affiliates for the
Company in connection with the offering, the selection and acquisition
of the Properties, the making of Mortgage Loans and Secured Equipment
Leases and the general operation of the Company will result in
conflicts of interest.
o Because, as of September 1, 1998, the Company owned only two hotel
Properties, stockholders will not have the opportunity to evaluate all
the Properties that the Company will acquire.
o The Board of Directors will have significant flexibility regarding the
Company's operations.
o The Company may make investments that will not appreciate in value over
time, such as building only Properties, with the land owned by a
third-party, and Mortgage Loans.
o Stockholders who must sell their Shares will not be able to sell them
quickly because it is not anticipated that there will be a public
market for the Shares in the near term, and there can be no assurance
that Listing will occur.
- 2 -
<PAGE>
o The Company has not yet obtained a commitment for any Permanent
Financing, and there is no assurance that the Company will be able to
do so on satisfactory terms, thereby affecting its ability to acquire
Properties or make Mortgage Loans or Secured Equipment Leases.
o The amount of revenues the Company will receive from tenants, lessees
and borrowers cannot be predicted.
o The Company may incur debt, including debt to make Distributions to
stockholders in order to maintain its status as a REIT.
o The Company may, in connection with any borrowing, encumber Assets.
o Tenants, lessees or borrowers may default resulting in decreased
income.
o The vote of stockholders owning at least a majority but less than all
of the Shares will bind all of the stockholders as to matters such as
the election of Directors and amendment of the Company's governing
documents.
o Restrictions on ownership of more than 9.8% of the shares of the
Company's common stock (the "Common Stock") by any single stockholder
or certain related stockholders may have the effect of inhibiting a
change in control of the Company even if such a change is in the
interest of a majority of the stockholders.
o The Company may not qualify or remain qualified as a REIT for federal
income tax purposes, which could result in subjecting the Company to
federal income tax on its taxable income at regular corporate rates,
thereby reducing the amount of funds available for paying Distributions
to stockholders.
ESTIMATED USE OF PROCEEDS
The Company will use the proceeds of the sale of the Shares to acquire
Properties, to make Mortgage Loans, and to pay expenses relating to the
organization of the Company and the sale of the Shares. Based on their past
experience in acquiring similar properties and in light of current market
conditions, management of the Company and the Advisor have estimated an average
purchase price of $800,000 to $900,000 per restaurant Property. Based on the
purchase prices of the two Properties acquired by the Company as of September 1,
1998 and current market conditions, the Company and the Advisor have estimated
an average purchase price of $10,000,000 to $35,000,000 per hotel Property. See
"Business -- General." If 15,000,000 Shares ($150,000,000) are sold, the Company
could (i) invest in only hotel Properties, in which case it could acquire
between 4 to 13 hotel Properties or (ii) invest in both restaurant and hotel
Properties, although in this instance the number of restaurant Properties and
hotel Properties would vary significantly depending upon the cost of the hotel
Properties acquired. Assuming that the Net Offering Proceeds are divided evenly
between restaurant and hotel Properties, as to which there is no assurance, the
Company could invest in approximately 70 to 80 restaurant Properties and 2 to 6
hotel Properties. In addition, the Company has registered an offering of an
additional 1,500,000 Shares ($15,000,000) available only to stockholders who
receive a copy of this Prospectus and who elect to participate in the Company's
reinvestment plan (the "Reinvestment Plan"). See "Estimated Use of Proceeds" and
"Business - General" for a more detailed description of the anticipated use of
offering proceeds. Management cannot estimate the number of Mortgage Loans that
may be entered into. The Company currently expects to provide Mortgage Loans in
the aggregate principal amount of approximately 5% to 10% of Gross Proceeds. The
Company may also use the proceeds of the Line of Credit and the Permanent
Financing to acquire Assets. Secured Equipment Leases will be funded solely from
borrowings.
CONFLICTS OF INTEREST
Certain officers and Directors of the Company who are also officers or
directors of the Advisor will experience conflicts of interest in their
management of the Company. These arise principally from their involvement in
other activities that will conflict with those of the Company and include
matters related to (i) allocation of new investments and management time and
services between the Company and various partnerships and other entities, (ii)
the timing and terms of the investment in or sale of an Asset, (iii) development
of Company Properties by
- 3 -
<PAGE>
Affiliates, (iv) investments with Affiliates of the Advisor, (v) compensation of
the Advisor, (vi) the Company's relationship with the Managing Dealer, which is
an Affiliate of the Company and the Advisor, and (vii) the fact that the
Company's securities and tax counsel also serves as securities and tax counsel
for certain Affiliates of the Company, and that neither the Company nor the
stockholders will have separate counsel.
The Directors of the Company who are independent of the Advisor (the
"Independent Directors") are responsible for monitoring the activities of the
Advisor and must approve all of the Advisor's actions that involve a potential
conflict other than certain such actions specifically permitted by the Articles
of Incorporation. The "Conflicts of Interest" section discusses in more detail
the more significant of these potential conflicts of interest, as well as the
procedures that have been established to resolve a number of these potential
conflicts.
The Company has established certain conflict resolution procedures
relating to (i) transactions between the Company and the Advisor or its
Affiliates, (ii) certain future offerings, and (iii) allocation of investments
among certain affiliated entities. See "Conflicts of Interest - Certain Conflict
Resolution Procedures."
MANAGEMENT
The Company has retained the Advisor, a Florida corporation organized
in January 1997, to provide management, advisory and administrative services to
the Company. Pursuant to an advisory agreement with the Company, the Advisor
will handle the day-to-day operations of the Company, select the Company's real
estate investments, and administer its Secured Equipment Lease program. The five
members of the Board of Directors will oversee the management of the Company.
Three of the Directors of the Company are independent of the Advisor and have
responsibility for reviewing its performance. The Directors are elected to the
Board of Directors annually by the stockholders.
All of the officers and directors of the Advisor also are officers or
Directors of the Company. The Advisor will have responsibility for (i) selecting
the Properties that the Company will acquire, formulating and evaluating the
terms of each proposed acquisition, and arranging for the acquisition of the
Property by the Company, (ii) identifying potential lessees for the Properties
and potential borrowers for the Mortgage Loans, and formulating, evaluating, and
negotiating the terms of each lease of a Property and each Mortgage Loan, (iii)
locating and identifying potential lessees and formulating, evaluating, and
negotiating the terms of each Secured Equipment Lease, and (iv) negotiating the
terms of any borrowing by the Company, including the Line of Credit and the
Permanent Financing. All of the foregoing actions are subject to approval by the
Board of Directors. The Advisor also will have the authority, subject to
approval by a majority of the Board of Directors, including a majority of the
Independent Directors, to select assets for Sale in keeping with the Company's
investment objectives and based on an analysis of economic conditions both
nationally and in the vicinity of the assets being considered for Sale.
See "Management" and "The Advisor and the Advisory Agreement" for a
description of the business background of the individuals responsible for the
management of the Company and the Advisor, as well as for a description of the
services that the Advisor will provide.
MANAGEMENT COMPENSATION
The Advisor, the Managing Dealer, and other Affiliates of the Advisor
will receive compensation for services they will perform for the Company and
also will receive expense reimbursements from the Company for expenses they pay
on behalf of the Company. The following paragraphs summarize the more
significant items of compensation and reimbursement. See "Management
Compensation" for a complete description.
In connection with the formation of the Company and the offering of the
Shares, the Managing Dealer will receive Selling Commissions of 7.5% (a maximum
of $11,250,000 if 15,000,000 Shares are sold), and a marketing support and due
diligence expense reimbursement fee of 0.5% (a maximum of $750,000 if 15,000,000
Shares are sold), of the total amount raised from the sale of Shares, computed
at $10.00 per Share sold ("Gross Proceeds"). The Managing Dealer in turn may
reallow Selling Commissions of up to 7% on Shares sold, and all or a portion of
the 0.5% marketing support and due diligence expense reimbursement fee, to
certain Soliciting Dealers who are not Affiliates of the Company, with prior
written approval from, and in the sole discretion of, the Managing Dealer.
- 4 -
<PAGE>
In addition, the Company will incur a Soliciting Dealer Servicing Fee in the
amount of .20% of Invested Capital (as defined below) (a maximum of $300,000 if
15,000,000 Shares are sold). The Soliciting Dealer Servicing Fee will be payable
on December 31 of each year, commencing on December 31 of the year following the
year in which the offering terminates, and generally will be payable to the
Managing Dealer, which in turn may reallow, in its sole discretion, all or a
portion of such fee to Soliciting Dealers whose clients held Shares on such
date. In general, the stockholders' investment in the Company ("Invested
Capital") is the number of Shares they own, multiplied by $10.00 per Share,
reduced by the portion of all prior Distributions received by stockholders from
the Sale of assets of the Company and by any amounts paid by the Company to
repurchase Shares pursuant to the redemption plan.
For identifying the Properties, structuring the terms of the
acquisition and leases of the Properties and structuring the terms of the
Mortgage Loans, the Advisor will receive a fee equal to 4.5% of Gross Proceeds,
loan proceeds from Permanent Financing and amounts outstanding on the Line of
Credit, if any, at the time of Listing, but excluding that portion of the
Permanent Financing used to finance Secured Equipment Leases (collectively,
"Total Proceeds") ($6,750,000 if 15,000,000 Shares are sold and up to an
additional $2,025,000 if Permanent Financing equals $45,000,000), payable as
Acquisition Fees.
For managing the Properties and the Mortgage Loans, the Advisor will be
entitled to receive a monthly Asset Management Fee of one-twelfth of .60% of the
Company's Real Estate Asset Value (generally, the total amount invested in the
Properties, exclusive of Acquisition Fees and Acquisition Expenses) and the
total outstanding principal amount of the Mortgage Loans, as of the end of the
preceding month.
For negotiating Secured Equipment Leases and supervising the Secured
Equipment Lease program, the Advisor will be entitled to receive from the
Company a one-time Secured Equipment Lease Servicing Fee of 2% of the purchase
price of the Equipment that is the subject of a Secured Equipment Lease.
Prior to Listing, the Advisor may receive a real estate disposition fee
of 3% of the gross sales price of one or more Properties for providing
substantial services in connection with the Sale, which will be deferred and
subordinated until the stockholders have received Distributions equal to the sum
of an aggregate, annual, cumulative, noncompounded 8% return on their Invested
Capital, (the "Stockholders' 8% Return") plus 100% of the stockholders'
aggregate Invested Capital. Upon Listing, if the Advisor has accrued but not
been paid such real estate disposition fee, then for purposes of determining
whether the subordination conditions have been satisfied, stockholders will be
deemed to have received a Distribution in an amount equal to the total number of
Shares outstanding multiplied by the average closing price of the Shares over a
period of 30 days during which the Shares are traded, with such period beginning
180 days after Listing. See "The Advisor and The Advisory Agreement - The
Advisory Agreement."
A deferred, subordinated share of Net Sales Proceeds will be paid to
the Advisor from Sales of assets of the Company in an amount equal to 10% of Net
Sales Proceeds. This amount will be subordinated and paid only after the
stockholders have received Distributions equal to the sum of 100% of the
stockholders' aggregate Invested Capital plus the Stockholders' 8% Return.
Payment of certain fees is subject to conditions and restrictions or to
change under certain specified circumstances. The Advisor and its Affiliates
also may receive reimbursement for out-of-pocket expenses that they incur on
behalf of the Company, subject to certain expense limitations, and a
subordinated incentive fee if Listing occurs.
SUMMARY OF REINVESTMENT PLAN
The Company has established the Reinvestment Plan pursuant to which
stockholders may elect to have their cash Distributions from the Company
automatically reinvested in Shares. See "Summary of Reinvestment Plan," "Federal
Income Tax Considerations - Taxation of Stockholders," and the form of
Reinvestment Plan accompanying this Prospectus as Exhibit A for more specific
information about the Reinvestment Plan. Expenses incurred in connection with
the Reinvestment Plan, including Selling Commissions and marketing support and
due diligence expense reimbursement fees, will be paid by the Company. A person
who becomes a stockholder otherwise than by participating in this offering may
purchase Shares through the Reinvestment Plan only after receipt of a separate
prospectus relating solely to the Reinvestment Plan.
- 5 -
<PAGE>
BUSINESS
Properties and Mortgage Loans. The types of Properties which the
Company intends to purchase and lease to third parties , as well as a
description of the hotel Properties acquired by the Company as of September 1,
1998, appear in the section entitled "Business." The Properties, which typically
are or will be freestanding and will be located across the United States,
generally are or will be leased on a long-term, "triple-net" basis to operators
to be selected by the Advisor and approved by the Board of Directors. The
Properties may consist of both land and building, the land underlying the
building with the building owned by the tenant or a third party, or the building
only with the land owned by a third party. It is expected that the Properties
will be leased to operators of Hotel Chains or Restaurant Chains. Management
intends to structure the Company's investments to allow it to participate, to
the maximum extent possible, in any sales growth in the applicable industries,
as reflected in the Properties that it owns. Management expects to acquire
Properties in part with a view to diversification in the geographic location of
the Properties.
The Company may also offer Mortgage Loans, generally for the purchase
of buildings by tenants that lease the underlying land from the Company.
However, because it prefers to focus on investing in Properties, which have the
potential to appreciate, the Company currently expects to provide Mortgage Loans
in the aggregate principal amount of approximately 5% to 10% of Gross Proceeds.
The Company expects that the interest rate and terms (generally, 10 to 20 years)
of any Mortgage Loans will be similar to those of its leases. In circumstances
in which the Company owns the land underlying the building to be financed and
the borrower under the Mortgage Loan also enters into a long-term ground lease
for the underlying land, management believes that the combined leasing and
financing structure will provide the benefit of allowing the Company to receive
the return of its initial investment plus interest on the financed building,
which is generally a depreciating asset, while retaining the ownership of the
underlying land, which may appreciate in value. The Company will not make
Mortgage Loans to Affiliates. See "Risk Factors - Investment Risks - Mortgage
Loans."
As of September 1, 1998, the Company owned two hotel Properties which
consist of land and building. In addition, the Company had initial commitments
to acquire three hotel Properties consisting of land and building. The
acquisition of each of these Properties is subject to the fulfillment of certain
criteria. Although the Company believes that there is a reasonable probability
that the Company will acquire these Properties, there can be no assurance that
these conditions will be satisfied or that the Company will purchase one or more
of these Properties. The Company has undertaken to supplement this Prospectus
during the offering period to describe the acquisition of Properties at such
time as the Company believes that a reasonable probability exists that a
Property will be acquired by the Company. Based upon the experience of
management of the Company and the Advisor and the proposed acquisition methods,
a reasonable probability that the Company will acquire a Property normally will
occur as of the date on which (i) a commitment letter is executed by a proposed
lessee, (ii) a satisfactory credit underwriting for the proposed lessee has been
completed and (iii) a satisfactory site inspection has been completed. See
"Business - General."
Secured Equipment Leases. The Secured Equipment Leases will be funded
solely from the proceeds of the Line of Credit or Permanent Financing. The
Company expects that the Secured Equipment Leases will be structured so that
they will be treated as loans secured by personal property for federal income
tax purposes. The Company has neither identified any prospective operators of
Restaurant Chains or Hotel Chains that will participate in such financing
arrangements nor negotiated any specific terms of a Secured Equipment Lease. See
"Business General."
INVESTMENT OBJECTIVES AND POLICIES
The Company's primary investment objectives are:
o to preserve, protect, and enhance the Company's assets.
o to make quarterly Distributions .
- 6 -
<PAGE>
o to obtain fixed income through the receipt of base rent, as
well as to increase the Company's income (and Distributions)
and provide protection against inflation through automatic
increases in base rent and/or receipt of percentage rent, and
to obtain fixed income through the receipt of payments on
Mortgage Loans and Secured Equipment Leases.
o to continue to qualify as a REIT for federal income tax
purposes.
o to provide stockholders of the Company with liquidity of their
investment within five to ten years after commencement of the
offering, although liquidity cannot be assured thereby, either
through (i) Listing or (ii) outside the ordinary course of
business and consistent with its objective of qualifying as a
REIT, the commencement of orderly Sales of the Company's
assets and distribution of the proceeds thereof.
The Company intends to meet these objectives by following certain
investment policies discussed herein, as summarized on the preceding pages. See
"Business - General," "Business - Site Selection and Acquisition of Properties,"
"Business - Description of Leases," and "Investment Objectives and Policies" for
a more complete description of the manner in which the structure of the
Company's business will facilitate the Company's ability to meet its investment
objectives. There can be no assurance that these objectives will be met. The
Company's investment objectives are subject to review by the Independent
Directors and may not be changed without the approval of stockholders owning a
majority of the shares of outstanding Common Stock.
DESCRIPTION OF SHARES
A stockholder's investment will be recorded on the books of the
Company. The Company will provide, upon the request of any stockholder wishing
to transfer his or her Shares, a transfer form to be completed and executed by
the stockholder and returned to the Company. The Company will not issue share
certificates other than to stockholders who make a written request to the
Company.
At any time during which the Company is not engaged in a public
offering, any stockholder may request that the Company redeem for cash all or a
significant portion of such stockholder's Shares. The sole source of funds for
any such requested redemption will be the net proceeds available from the sale
of Shares pursuant to the Reinvestment Plan. There can be no assurance that such
net proceeds will be sufficient to permit the Company to redeem all such Shares
presented for redemption. See "Redemption of Shares."
An annual meeting of stockholders will be held each year for the
election of the Directors. Other business matters may be presented at the annual
meeting or at special stockholder meetings. Each Share is entitled to one vote
on each matter to be voted on by stockholders, including the election of the
Directors. Stockholders who do not vote with the majority of Shares entitled to
vote on questions presented nonetheless will be bound by the majority vote.
Stockholder approval is required under Maryland law and the Company's
Articles of Incorporation and Bylaws for certain types of transactions.
Generally, the Articles of Incorporation and Bylaws may be amended upon a
majority vote of stockholders. Stockholders holding a majority of the Shares
must approve a merger or a sale or other disposition of substantially all of the
Company's assets other than in the ordinary course of business. Stockholders
objecting to the terms of a merger, sale, or other disposition of substantially
all of the Company's assets have the right to petition a court for the appraisal
and payment of the fair value of their Shares in certain instances. The
affirmative vote of a majority of the Shares outstanding and entitled to vote is
required to approve the voluntary dissolution of the Company.
In order to facilitate compliance with certain restrictions imposed on
REITs by the Internal Revenue Code of 1986, as amended (the "Code"), the
Articles of Incorporation generally restrict direct or indirect ownership
(applying certain attribution rules) of more than 9.8% of the outstanding shares
of Common Stock by one Person, as defined in the Articles of Incorporation. See
"Summary of the Articles of Incorporation and Bylaws - Restriction on
Ownership."
- 7 -
<PAGE>
For a more complete description of the Shares and the capital structure
of the Company, please refer to the "Summary of the Articles of Incorporation
and Bylaws - Description of Capital Stock" section of the Prospectus.
DISTRIBUTION POLICY
The following table reflects total Distributions and Distributions per
Share declared and paid by the Company for each month since the Company
commenced operations.
Total Distributions
Month Distributions Per Share
- ----- ------------- -------------
November 1997 $10,757 $0.02500
December 1997 19,019 0.02500
January 1998 28,814 0.02500
February 1998 32,915 0.02500
March 1998 39,627 0.02500
April 1998 46,677 0.02500
May 1998 52,688 0.02500
June 1998 56,365 0.02500
In addition, in July, August and September 1998, the Company declared
Distributions totalling $99,631, $105,707 and $157,038, respectively
(representing $0.0417, $0.0417 and $0.0583 per share, respectively), payable in
September 1998. Consistent with the Company's objective of qualifying as a REIT,
the Company expects to continue to calculate and declare Distributions monthly
during the offering period, monthly during any subsequent offering and quarterly
otherwise. The Board of Directors, in its discretion, will determine the amount
of the Distributions made by the Company, which amount will depend primarily on
net cash from operations. The Company intends to increase Distributions in
accordance with increases in net cash from operations. Consistent with the
Company's objective of qualifying as a REIT, the Company expects to distribute
at least 95% of its real estate investment trust taxable income, although the
Board of Directors, in its discretion, may increase that percentage as it deems
appropriate. If the cash available to the Company is insufficient to make
Distributions, the Company may obtain the needed cash by borrowing funds,
issuing new securities, or selling assets. These methods of obtaining cash could
affect future Distributions by increasing operating costs or reducing income. In
such an event, it is possible that the Company could pay Distributions in excess
of its earnings and profits and, accordingly, that such Distributions could
constitute a return of capital for federal income tax purposes, although such
Distributions would not reduce stockholders' aggregate Invested Capital. For the
period October 15, 1997 (the date operations of the Company commenced) through
December 31, 1997, 100 percent of the Distributions declared and paid were
considered ordinary income for federal income tax purposes. Due to the fact that
the Company had not yet acquired any Properties and was still in its offering
stage as of December 31, 1997, the characterization of Distributions for federal
income tax purposes is not considered by management to be necessarily
representative of the characterization of Distributions in future years.
PRIOR PERFORMANCE OF AFFILIATES
The "Prior Performance Information" section of this Prospectus contains
a narrative discussion of the public and private real estate limited
partnerships sponsored by Affiliates of the Company and of the Advisor during
the past ten years, including 18 public limited partnerships and one unlisted
public REIT formed to invest in restaurants leased on a "triple-net" basis to
operators of Restaurant Chains. As of June 30, 1998, these entities, which
invest in restaurant properties similar to those to be acquired by the Company
but do not invest in hotel properties, had purchased 1,033 fast-food and
family-style restaurant properties. Based on an analysis of the operating
results of the 91 real estate limited partnerships and one unlisted public REIT
in which principals of the Company have served, individually or with others, as
general partners or officers and directors, the Company believes that each of
such entities has met, or currently is in the process of meeting, its principal
investment objectives. Certain statistical data relating to the public limited
partnerships and the one unlisted REIT, the offerings of which became fully
subscribed between July 1993 and June 1998 formed to invest in restaurants
leased on a "triple net" basis to operators of Restaurant Chains, are contained
in Exhibit C - Prior Performance Tables.
- 8 -
<PAGE>
TAX STATUS OF THE COMPANY
The Company has made the election under Section 856(c) of the Internal
Revenue Code of 1986, as amended (the "Code"), to be taxed as a REIT under the
Code beginning with its taxable year ending December 31, 1997. As a REIT for
federal income tax purposes, the Company generally will not be subject to
federal income tax on income that it distributes to its stockholders. Under the
Code, REITs are subject to numerous organizational and operational requirements,
including a requirement that they distribute at least 95% of their taxable
income, as figured on an annual basis. If the Company fails to qualify for
taxation as a REIT in any taxable year, it will be subject to federal income tax
(including any applicable alternative minimum tax) on its taxable income at
regular corporate rates and will not be permitted to qualify for treatment as a
REIT for federal income tax purposes for four years following the year during
which qualification is lost. See "Risk Factors - Tax Risks" and "Federal Income
Tax Considerations." Even if the Company qualifies as a REIT for federal income
tax purposes, it may be subject to certain federal, state, and local taxes on
its income and property and to federal income and excise taxes on its
undistributed income. See "Federal Income Tax Considerations."
THE OFFERING
A maximum of 15,000,000 ($150,000,000) Shares in the Company are being
offered at a price of $10.00 per Share. The Company also has registered an
offering of an additional 1,500,000 Shares ($15,000,000) that are available only
to stockholders who receive a copy of this Prospectus and elect to participate
in the Reinvestment Plan. Any participation in such plan subsequent to this
offering must be made pursuant to solicitation under a separate prospectus. See
"Summary of Reinvestment Plan." The Board of Directors may determine to engage
in future offerings of Common Stock of up to the number of unissued authorized
shares of Common Stock available following termination of this offering.
The Shares are being offered by the Managing Dealer and other
broker-dealers that are members of the National Association of Securities
Dealers, Inc. or exempt from broker-dealer registration (the "Soliciting
Dealers") on a "best efforts" basis, which means that no one is guaranteeing
that any minimum number of Shares will be sold. Both the Company and the Advisor
are Affiliates of the Managing Dealer. See "The Offering - Plan of
Distribution."
All subscription funds for Shares of the Company will be deposited in
an interest-bearing escrow account with SouthTrust Asset Management Company of
Florida, N.A. See "The Offering" for a description of the current status of the
offering.
A minimum investment of 250 Shares ($2,500) is required, except for
Nebraska, New York, and North Carolina stockholders who must make a minimum
investment of 500 Shares ($5,000). IRAs, Keogh plans, and pension plans must
make a minimum investment of at least 100 Shares ($1,000), except for Iowa
tax-exempt stockholders who must make a minimum investment of 250 Shares
($2,500). For Minnesota stockholders only, IRAs and qualified plans must make a
minimum investment of 200 Shares ($2,000). Following an initial subscription for
at least the required minimum investment, any stockholder may make additional
purchases in increments of one Share. Maine stockholders, however, may not
purchase additional Shares in amounts less than the applicable minimum
investment except with respect to Shares purchased pursuant to the Reinvestment
Plan. See "The Offering - General," "The Offering - Subscription Procedures,"
and "Summary of Reinvestment Plan."
DEFINITIONS
This Prospectus includes simplified terms and definitions to make the
Prospectus easier to understand. These simplified terms and definitions do not
include all of the details of the terms, however, and stockholders therefore
should review the "Definitions" section for a more complete understanding.
- 9 -
<PAGE>
RISK FACTORS
The purchase of Shares involves significant risks and therefore is
suitable only for persons who understand the possible consequences of an
investment in the Company and who are able to bear the risk of loss of their
investment. Prospective stockholders should consider the following risks in
addition to other information describing an investment in the Shares set forth
elsewhere in this Prospectus.
INVESTMENT RISKS
Possible Lack of Diversification. There can be no assurance that the
Company will sell the maximum number of Shares. The potential profitability of
the Company and its ability to diversify its investments, both geographically
and by type of Properties purchased, will be limited by the amount of funds at
its disposal.
The Company is not obligated to invest in both restaurant and hotel
Properties. The Company could invest entirely in hotel Properties. Because of
the higher average purchase price of a hotel Property compared to a restaurant
Property, investment in hotel Properties will reduce the number of Properties in
which the Company could otherwise invest. While the Company may invest in both
restaurant and hotel Properties, management believes that over time the Company
may focus its Property investments exclusively on hotel Properties. In addition,
because the Company's existing hotel properties are Marriott-branded hotels, the
Company's portfolio is not currently diversified among hotel chains.
Limited Experience of Management. The experience of the Advisor and
Directors of the Company with mortgage financing and with Secured Equipment
Leases is limited. Only two of the prior programs organized by Affiliates of the
Company have invested in Mortgage Loans, and only one of the prior programs
organized by Affiliates of the Company has offered Secured Equipment Leases. In
addition, none of the prior public programs organized by Affiliates of the
Company has invested in hotel Properties. The limited experience of management
in several areas of the Company's business may adversely affect the Company's
results of operations.
Reliance on Management. Stockholders will be relying entirely on the
management ability of the Advisor and on the oversight of the Board of
Directors. Stockholders have no right or power to take part in the management of
the Company, except through the exercise of their stockholder voting rights.
Thus, no prospective stockholder should purchase any of the Shares offered
hereby unless the prospective stockholder is willing to entrust all aspects of
the management of the Company to the Advisor and the Board of Directors.
Reliance on Advisor. The Advisor, with approval from the Board of
Directors, will be responsible for the daily management of the Company,
including all acquisitions, dispositions, and financings. The Advisor may be
terminated by the Board of Directors, with or without cause, but only subject to
payment and release from all guarantees and other obligations incurred in
connection with its role as Advisor. See "Management Compensation." Also see
"Conflicts of Interests" for a discussion of the potential for realization by
the Advisor and its Affiliates of substantial commissions, fees, compensation,
and other income and for a discussion of various other conflicts of interest.
Leverage. The Company may borrow money to acquire Assets, to preserve
its status as a REIT or for other corporate purposes. The Company may encumber
one or more of its Assets in connection with any borrowing. The Board of
Directors anticipates that the Company will obtain one or more revolving Lines
of Credit up to $45,000,000 in order to provide financing for the acquisition of
Assets and may also obtain, in addition to the Line of Credit, Permanent
Financing. Permanent Financing is not expected to exceed 30% of the Company's
total assets. The Company may repay the Line of Credit with offering proceeds,
working capital or Permanent Financing. The maximum amount the Company may
borrow, however, absent a satisfactory showing that a higher level of borrowing
is appropriate as approved by the majority of the Independent Directors, is 300%
of the Company's Net Assets. The use of borrowing may present an element of risk
in the event that the cash flow from the Company's real estate and other
investments are insufficient to meet its debt obligations. In addition, lenders
to the Company may seek to impose restrictions on future borrowings,
Distributions and operating policies of the Company. If Assets are mortgaged or
pledged as collateral to secure payment of indebtedness and the Company is
unable to meet its debt obligations, the Assets could be transferred to the
lender, with a consequent loss of income and asset value to the Company.
- 10 -
<PAGE>
Conflicts of Interest. The Company will be subject to conflicts of
interest arising out of its relationship to the Advisor and its Affiliates,
including the material conflicts discussed below. See "Conflicts of Interest"
for a further discussion of the conflicts of interest between the Company and
the Advisor and its Affiliates and the Company's policies to reduce or eliminate
certain potential conflicts.
Competing Demands on Officers and Directors. Officers and Directors of
the Company and officers and directors of the Advisor have management
responsibilities for other entities, including entities that invest in some of
the same types of assets in which the Company will invest. For this reason, the
officers and Directors will share their management time and services among those
entities and the Company, will not devote all of their attention to the Company,
and could take actions that are more favorable to such other entities than to
the Company.
Timing of Sales and Acquisitions Impact. Investment or Sale of an Asset
by the Company may result in the immediate realization by the Advisor of
substantial commissions, fees and other compensation. The Board of Directors of
the Company must approve such transactions, but the Advisor's recommendation to
the Board may be affected by the impact of the transaction on the Advisor's
compensation. None of the agreements between the Company and the Advisor
pursuant to which the Advisor will perform services and receive compensation was
the result of arms-length negotiations.
Property Development. Properties acquired by the Company may require
development prior to use of the Property by a tenant. Affiliates of the Company
may serve as developer and if so, the Affiliates would receive the development
fee that would otherwise be paid to an unaffiliated developer. The Board of
Directors, including the Independent Directors, must approve employing an
Affiliate of the Company to serve as a developer. There is a risk, however, that
the Company would acquire Properties that require development so that an
Affiliate would receive the development fee.
The Company May Invest With Affiliates of the Advisor. The Company may
invest in Joint Ventures with another program sponsored by the Advisor or its
Affiliates. The Board of Directors, including the Independent Directors, must
approve the transaction, but the Advisor's recommendation may be affected by its
relationship with one or more of the co-venturers.
No Independent Review of the Company or the Prospectus by Managing
Dealer. The Managing Dealer is an Affiliate of the Company and will not make an
independent review of the Company and the offering. Accordingly, investors do
not have the benefit of such independent review.
No Separate Counsel for the Company, Affiliates and Investors. Each of
the Company, its Affiliates and investors may have interests which conflict with
one another, but none of them currently has the benefit of separate counsel.
Lack of Liquidity of Shares. Stockholders may not be able to sell their
Shares promptly at a desired price; therefore, the Shares should be considered
as a long-term investment only. Currently there is no public market for the
Shares. The Board of Directors, with or without the consent of the stockholders,
may apply for Listing if the Board of Directors (including a majority of
Independent Directors) determines Listing to be in the best interests of the
stockholders. There can be no assurance, however, that the Company will apply
for Listing, that any such application will be made before the passage of a
significant period of time, that any application will be accepted or, even if
accepted, that a public trading market will develop. In any event, the Articles
of Incorporation provide that the Company will not apply for Listing before the
completion or termination of this offering. If Listing occurs, the business of
the Company may continue indefinitely without any specific time limitation by
which the Company must distribute Net Sales Proceeds to the stockholders. In
that case, the stockholders would be dependent upon the sale of their Shares for
the return of their investment in the Company. There can be no assurance that
the price a stockholder would receive in a sale on an exchange or in the
over-the-counter market will be representative of the value of the assets owned
by the Company or that it will equal or exceed the amount a stockholder paid for
the Shares. In the event Listing occurs, Shares may be sold only through the
national securities exchange or the over-the-counter market on which the Shares
are listed.
- 11 -
<PAGE>
Lack of Control over Joint Ventures. The Independent Directors of the
Company must approve all Joint Venture or general partnership arrangements to
which the Company is a party. Subject to such approval, the Company may enter
into a Joint Venture with an unaffiliated party to purchase a Property, and the
Joint Venture or general partnership agreement relating to that Joint Venture or
partnership may provide that the Company will share management control of the
Joint Venture with the unaffiliated party. In the event the Joint Venture or
general partnership agreement provides that the Company will have sole
management control of the Joint Venture, such agreement may be ineffective as to
a third party who has no notice of the agreement, and the Company therefore may
be unable to control fully the activities of such Joint Venture. In the event
that the Company enters into a Joint Venture with another program sponsored by
an Affiliate, it is anticipated that the Company will not have sole management
control of the Joint Venture.
Lack of Control of Property Management. The Company uses "triple-net"
leases and, therefore, day-to-day management of the Properties will be the
responsibility of the tenants of the Properties. In general, the Company intends
to enter into leasing agreements only with tenants having substantial prior
restaurant or hotel experience. Although the Company believes the tenants of the
two Properties owned, and the three Properties identified as probable
acquisitions, as of September 1, 1998, have significant prior hotel experience,
there can be no assurance that the Company will be able to make such
arrangements in the future.
Mortgage Loans.
Real Estate Market Conditions. To the extent that the Company makes
Mortgage Loans, the results of the Company's operations will be affected, to the
extent there are defaults on such loans, by various factors, many of which are
beyond the control of the Company. The factors include local and other economic
conditions affecting real estate value and interest rate levels. The results of
the Company's operations from making Mortgage Loans would depend on, among other
things, the level of interest income generated by the Mortgage Loans, the market
value of Mortgage Loans and the supply of and demand for Mortgage Loans. No
assurance can be given that the values of the properties securing the Mortgage
Loans will remain at the levels existing on the dates of origination of the
Mortgage Loans.
Interest Rate Fluctuations. Fluctuations in interest rates may
adversely affect the Company to the extent it invests in fixed-rate, long-term
Mortgage Loans. In this situation, if interest rates rise, the Mortgage Loans
will yield a return lower than then-current market rates. If interest rates
decrease, the Company will be adversely affected to the extent that Mortgage
Loans are prepaid, because the Company will not be able to make new Mortgage
Loans at the previously higher interest rate.
Delays in Liquidating Defaulted Mortgage Loans. Even assuming that the
mortgaged properties underlying Mortgage Loans held by the Company provide
adequate security for the Mortgage Loans, substantial delays could be
encountered in connection with the liquidation of defaulted Mortgage Loans, with
corresponding delays in the receipt of related proceeds by the Company. An
action to foreclose on a mortgaged property securing a Mortgage Loan is
regulated by state statutes and rules and is subject to many of the delays and
expenses of other lawsuits if defenses or counterclaims are interposed.
Furthermore, in some states an action to obtain a deficiency judgment is not
permitted following a nonjudicial sale of a mortgaged property. In the event of
default by a mortgagor, these restrictions, among other things, may impede the
ability of the Company to foreclose on or sell the mortgaged property or to
obtain proceeds sufficient to repay all amounts due on the related Mortgage
Loan.
Regulation. The Mortgage Loans may also be subject to regulation by
federal, state and local authorities and subject to various laws and judicial
and administrative decisions. The Company may determine not to make Mortgage
Loans in any jurisdiction in which it believes the Company has not complied in
all material respects with applicable requirements. See "Business - Mortgage
Loans." See also "- Real Estate and Financing Risks."
Secured Equipment Leases.
Default by Lessee. In the event that a lessee defaults on a Secured
Equipment Lease, the Company may not be able to sell the subject Equipment at a
price that would enable the Company to recover its costs associated with such
Equipment.
- 12 -
<PAGE>
Regulation. The Secured Equipment Lease program may also be subject to
regulation by federal, state and local authorities and subject to various laws
and judicial and administrative decisions. The Company may determine not to
operate the Secured Equipment Lease program in any jurisdiction in which it
believes the Company has not complied in all material respects with applicable
requirements.
Tax Risks. In addition, there are certain federal income tax risks
associated with the Secured Equipment Lease program. See "- Tax Risks."
Impact of Inflation. Inflation may impact the value of some of the
Company's investments. For example, a substantial rise in inflation over the
term of an investment in Mortgage Loans and Secured Equipment Leases may reduce
the Company's actual return on those investments, if they do not otherwise
provide for adjustments based upon inflation. Investments in Properties may also
be adversely affected by inflation, although leases with percentage rent
provisions may not be so affected because inflation could cause those provisions
to be triggered earlier than they would otherwise become effective, and leases
with automatic increase in base rent may be sufficient to protect against the
effects of inflation.
Binding Nature of Majority Stockholder Vote. Stockholders may take
certain actions, including approving amendments to the Articles of Incorporation
and Bylaws, by a vote of a majority of the Shares outstanding and entitled to
vote. All actions taken, if approved by the holders of the requisite number of
Shares, would be binding on all stockholders. Certain of these provisions may
discourage or make it more difficult for another party to acquire control of the
Company or to effect a change in the operation of the Company.
Significant Flexibility of the Board of Directors. The Board of
Directors has overall authority to conduct the Company's operations. This
authority includes significant flexibility. For example, the Board of Directors
can (i) prevent the ownership, transfer, and/or accumulation of Shares in order
to protect the status of the Company as a REIT, or, as otherwise deemed by the
Board of Directors, to be in the best interests of the stockholders (see
"Summary of the Articles of Incorporation and Bylaws - Restriction of
Ownership"); (ii) issue additional Shares without obtaining stockholder
approval, which could result in dilution to existing stockholders; (iii) change
the compensation of the Advisor, and employ and compensate Affiliates; (iv)
direct the Company's investments toward investments that will not appreciate
over time, such as building only Properties, with the land owned by a
third-party, and Mortgage Loans, and (v) change minimum creditworthiness
standards with respect to tenants.
Restrictions on Transfer Relating to REIT Status. The Articles of
Incorporation generally restrict direct or indirect ownership (applying certain
attribution rules) of more than 9.8% of the outstanding Common Stock or 9.8% of
any series of outstanding Preferred Stock by one Person (as defined in the
Articles of Incorporation). See "Summary of the Articles of Incorporation and
Bylaws - Restriction of Ownership."
Limited Liability of Officers and Directors. The Articles of
Incorporation and Bylaws provide that an officer or Director's liability to the
Company, its stockholders, or third parties for monetary damages may be limited.
Generally, the Company is obligated under the Articles of Incorporation and the
Bylaws to indemnify its officers and Directors against certain liabilities
incurred in connection with their services in such capacities. The Company has
executed indemnification agreements with each officer and Director which will
indemnify the officer or Director for any such liabilities that he or she
incurs. Such indemnification agreements could limit the legal remedies available
to the Company and the stockholders against the Directors and Officers of the
Company. See "Summary of the Articles of Incorporation and Bylaws - Limitation
of Director and Officer Liability."
Possible Effect of ERISA. The Company believes that the assets of the
Company will not be deemed, under ERISA, to be "plan assets" of any Plan that
invests in the Shares, although it has not requested an opinion of Counsel to
that effect. If the assets of the Company were deemed to be "plan assets" under
ERISA (i) it is not clear that the exemptions from the "prohibited transaction"
rules under ERISA would be available for the Company's transactions, and (ii)
the prudence standards of ERISA would apply to investments made by the Company
(and might not be met). ERISA makes plan fiduciaries personally responsible for
any losses resulting to the plan from any breach of fiduciary duty and the Code
imposes nondeductible excise taxes on prohibited transactions.
- 13 -
<PAGE>
Insufficient Working Capital. There can be no assurance that the
Company will have sufficient working capital. As of June 30, 1998, the Company
had stockholders' equity of $20,240,660.
Ability to use Leverage to Make Distributions. The Company may incur
indebtedness if necessary to satisfy the requirement that the Company distribute
at least 95% of its real estate investment trust taxable income or otherwise, as
is necessary or advisable to assure that the Company maintains its qualification
as a REIT for federal income tax purposes. In such an event, it is possible that
the Company could make Distributions in excess of its earnings and profits and,
accordingly, that such Distributions could constitute a return of capital for
federal income tax purposes, although such Distributions would not reduce
stockholders' aggregate Invested Capital.
REAL ESTATE AND FINANCING RISKS
An Unspecified Property Offering.
Inability of Potential Investors to Evaluate Properties. The
Company has established certain criteria for evaluating Restaurant Chains and
Hotel Chains, particular Properties, and the operators of the Properties
proposed for investment by the Company. See "Business - Standards for Investment
in Properties" and "Business - General" for a description of these criteria and
the types of Properties in which the Company intends to invest. The Company has
not set fixed minimum standards relating to creditworthiness of tenants and
therefore the Board of Directors has flexibility in assessing potential tenants.
In addition, as of the date of this Prospectus, the Company owned only two hotel
Properties and had entered into commitments for the acquisition of three
additional hotel Properties. See "Business -- Property Acquisitions" and
"Business -- Pending Investments" for a description. Accordingly, prospective
investors have no information to assist them in evaluating the merits of
additional Properties to be purchased or developed by the Company.
No Limitation on Number of Properties of a Particular Chain.
There is no limit on the number of Properties of a particular Restaurant Chain
or Hotel Chain which the Company may acquire, and the Company is not obligated
to invest in both types of Properties. The Board of Directors, however,
including a majority of the Independent Directors, will review the Company's
Properties and potential investments in terms of geographic diversification.
No Assurance of Obtaining Suitable Investments. No assurance
can be given that the Company will be successful in obtaining suitable
investments on financially attractive terms or that, if investments are made,
the objectives of the Company will be achieved.
Conflicts of Interest. The Advisor or its Affiliates from time
to time may acquire properties on a temporary basis with the intention of
subsequently transferring the properties to one or more of the CNL Group, Inc.
("CNL") programs, including the Company, although the Company has adopted
guidelines to minimize such conflicts. See "Conflicts of Interest - Acquisition
of Properties." Potential investors will not have the opportunity to evaluate
the manner in which these conflicts of interest are resolved.
Possible Delays in Investment. To the extent consistent with the
Company's objective of qualifying as a REIT, the offering proceeds may remain
uninvested for up to the later of two years from the initial date of this
Prospectus or one year after termination of the offering, although it is
expected that substantially all net offering proceeds will be invested prior to
the end of such period. See "Prior Performance Information" for a summary
description of the investment experience of Affiliates and the Advisor in prior
CNL programs, which is not necessarily indicative of the rate at which the
proceeds of this offering will be invested.
An extended offering period, the inability of the Advisor to find
suitable Properties, and the inability of a prior program formed by Affiliates
of the Advisor that currently is in the process of acquiring fast-food,
family-style and casual-dining restaurant properties and offering mortgage loans
to substantially complete its acquisition program prior to the time that the
Company has funds available to invest in Properties, may result in delays in
investment of Company funds in Properties and in the receipt of a return from
real property investments.
- 14 -
<PAGE>
Revenues received by the Company pending investment in Properties or
making Mortgage Loans will be limited to the rates of return available on
short-term, highly liquid investments with appropriate safety of principal.
These rates of return, which affect the amount of cash available to make
Distributions to the stockholders, are expected to be lower than the Company
would receive under its Property leases or Mortgage Loans. Further, to the
extent consistent with the Company's objective of qualifying as a REIT, any
funds of the Company required to be invested in Properties and Mortgage Loans
and not so invested or reserved for Company purposes within the later of two
years from the initial date of this Prospectus, or one year after the
termination of the offering, will be distributed pro rata to the then
stockholders of the Company in accordance with the Articles of Incorporation.
Lack of Control Over Properties Under Construction. The Company intends
to acquire sites on which a particular Property to be owned by the Company is to
be built as well as existing Properties (including Properties which require
renovation). To the extent that the Company acquires a Property on which
improvements are to be constructed or completed or renovations are to be made,
the Company may be subject to certain risks in connection with the developer's
ability to control construction costs, and the timing of completion of
construction, or to build in conformity with plans, specifications, and
timetables. The Company's agreements with the developer will provide certain
safeguards designed to minimize these risks. Further, in the event of a default
by a developer, the Company generally will have the right to require the tenant
to repurchase the Property that is under development at a pre-established price
designed to reimburse the Company for all costs incurred by the Company in
connection with the acquisition and development of the Property. There can be no
assurance, however, that under such circumstances, the tenant will have
sufficient funds to fulfill its obligations. See "Business - Site Selection and
Acquisition Properties."
Ground Lease Property Risks. If the Company invests in ground lease
Properties, the Company will not own or, except to the extent of rights set
forth in any assignment of lease or tripartite agreement that the Company may
enter into, have a leasehold interest in the underlying land. Thus, with respect
to ground lease Properties, the Company will have no economic interest in the
land or building at the expiration of the lease on the underlying land, although
it generally will retain partial ownership of, and will have the right to
remove, any equipment that the Company may own in the building. The Company will
not share in any appreciation of the land associated with any ground lease
Property. The Company, however, will share in appreciation of the income stream
derived from the lease.
Impasse or Conflicts with Joint Venture Partner.
Impasse with Joint Venture Partner. In the event that the
Company enters into a Joint Venture, there will be a potential risk of impasse
in certain joint venture decisions since the approval of the Company and of each
co-venturer is required for certain decisions. In any Joint Venture with an
affiliated program, however, the Company will have the right to buy the other
co-venturer's interest or to sell its own interest on specified terms and
conditions in the event of an impasse regarding a Sale. Under such
circumstances, it is possible that neither party will have the funds necessary
to consummate the transaction. See "Business - Joint Venture Arrangements." In
addition, the Company may experience difficulty in locating a third party
purchaser for its Joint Venture interest and in obtaining a favorable sale price
for such Joint Venture interest.
Interests of Joint Venture Partner. Investments in Joint
Ventures may involve the risk that the Company's co-venturer may have economic
or business interests or goals which, at a particular time, are inconsistent
with the interests or goals of the Company, that such co-venturer may be in a
position to take action contrary to the Company's instructions, requests,
policies or objectives, or that such co-venturer may experience financial
difficulties. Among other things, actions by a co-venturer might subject
property owned by the Joint Venture to liabilities in excess of those
contemplated by the terms of the joint venture agreement or to other adverse
consequences.
Limitations on the Ability of the Company to Liquidate. For the first
five to ten years after commencement of this offering, the Company intends to
use any proceeds from the Sale of Properties or Mortgage Loans that are not
required to be distributed to stockholders in order to preserve the Company's
status as a REIT for federal income tax purposes to acquire additional
Properties, make additional Mortgage Loans and repay outstanding indebtedness.
The proceeds from the Sale of Secured Equipment Leases will be used to fund
additional Secured Equipment Leases, or to reduce the Company's outstanding
indebtedness. If Listing occurs, the proceeds from Sales may be reinvested
- 15 -
<PAGE>
in other Properties, Mortgage Loans or Secured Equipment Leases for an
indefinite period of time. Unless Listing occurs by December 31, 2007, the
Company will undertake, to the extent consistent with the Company's objective of
qualifying as a REIT, the orderly Sale of the Company's assets, the distribution
of the Net Sales Proceeds of such Sales to stockholders, and will engage only in
activities related to its orderly liquidation unless the stockholders elect
otherwise. Neither the Advisor nor the Board of Directors may be able to control
the timing of Sales due to market conditions, and there can be no assurance that
the Company will be able to sell its assets so as to return stockholders'
aggregate Invested Capital, to generate a profit for the stockholders, or to
fully satisfy its debt obligations. Invested Capital, in the aggregate, will be
returned to stockholders upon disposition of the Properties only if the
Properties are sold for more than their original purchase price, although return
of capital, for federal income tax purposes, is not necessarily limited to
stockholder distributions following Sales of Properties. See "Federal Income Tax
Considerations." In the event that a purchase money obligation is taken in
partial payment of the sales price of a Property, the proceeds of the Sale will
be realized over a period of years. Further, entering into Mortgage Loans with
terms of 10 to 20 years and Secured Equipment Leases with terms of seven years
may cause any intended liquidation of the Company to be delayed beyond the time
of disposition of the Properties and until such time as the Mortgage Loans and
Secured Equipment Leases expire or are sold.
Inability to Control the Sale of Certain Properties. Certain tenants
are expected to have the right to purchase the Property from the Company,
commencing a specified number of years after the date of the lease, which may
lessen the ability of the Advisor and the Board of Directors to freely control
the Sale of the Property. The leases also generally provide the tenant with a
right of first refusal on any proposed sale provisions. See "Business -
Description of Leases - Right of Tenant to Purchase." A tenant will have no
obligation to purchase the Property it leases.
Real Property Investments.
Lack of Control Over Market and Business Conditions. The value
of Properties such as those to be acquired by the Company, the ability of the
tenants to pay rent on a timely basis, the amount of the rent and the ability of
borrowers to make Mortgage Loan payments on a timely basis may be adversely
affected by certain changes in general or local economic or market conditions,
increased costs of energy, increased costs of food or other products, increased
costs and shortages of labor, competitive factors, fuel shortages, quality of
management, the ability of a Restaurant Chain or Hotel Chain to fulfill any
obligations to operators of its restaurant or other businesses, limited
alternative uses for the building, changing consumer habits, condemnation or
uninsured losses, changing demographics, changing traffic patterns, inability to
remodel outmoded buildings as required by the franchise or lease agreement,
voluntary termination by a tenant of its obligations under a lease, bankruptcy
of a tenant or borrower, and other factors. Neither the Company nor the Board of
Directors can control these factors.
Multiple Property Leases or Mortgage Loans with Individual
Tenants or Borrowers. Tenants may lease more than one Property and borrowers may
enter into more than one Mortgage Loan. Events such as the default or financial
failure of a tenant or borrower therefore could cause one or more Properties to
become vacant under certain circumstances. Vacancies would reduce the cash
receipts of the Company and, at least until the Company is able to re-lease any
such Properties, could decrease their ultimate resale value. The value of the
Company's Properties will depend principally upon the value of the leases of the
Properties. Minor defaults by a tenant or borrower may continue for some time
before the Advisor or Board of Directors determines that it is in the interest
of the Company to evict the tenant or foreclose on the property of the borrower.
Re-leasing of Properties. If a Property becomes vacant, the
Company may be unable either to release the Property for the rent due under the
prior lease or to re-lease the Property without incurring additional
expenditures relating to the Property. The Company could experience delays in
enforcing its rights against, and collecting rents (and, under certain
circumstances, real estate taxes and insurance costs) due from, a defaulting
tenant.
Third Party Franchise Agreements. The Company will not be a
party to any franchise agreement between a Restaurant Chain or Hotel Chain and a
tenant, and such agreement could therefore be modified or canceled without
notice to, or the prior consent of, the Company. In that event, the tenant could
be required to cease its
- 16 -
<PAGE>
operations at a Property, although the tenant's obligation to pay rent to the
Company would continue. Before operations at the Property could resume, however,
the Company would be required to locate a new tenant acceptable to a Restaurant
Chain or Hotel Chain.
Lack of Adequate Insurance. If the Company, as lessor, incurs
any liability which is not fully covered by insurance, the Company would be
liable for such amounts, and returns to the stockholders could be reduced. See
"Business - Description of Property Leases - Insurance, Taxes, Maintenance, and
Repairs" for a description of the types of insurance that the leases of the
Properties will require the tenant to obtain.
The inability of tenants to make lease payments or of borrowers to make
Mortgage Loan payments as a result of any of these factors could result in a
decrease in the amount of cash available to make Distributions to the
stockholders.
Impact of Adverse Trends. The success of the future operations of the
Company's Properties will depend largely on each of their operator's ability to
adapt to dominant trends in the restaurant and hotel industries, including
greater competitive pressures, increased consolidation, industry overbuilding,
dependence on consumer spending patterns and changing demographics, the
introduction of new concepts and products, availability of labor, price levels,
and general economic conditions. See "Business - General" for a description of
the size and nature of the restaurant and hotel industries and current trends in
this industry. The success of a particular Restaurant Chain or Hotel Chain, the
ability of a Restaurant Chain or Hotel Chain to fulfill any obligations to
operators of its restaurants or other businesses, and trends in the restaurant
and hotel industries may affect the income of the Company.
Competition. The Company will compete with other entities, including
Affiliates, for the acquisition of properties. See "Conflicts of Interest -
Prior and Future Programs." In addition, the restaurant and hotel businesses in
which the Company will invest are highly competitive, and it is anticipated that
any Property acquired by the Company will compete with other businesses in the
vicinity. The extent to which the Company will be entitled to receive rent, in
the form of percentage rent, in excess of the base rent (including automatic
increases in the base rent) for the Properties will depend in part on the
ability of the tenants to compete successfully with other businesses in the
vicinity. In addition, the Company will compete with other financing sources for
suitable tenants and properties.
Seasonality of Hotel Industry. The hotel industry is seasonal in
nature. This seasonality may cause quarterly fluctuations in the amount of
percentage rent, if any, the Company will receive from its hotel Properties. Any
such reduction in percentage rent would reduce the amount of cash available for
Distribution to the stockholders.
Possible Environmental Liabilities. Under various federal and state
environmental laws and regulations, a current or previous owner or operator of
real estate may be required to investigate and clean up certain hazardous or
toxic substances, asbestos-containing materials, or petroleum product releases
at the property, and may be held liable to a governmental entity or to third
parties for property damage and for investigation and cleanup costs incurred by
such parties in connection with the contamination. In addition, some
environmental laws create a lien on the contaminated site in favor of the
government for damages and costs it incurs in connection with the contamination.
The presence of contamination or the failure to remediate contaminations may
adversely affect the owner's ability to sell or lease real estate or to borrow
using the real estate as collateral. The owner or operator of a site may be
liable under common law to third parties for damages and injuries resulting from
environmental contamination emanating from the site.
All of the Properties will be acquired by the Company subject to
satisfactory Phase I environmental assessments or satisfactory Phase II
environmental assessments. A Phase I or Phase II environmental assessment may be
determined by the Board of Directors or the Advisor to be satisfactory if a
problem exists and has not been resolved at the time the Property is acquired
provided that the seller has agreed in writing to indemnify the Company. There
can be no assurance, however, that any seller will be able to pay under an
indemnity obtained by the Company. Further, no assurances can be given that all
environmental liabilities have been identified or that no prior owner, operator
or current occupant has created an environmental condition not known to the
Company. Moreover, no assurances can be given that (i) future laws, ordinances
or regulations will not impose any material environmental
- 17 -
<PAGE>
liability or (ii) the current environmental condition of the Properties will not
be affected by tenants and occupants of the Properties, by the condition of land
or operations in the vicinity of the Properties (such as the presence of
underground storage tanks), or by third parties unrelated to the Company.
Permanent Financing. The Company intends to obtain Permanent Financing,
however, the Company has not yet obtained a commitment for any Permanent
Financing, and there is no assurance that the Company will be able to obtain any
Permanent Financing on satisfactory terms.
Unspecified Secured Equipment Leases. The Company, as of the date of
this Prospectus, has not entered into any arrangements that create a reasonable
probability that the Company will extend a Secured Equipment Lease to a
particular operator, and therefore prospective stockholders have no information
to assist them in evaluating the merits of the Secured Equipment Lease program
or of any Secured Equipment Lease. No assurance can be given that the Company
will be successful in identifying suitable operators or negotiating Secured
Equipment Leases on financially attractive terms or that lessees will fulfill
their obligations under Secured Equipment Leases.
TAX RISKS
REIT Qualification. The Company intends to operate so as to qualify and
remain qualified as a REIT for federal income tax purposes, commencing with its
taxable year ending December 31, 1997. A qualified REIT generally is not taxed
at the corporate level on income it currently distributes to its stockholders,
so long as it distributes at least 95% of its real estate investment trust
taxable income. See "Federal Income Tax Considerations - Taxation of the
Company." The Company expects to have qualified as a REIT in its taxable year
ended December 31, 1997, but no assurance can be given that it did so qualify or
that it will continue to qualify in the future. In this regard, based on certain
representations and assumptions, the Company has received an opinion of tax
counsel to the Company ("Counsel") to the effect that the Company qualified as a
REIT for the taxable year ended December 31, 1997, that the Company is organized
in conformity with the requirements for qualification as a REIT, and that the
Company's proposed method of operation will enable it to meet the requirements
for qualification as a REIT for federal income tax purposes. Qualification as a
REIT, however, involves the application of highly technical and complex Code
provisions as to which there are only limited judicial and administrative
interpretations. Certain facts and circumstances which may be wholly or
partially beyond the Company's control may affect its ability to qualify on an
ongoing basis as a REIT. In addition, no assurance can be given that future
legislation, new regulations, administrative interpretations or court decisions
will not significantly change the tax laws (or the application thereof) with
respect to qualification as a REIT for federal income tax purposes or the
federal income tax consequences of such qualification. The opinion of Counsel is
not binding on the Internal Revenue Service ("IRS") or the courts.
Secured Equipment Lease Treatment. In order to qualify as a REIT for
federal income tax purposes, not more than 25% of the Company's total assets may
be represented by personal property, or loans secured by personal property on
certain testing dates. In addition, loans secured by personal property made to
each borrower must represent less than 5% of the Company's total assets on such
testing dates. Counsel is of the opinion, based on certain assumptions, that the
Secured Equipment Leases will be treated as loans secured by personal property
for federal income tax purposes. The Company believes that the value of the
Secured Equipment Leases together with any personal property owned by the
Company, will in the aggregate represent less than 25% of the Company's total
assets and that the value of the Secured Equipment Leases entered into with any
particular lessee will represent less than 5% of the Company's total assets.
Counsel has relied on the representations of the Company regarding such values
in rendering its opinion as to the qualification of the Company as a REIT. If
the Company fails to satisfy the 25% test or the 5% test either at the time of
the offering or on any subsequent testing date, the Company will fail to qualify
(or cease to qualify, as the case may be) as a REIT for federal income tax
purposes. In addition, if, contrary to the opinion of Counsel, the Secured
Equipment Leases are not treated as loans, but are instead treated as leases for
federal income tax purposes, income from the Secured Equipment Leases will
generally not satisfy either the 95% or the 75% gross income tests for REIT
qualification. See "Federal Income Tax Considerations - Taxation of the
Company," and "- Characterization of the Secured Equipment Leases."
Effect of REIT Disqualification. If, in any taxable year, the Company
were to fail to qualify as a REIT for federal income tax purposes, it would not
be allowed a deduction for dividends to stockholders in computing taxable income
and would be subject to federal income tax (including any applicable alternative
minimum tax) on
- 18 -
<PAGE>
its taxable income at regular corporate rates. In addition, unless entitled to
relief under certain statutory provisions, the Company would be disqualified
from treatment as a REIT for federal income tax purposes for the four taxable
years following the year during which REIT qualification is lost. The additional
tax liability resulting from the failure to so qualify would significantly
reduce the amount of funds available to make Distributions to stockholders.
Distributions to stockholders generally would be taxable as ordinary income to
the extent of current and accumulated earnings and profits and, subject to
certain limitations, would be eligible for the corporate dividends received
deduction. Although the Company intends to operate in a manner designed to
permit it to qualify as a REIT for federal income tax purposes, it is possible
that future economic, market, legal, tax, or other events or circumstances could
cause it to fail to so qualify. See "Federal Income Tax Considerations -
Taxation of the Company."
Effect of Distribution Requirements. The Company may be required, under
certain circumstances, to accrue as income for tax purposes interest, rent and
other items treated as earned for tax purposes but not yet received. In
addition, the Company may be required not to accrue as expenses for tax purposes
certain items which actually have been paid or certain of the Company's
deductions might be disallowed by the Service. In any such event, the Company
could fail to qualify as a REIT or have taxable income in excess of cash
available for distribution. If the Company has taxable income in excess of cash
available for distribution, the Company could be required to borrow funds or
liquidate investments on unfavorable terms in order to meet the distribution
requirement applicable to a REIT. See "Federal Income Tax Considerations -
Taxation of the Company - Distribution Requirements."
Restrictions on Maximum Share Ownership. In order for the Company to
qualify as a REIT, no more than 50% of the value of the outstanding equity
securities may be owned, directly or indirectly (applying certain attribution
rules), by five or fewer individuals (or certain entities) at any time during
the last half of the Company's taxable year. To ensure that the Company will not
fail to qualify as a REIT under this test, the Company's Articles of
Incorporation include certain provisions restricting the accumulation of Shares.
These restrictions may (i) discourage a change of control of the Company; (ii)
deter individuals and entities from making tender offers for Shares, which
offers may be attractive to stockholders; or (iii) limit the opportunity for
stockholders to receive a premium for their Shares in the event a stockholder is
making purchases of Shares in order to acquire a block of Shares.
Other Tax Liabilities. Even if the Company qualifies as a REIT for
federal income tax purposes, it may be subject to certain federal, state and
local taxes on its income and property. See "Federal Income Tax Considerations -
State and Local Taxes."
Changes in Tax Laws. The discussions of the federal income tax aspects
of the offering are based on current law, including the Code, the Regulations
issued thereunder, certain administrative interpretations thereof, and court
decisions. Consequently, future events that modify or otherwise affect those
provisions may result in treatment for federal income tax purposes of the
Company and the stockholders that is materially and adversely different from
that described in this Prospectus, both for taxable years arising before and
after such events. There is no assurance that future legislation and
administrative interpretations will not be retroactive in effect.
SUITABILITY STANDARDS AND HOW TO SUBSCRIBE
SUITABILITY STANDARDS
The Shares offered hereby are suitable only as a long-term investment
for persons of adequate financial means who have no need for liquidity in this
investment. Initially, there is not expected to be any public market for the
Shares, which means that it may be difficult to sell Shares. See "Summary of the
Articles of Incorporation and Bylaws - Restrictions on Ownership" for a
description of the transfer requirements. As a result, the Company has
established suitability standards which require investors to have either (i) a
net worth (exclusive of home, furnishings, and personal automobiles) of at least
$45,000 and an annual gross income of at least $45,000, or (ii) a net worth
(exclusive of home, furnishings, and personal automobiles) of at least $150,000.
The Company's suitability standards also require that a potential investor (i)
can reasonably benefit from an investment in the Company based on such
investor's overall investment objectives and portfolio structuring, (ii) is able
to bear the economic risk of the investment based on the prospective
stockholder's overall financial situation, and (iii) has
- 19 -
<PAGE>
apparent understanding of (a) the fundamental risks of the investment, (b) the
risk that such investor may lose the entire investment, (c) the lack of
liquidity of the Company's shares, (d) the background and qualifications of the
Advisor, and (e) the tax consequences of the investment.
Iowa, Maine, Massachusetts, Missouri, New Hampshire, North Carolina,
Ohio, Pennsylvania and Tennessee have established suitability standards
different from those established by the Company, and Shares will be sold only to
investors in those states who meet the special suitability standards set forth
below.
IOWA, MASSACHUSETTS, MISSOURI, NORTH CAROLINA AND TENNESSEE - The
investor has either (i) a net worth (exclusive of home, furnishings, and
personal automobiles) of at least $60,000 and an annual gross income of at least
$60,000, or (ii) a net worth (exclusive of home, furnishings, and personal
automobiles) of at least $225,000.
MAINE - The investor has either (i) a net worth (exclusive of home,
furnishings, and personal automobiles) of at least $50,000 and an annual gross
income of at least $50,000, or (ii) a net worth (exclusive of home, furnishings,
and personal automobiles) of at least $200,000.
NEW HAMPSHIRE - The investor has either (i) a net worth (exclusive of
home, furnishings, and personal automobiles) of at least $125,000 and an annual
gross income of at least $50,000, or (ii) a net worth (exclusive of home,
furnishings, and personal automobiles) of at least $250,000.
OHIO - The investor's investment in the Shares shall not exceed 10% of
the investor's net worth (exclusive of home, furnishings, and personal
automobiles).
PENNSYLVANIA - The investor has (i) a net worth (exclusive of home,
furnishings, and personal automobiles) of at least ten times the investor's
investment in the Company, and (ii) either (a) a net worth (exclusive of home,
furnishings, and personal automobiles) of at least $45,000 and an annual gross
income of at least $45,000, or (b) a net worth (exclusive of home, furnishings,
and personal automobiles) of at least $150,000. Because the minimum offering of
Shares of the Company is less than $16,500,000, Pennsylvania investors are
cautioned to evaluate carefully the Company's ability to fully accomplish its
stated objectives and to inquire as to the current dollar volume of the
Company's subscription proceeds.
The foregoing suitability standards must be met by the investor who
purchases the Shares. If the investment is being made for a fiduciary account
(such as an IRA, Keogh Plan, or corporate pension or profit-sharing plan), the
beneficiary, the fiduciary account, or any donor or grantor that is the
fiduciary of the account who directly or indirectly supplies the investment
funds must meet such suitability standards.
In addition, under the laws of certain states, investors may transfer
their Shares only to persons who meet similar standards, and the Company may
require certain assurances that such standards are met. Investors should read
carefully the requirements in connection with resales of Shares as set forth in
the Articles of Incorporation and as summarized under "Summary of the Articles
of Incorporation and Bylaws - Restrictions of Ownership."
In purchasing Shares, custodians or trustees of employee pension
benefit plans or IRAs may be subject to the fiduciary duties imposed by the
Employee Retirement Income Security Act of 1974 ("ERISA") or other applicable
laws and to the prohibited transaction rules prescribed by ERISA and related
provisions of the Code. See "Federal Income Tax Considerations - Retirement Plan
Stockholders." In addition, prior to purchasing Shares, the trustee or custodian
of an employee pension benefit plan or an IRA should determine that such an
investment would be permissible under the governing instruments of such plan or
account and applicable law. For information regarding "unrelated business
taxable income," see "Federal Income Tax Considerations - Taxation of
Stockholders - Tax-Exempt Stockholders."
In order to ensure adherence to the suitability standards described
above, requisite suitability standards must be met, as set forth in the
Subscription Agreement in one of the forms attached hereto as Exhibit D. In
addition, Soliciting Dealers who sell Shares have the responsibility to make
every reasonable effort to determine that the purchase of Shares is a suitable
and appropriate investment for an investor. In making this determination, the
Soliciting Dealers will rely on relevant information provided by the investor,
including information as to the
- 20 -
<PAGE>
investor's age, investment objectives, investment experience, income, net worth,
financial situation, other investments, and any other pertinent information. See
"The Offering - Subscription Procedures." Executed Subscription Agreements will
be maintained in the Company's records for six years.
HOW TO SUBSCRIBE
An investor who meets the suitability standards described above may
subscribe for Shares by completing and executing the Subscription Agreement and
delivering it to a Soliciting Dealer, together with a check for the full
purchase price of the Shares subscribed for, payable to "SouthTrust Asset
Management Company of Florida, N.A., Escrow Agent." See "The Offering -
Subscription Procedures." Certain Soliciting Dealers who have "net capital," as
defined in the applicable federal securities regulations, of $250,000 or more
may instruct their customers to make their checks for Shares subscribed for
payable directly to the Soliciting Dealer. Care should be taken to ensure that
the Subscription Agreement is filled out correctly and completely. Partnerships,
individual fiduciaries signing on behalf of trusts, estates, and in other
capacities, and persons signing on behalf of corporations and corporate trustees
may be required to obtain additional documents from Soliciting Dealers. Any
subscription may be rejected by the Company in whole or in part, regardless of
whether the subscriber meets the minimum suitability standards.
Certain Soliciting Dealers may permit investors who meet the
suitability standards described above to subscribe for Shares by telephonic
order to the Soliciting Dealer. This procedure may not be available in certain
states. See "The Offering - Subscription Procedures" and "The Offering - Plan of
Distribution."
A minimum investment of 250 Shares ($2,500) is required, except for
Nebraska, New York, and North Carolina investors who must make a minimum
investment of 500 Shares ($5,000). IRAs, Keogh plans, and pension plans must
make a minimum investment of at least 100 Shares ($1,000), except for Iowa
tax-exempt investors who must make a minimum investment of 250 Shares ($2,500).
For Minnesota investors only, IRAs and qualified plans must make a minimum
investment of 200 Shares ($2,000). Following an initial subscription for at
least the required minimum investment, any investor may make additional
purchases in increments of one Share. Maine investors, however, may not make
additional purchases in amounts less than the applicable minimum investment
except with respect to Shares purchased pursuant to the Reinvestment Plan. See
"The Offering - General," "The Offering Subscription Procedures," and "Summary
of Reinvestment Plan."
- 21 -
<PAGE>
ESTIMATED USE OF PROCEEDS
The table set forth below summarizes certain information relating to
the anticipated use of offering proceeds by the Company, assuming that
15,000,000 Shares are sold (2,672,657 Shares had been sold as of September 1,
1998, excluding 970 Shares issued pursuant to the Reinvestment Plan). The
Company estimates that 84% of Gross Proceeds will be available for the purchase
of Properties and the making of Mortgage Loans, and approximately 9% of Gross
Proceeds will be paid in fees and expenses to Affiliates of the Company for
their services and as reimbursement for Organizational and Offering Expenses
incurred on behalf of the Company. While the estimated use of proceeds set forth
in the table below is believed to be reasonable, this table should be viewed
only as an estimate of the use of proceeds that may be achieved.
Maximum Offering(1)(2)
----------------------
Amount Percent
------ -------
GROSS PROCEEDS TO THE COMPANY (3)................ $150,000,000 100.0%
Less:
Selling Commissions to CNL
Securities Corp. (3)....................... 11,250,000 7.5%
Marketing Support and Due Diligence
Expense Reimbursement Fee to
CNL Securities Corp. (3)................... 750,000 0.5%
Organizational and Offering Expenses (4)...... 4,500,000 3.0%
------------ ------
NET PROCEEDS TO THE COMPANY...................... 133,500,000 89.0%
Less:
Acquisition Fees to the Advisor (5) .......... 6,750,000 4.5%
Acquisition Expenses (6)...................... 750,000 0.5%
Initial Working Capital Reserve .............. (7)
------------ ------
CASH PAYMENT FOR PURCHASE OF PROPERTIES
AND THE MAKING OF MORTGAGE LOANS
BY THE COMPANY (8)............................ $126,000,000 84.0%
============ ======
- ------------------------------------
FOOTNOTES:
(1) Excludes the purchase of 20,000 shares of Common Stock by the Advisor in
exchange for its $200,000 investment in the Company. The Advisor may, but
is not required to, purchase additional Shares of the Company.
(2) Excludes 1,500,000 Shares that may be sold pursuant to the Reinvestment
Plan.
(3) Gross Proceeds of the offering are calculated as if all Shares are sold at
$10.00 per Share and do not take into account any reduction in Selling
Commissions. See "The Offering - Plan of Distribution" for a description of
the circumstances under which Selling Commissions may be reduced, including
commission discounts available for purchases by registered representatives
or principals of the Managing Dealer or Soliciting Dealers, certain
Directors and officers and certain investment advisers. Selling Commissions
are calculated assuming that reduced commissions are not paid in connection
with the purchase of any Shares. The Shares are being offered to the public
through CNL Securities Corp., which will receive Selling Commissions of
7.5% on all sales of Shares and will act as Managing Dealer. The Managing
Dealer is an Affiliate of the Advisor. Other broker-dealers may be engaged
as Soliciting Dealers to sell Shares and reallowed Selling Commissions of
up to 7% with respect to Shares which they sell. In addition, all or a
portion of the marketing support and due diligence expense reimbursement
fee may be reallowed to certain Soliciting Dealers for expenses incurred by
them in selling the Shares, including reimbursement for bona fide expenses
incurred in connection with due diligence activities, with prior written
approval from, and in the sole discretion of, the Managing Dealer. See "The
Offering - Plan of Distribution" for a more complete description of this
fee.
(4) Organizational and Offering Expenses include legal, accounting, printing,
escrow, filing, registration, qualification, and other expenses of the
organization of the Company and the offering of the Shares, but exclude
Selling Commissions and the marketing support and due diligence expense
reimbursement fee. The Advisor will pay all Organizational and Offering
Expenses which exceed 3% of Gross Proceeds. The Organizational and Offering
Expenses paid by the Company in connection with the formation of the
Company, together with the 7.5% Selling Commissions, the 0.5% marketing
support and due diligence reimbursement fee, and the Soliciting Dealer
Servicing Fee incurred by the Company will not exceed thirteen percent
(13%) of the proceeds raised in connection with this offering.
(5) Acquisition Fees include all fees and commissions paid by the Company to
any person or entity in connection with the selection or acquisition of any
Property or the making of any Mortgage Loan, including to Affiliates or
nonaffiliates. Acquisition Fees do not include Acquisition Expenses.
(6) Represents Acquisition Expenses that are neither reimbursed to the Company
nor included in the purchase price of the Properties, and on which rent is
not received, but does not include certain expenses associated with
Property acquisitions that are part of the purchase price of the
Properties, that are included in the basis of the Properties, and on which
rent is received. Acquisition Expenses include any and all expenses
incurred by the Company, the Advisor, or any Affiliate of the Advisor in
connection with the selection or acquisition of any Property or the making
of any Mortgage Loan, whether or not acquired or made, including, without
limitation, legal fees and expenses, travel and communication expenses,
costs of appraisals, nonrefundable option payments on property not
acquired, accounting fees and expenses, taxes, and title insurance, but
exclude Acquisition Fees. The expenses that are attributable to the seller
of the Properties and part of the purchase price of the Properties is
anticipated to range between 1% and 2% of Gross Proceeds.
(7) Because leases generally will be on a "triple-net" basis, it is not
anticipated that a permanent reserve for maintenance and repairs will be
established. However, to the extent that the Company has insufficient funds
for such purposes, the Advisor may, but is not required to, contribute to
the Company an aggregate amount of up to 1% of the net offering proceeds
available to the Company for maintenance and repairs. The Advisor also may,
but is not required to, establish reserves from offering proceeds,
operating funds, and the available proceeds of any Sales.
(8) Offering proceeds designated for investment in Properties or the making of
Mortgage Loans temporarily may be invested in short-term, highly liquid
investments with appropriate safety of principal.
- 22 -
<PAGE>
MANAGEMENT COMPENSATION
The table below summarizes the types, recipients, methods of
computation, and estimated amounts of all compensation, fees, reimbursements and
distributions to be paid directly or indirectly by the Company to the Advisor
and its Affiliates, exclusive of any distributions to which the Advisor or its
Affiliates may be entitled by reason of their purchase and ownership of Shares.
See "The Advisor and the Advisory Agreement." For information concerning
compensation to the Directors, see "Management."
A maximum of 15,000,000 Shares ($150,000,000) may be sold. An
additional 1,500,000 Shares ($15,000,000) may be sold to stockholders who
receive a copy of this Prospectus and who purchase Shares through the
Reinvestment Plan.
The following arrangements for compensation and fees to the Advisor and
its Affiliates were not determined by arm's-length negotiations. See "Conflicts
of Interest." There is no item of compensation and no fee that can be paid to
the Advisor or its Affiliates under more than one category.
- 23 -
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
Type of
Compensation Estimated
and Recipient Method of Computation Maximum Amount
- ------------------------------------------------------------------------------------------------------------------------------------
Organizational Stage
- ------------------------------------------------------------------------------------------------------------------------------------
Selling Commissions to Selling Commissions of 7.5% per Share on all Shares sold, subject $11,250,000 if 15,000,000 Shares
Managing Dealer and to reduction under certain circumstances as described in "The are sold; $12,375,000 if
Soliciting Dealers Offering - Plan of Distribution." Soliciting Dealers may be 16,500,000 Shares (including
reallowed Selling Commissions of up to 7% with respect to Shares 1,500,000 Shares offered
they sell. pursuant to the Reinvestment
Plan) are sold. As of June 30,
1998, the Company had incurred
$1,768,371 in Selling
Commissions, $1,650,707 of which
was reallowed to unaffiliated
Soliciting Dealers.
- ------------------------------------------------------------------------------------------------------------------------------------
Marketing support and Expense allowance of 0.5% of Gross Proceeds to the Managing Dealer, $750,000 if 15,000,000 Shares
due diligence expense all or a portion of which may be reallowed to Soliciting Dealers are sold; $825,000 if 16,500,000
reimbursement fee to with prior written approval from, and in the sole discretion of, Shares (including 1,500,000
Managing Dealer and the Managing Dealer. The Managing Dealer will pay all sums Shares offered pursuant to the
Soliciting Dealers attributable to bona fide due diligence expenses from this fee, in Reinvestment Plan) are sold. As
the Managing Dealer's sole discretion. of June 30, 1998, the Company
had incurred $117,891 in these
fees.
- ------------------------------------------------------------------------------------------------------------------------------------
Reimbursement to the Actual expenses incurred, except that the Advisor will pay all such Amount is not determinable at
Advisor and its expenses in excess of 3% of Gross Proceeds. The Organizational and this time, but will not exceed
Affiliates for Organi- Offering Expenses paid by the Company in connection with the formation 3% of Gross Proceeds,
zational and Offering of the Company, together with the 7.5% Selling Commissions, the 0.5% $4,500,000 if 15,000,000
Expenses marketing support and due diligence reimbursement fee, and the Shares are sold; $4,950,000 if
Soliciting Dealer Servicing Fee incurred by the Company will not 16,500,000 Shares (including
exceed thirteen percent (13%) of the proceeds raised in connection 1,500,000 Shares offered
with this offering. pursuant to the Reinvestment
Plan) are sold.
- ------------------------------------------------------------------------------------------------------------------------------------
Acquisition Stage
- ------------------------------------------------------------------------------------------------------------------------------------
Acquisition Fee to the 4.5% of Total Proceeds payable to the Advisor as Acquisition Fees. $6,750,000 if 15,000,000 Shares
Advisor Shares are sold plus $2,025,000
if Permanent Financing equals
$45,000,000; $7,425,000 if
16,500,000 Shares (including
1,500,000 Shares offered pur-
suant to the Reinvestment Plan)
are sold plus $2,227,500 if
Permanent Financing equals
$49,500,000. As of June 30,
1998, the Company had incurred
$1,061,023 in Acquisition Fees.
- 24 -
<PAGE>
- ------------------------------------------------------------------------------------------------------------------------------------
Other Acquisition Fees Any fees paid to Affiliates of the Advisor in connection with the Amount is not determinable at
to Affiliates of the financing, development, construction or renovation of a Property. this time.
Advisor Such fees are in addition to 4.5% of Total Proceeds payable to the
Advisor as Acquisition Fees, and payment of such fees will be
subject to approval by the Board of Directors, including a majority
of the Independent Directors, not otherwise interested in the
transaction.
- ------------------------------------------------------------------------------------------------------------------------------------
Reimbursement of Reimbursement to the Advisor and its Affiliates for expenses Acquisition Expenses, which are
Acquisition Expenses actually incurred. based on a number of factors,
to the Advisor and its including the purchase price of
Affiliates The total of all Acquisition Fees and any Acquisition Expenses the Properties, are not
payable to the Advisor and its Affiliates shall be reasonable determinabile at this time.
and shall not exceed an amount equal to 6% of the Real Estate Asset
Value of a Property, or in the case of a Mortgage Loan, 6% of the
funds advanced, unless a majority of the Board of Directors,
including a majority of the Independent Directors not otherwise
interested in the transaction, approves fees in excess of this limit
subject to a determination that the transaction is commercially
competitive, fair and reasonable to the Company. Acquisition Fees
shall be reduced to the extent that, and if necessary to limit, the
total compensation paid to all persons involved in the acquisition
of any Property to the amount customarily charged in arms-length
transactions by other persons or entities rendering similar services
as an ongoing public activity in the same geographical location and
for comparable types of Properties, and to the extent that other
acquisition fees, finder's fees, real estate commissions, or other
similar fees or commissions are paid by any person in connection with
the transaction. "Real Estate Asset Value" means the amount actually
paid or allocated to the purchase, development, construction or
improvement of a Property, exclusive of Acquisition Fees and
Acquisition Expenses.
- 25 -
<PAGE>
- ------------------------------------------------------------------------------------------------------------------------------------
Operational Stage
- ------------------------------------------------------------------------------------------------------------------------------------
Asset Management Fee A monthly Asset Management Fee in an amount equal to one- Amount is not determinable at
to the Advisor twelfth of .60% of the Company's Real Estate Asset Value and the this time. The amount of the
outstanding principal amount of any Mortgage Loans, as of the Asset Management Fee will
end of the preceding month. Specifically, Real Estate Asset Value depend upon, among other
equals the amount invested in the Properties wholly owned by the things, the cost of the Properties
Company, determined on the basis of cost, plus, in the case of and the amount invested in
Properties owned by any Joint Venture or partnership in which the Mortgage Loans. As of June
Company is a co-venturer or partner, the portion of the cost of 30, 1998, the Company had not
such Properties paid by the Company, exclusive of Acquisition incurred any asset management
Fees and Expenses. The Asset Management Fee, which will not fees.
exceed fees which are competitive for similar services in the
same geographic area, may or may not be taken, in whole or in
part as to any year, in the sole discretion of the Advisor. All
or any portion of the Asset Management Fee not taken as to any
fiscal year shall be deferred without interest and may be taken
in such other fiscal year as the Advisor shall determine.
- ------------------------------------------------------------------------------------------------------------------------------------
Reimbursement to the Operating Expenses (which, in general, are those expenses relating Amount is not determinable at this
Advisor and Affiliates to administration of the Company on an ongoin basis) will be time.
for operating expenses reimbursed by the Company. To the extent that Operating Ex-
penses payable or reimbursable by the Company, in any four con-
secutive fiscal quarters (the "Expense Year"), exceed the greater
of 2% of Average Invested Assets or 25% of Net Income (the
"2%/25% Guidelines"), the Advisor shall reimburse the Company
within 60 days after the end of the Expense Year the amount by
which the total Operating Expenses paid or incurred by the
Company exceed the 2%/25% Guidelines. "Average Invested
Assets" means, for a specified period, the average of the aggregate
book value of the assets of the Company invested, directly or
indirectly, in equity interests in and loans secured by real estate
before reserves for depreciation or bad debts or other similar non-
cash reserves, computed by taking the average of such values at
the end of each month during such period. "Net Income" means
for any period, the total revenues applicable to such period, less
the total expenses applicable to such period excluding additions to
reserves for depreciation, bad debts, or other similar non-cash
reserves; provided, however, Net Income for purposes of calcu-
lating total allowable Operating Expenses shall exclude the gain
from the sale of the Company's assets.
- 26 -
<PAGE>
- ------------------------------------------------------------------------------------------------------------------------------------
Soliciting Dealer An annual fee of .20% of Invested Capital on December 31 of each year, Amount is not determinable at
Servicing Fee to commencing on December 31 of the year following the year in which the this time. Until such time as
Managing Dealer offering terminates, generally payable to the Managing Dealer, which, assets are sold, the estimated
in its sole discretion, in turn may reallow all or a portion of such amounts payable to the Managing
fee to Soliciting Dealers whose clients hold Shares on such date. In Dealer for each of the years
general, Invested Capital is the amount of cash paid by the stockholders following the year of
to the Company for their Shares, reduced by certain prior Distributions termination of the offering are
to the stockholders from the Sale of Assets. The Soliciting Dealer expected to be $300,000 if
Servicing Fee will terminate as of the beginning of any year in which 15,000,000 Shares are sold and
the Company is liquidated or in which Listing occurs, provided, however, $330,000 if 16,500,000 Shares
that any previously accrued but unpaid portion of the Soliciting Dealer (including 1,500,000 Shares
Servicing Fee may be paid in such year or any subsequent year. offered pursuant to the
Reinvestment Plan) are sold.
The maximum total amount payable
to the Managing Dealer through
December 31, 2005 is $1,800,000
if 15,000,000 Shares are sold
and $1,980,000 if 16,500,000
Shares are sold. No amounts had
been paid or accrued as of June
30,1998.
- ------------------------------------------------------------------------------------------------------------------------------------
Deferred, subordinated A deferred, subordinated real estate disposition fee, payable upon Amount is not determinable at
real estate disposition Sale of one or more Properties, in an amount equal to the lesser of this time. The amount of this
fee payable to the (i) one-half of a Competitive Real Estate Commission, or (ii) 3% of fee, if it becomes payable, will
Advisor from a Sale or the sales price of such Property or Properties. Payment of such fee depend upon the price at which
Sales of a Property not shall be made only if the Advisor provides a substantial amount of Properties are sold. No amounts
in liquidation of the services in connection with theh Sale of a Property or Properties and had been paid or accrued as of
Company shall be made only if the Advisor provides a substantial amount of June 30, 1998.
services in connection with the Sale of a Property or Properties and
shall be subordinated to receipt by the stockholders of Distributions
equal to the sum of (i) their aggregate Stockholders' 8% Return and
(ii) their aggregate Invested Capital. If, at the time of a Sale,
payment of the disposition fee is deferred because the subordination
conditions have not been satisfied, then the disposition fee shall be
paid at such later time as the subordination conditions are satisfied.
Upon Listing, if the Advisor has accrued but not been paid such real
estate disposition fee, then for purposes of determining whether the
subordination conditions have been satisfied, stockholders will be
deemed to have received a Distribution in the amount equal to the
product of the total number of Shares outstanding and the average
closing price of the Shares over a period, beginning 180 days after
Listing, of 30 days during which the Shares are traded. "Stockholders'
8% Return," as of each date, means an aggregate amount equal to an 8%
cumulative, noncompounded, annual return on Invested Capital.
- 27 -
<PAGE>
- ------------------------------------------------------------------------------------------------------------------------------------
Type of
Compensation Estimated
and Recipient Method of Computation Maximum Amount
- ------------------------------------------------------------------------------------------------------------------------------------
Subordinated Incentive At such time, if any, as Listing occurs, the Advisor shall be paid Amount is not determinable
Fee payable to the the Subordinated Incentive Fee in an amount equal to 10% of the amount at this time. No amounts
Advisor at such time, by which (i) the market value of the Company (as defined below) plus the had been paid or accrued
if any, as Listing occurs total Distributions made to stockholders from the Company's inception until as of June 30, 1998.
the date of Listing exceeds (ii) the sum of (A) 100% of Invested Capital
and (B) the total Distributions required to be made to the stockholders
in order to pay the Stockholders' 8% Return from inception through the
date the market value is determined. For purposes of calculating the
Subordinated Incentive Fee, the market value of the Company
shall be the average closing price or average of bid and asked
price, as the case may be, over a period of 30 days during which
the Shares are traded with such period beginning 180 days after
Listing. The Subordinated Incentive Fee will be reduced by the
amount of any prior payment to the Advisor of a deferred, subordinated
share of Net Sales Proceeds from Sales of assets of the Company.
- ------------------------------------------------------------------------------------------------------------------------------------
Deferred, subordinated A deferred, subordinated share equal to 10% of Net Sales Proceeds Amount is not determinable at
share of Net Sales from Sales of assets of the Company payable after receipt by the this time. No amounts had
Proceeds from Sales of stockholders of Distributions equal to the sum of (i) the been paid or accrued as of
assets of the Company Stockholders' 8% Return and (ii) 100% of Invested Capital. June 30, 1998.
not in liquidation of Following Listing, no share of Net Sales Proceeds will be paid to
the Company payable the Advisor.
to the Advisor
- ------------------------------------------------------------------------------------------------------------------------------------
Secured Equipment A fee paid to the Advisor out of the proceeds of the Line of Credit Amount is not determinable at
Lease Servicing Fee to or Permanent Financing for negotiating Secured Equipment Leases and this time. No amounts had
the Advisor supervising the Secured Equipment Lease program equal to 2% of the been paid or accrued as of
purchase price of the Equipment subject to each Secured Equipment June 30, 1998.
Lease and paid upon entering into such lease.
- ------------------------------------------------------------------------------------------------------------------------------------
Reimbursement to the Repayment by the Company of actual expenses incurred. Amount not determinable at
Advisor and Affiliates this time.
for Secured Equipment
Lease servicing ex-
penses
- 28 -
<PAGE>
- ------------------------------------------------------------------------------------------------------------------------------------
Type of
Compensation Estimated
and Recipient Method of Computation Maximum Amount
- ------------------------------------------------------------------------------------------------------------------------------------
Liquidation Stage
- ------------------------------------------------------------------------------------------------------------------------------------
Deferred, subordinated A deferred, subordinated real estate disposition fee, payable upon Amount is not determinable at
real estate disposition Sale of one or more Properties, in an amount equal to the lesser of this time. The amount of this
fee payable to the (i) one-half of a Competitive Real Estate Commission, or (ii) 3% fee, if it becomes payable,
Advisor from a Sale or of the sales price of such Property or Properties. Payment of such will depend upon the price at
Sales in liquidation of fee shall be made only if the Advisor provides a substantial amount of which Properties are sold.
the Company services in connection with the Sale of a Property or Properties and
shall be subordinated to receipt by the stockholders of Distributions
equal to the sum of (i) their aggregate Stockholders' 8% Return and (ii)
their aggregate Invested Capital. If, at the time of a Sale, payment of
the disposition fee is deferred because the subordination conditions have
not been satisfied, then the disposition fee shall be paid at such later
time as the subordination conditions are satisfied.
- ------------------------------------------------------------------------------------------------------------------------------------
Deferred, subordinated A deferred, subordinated share equal to 10% of Net Sales Proceeds Amount is not determinable at
share of Net Sales from Sales of assets of the Company payable after receipt by the this time.
Proceeds from Sales of stockholders of Distributions equal to the sum of (i) the
assets of the Company Stockholders' 8% Return and (ii) 100% of Invested Capital.
in liquidation of the Following Listing, no share of Net Sales Proceeds will be paid to
Company payable to the Advisor.
the Advisor
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- 29 -
<PAGE>
CONFLICTS OF INTEREST
The Company will be subject to various conflicts of interest arising
out of its relationship to the Advisor and its Affiliates, as described below.
The following chart indicates the relationship between the Advisor and
those Affiliates that will provide services to the Company.
<TABLE>
<CAPTION>
<S> <C>
- ----------------------------------------------- --------------------------------------
| CNL HOSPITALITY PROPERTIES, INC. | | CNL GROUP, INC. (1) |
| (the Company) | | |
- ----------------------------------------------- --------------------------------------
| |
| |
| |
(Advisory Agreement) | 100%
| |
| ------------------------------------------
| | |
| | |
--------------------------------------------- -------------------------------
| CNL REAL ESTATE ADVISORS, INC. | | CNL SECURITIES CORP. |
| (Advisor to Company) | | (Managing Dealer) |
--------------------------------------------- -------------------------------
</TABLE>
- --------------------------
(1) James M. Seneff, Jr., Chairman of the Board and Chief Executive Officer
of the Company, shares ownership and voting control of CNL Group, Inc.
with Dayle L. Seneff, his wife.
PRIOR AND FUTURE PROGRAMS
In the past, Affiliates of the Advisor have organized over 100 other
real estate investments, currently have other real estate holdings, and in the
future expect to form, offer interests in, and manage other real estate programs
in addition to the Company, and make additional real estate investments. Some of
these (including 18 prior public partnerships, one prior unlisted public REIT
and one prior listed public REIT) involve and will involve Affiliates of the
Advisor in the ownership, operation, leasing, and management of properties that
may be suitable for the Company.
Certain of these affiliated public or private real estate programs
invest in restaurant properties, may invest in restaurant and hotel properties,
may purchase properties concurrently with the Company and may lease properties
to operators who also lease or operate certain of the Company's Properties.
These properties, if located in the vicinity of, or adjacent to, Properties
acquired by the Company may affect the Properties' gross revenues. Additionally,
such other programs may offer mortgage or equipment financing to the same or
similar entities as those targeted by the Company, thereby affecting the
Company's Mortgage Loan activities or Secured Equipment Lease program. Such
conflicts between the Company and affiliated programs may affect the value of
the Company's investments as well as its Net Income. The Company believes that
the Advisor has established guidelines to minimize such conflicts. See "Certain
Conflict Resolution Procedures" below.
- 30 -
<PAGE>
ACQUISITION OF PROPERTIES
Affiliates of the Advisor regularly have opportunities to acquire
restaurant properties of a type suitable for acquisition by the Company as a
result of their existing relationships and past experience with various
Restaurant Chains and their franchisees. Affiliates of the Advisor are expected
to develop similar relationships with various Hotel Chains and their
franchisees. See "Business - General." A purchaser who wishes to acquire one or
more of these properties must do so within a relatively short period of time,
occasionally at a time when the Company (due to insufficient funds, for example)
may be unable to make the acquisition.
In an effort to address these situations and preserve the acquisition
opportunities for the Company (and other entities with which the Advisor or its
Affiliates are affiliated), Affiliates of the Advisor maintain lines of credit
which enable them to acquire properties on an interim basis. Typically, no more
than ten to 15 properties are temporarily owned by Affiliates of the Advisor on
this interim basis at any particular time. These properties generally will be
purchased from Affiliates of the Advisor, at their cost, by one or more existing
or future public or private programs formed by Affiliates of the Advisor.
The Advisor could experience potential conflicts of interest in
connection with the negotiation of the purchase price and other terms of the
acquisition of a Property, as well as the terms of the lease of a Property, due
to its relationship with its Affiliates and the ongoing business relationship of
its Affiliates with operators of Restaurant Chains and Hotel Chains.
The Advisor or its Affiliates also may be subject to potential
conflicts of interest at such time as the Company wishes to acquire a property
that also would be suitable for acquisition by an Affiliate of CNL. Affiliates
of the Advisor serve as Directors of the Company and, in this capacity, have a
fiduciary obligation to act in the best interest of the stockholders of the
Company and, as general partners or directors of CNL Affiliates, to act in the
best interests of the investors in other programs with investments that may be
similar to those of the Company and will use their best efforts to assure that
the Company will be treated as favorably as any such other program. See
"Management - Fiduciary Responsibility of the Board of Directors." The Company
has also developed procedures to resolve potential conflicts of interest in the
allocation of properties between the Company and certain of its Affiliates. See
"Certain Conflict Resolution Procedures" below.
The Company will supplement this Prospectus during the offering period
to disclose the acquisition of a Property at such time as the Advisor believes
that a reasonable probability exists that the Company will acquire the Property,
including an acquisition from the Advisor or its Affiliates. Based upon the
experience of management of the Company and the Advisor and the proposed
acquisition methods, a reasonable probability that the Company will acquire a
Property normally will occur as of the date on which (i) a commitment letter is
executed by a proposed lessee, (ii) a satisfactory credit underwriting for the
proposed lessee has been completed and (iii) a satisfactory site inspection has
been completed.
SALES OF PROPERTIES
A conflict also could arise in connection with the Advisor's
determination as to whether or not to sell a Property, since the interests of
the Advisor and the stockholders may differ as a result of their distinct
financial and tax positions and the compensation to which the Advisor or its
Affiliates may be entitled upon the Sale of a Property. See "Compensation of the
Advisor," below for a description of these compensation arrangements. In order
to resolve this potential conflict, the Board of Directors will be required to
approve each Sale of a Property. In the unlikely event that the Company and
another CNL program attempted to sell similar properties at the same time, a
conflict could arise since the two programs potentially could compete with each
other for a suitable purchaser. In order to resolve this potential conflict, the
Advisor has agreed not to approve the sale of any of the Company's Properties
contemporaneously with the sale of a property owned by another CNL program if
the two properties are part of the same Restaurant Chain or Hotel Chain and are
within a three-mile radius of each other, unless the Advisor and the principals
of the other CNL program are able to locate a suitable purchaser for each
property.
- 31 -
<PAGE>
JOINT INVESTMENT WITH AN AFFILIATED PROGRAM
The Company may invest in Joint Ventures with another program sponsored
by the Advisor or its Affiliates if a majority of the Directors, including a
majority of the Independent Directors, not otherwise interested in the
transaction, determine that the investment in the Joint Venture is fair and
reasonable to the Company and on substantially the same terms and conditions as
those to be received by the co-venturer or co-venturers.
COMPETITION FOR MANAGEMENT TIME
The officers and directors of the Advisor and the officers and
Directors of the Company currently are engaged, and in the future will engage,
in the management of other business entities and properties and in other
business activities. They will devote only as much of their time to the business
of the Company as they, in their judgment, determine is reasonably required,
which will be substantially less than their full time. These officers and
directors of the Advisor and officers and Directors of the Company may
experience conflicts of interest in allocating management time, services, and
functions among the Company and the various entities, investor programs (public
or private), and any other business ventures in which any of them are or may
become involved.
COMPENSATION OF THE ADVISOR
The Advisor has been engaged to perform various services for the
Company and will receive fees and compensation for such services. None of the
agreements for such services were the result of arm's-length negotiations. All
such agreements, including the Advisory Agreement, require approval by a
majority of the Board of Directors, including a majority of the Independent
Directors, not otherwise interested in such transactions, as being fair and
reasonable to the Company and on terms and conditions no less favorable than
those which could be obtained from unaffiliated entities. The timing and nature
of fees and compensation to the Advisor could create a conflict between the
interests of the Advisor and those of the stockholders. A transaction involving
the purchase, lease, or Sale of any Property, or the entering into or Sale of a
Mortgage Loan or a Secured Equipment Lease by the Company may result in the
immediate realization by the Advisor and its Affiliates of substantial
commissions, fees, compensation, and other income. Although the Advisory
Agreement authorizes the Advisor to take primary responsibility for all
decisions relating to any such transaction, the Board of Directors must approve
all of the Company's acquisitions and Sales of Properties and the entering into
and Sales of Mortgage Loans or Secured Equipment Leases. Potential conflicts may
arise in connection with the determination by the Advisor on behalf of the
Company of whether to hold or sell a Property, Mortgage Loan, or Secured
Equipment Leases as such determination could impact the timing and amount of
fees payable to the Advisor. See "The Advisor and the Advisory Agreement."
RELATIONSHIP WITH MANAGING DEALER
The Managing Dealer is CNL Securities Corp., an Affiliate of the
Company. Certain of the officers and Directors of the Company are also officers,
directors, and registered principals of the Managing Dealer. This relationship
may create conflicts in connection with the fulfillment by the Managing Dealer
of its due diligence obligations under the federal securities laws. Although the
Managing Dealer will examine the information in the Prospectus for accuracy and
completeness, the Managing Dealer is an Affiliate of the Company and will not
make an independent review of the Company and the offering. Accordingly, the
investors do not have the benefit of such independent review. Certain of the
Soliciting Dealers have made, or are expected to make, their own independent due
diligence investigations. The Managing Dealer is not prohibited from acting in
any capacity in connection with the offer and sale of securities offered by
entities that may have some or all investment objectives similar to those of the
Company and is expected to participate in other offerings sponsored by one or
more of the officers or Directors of the Company.
LEGAL REPRESENTATION
Shaw Pittman Potts & Trowbridge, which serves as securities and tax
counsel to the Company in this offering, also serves as securities and tax
counsel for certain of its Affiliates, including other real estate programs, in
connection with other matters. In addition, certain members of the firm of Shaw
Pittman Potts & Trowbridge
- 32 -
<PAGE>
have invested as limited partners in prior programs sponsored by Affiliates of
the Advisor in aggregate amounts which do not exceed one percent of the amounts
sold by any of these programs, and members of the firm also may invest in the
Company. Neither the Company nor the stockholders will have separate counsel. In
the event any controversy arises following the termination of this offering in
which the interests of the Company appear to be in conflict with those of the
Advisor or its Affiliates, other counsel may be retained for one or both
parties.
CERTAIN CONFLICT RESOLUTION PROCEDURES
In order to reduce or eliminate certain potential conflicts of
interest, the Articles of Incorporation contain a number of restrictions
relating to (i) transactions between the Company and the Advisor or its
Affiliates, (ii) certain future offerings, and (iii) allocation of properties,
mortgage loans and secured equipment leases among certain affiliated entities.
These restrictions include the following:
1. No goods or services will be provided by the Advisor or its
Affiliates to the Company except for transactions in which the Advisor or its
Affiliates provide goods or services to the Company in accordance with the
Articles of Incorporation which provides that a majority of the Directors
(including a majority of the Independent Directors) not otherwise interested in
such transactions must approve such transactions as fair and reasonable to the
Company and on terms and conditions not less favorable to the Company than those
available from unaffiliated third parties and not less favorable than those
available from the Advisor or its Affiliates in transactions with unaffiliated
third parties.
2. The Company will not purchase or lease Properties in which the
Advisor or its Affiliates has an interest without the determination, by a
majority of the Directors (including a majority of the Independent Directors)
not otherwise interested in such transaction, that such transaction is
competitive and commercially reasonable to the Company and at a price to the
Company no greater than the cost of the asset to the Advisor or its Affiliate
unless there is substantial justification for any amount that exceeds such cost
and such excess amount is determined to be reasonable. In no event shall the
Company acquire any such asset at an amount in excess of its appraised value.
The Company will not sell or lease Properties to the Advisor or its Affiliates
unless a majority of the Directors (including a majority of the Independent
Directors) not interested in the transaction determine the transaction is fair
and reasonable to the Company.
3. The Company will not make any loans to Affiliates. Any loans to the
Company by the Advisor or its Affiliates must be approved by a majority of the
Directors (including a majority of the Independent Directors) not otherwise
interested in such transaction as fair, competitive, and commercially
reasonable, and no less favorable to the Company than comparable loans between
unaffiliated parties. It is anticipated that the Advisor or its Affiliates shall
be entitled to reimbursement, at cost, for actual expenses incurred by the
Advisor or its Affiliates on behalf of the Company or Joint Ventures in which
the Company is a co-venturer, subject to the 2%/25% Guidelines (2% of Average
Invested Assets or 25% of Net Income) described under "The Advisor and the
Advisory Agreement - The Advisory Agreement."
4. Until completion of this offering, the Advisor and its Affiliates
will not offer or sell interests in any subsequently formed public program that
has investment objectives and structure similar to those of the Company and that
intends to (i) invest, on a cash and/or leveraged basis, in a diversified
portfolio of restaurant and hotel properties to be leased on a "triple-net"
basis to operators of Restaurant Chains and Hotel Chains, (ii) offer mortgage
loans and (iii) offer secured equipment leases. The Advisor and its Affiliates
also will not purchase a property or offer or invest in a mortgage loan or
secured equipment lease for any such subsequently formed public program that has
investment objectives and structure similar to the Company and that intends to
invest on a cash and/or leveraged basis primarily in a diversified portfolio of
restaurant and hotel properties to be leased on a "triple-net" basis to
operators of Restaurant Chains and Hotel Chains until substantially all
(generally, 80%) of the funds available for investment (Net Offering Proceeds)
by the Company have been invested or committed to investment. (For purposes of
the preceding sentence only, funds are deemed to have been committed to
investment to the extent written agreements in principle or letters of
understanding are executed and in effect at any time, whether or not any such
investment is consummated, and also to the extent any funds have been reserved
to make contingent payments in connection with any Property, whether or not any
such payments are made.) Affiliates of the Advisor are currently purchasing
restaurant and other types of properties, including furniture, fixtures and
equipment, and incurring related
- 33 -
<PAGE>
costs for public and private programs, which have investment objectives that are
not identical, and/or a structure not similar to, those of the Company, but
which make investments that include "triple-net" leases of fast-food, family-
style and casual-dining restaurant properties and other types of properties,
Mortgage Loans and/or in Secured Equipment Leases. The Advisor or its Affiliates
currently are and in the future may offer interests in one or more public or
private programs organized to purchase properties of the type to be acquired by
the Company, to offer Mortgage Loans and/or to offer Secured Equipment Leases.
5. The Board of Directors and the Advisor have agreed that, in the
event that an investment opportunity becomes available which is suitable for
both the Company and a public or private entity with which the Advisor or its
Affiliates are affiliated, for which both entities have sufficient uninvested
funds, then the entity which has had the longest period of time elapse since it
was offered an investment opportunity will first be offered the investment
opportunity. An investment opportunity will not be considered suitable for a
program if the requirements of Item 4 above could not be satisfied if the
program were to make the investment. In determining whether or not an investment
opportunity is suitable for more than one program, the Advisor and its
Affiliates will examine such factors, among others, as the cash requirements of
each program, the effect of the acquisition both on diversification of each
program's investments by types of restaurants and other businesses and
geographic area, and on diversification of the tenants of its properties (which
also may affect the need for one of the programs to prepare or produce audited
financial statements for a property or a tenant), the anticipated cash flow of
each program, the size of the investment, the amount of funds available to each
program, and the length of time such funds have been available for investment.
If a subsequent development, such as a delay in the closing of a property or a
delay in the construction of a property, causes any such investment, in the
opinion of the Advisor and its Affiliates, to be more appropriate for an entity
other than the entity which committed to make the investment, however, the
Advisor has the right to agree that the other entity affiliated with the Advisor
or its Affiliates may make the investment. The Advisor and certain other
Affiliates of the Company are affiliated with CNL American Properties Fund,
Inc., a public program whose offering of securities is ongoing. As of September
1, 1998, CNL American Properties Fund, Inc. had approximately $92,600,000
available for investment.
6. With respect to Shares owned by the Advisor, the Directors, or any
Affiliate, neither the Advisor, nor the Directors may vote or consent on matters
submitted to the stockholders regarding the removal of the Advisor, Directors,
or any Affiliate or any transaction between the Company and any of them. In
determining the requisite percentage in interest of Shares necessary to approve
a matter on which the Advisor, Directors, and any Affiliate may not vote or
consent, any Shares owned by any of them shall not be included.
Additional conflict resolution procedures are identified under "- Sales
of Properties," "- Joint Investment With An Affiliated Program," and "- Legal
Representation."
SUMMARY OF REINVESTMENT PLAN
The Company has adopted the Reinvestment Plan pursuant to which
stockholders may elect to have the full amount of their cash Distributions from
the Company reinvested in additional Shares of the Company. Each prospective
investor who wishes to participate in the Reinvestment Plan should consult with
such investor's Soliciting Dealer as to the Soliciting Dealer's position
regarding participation in the Reinvestment Plan. The following discussion
summarizes the principal terms of the Reinvestment Plan. The Reinvestment Plan
is attached hereto as Exhibit A.
GENERAL
An independent agent (the "Reinvestment Agent"), which currently is MMS
Escrow and Transfer Agency, Inc., will act on behalf of the participants in the
Reinvestment Plan (the "Participants"). At anytime that the Company is engaged
in an offering including the offering described herein, the Reinvestment Agent
will invest all Distributions attributable to Shares owned by Participants in
Shares of the Company at the public offering price per Share, which is $10.00
per Share. At anytime that the Company is not engaged in an offering and until
Listing, the price per Share will be determined by (i) quarterly appraisal
updates performed by the Company based on a review of the existing appraisal and
lease of each Property, focusing on a re-examination of the capitalization rate
applied
- 34 -
<PAGE>
to the rental stream to be derived from that Property; and (ii) a review of the
outstanding Mortgage Loans and Secured Equipment Leases focusing on a
determination of present value by a re-examination of the capitalization rate
applied to the stream of payments due under the terms of each Mortgage Loan and
Secured Equipment Lease. The capitalization rate used by the Company and, as a
result, the price per Share paid by the Participants in the Reinvestment Plan
prior to Listing will be determined by the Advisor in its sole discretion. The
factors that the Advisor will use to determine the capitalization rate include
(i) its experience in selecting, acquiring and managing properties similar to
the Properties; (ii) an examination of the conditions in the market; and (iii)
capitalization rates in use by private appraisers, to the extent that the
Advisor deems such factors appropriate, as well as any other factors that the
Advisor deems relevant or appropriate in making its determination. The Company's
internal accountants will then convert the most recent quarterly balance sheet
of the Company from a "GAAP" balance sheet to a "fair market value" balance
sheet. Based on the "fair market value" balance sheet, the internal accountants
will then assume a sale of the Company's assets and the liquidation of the
Company in accordance with its constitutive documents and applicable law and
compute the appropriate method of distributing the cash available after payment
of reasonable liquidation expenses, including closing costs typically associated
with the sale of assets and shared by the buyer and seller, and the creation of
reasonable reserves to provide for the payment of any contingent liabilities.
All Shares available for purchase under the Reinvestment Plan either are
registered pursuant to this Prospectus or will be registered under the
Securities Act of 1933 through a separate prospectus relating solely to the
Reinvestment Plan. Until this offering has terminated, Shares will be available
for purchase out of the additional 1,500,000 Shares registered with the
Securities and Exchange Commission (the "Commission") in connection with this
offering. See "The Offering - Plan of Distribution." After the offering has
terminated, Shares will be available from any additional Shares (not expected to
exceed 1,500,000 Shares at any one time) which the Company elects to register
with the Commission for the Reinvestment Plan. The Reinvestment Plan may be
amended or supplemented by an agreement between the Reinvestment Agent and the
Company at any time, including but not limited to an amendment to the
Reinvestment Plan to add a voluntary cash contribution feature or to substitute
a new Reinvestment Agent to act as agent for the Participants or to increase the
administrative charge payable to the Reinvestment Agent, by mailing an
appropriate notice at least 30 days prior to the effective date thereof to each
Participant at his or her last address of record; provided, that any such
amendment must be approved by a majority of the Independent Directors of the
Company. Such amendment or supplement shall be deemed conclusively accepted by
each Participant except those Participants from whom the Company receives
written notice of termination prior to the effective date thereof.
Stockholders who have received a copy of this Prospectus and
participate in this offering can elect to participate in and purchase Shares
through the Reinvestment Plan at any time and would not need to receive a
separate prospectus relating solely to the Reinvestment Plan. A person who
becomes a stockholder otherwise than by participating in this offering may
purchase Shares through the Reinvestment Plan only after receipt of a separate
prospectus relating solely to the Reinvestment Plan.
At anytime that the Company is not engaged in an offering, the price
per Share purchased pursuant to the Reinvestment Plan shall be the fair market
value of the Shares based on quarterly appraisal updates of the Company's assets
until such time, if any, as Listing occurs. Upon Listing, the Shares to be
acquired for the Reinvestment Plan may be acquired either through such market or
directly from the Company pursuant to a registration statement relating to the
Reinvestment Plan, in either case at a per-Share price equal to the
then-prevailing market price on the national securities exchange or
over-the-counter market on which the Shares are listed at the date of purchase.
The Company is unable to predict the effect which such a proposed listing would
have on the price of the Shares acquired through the Reinvestment Plan.
INVESTMENT OF DISTRIBUTIONS
Distributions will be used by the Reinvestment Agent, promptly
following the payment date with respect to such Distributions, to purchase
Shares on behalf of the Participants from the Company. All such Distributions
shall be invested in Shares within 30 days after such payment date. Any
Distributions not so invested will be returned to Participants.
- 35 -
<PAGE>
At this time, Participants will not have the option to make voluntary
contributions to the Reinvestment Plan to purchase Shares in excess of the
amount of Shares that can be purchased with their Distributions. The Board of
Directors reserves the right, however, to amend the Reinvestment Plan in the
future to permit voluntary contributions to the Reinvestment Plan by
Participants, to the extent consistent with the Company's objective of
qualifying as a REIT.
PARTICIPANT ACCOUNTS, FEES, AND ALLOCATION OF SHARES
For each Participant, the Reinvestment Agent will maintain a record
which shall reflect for each fiscal quarter the Distributions received by the
Reinvestment Agent on behalf of such Participant. The Company shall be
responsible for all administrative charges and expenses charged by the
Reinvestment Agent. Any interest earned on such Distributions will be paid to
the Company to defray certain costs relating to the Reinvestment Plan. The
administrative charge for each fiscal quarter will be the lesser of 5% of the
amount reinvested for the Participant or $2.50, with a minimum charge of $0.50.
The maximum annual charge is $10.00.
The Reinvestment Agent will use the aggregate amount of Distributions
to all Participants for each fiscal quarter to purchase Shares for the
Participants. If the aggregate amount of Distributions to Participants exceeds
the amount required to purchase all Shares then available for purchase, the
Reinvestment Agent will purchase all available Shares and will return all
remaining Distributions to the Participants within 30 days after the date such
Distributions are made. The purchased Shares will be allocated among the
Participants based on the portion of the aggregate Distributions received by the
Reinvestment Agent on behalf of each Participant, as reflected in the records
maintained by the Reinvestment Agent. The ownership of the Shares purchased
pursuant to the Reinvestment Plan shall be reflected on the books of the
Company.
Subject to the provisions of the Articles of Incorporation relating to
certain restrictions on and the effective dates of transfer, Shares acquired
pursuant to the Reinvestment Plan will entitle the Participant to the same
rights and to be treated in the same manner as those purchased by the
Participants in the offering. Accordingly, the Company will pay the Managing
Dealer Selling Commissions of 7.5% (subject to reduction under the circumstances
provided under "The Offering - Plan of Distribution") a marketing support and
due diligence fee of .5%. The Company will also pay the Advisor Acquisition Fees
of 4.5% of the purchase price of the Shares sold pursuant to the Reinvestment
Plan until the termination of the offering. Thereafter, Acquisition Fees will be
paid by the Company only in the event that proceeds of the sale of Shares are
used to acquire Properties or to invest in Mortgage Loans. As a result,
aggregate fees payable to Affiliates of the Company will total between 8.0% and
12.5% of the proceeds of reinvested Distributions, up to 7.5% of which may be
reallowed to Soliciting Dealers.
The allocation of Shares among Participants may result in the ownership
of fractional Shares, computed to four decimal places.
REPORTS TO PARTICIPANTS
Within 60 days after the end of each fiscal quarter, the Reinvestment
Agent will mail to each Participant a statement of account describing, as to
such Participant, the Distributions reinvested during the quarter, the number of
Shares purchased during the quarter, the per Share purchase price for such
Shares, the total administrative charge paid by the Company on behalf of each
Participant (see "Participant Accounts, Fees, and Allocation of Shares" above),
and the total number of Shares purchased on behalf of the Participant pursuant
to the Reinvestment Plan.
Until such time, if any, as Listing occurs, the statement of account also will
report the most recent fair market value of the Shares, determined as described
above. See "General" above.
Tax information for income earned on Shares under the Reinvestment Plan
for the calendar year will be sent to each participant by the Company or the
Reinvestment Agent.
- 36 -
<PAGE>
ELECTION TO PARTICIPATE OR TERMINATE PARTICIPATION
Stockholders of the Company who purchase Shares in this offering may
become Participants in the Reinvestment Plan by making a written election to
participate on their Subscription Agreements at the time they subscribe for
Shares. Any other stockholder who receives a copy of this Prospectus or a
separate prospectus relating solely to the Reinvestment Plan and who has not
previously elected to participate in the Reinvestment Plan may so elect at any
time by written notice to the Board of Directors of such stockholder's desire to
participate in the Reinvestment Plan. Participation in the Reinvestment Plan
will commence with the next Distribution made after receipt of the Participant's
notice, provided it is received at least ten days prior to the record date for
such Distribution. Subject to the preceding sentence, the election to
participate in the Reinvestment Plan will apply to all Distributions
attributable to the fiscal quarter in which the stockholder made such written
election to participate in the Reinvestment Plan and to all fiscal quarters
thereafter, whether made (i) upon subscription or subsequently for stockholders
who participate in this offering, or (ii) upon receipt of a separate prospectus
relating solely to the Reinvestment Plan for stockholders who do not participate
in this offering. Participants will be able to terminate their participation in
the Reinvestment Plan at any time without penalty by delivering written notice
to the Board of Directors ten business days before the end of a fiscal quarter.
A Participant who chooses to terminate participation in the
Reinvestment Plan must terminate his or her entire participation in the
Reinvestment Plan and will not be allowed to terminate in part. If a Participant
terminates his or her participation the Reinvestment Agent will send him or her
a check in payment for any fractional Shares in his or her account based on the
then market price of the Shares and the record books of the Company will be
revised to reflect the ownership records of his or her whole Shares. There are
no fees associated with a Participant's terminating his or her interest in the
Reinvestment Plan. A Participant in the Reinvestment Plan who terminates his or
her interest in the Reinvestment Plan will be allowed to participate in the
Reinvestment Plan again by notifying the Reinvestment Agent and completing any
required forms.
The Board of Directors reserves the right to prohibit Qualified Plans
from participating in the Reinvestment Plan if such participation would cause
the underlying assets of the Company to constitute "plan assets" of Qualified
Plans. See "The Offering - ERISA Considerations."
FEDERAL INCOME TAX CONSIDERATIONS
Stockholders subject to federal taxation who elect to participate in
the Reinvestment Plan will incur a tax liability for Distributions allocated to
them even though they have elected not to receive their Distributions in cash
but rather to have their Distributions held pursuant to the Reinvestment Plan.
Specifically, stockholders will be treated as if they have received the
Distribution from the Company and then applied such Distribution to purchase
Shares in the Reinvestment Plan. A stockholder designating a Distribution for
reinvestment will be taxed on the amount of such Distribution as ordinary income
to the extent such Distribution is from current or accumulated earnings and
profits, unless the Company has designated all or a portion of the Distribution
as a capital gain dividend. In such case, such designated portion of the
Distribution will be taxed as long-term capital gain.
AMENDMENTS AND TERMINATION
The Company reserves the right to renew, extend, or amend any aspect of
the Reinvestment Plan without the consent of stockholders, provided that notice
of the amendment is sent to Participants at least 30 days prior to the effective
date thereof. The Company also reserves the right to terminate the Reinvestment
Plan for any reason at any time by ten days' prior written notice of termination
to all Participants.
REDEMPTION OF SHARES
At any time during which the Company is not engaged in a public
offering and prior to such time, if any, as Listing occurs, any stockholder who
purchases Shares in this offering or otherwise from the Company or who has held
Shares for not less than one year (other than the Advisor) may present all or
any portion equal to at least 25% of such Shares to the Company for redemption
at any time, in accordance with the procedures outlined herein. At
- 37 -
<PAGE>
such time, the Company may, at its option, subject to the conditions described
below, redeem such Shares presented for redemption for cash to the extent it has
sufficient net proceeds ("Reinvestment Proceeds") from the sale of Shares under
the Reinvestment Plan. There is no assurance that there will be Reinvestment
Proceeds available for redemption and, accordingly, a stockholder's Shares may
not be redeemed. The full amount of Reinvestment Proceeds attributable to any
quarter will be used to redeem Shares presented for redemption during such
quarter. If the full amount of Reinvestment Proceeds available for any given
quarter exceeds the amount necessary for such redemptions, the remaining amount
shall be held for subsequent redemptions unless such amount is sufficient to
acquire an additional Property (directly or through a Joint Venture) or to
invest in additional Mortgage Loans, or is used to repay outstanding
indebtedness. In that event, the Company may use all or a portion of such amount
to acquire one or more additional Properties, to invest in one or more
additional Mortgage Loans or to repay such outstanding indebtedness, provided
that the Company (or, if applicable, the Joint Venture) enters into a binding
contract to purchase such Property or Properties or invests in such Mortgage
Loan or Mortgage Loans, or uses such amount to repay outstanding indebtedness,
prior to payment of the next Distribution and the Company's receipt of requests
for redemption of Shares. If the full amount of Reinvestment Proceeds for any
given quarter is insufficient to fund all of the requested redemptions, the
Company will redeem the Shares presented for redemption in order of receipt.
A stockholder (other than a resident of Nebraska) who wishes to have
his or her Shares redeemed must mail or deliver a written request on a form
provided by the Company and executed by the stockholder, its trustee or
authorized agent, to the Company. Nebraska stockholders must deliver the same
type of request to a broker-dealer registered in Nebraska and must have his or
her Shares redeemed through such broker-dealer, who will communicate directly
with the Company. Within 30 days following the Company's receipt of the
stockholder's request, the Company will forward to such stockholder the
documents necessary to effect the redemption, including any signature guarantee
the Company may require. The Company will effect such redemption for the
calendar quarter provided that the Company receives the properly completed
redemption documents relating to the Shares to be redeemed from the stockholder
at least one calendar month prior to the last day of the current calendar
quarter and has sufficient Reinvestment Proceeds to redeem such Shares. The
effective date of any redemption will be the last date during a quarter during
which the Company receives the properly completed redemption documents. As a
result, the Company anticipates that, assuming sufficient Reinvestment Proceeds,
the effective date of redemptions will be no later than thirty days after the
quarterly determination of the availability of Reinvestment Proceeds.
Upon the Company's receipt of notice for redemption of Shares, the
redemption price will be on such terms as the Reinvestment Agent shall
determine. It is not anticipated that there will be a market for the Shares
before Listing occurs (although liquidity is not assured thereby). The
redemption plan will terminate, and the Company no longer shall accept Shares
for redemption, if and when Listing occurs. See "Risk Factors - Investment Risks
Lack of Liquidity of Shares." Accordingly, in determining the "market price" of
the Shares for this purpose, it is expected that the purchase price for Shares
purchased from stockholders will be determined by reference to the following
factors, as well as any others deemed relevant or appropriate by the
Reinvestment Agent: (i) the price at which Shares have been purchased by
stockholders, either pursuant to the Reinvestment Plan or outside of the
Reinvestment Plan (to the extent the Company has information regarding the
prices paid for Shares purchased outside the Reinvestment Plan), (ii) the annual
statement of Share valuation provided to certain stockholders (see "Reports to
Stockholders"), and (iii) the price at which stockholders are willing to sell
their Shares. Shares purchased during any particular period of time therefore
may be purchased at varying prices. The Board of Directors will announce any
price adjustment and the time period of its effectiveness as part of its regular
communications with stockholders. Any Shares acquired pursuant to a redemption
will be retired and no longer available for issuance by the Company.
A stockholder may present fewer than all his or her Shares to the
Company for redemption, provided, however, that (i) the minimum number of Shares
which must be presented for redemption shall be at least 25% of his or her
Shares, and (ii) if such stockholder retains any Shares, he or she must retain
at least 250 Shares (100 Shares for an IRA, Keogh Plan or pension plan).
The Directors, in their sole discretion, may amend or suspend the
redemption plan at any time they determine that such amendment or suspension is
in the best interest of the Company. The Directors may suspend the redemption of
Shares if (i) they determine, in their sole discretion, that such redemption
impairs the capital or the operations of the Company; (ii) they determine, in
their sole discretion, that an emergency makes such redemption not reasonably
practical; (iii) any governmental or regulatory agency with jurisdiction over
the Company so demands
- 38 -
<PAGE>
for the protection of the stockholders; (iv) they determine, in their sole
discretion, that such redemption would be unlawful; (v) they determine, in their
sole discretion, that such redemption, when considered with all other
redemptions, sales, assignments, transfers and exchanges of Shares in the
Company, could cause direct or indirect ownership of Shares of the Company to
become concentrated to an extent which would prevent the Company from qualifying
as a REIT under the Code; or (vi) such other reasons as the Directors, in their
sole discretion, deem to be in the best interest of the Company. For a
discussion of the tax treatment of such redemptions, see "Federal Income Tax
Considerations - Taxation of Stockholders."
BUSINESS
GENERAL
The Company is a Maryland corporation that was organized on June 12,
1996. On June 15, 1998, the Company formed CNL Hospitality Partners, LP, a
wholly owned Delaware limited partnership (the "Partnership"). Properties
acquired are expected to be held by the Partnership and, as a result, owned by
the Company through the Partnership. The term "Company" includes CNL Hospitality
Properties, Inc. and its subsidiaries, CNL Hospitality GP Corp., CNL Hospitality
LP Corp. and CNL Hospitality Partners, LP.
The Company has been formed primarily to acquire Properties to be
leased on a long-term (generally, 10 to 20 years, plus renewal options for an
additional 10 to 20 years), "triple-net" basis. With proceeds of this offering,
the Company intends to purchase primarily fast-food, family-style, and
casual-dining restaurant Properties and limited service, extended stay and full
service hotel Properties. "Triple-net" means that the tenant generally will be
responsible for repairs, maintenance, property taxes, utilities, and insurance.
Some hotel Property leases may, however, obligate the tenant to fund, in
addition to its lease payment, a capital expenditures reserve fund up to a
pre-determined amount. Money in that fund may be used by the tenant, with the
approval of the Company, to pay for capital expenditures. The Company may be
responsible for capital expenditures in excess of the amounts in the reserve
fund, and the tenant generally is responsible for replenishing the reserve fund
and to pay a specified return on the amount of capital expenditures paid for by
the Company in excess of amounts in the reserve fund. Management believes that
the combination of restaurant and hotel Properties will benefit the Company and
its investors by enabling the Company to take advantage of attractive investment
opportunities in the growing restaurant and hotel industries and by providing
the Company with increased diversification of its investments. The Properties
may consist of land and building, the land underlying the building with the
building owned by the tenant or a third party, and the building only with the
land owned by a third party. The Company may provide Mortgage Loans to operators
of Restaurant Chains and Hotel Chains secured by real estate owned by the
operators. To a lesser extent, the Company also intends to offer Secured
Equipment Leases to operators of Restaurant Chains and Hotel Chains pursuant to
which the Company will finance, through loans or direct financing leases, the
Equipment.
The Properties, which typically will be freestanding and will be
located across the United States, will be leased to operators of Restaurant
Chains and Hotel Chains to be selected by the Advisor and approved by the Board
of Directors. Each Property acquisition and Mortgage Loan will be submitted to
the Board of Directors for approval. Properties purchased by the Company are
expected to be leased under arrangements generally requiring base annual rent
equal to a specified percentage of the Company's cost of purchasing a particular
Property, with automatic rent increases and/or percentage rent based on gross
sales above specified levels. See "Description of Leases Computation of Lease
Payments," below.
The Company has not specified any percentage of Net Offering Proceeds
to be invested in either restaurant or hotel Properties. To the extent the
Company invests in restaurant Properties, it is expected that those will be
Properties of selected Restaurant Chains that are national and regional
restaurant chains, primarily fast-food, family- style, and casual-dining chains.
Fast-food restaurants feature quality food and quick service, which often
includes drive-through service, and offer a variety of menu items such as
hamburgers, steaks, seafood, chili, pizza, pasta dishes, chicken, hot and cold
sandwiches, and salads. Family-style restaurants feature services that generally
are associated with full-service restaurants, such as full table service and
cooked-to-order food, but at more moderate prices. The casual-dining (or dinner
house) concept features a variety of popular contemporary foods, full table
service, moderate prices, and surroundings that are appealing to families. The
casual-dining segment of the restaurant
- 39 -
<PAGE>
industry, like the family-style segment, features services that generally are
associated with the full-service restaurant category. According to forecasts
appearing in the January 1, 1997 issue of Restaurants and Institutions, it is
projected that the casual-dining segment of full-service restaurant sales will
experience 3.8% real growth in sales in 1997, with sales predicted to reach $49
billion. The top 15 casual-dining chains by sales have a total of 3,581
restaurants throughout the United States.
The restaurant industry is one of the largest industries in the United
States in volume of sales and number of employees (more than 9 million persons)
and includes fast-food outlets, cafeterias, lunchrooms, convenience stores,
family-style restaurants, casual-dining facilities, full-service restaurants,
and contract and industrial feeders. Industry publications project that
restaurant industry sales will increase from $173.7 billion in 1985 to $336
billion in 1998. Restaurant industry sales for 1997 are projected to be $321.3
billion. Nominal growth, which is comprised of real growth and inflationary
growth, is estimated to be 4.7% in 1998. Real growth of the restaurant industry
in 1997 was 1.7%, and industry analysts currently estimate that the restaurant
industry will achieve 1.8% real growth in 1998; however, according to the
National Restaurant Association, fast-food restaurants should outpace the
industry average for real growth, with a projected 2.1% increase over 1997.
Sales in this segment of the restaurant industry are projected to be $105.7
billion for 1998.
The Company may invest in the fast-food, family-style, and
casual-dining segments of the restaurant industry, the most rapidly growing
segments in recent years. According to the National Restaurant Association, 51%
of adults eat at a quick-service restaurant and 42% of adults patronize a
moderately-priced family restaurant at least once each week. In addition, the
National Restaurant Association indicates that Americans spend approximately 44
cents of every food dollar on dining away from home. Surveys published in
Restaurant Business indicate that families with children choose quick-service
restaurants four out of every five times they dine out. Further, according to
Nation's Restaurant News, the 100 largest restaurant chains are posting an
average of 8.65% growth in their systemwide sales figures for 1997. Casual-theme
dining concepts are among the chains showing the strongest growth. In 1997, the
sandwich segment experienced sales growth of 4.48% over 1996 figures, and the
casual-dining segment experienced systemwide sales growth in 1997 of 10.63%,
compared to 9.98% in 1995. Management believes that the Company will have the
opportunity to participate in this growth through the ownership of Properties
leased to operators of the Restaurant Chains.
The fast-food, family-style and casual-dining segments of the
restaurant industry have demonstrated their ability to adapt to changes in
consumer preferences, such as health and dietary issues, decreases in the
disposable income of consumers and environmental awareness, through various
innovative techniques, including special value pricing and promotions, increased
advertising, menu changes featuring low-calorie, low-cholesterol menu items, and
new packaging and energy conservation techniques.
The table set forth below provides information with respect to certain
Restaurant Chains in which Affiliates of the Company (consisting of an unlisted
public REIT, 18 public partnerships and 8 private partnerships) had invested as
of June 30, 1998, and a listed public REIT (which was managed by an Affiliate
through December 31, 1997, at which time such Affiliate merged with the REIT)
had invested as of December 31, 1997:
Approximate Aggregate
Dollars Invested Percentage of Number of
Restaurant Chain by Affiliates Dollars Invested Prior Programs
- ---------------- ------------- ---------------- --------------
Golden Corral $136,039,000 13.9% 23
Burger King 96,791,000 9.9% 24
Jack in the Box 93,458,000 9.6% 15
Denny's 61,601,000 6.3% 19
Boston Market 57,501,000 5.9% 11
Hardee's 54,108,000 5.5% 12
Bennigan's 38,299,000 3.9% 4
Shoney's 33,513,000 3.4% 10
IHOP 32,307,000 3.3% 9
Wendy's 31,765,000 3.3% 14
- 40 -
<PAGE>
<TABLE>
<CAPTION>
Approximate Aggregate
Dollars Invested Percentage of Number of
Restaurant Chain by Affiliates Dollars Invested Prior Programs
- ---------------- ------------- ---------------- --------------
<S> <C>
Long John Silver's 29,045,000 3.0% 6
Steak & Ale 27,060,000 2.8% 1
TGI Friday's 25,075,000 2.6% 7
Darryl's 22,296,000 2.3% 4
Checkers 21,125,000 2.2% 8
Arby's 18,691,000 1.9% 9
Chevy's Fresh Mex 18,551,000 1.9% 6
Pizza Hut 17,964,000 1.8% 9
Ground Round 15,751,000 1.6% 3
Black-eyed Pea 15,211,000 1.6% 4
Perkins 15,157,000 1.6% 9
KFC 14,463,000 1.5% 12
Tumbleweed Southwest
Mesquite Grill & Bar 9,323,000 1.0% 1
Sonny's Real Pit Bar-B-Q 9,000,000 0.9% 1
Popeyes 8,900,000 0.9% 9
Taco Bell 8,039,000 0.8% 8
Quincy's 5,968,000 0.6% 5
</TABLE>
The Company also invests Net Offering Proceeds in Properties of
selected national and regional limited service, extended stay and full service
Hotel Chains. The Company believes that attractive opportunities exist to
acquire limited service , extended stay and full service hotels in urban and
resort locations. According to Smith Travel Research, a leading provider of
lodging industry statistical research, the hotel industry has been steadily
improving its financial performance over the past seven consecutive years. Also
according to Smith Travel Research, in 1997, the industry reached its highest
absolute level of pre-tax profit in its history at approximately $17 billion, an
increase of approximately 36% over 1996.
Pre-Tax Profits
of Hospitality Industry
(in billions)
Year Profitability
---- -------------
1993 $2.4
1994 5.5
1995 8.5
1996 12.5
1997 17.0
Source: Smith Travel Research
As indicated in the table below, the average daily room rate increased
6.1% in 1997, from $70.81 in 1996 to $75.16 in 1997, resulting in nine
consecutive years of room rate growth.
- 41 -
<PAGE>
Hospitality Industry Average
Daily Room Rate By Year
Year Rate
1987 $52.58
1988 54.47
1989 56.35
1990 57.96
1991 58.08
1992 58.91
1993 60.53
1994 62.86
1995 65.81
1996 70.81
1997 75.16
Source: Smith Travel Research
Revenue per available room also increased by 5.3% from $46.03 in 1996
to $48.48 in 1997. In 1997, for the first time since 1991, growth in room supply
exceeded growth in room demand and resulted in a slight dip in occupancy. In
1997, total occupancy fell 0.8% from 65% in 1996 to 64.5%. Growth in room demand
exceeded the growth in new room supply for each year from 1992 through 1996 and
industry-wide occupancy increased from a 20 year low of 61.8% in 1991 to 65% in
1996.
According to American Hotel & Motel Association data, in 1997,
Americans traveling in the United States spent more than $1.38 billion per day,
$57.4 million per hour and $955,800 per minute on travel and tourism. Total
travel expenditures in the United States generated $481.5 billion in sales. In
addition, there were 49,000 hotel properties which included over 3.8 million
hotel rooms recording $85.6 billion in revenue. Hotels are a vital part of
travel and tourism. In the United States, the tourism industry, which globally
is the world's largest industry, is currently ranked third behind auto sales and
retail food sales. In terms of employment, the hotel industry supports over 7
million direct jobs, generating $18.93 billion in wages. Nationally, 13.8% of
total hotel rooms available are located in urban areas, 35.3% in suburban areas,
33.2% in highway locations, 6.4% in airport areas, and the remaining 11.3% in
resort locations.
The Company will acquire limited service, extended stay or full service
hotel Properties. Limited service hotels generally minimize non-guest room space
and offer limited food service such as complimentary continental breakfasts and
do not have restaurant or lounge facilities on-site. Extended stay hotels
generally contain guest suites with a kitchen area and living area separate from
the bedroom. Extended stay hotels vary with respect to providing on-site
restaurant facilities. Full service hotels generally have conference or meeting
facilities and on-site food and beverage facilities.
Management intends to structure the Company's investments to allow it
to participate, to the maximum extent possible, in any sales growth in the
restaurant and hotel industries, as reflected in the Properties that it owns.
The Company therefore intends to generally structure its leases with percentage
rent requirements which are based on gross sales of the particular business over
specified levels located on the Property. Gross sales may increase even absent
real growth because increases in the costs typically are passed on to the
consumers through increased prices, and increased prices are reflected in gross
sales. In an effort to provide regular cash flow to the Company, the Company
intends to structure its leases to provide a minimum level of rent which is
payable regardless of the amount of gross sales at a particular Property. The
Company also will endeavor to maximize growth and minimize risks associated with
ownership and leasing of real estate that operates in these industry segments
through careful selection and screening of its tenants (as described in
"Standards for Investment" below) in order to reduce risks of default;
monitoring statistics relating to restaurant and hotel chains and continuing to
develop relationships in the industry in order to reduce certain risks
associated with investment in real estate. See "Standards for Investment" below
for a description of the standards which the Board of Directors will employ in
selecting Restaurant Chains, Hotel Chains and particular Properties for
investment.
- 42 -
<PAGE>
Management expects to acquire Properties in part with a view to
diversification among the geographic location of the Properties. There are no
restrictions on the geographic area or areas within the United States in which
Properties acquired by the Company may be located. It is anticipated that the
Properties acquired by the Company will be located in various states and regions
within the United States.
The Company believes that freestanding, "triple-net" leased properties
of the type in which the Company will generally invest are attractive to tenants
because freestanding properties typically offer high visibility to passing
traffic, ease of access from a busy thoroughfare, tenant control over the site
to set hours of operation and maintenance standards and distinctive building
designs conducive to customer name recognition.
The Company may provide Mortgage Loans, generally for the purchase of
buildings by tenants that lease the underlying land from the Company. However,
because it prefers to focus on investing in Properties, which have the potential
to appreciate, the Company currently expects to provide Mortgage Loans in the
aggregate principal amount of approximately 5% to 10% of Gross Proceeds.
Mortgage Loans will be secured by the building and improvements on the land. The
Company expects that the interest rate and terms (generally, 10 to 20 years) of
the Mortgage Loans will be similar to those of its leases.
The Company also intends to offer Secured Equipment Leases to operators
of Restaurant Chains and Hotel Chains. The Secured Equipment Leases will consist
primarily of leases of, and loans for the purchase of, Equipment. As of the date
of this Prospectus, the Company has neither identified any prospective operators
of Restaurant Chains or Hotel Chains that will participate in such financing
arrangements nor negotiated any specific terms of a Secured Equipment Lease. The
Company cannot predict terms and conditions of the Secured Equipment Leases,
although the Company expects that the Secured Equipment Leases will (i) have
terms that equal or exceed the useful life of the subject Equipment (although
such terms will not exceed 7 years), (ii) in the case of the leases, include an
option for the lessee to acquire the subject Equipment at the end of the lease
term for a nominal fee, (iii) include a stated interest rate, and (iv) in the
case of the leases, provide that the Company and the lessees will each treat the
Secured Equipment Leases as loans secured by personal property for federal
income tax purposes. See "Federal Income Tax Considerations - Characterization
of Secured Equipment Leases." In addition, the Company expects that each of the
Secured Equipment Leases will be secured by the Equipment to which it relates.
Payments received from lessees under Secured Equipment Leases will be treated as
payments of principal and interest. All Secured Equipment Leases will be
negotiated by the Advisor and approved by the Board of Directors including a
majority of the Independent Directors.
The Company will borrow money to acquire Assets and to pay certain
fees. The Company intends to encumber Assets in connection with the borrowing.
The Company plans to obtain one or more revolving Lines of Credit in an
aggregate amount up to $45,000,000, and may, in addition, also obtain Permanent
Financing. On July 31, 1998, the Company entered into an initial $30,000,000
revolving Line of Credit to be used to acquire hotel Properties. See "Business -
Borrowings" for a description of the $30,000,000 Line of Credit. The Board of
Directors anticipates that the aggregate amount of any Permanent Financing, if
obtained, will not exceed 30% of the Company's total assets. The Permanent
Financing would be used to acquire Assets and pay a fee of 4.5% of any Permanent
Financing, excluding amounts to fund Secured Equipment Leases, as Acquisition
Fees, to the Advisor. The Line of Credit may be repaid with offering proceeds,
working capital or Permanent Financing. The Line of Credit and Permanent
Financing are the only source of funds for making Secured Equipment Leases and
for paying the Secured Equipment Lease Servicing Fee. The Company has not yet
received a commitment for any Permanent Financing and there is no assurance that
the Company will obtain any Permanent Financing on satisfactory terms.
As of September 1, 1998, the Company had acquired two hotel Properties
consisting of land and building, and had initial commitments to acquire three
additional Properties. However, as of September 1, 1998, the Company had not
entered into any arrangements that create a reasonable probability that the
Company will enter into any Mortgage Loan or Secured Equipment Lease.
- 43 -
<PAGE>
INVESTMENT OF OFFERING PROCEEDS
The Company has undertaken to supplement this Prospectus during the
offering period to disclose the acquisition of Properties at such time as the
Company believes that a reasonable probability exists that any such Property
will be acquired by the Company. Based upon the experience and acquisition
methods of the Affiliates of the Company and the Advisor, this normally will
occur, with regard to acquisition of Properties, as of the date on which (i) a
commitment letter is executed by a proposed lessee, (ii) a satisfactory credit
underwriting for the proposed lessee has been completed, and (iii) a
satisfactory site inspection has been completed. The initial disclosure of any
proposed acquisition, however, cannot be relied upon as an assurance that the
Company ultimately will consummate such proposed acquisition or that the
information provided concerning the proposed acquisition will not change between
the date of such supplement and the actual purchase or extension of financing.
The terms of any borrowing by the Company will also be disclosed by supplement
following receipt by the Company of an acceptable commitment letter from a
potential lender.
Acquisition of a restaurant Property generally involves an investment
in land and building of approximately $400,000 to $1,250,000, although higher or
lower figures for individual Properties are possible. Based on the past
experience of management and the Advisor in acquiring similar restaurant
properties and in light of current market conditions, the Company could (i)
invest in only hotel Properties, in which case it could acquire between 4 to 13
hotel Properties or (ii) invest in both restaurant and hotel Properties,
although in this instance the number of restaurant Properties and hotel
Properties would vary significantly depending upon the value of the hotel
Properties acquired. Assuming that the Net Offering Proceeds are divided evenly
between restaurant and hotel Properties, as to which there is no assurance, the
Company could invest in approximately 70 to 80 restaurant Properties and 2 to 6
hotel Properties. In certain cases, the Company may become a co-venturer in a
Joint Venture that will own the Property. In each such case, the Company's cost
to purchase an interest in such Property will be less than the total purchase
price and the Company therefore will be able to acquire interests in a greater
number of Properties. The Company may also borrow to acquire Assets. See
"Business - Borrowing." Management estimates that approximately 30% to 50% of
the Company's investment in a restaurant Property generally will be for the cost
of land, and 50% to 70% generally will be for the cost of the building. For a
hotel Property, management estimates that 10% to 20% of the Company's investment
will be for cost of land and 80% to 90% for the cost of the building. See "Joint
Venture Arrangements" below and "Risk Factors - Investment Risks - Possible Lack
of Diversification." Management cannot estimate the number of Mortgage Loans
that may be entered into. The Company may also borrow money to make Mortgage
Loans.
Although management cannot estimate the number of Secured Equipment
Leases that may be entered into, it expects to fund the Secured Equipment Lease
program from the proceeds of the Line of Credit or Permanent Financing in an
amount not to exceed 10% of Gross Proceeds and management has undertaken,
consistent with its objective of qualifying as a REIT for federal income tax
purposes, to ensure that the total value of all Secured Equipment Leases will
not exceed 25% of the Company's total assets, and that Secured Equipment Leases
to a single lessee, in the aggregate, will not exceed 5% of total assets.
PROPERTY ACQUISITIONS
On July 31, 1998, the Company acquired two hotel Properties. The
Properties are the Residence Inn by Marriott located in the Buckhead (Lenox
Park) area of Atlanta, Georgia (the"Buckhead (Lenox Park) Property"), and the
Residence Inn by Marriott located at Gwinnett Place in Duluth, Georgia (the
"Gwinnett Place Property").
The Company acquired the Buckhead (Lenox Park) Property for $15,731,414
from Buckhead Residence Associates, L.L.C. and the Gwinnett Place Property for
$11,514,125 from Gwinnett Residence Associates, L.L.C. In connection with the
purchase of the two Properties, the Company, as lessor, entered into two
separate, long-term lease agreements. The lessee of the Buckhead (Lenox Park)
and the Gwinnett Place Properties is the same unaffiliated lessee. The leases on
both Properties are cross-defaulted. The general terms of the lease agreements
are described in "Business -- Description of Property Leases." The principal
features of the leases are as follows:
0 The initial term of each lease expires in approximately 19 years, on
August 31, 2017.
- 44 -
<PAGE>
0 At the end of the initial lease term, the tenant will have three
consecutive renewal options of five years.
0 The leases will require minimum rent payments to the Company
aggregating $1,651,798 per year for the Buckhead (Lenox Park) Property
and $1,208,983 per year for the Gwinnett Place Property.
0 Minimum rent payments will increase to $1,691,127 per year for the
Buckhead (Lenox Park) Property and $1,237,768 per year for the Gwinnett
Place Property after the first lease year.
0 In addition to minimum rent, for each calendar year, the leases will
require percentage rent equal to 15% of the aggregate amount of all
revenues combined, for the Buckhead (Lenox Park) and the Gwinnett Place
Properties, in excess of $8,080,000.
0 A security deposit equal to $819,000 for the Buckhead (Lenox Park)
Property and $598,500 for the Gwinnett Place Property will be retained
by the Company as security for the tenant's obligations under the
leases.
0 Management fees payable to Stormont Trice Management Corporation for
operation of the Buckhead (Lenox Park) and Gwinnett Place Properties
are subordinated to minimum rents due to the Company.
0 The tenant of the Buckhead (Lenox Park) and Gwinnett Place Properties
will establish a capital expenditures reserve fund which will be used
for the replacement and renewal of furniture, fixtures and equipment
relating to the hotel Properties (the "FF&E Reserve"). Deposits to the
FF&E Reserve will be made monthly as follows: 3% of gross receipts for
the first lease year; 4% of gross receipts for the second lease year;
and 5% of gross receipts every lease year thereafter. Funds in the FF&E
Reserve and all property purchased with funds from the FF&E Reserve
shall be paid, granted and assigned to the Company as additional rent.
0 Stormont Trice Corporation, Stormont Trice Development Corporation and
Stormont Trice Management Corporation jointly and severally will
guarantee the obligations of the tenant under the leases for the
Buckhead (Lenox Park) and the Gwinnett Place Properties combined. The
guarantee terminates on the earlier of the end of the third lease year
or at such time as the net operating income from the Buckhead (Lenox
Park) and the Gwinnett Place Properties exceeds minimum rent due under
the leases by 25% for any trailing 12 month period. The guarantee is
equal to $2,835,000 for the first two years, and $1,197,000 for the
third year.
The estimated federal income tax basis of the depreciable portion of
the Buckhead (Lenox Park) Property and the Gwinnett Place Property is
$14,400,000 and $11,000,000, respectively.
The Buckhead (Lenox Park) Property and the Gwinnett Place Property are
newly constructed hotels which commenced operations on August 7, 1997 and July
29, 1997, respectively. The Buckhead (Lenox Park) Property is situated in a 22
acre mixed-use development and has 150 guest suites. The Gwinnett Place Property
is located 30 minutes from downtown Atlanta and has 132 guest suites. Other
lodging facilities located in proximity to the Buckhead (Lenox Park) Property
include an Embassy Suites, a Summerfield Suites, a Homewood Suites, an
Amerisuites, a Courtyard by Marriott and another Residence Inn by Marriott.
Other lodging facilities located in proximity to the Gwinnett Place Property
include a Courtyard by Marriott, an Amerisuites, a Sumner Suites and a Hampton
Inn. The average occupancy rate and the revenue per available room for the
periods the hotels have been operational are as follows:
<TABLE>
<CAPTION>
Buckhead (Lenox Park) Property Gwinnett Place Property
------------------------------ -----------------------
<S> <C>
Average Average Revenue Average Average Revenue
Occupancy Daily Room per Occupancy Daily Room per
Year Rate Rate Available Room Rate Rate Available Room
------- ------------ ------------- -------------- ------------ ------------- --------------
*1997 42.93% $91.15 $39.13 39.08% $85.97 $33.60
**1998 77.57% 98.27 74.92 71.97% 87.29 62.67
</TABLE>
- 45 -
<PAGE>
* Data for the Buckhead (Lenox Park) Property represents the period
August 7, 1997 through December 31, 1997 and data for the Gwinnett
Place Property represents the period August 1, 1997 through December
31, 1997.
** Data for 1998 represents the period January 1, 1998 through July 31,
1998.
The Company believes that the results achieved by the Properties for
year-end 1997, are not indicative of their long-term operating potential, as
both Properties had been open for less than six months during the reporting
period.
Marriott International is one of the world's leading hospitality
companies. According to Marriott data as of April 1998, Marriott International
had nearly 1,700 units, offering more than 229,000 rooms worldwide. Although
Marriott International is the franchisor for these Properties, it is not
affiliated with the lessee and has not guaranteed the payments due under the
leases.
Each Residence Inn offers complimentary breakfast and newspaper every
morning, an evening hospitality hour, a swimming pool, heated whirlpool and
sport court. Guest suites provide in-room modem jacks, separate living and
sleeping areas and a fully equipped kitchen with appliances and cooking
utensils. According to Marriott, as of April 1998, there were 273 Residence Inn
hotels in the United States and four in Canada and Mexico. The Company believes
that the Residence Inn by Marriott brand is the leading upscale brand in the
extended stay segment of the United States hotel industry.
PENDING INVESTMENTS
As of September 1, 1998, the Company had initial commitments to acquire
indirectly, three hotel properties. The acquisition of each of these properties
is subject to the fulfillment of certain conditions, including, but not limited
to, a satisfactory environmental survey and property appraisal. In order to
acquire these properties, the Company must obtain additional funds through the
receipt of additional offering proceeds and debt financing. There can be no
assurance that any or all of the conditions will be satisfied or, if satisfied,
that one or more of these properties will be acquired by the Company. If
acquired, the leases of these properties are expected to be entered into on
substantially the same terms described in "Business -- Description of Property
Leases."
Set forth below are summarized terms expected to apply to the leases
for each of the properties. More detailed information relating to a property and
its related lease will be provided at such time, if any, as the property is
acquired.
- 46 -
<PAGE>
<TABLE>
<CAPTION>
Estimated Purchase Lease Term and Minimum Annual
Property Price Renewal Options Rent Percentage Rent
- -------- ------------------ --------------- -------------- ---------------
<S> <C>
Courtyard by (2) 15 years; two ten-year 10% of the Company's total for each lease year after
Marriott renewal options cost to purchase the property the second lease year,
Orlando, FL (1) 7% of revenues in
(the "Courtyard excess of revenues for
Little Lake Bryan the second lease year
Property")
Hotel to be
constructed
Fairfield Inn by (2) 15 years; two ten-year 10% of the Company's total for each lease year after
Marriott renewal options cost to purchase the property the second lease year,
Orlando, FL (1) 7% of revenues in
(the "Fairfield Inn excess of revenues for
Little Lake Bryan the second lease year
Property")
Hotel to be
constructed
Fairfield Suites by (2) 15 years; two ten-year 10% of the Company's total for each lease year after
Marriott renewal options cost to purchase the property the second lease year,
Orlando, FL (1) 7% of revenues in
(the "Fairfield excess of revenues for
Suites Little Lake the second lease year
Bryan Property")
Hotel to be
constructed
</TABLE>
- 47 -
<PAGE>
- ------------------------------------
FOOTNOTES:
(1) The leases for the Courtyard Little Lake Bryan, the Fairfield Inn
Little Lake Bryan and the Fairfield Suites Little Lake Bryan Properties
are expected to be with the same unaffiliated lessee.
(2) The anticipated aggregate purchase price for the Courtyard Little Lake
Bryan, Fairfield Inn Little Lake Bryan and Fairfield Suites Little Lake
Bryan Properties is between $90 million and $100 million.
- 48 -
<PAGE>
The following chart provides additional information on systemwide
Marriott lodging brands:
Total Occupancy Rate for 1997
Marriott Brand as Compared to
U.S. Lodging Industry
Occupancy Rate
--------------
U.S. Lodging Industry 66.0%
Courtyard by Marriott 78.2%
Fairfield Inns & Suites 73.0%
Marriott Hotels, Resorts & Suites 76.6%
Residence Inn by Marriott 80.6%
Source: Marriott International, Inc. 1997 Annual Report
SITE SELECTION AND ACQUISITION OF PROPERTIES
General. It is anticipated that the Restaurant Chains and Hotel Chains
selected by the Advisor, and as approved by the Board of Directors, will have
full-time staffs engaged in site selection and evaluation. All new sites must be
approved by the Restaurant Chains or Hotel Chains. The Restaurant Chains and
Hotel Chains generally conduct or require the submission of studies which
typically include such factors as traffic patterns, population trends,
commercial and industrial development, office and institutional development,
residential development, per capita or household median income, per capita or
household median age, and other factors. The Restaurant Chains and Hotel Chains
also will review and approve all proposed tenants and business sites. The
Restaurant Chains and Hotel Chains or the operators are expected to make their
site evaluations and analyses, as well as financial information regarding
proposed tenants, available to the Company.
The Board of Directors, on behalf of the Company, will elect to
purchase and lease Properties based principally on an examination and evaluation
by the Advisor of the potential value of the site, the financial condition and
business history of the proposed tenant, the demographics of the area in which
the property is located or to be located, the proposed purchase price and
proposed lease terms, geographic and market diversification, and potential sales
expected to be generated by the business located on the property. In addition,
the potential tenant must meet at least the minimum standards established by a
Restaurant Chain or Hotel Chain for its operators. The Advisor also will perform
an independent break-even analysis of the potential profitability of a property
using historical data and other data developed by the Company and provided by
the Restaurant Chains or Hotel Chains.
- 49 -
<PAGE>
Although the Restaurant Chains and Hotel Chains that are selected by
the Advisor will have approved each tenant and each Property, the Board of
Directors will exercise its own judgment as to, and will be solely responsible
for, the ultimate selection of both tenants and Properties. Therefore, some of
the properties approved by a Restaurant Chain or Hotel Chain may not be
purchased by the Company.
In each Property acquisition, it is anticipated that the Advisor will
negotiate the lease agreement with the tenant. In certain instances, the Advisor
may negotiate an assignment of an existing lease, in which case the terms of the
lease may vary substantially from the Company's standard lease terms, if the
Board of Directors, based on the recommendation of the Advisor, determines that
the terms of an acquisition and lease of a Property, taken as a whole, are
favorable to the Company. It is expected that the structure of the long-term
"triple-net" lease agreements, which generally provide for monthly rental
payments with automatic increases in base rent at specified times during the
lease terms and/or a percentage of gross sales over specified levels, will
increase the value of the Properties and provide an inflation hedge. See
"Description of Leases" below for a discussion of the anticipated terms of the
Company's leases. In connection with a Property acquisition, in the event the
tenant does not enter into a Secured Equipment Lease with the Company, the
tenant will provide at its own expense all Equipment necessary to operate the
Company's Property as a restaurant or hotel. Generally, a tenant either pays
cash or obtains a loan from a third party to purchase such items. If the tenant
obtains such a loan, the tenant will own this personal property subject to the
tenant's obligations under its loan. In the experience of the Affiliates of the
Company and the Advisor, there may be rare circumstances in which a tenant
defaults under such a loan, in which event the lender may attempt to remove the
personal property from the building, resulting in the Property becoming
inoperable until new Equipment can be purchased and installed. In order to
prevent repossession of this personal property by the lender, and only on an
interim basis in order to preserve the value of a Property, the Company may
elect (but only to the extent consistent with the Company's objective of
qualifying as a REIT) to use Company reserves to purchase this personal property
from the lender, generally at a discount for the remaining unpaid balance under
the tenant's loan. The Company then would expect, consistent with the Company's
objective of qualifying as a REIT, to resell the personal property to a new
tenant in connection with the transfer of the lease to that tenant.
Some lease agreements will be negotiated to provide the tenant with the
opportunity to purchase the Property under certain conditions, generally either
at a price not less than fair market value (determined by appraisal or
otherwise) or through a right of first refusal to purchase the Property. In
either case, the lease agreements will provide that the tenant may exercise
these rights only to the extent consistent with the Company's objective of
qualifying as a REIT. See "Sale of Properties, Mortgage Loans and Secured
Equipment Leases" below and "Federal Income Tax Considerations -
Characterization of Leases."
The purchase of each Property will be supported by an appraisal of the
real estate prepared by an independent appraiser. The Advisor, however, will
rely on its own independent analysis and not on such appraisals in determining
whether or not to recommend that the Company acquire a particular property. The
purchase price of each such Property, plus any Acquisition Fees paid by the
Company in connection with such purchase, will not exceed the Property's
appraised value. (In connection with the acquisition of a Property which is to
be constructed or renovated, the comparison of the purchase price and the
appraised value of such Property ordinarily will be based on the "when
constructed" price and value of such Property.) It should be noted that
appraisals are estimates of value and should not be relied upon as measures of
true worth or realizable value. Each appraisal will be maintained in the
Company's records for at least five years and will be available for inspection
and duplication by any stockholder.
The titles to Properties purchased by the Company will be insured by
appropriate title insurance policies and/or abstract opinions consistent with
normal practices in the jurisdictions in which the Properties are located.
- 50 -
<PAGE>
Construction and Renovation. In some cases, construction or renovation
will be required after the purchase contract has been entered into, but before
the total purchase price has been paid. In connection with the acquisition of
Properties that are to be constructed or renovated and as to which the Company
will own both the land and the building or building only, the Company generally
will advance funds for construction or renovation costs, as they are incurred,
pursuant to a development agreement with the developer. The developer may be the
tenant or an Affiliate of the Company. An Affiliate may serve as a developer and
enter into the development agreement with the Company if the transaction is
approved by a majority of the Directors, including a majority of the Independent
Directors. The Company believes that the ability to have an Affiliate capable of
serving as the developer provides the Company an advantage by enhancing its
relationship with key tenants and by giving it access to tenant opportunities at
an earlier stage of the development cycle. As a result, the Company believes it
has a greater number of opportunities for investment presented to it than it
might otherwise have and it is able to obtain better terms by negotiating the
terms of its investment at an earlier stage in the development cycle when there
are fewer competitive alternatives to the tenant.
The developer will enter into all construction contracts and will
arrange for and coordinate all aspects of the construction or renovation of the
property improvements. The developer will be responsible for the construction or
renovation of the building improvements, although it may employ co-developers or
sub-agents in fulfilling its responsibilities under the development agreement.
All general contractors performing work in connection with such building
improvements must provide a payment and performance bond or other satisfactory
form of guarantee of performance. All construction and renovation will be
performed or supervised by persons or entities acceptable to the Advisor. The
Company will be obligated, as construction or renovation costs are incurred, to
make the remaining payments due as part of the purchase price for the
Properties, provided that the construction or renovation conforms to definitive
plans, specifications, and costs approved by the Advisor and the Board of
Directors and embodied in the construction contract.
Under the terms of the development agreement, the Company generally
will advance its funds on a monthly basis to meet construction draw requests of
the developer. The Company, in general, only will advance its funds to meet the
developer's draw requests upon receipt of an inspection report and a
certification of draw requests from an inspecting architect or engineer suitable
to the Company, and the Company may retain a portion of any advance until
satisfactory completion of the project. The certification generally must be
supported by color photographs showing the construction work completed as of the
date of inspection. The total amount of the funds advanced to the developer
(including the purchase price of the land plus closing costs and certain other
costs) generally will not exceed the maximum amount specified in the development
agreement. Such maximum amount will be based on the Company's estimate of the
costs of such construction or renovation.
In some cases, construction or renovation will be required before the
Company has acquired the Property. In this situation, the Company may have made
a deposit on the Property in cash or by means of a letter of credit. The
renovation or construction may be made by an Affiliate or a third party. The
Company may permit the proposed developer to arrange for a bank or another
lender, including an Affiliate, to provide construction financing to the
developer. In such cases, the lender may seek assurance from the Company that it
has sufficient funds to pay to the developer the full purchase price of the
Property upon completion of the construction or renovation. In the event that
the Company segregates funds as assurance to the lender of its ability to
purchase the Property, the funds will remain the property of the Company, and
the lender will have no rights with respect to such funds upon any default by
the developer under the development agreement or under the loan agreement with
such lender, or if the closing of the purchase of the Property by the Company
does not occur for any reason, unless the transaction is supported by a letter
of credit in favor of the lender.
Under the development agreement, the developer generally will be
obligated to complete the construction or renovation of the building
improvements within a specified period of time from the date of the development
agreement, which generally will be between 4 to 5 months for restaurant
Properties and between 12 to 18 months for hotel Properties. If the construction
or renovation is not completed within that time and the developer fails to
remedy this default within 10 days after notice from the Company, the Company
will
- 51 -
<PAGE>
have the option to grant the developer additional time to complete the
construction, to take over construction or renovation of the building
improvements, or to terminate the development agreement and require the
developer to purchase the Property at a price equal to the sum of (i) the
Company's purchase price of the land, including all fees, costs, and expenses
paid by the Company in connection with its purchase of the land, (ii) all fees,
costs, and expenses disbursed by the Company pursuant to the development
agreement for construction of the building improvements, and (iii) the Company's
"construction financing costs." The "construction financing costs" of the
Company is an amount equal to a return, at the annual percentage rate used in
calculating the minimum annual rent under the lease, on all Company payments and
disbursements described in clauses (i) and (ii) above.
The Company also generally will enter into an indemnification and put
agreement (the "Indemnity Agreement") with the developer. The Indemnity
Agreement will provide for certain additional rights to the Company unless
certain conditions are met. In general, these conditions are (i) the developer's
acquisition of all permits, approvals, and consents necessary to permit
commencement of construction or renovation of the building improvements within a
specified period of time after the date of the Indemnity Agreement (normally, 60
days), or (ii) the completion of construction or renovation of the building as
evidenced by the issuance of a certificate of occupancy, within a specified
period of time after the date of the Indemnity Agreement. If such conditions are
not met, the Company will have the right to grant the developer additional time
to satisfy the conditions or to require the developer to purchase the Property
from the Company at a purchase price equal to the total amount disbursed by the
Company in connection with the acquisition and construction or renovation of the
Property (including closing costs), plus an amount equal to the return described
in item (iii) of the preceding paragraph. Failure of the developer to purchase
the Property from the Company upon demand by the Company under the circumstances
specified above will entitle the Company to declare the developer in default
under the lease and to declare each guarantor in default under any guarantee of
the developer's obligations to the Company.
In certain situations where construction or renovation is required for
a Property, the Company will pay a negotiated maximum amount upon completion of
construction or renovation rather than providing financing to the developer,
with such amount generally based on the developer's costs and fees related to
such construction or renovation.
Affiliates of the Company also may provide construction financing to
the developer of a Property. In addition, the Company may purchase from an
Affiliate of the Company a Property that has been constructed or renovated by
the Affiliate. Any fees paid to Affiliates of the Company in connection with the
financing, construction or renovation of a Property acquired by the Company will
be considered Acquisition Fees and will be subject to approval by a majority of
the Board of Directors, including a majority of the Independent Directors, not
otherwise interested in the transaction. See "Management Compensation" and
"Conflicts of Interest - Certain Conflict Resolution Procedures." Any such fees
will be included in the cost of the Property and, therefore, will be included in
the calculation of base rent.
In all situations where construction or renovation of a Property is
required, the Company also will have the right to review the tenant's books,
records, and agreements during and following completion of construction to
verify actual costs.
Interim Acquisitions. The Affiliates of the Advisor regularly have
opportunities to acquire properties of a type suitable for acquisition by the
Company as a result of their existing relationships and past experience with
various Restaurant Chains, Hotel Chains and their operators. See "General"
above. These acquisitions often must be made within a relatively short period of
time, occasionally at a time when the Company may be unable to make the
acquisition. In an effort to address these situations and preserve the
acquisition opportunities of the Company (and other entities with which the
Company is affiliated), the Advisor and its Affiliates maintain lines of credit
which enable them to acquire these properties on an interim basis and
temporarily own them for the purpose of facilitating their acquisition by the
Company (or other entities with which the Company is affiliated). At such time
as a Property acquired on an interim basis is determined to
- 52 -
<PAGE>
be suitable for acquisition by the Company, the interim owner of the Property
will sell its interest in the Property to the Company at a price equal to the
lesser of its cost (which includes carrying costs and, in instances in which an
Affiliate of the Company has provided real estate brokerage services in
connection with the initial purchase of the Property, indirectly includes fees
paid to an Affiliate of the Company) to purchase such interest in the Property
or the Property's appraised value, provided that a majority of Directors,
including a majority of the Independent Directors, determine that the
acquisition is fair and reasonable to the Company. See "Conflicts of Interest -
Certain Conflict Resolution Procedures." Appraisals of Properties acquired from
such interim owners will be obtained in all cases.
Acquisition Services. Acquisition services performed by the Advisor may
include, but are not limited to, site selection and/or approval; review and
selection of tenants and negotiation of lease agreements and related documents;
monitoring Property acquisitions; and the processing of all final documents
and/or procedures to complete the acquisition of Properties and the commencement
of tenant occupancy and lease payments.
The Company will pay the Advisor a fee of 4.5% of the Total Proceeds as
Acquisition Fees. See "Management Compensation." The total of all Acquisition
Fees and Acquisition Expenses shall be reasonable and shall not exceed an amount
equal to 6% of the Real Estate Asset Value of a Property, or in the case of a
Mortgage Loan, 6% of the funds advanced, unless a majority of the Board of
Directors, including a majority of the Independent Directors, not otherwise
interested in the transaction approves fees in excess of these limits subject to
a determination that the transaction is commercially competitive, fair and
reasonable to the Company. The total of all Acquisition Fees payable to all
persons or entities will not exceed the compensation customarily charged in
arm's-length transactions by others rendering similar services as an ongoing
activity in the same geographical location and for comparable types of
properties.
The Advisor engages counsel to perform legal services, and such counsel
also may provide legal services to the Company in connection with the
acquisition of Properties. The legal fees payable to such counsel by the Company
will not exceed those generally charged for similar services.
STANDARDS FOR INVESTMENT IN PROPERTIES
Selection of Restaurant Chains and Hotel Chains. The selection of
Restaurant Chains and Hotel Chains by the Advisor, as approved by the Board of
Directors, will be based on an evaluation of the operations of restaurants in
the Restaurant Chains or hotels in the Hotel Chains, the number of restaurants
or hotels operated, the relationship of average gross sales to the average
capital costs of a restaurant or the relationship of average revenue per
available room to the average capital cost per room of a hotel, the relative
competitive position among the same type of restaurants or hotels offering
similar types of products, name recognition, and market penetration. The
Restaurant Chains and Hotel Chains will not be affiliated with the Advisor, the
Company or an Affiliate.
Selection of Properties and Tenants. In making investments in
Properties, the Advisor will consider relevant real property and financial
factors, including the condition, use, and location of the Property,
income-producing capacity, the prospects for long-term appreciation, the
relative success of the Restaurant Chain or Hotel Chain in the geographic area
in which the Property is located, and the management capability and financial
condition of the tenant. The Company will obtain an independent appraisal for
each Property it purchases. In selecting tenants, the Advisor will consider the
prior experience of the tenant, the net worth of the tenant, past operating
results of other restaurants or hotels currently or previously operated by the
tenant, and the tenant's prior experience in managing restaurants or hotels
within a particular Restaurant Chain or Hotel Chain.
In selecting specific Properties within a particular Restaurant Chain
or Hotel Chain and in selecting lessees for the Company's Properties, the
Advisor, as approved by the Board of Directors, will apply the following minimum
standards.
- 53 -
<PAGE>
1. Each Property will be in what the Advisor believes is a prime
business location.
2. Base (or minimum) annual rent will provide a specified minimum
return on the Company's cost of purchasing and, if applicable, developing the
Property, and the lease also will generally provide for automatic increases in
base rent at specified times during the lease term and/or payment of percentage
rent based on gross sales over specified levels.
3. The initial lease term typically will be at least 10 to 20 years.
4. The Company will reserve the right to approve or reject any tenant
and site selected by a Restaurant Chain or Hotel Chain.
5. In evaluating prospective tenants, the Company will examine, among
other factors, the tenant's ranking in its market segment, trends in per
property sales, overall changes in consumer preferences, and the tenant's
ability to adapt to changes in market and competitive conditions, the tenant's
historical financial performance, and its current financial condition.
6. In general, the Company will not acquire a Property if the Board of
Directors, including a majority of the Independent Directors, determines that
the acquisition would adversely affect the Company in terms of geographic,
property type or chain diversification.
DESCRIPTION OF PROPERTIES
The two hotel Properties owned by the Company as of September 1, 1998,
conform, and the Advisor expects that any Properties purchased by the Company
will conform , to the following specifications of size, cost, and type of land
and buildings.
Restaurant Properties. Lot sizes generally range from 25,000 to 60,000
square feet depending upon building size and local demographic factors.
Restaurants located on land within shopping centers will be freestanding and may
be located on smaller parcels if sufficient common parking is available.
Restaurant sites purchased by the Company will be in locations zoned for
commercial use which have been reviewed for traffic patterns and volume of
traffic. There is substantial competition for quality sites; accordingly, land
costs may be high and are generally expected to range from $150,000 to $500,000,
although the cost of the land for particular Properties may be higher or lower
in some cases.
The restaurant buildings generally will be rectangular and constructed
from various combinations of stucco, steel, wood, brick, and tile. Building
sizes generally will range from 2,500 to 6,000 square feet, with the larger
restaurants having greater seating and equipment areas. Building and site
preparation costs vary depending upon the size of the building and the site and
the area in which the restaurant Property is located. It is estimated that
building and site preparation costs generally will range from $250,000 to
$750,000 for each restaurant Property.
Hotel Properties. Lot sizes generally range in size up to 10 acres
depending on product, market and design considerations, and are available at a
broad range of pricing. It is anticipated that hotel sites purchased by the
Company will generally be in primary or secondary urban, suburban, airport,
highway or resort markets which have been evaluated for past and future
anticipated lodging demand trends. The hotel buildings generally will be low to
mid rise construction. The Company may acquire limited service, extended stay or
full service hotel Properties. Limited service hotels generally minimize
non-guest room space and offer limited food service such as complimentary
continental breakfasts and do not have restaurant or lounge facilities on-site.
Extended stay hotels generally contain guest suites with a kitchen area and
living area separate from the bedroom. Extended stay hotels vary with respect to
providing on-site restaurant facilities. Full service hotels generally have
conference or meeting facilities and on-site food and beverage facilities.
- 54 -
<PAGE>
Restaurant and Hotel Properties. Either before or after construction or
renovation, the Properties to be acquired by the Company will be one of a
Restaurant Chain's or Hotel Chain's approved designs. Prior to purchase of all
Properties, other than those purchased prior to completion of construction, the
Company will receive a copy of the certificate of occupancy issued by the local
building inspector or other governmental authority which permits the use of the
Property as a restaurant or hotel, and shall receive a certificate from the
Restaurant Chain or Hotel Chain to the effect that (i) the Property is
operational and (ii) the Property and the tenant are in compliance with all of
the chain's requirements, including, but not limited to, building plans and
specifications approved by the chain. The Company also will receive a
certificate of occupancy for each Property for which construction has not been
completed at the time of purchase, prior to the Company's payment of the final
installment of the purchase price for the Property.
Generally, Properties to be acquired by the Company will consist of
both land and building, although in a number of cases the Company may acquire
only the land underlying the building with the building owned by the tenant or a
third party, and also may acquire the building only with the land owned by a
third party. In general, the Properties will be freestanding and surrounded by
paved parking areas. Buildings are suitable for conversion to various uses,
although modifications will be required prior to use for other operations. In
the case of hotel Properties, the properties may include Equipment.
A tenant generally will be required by the lease agreement to make such
capital expenditures as may be reasonably necessary to refurbish buildings,
premises, signs, and equipment so as to comply with the tenant's obligations
under the franchise agreement to reflect the current commercial image of its
Restaurant Chain or Hotel Chain. These capital expenditures generally will be
paid by the tenant during the term of the lease. Some hotel Property leases may,
however, obligate the tenant to fund, in addition to its lease payment, a
capital expenditures reserve fund up to a pre-determined amount. Money in that
fund may be used by the tenant, with the approval of the Company, to pay for
capital expenditures. The Company may be responsible for capital expenditures in
excess of the amounts in the reserve fund, and the tenant generally is
responsible for replenishing the reserve fund and to pay a specified return on
the amount of capital expenditures paid for by the Company in excess of amounts
in the reserve fund.
DESCRIPTION OF PROPERTY LEASES
The terms and conditions of any lease entered into by the Company with
regard to a Property may vary from those described below. The Advisor in all
cases will use its best efforts to obtain terms at least as favorable as those
described below. If the Board of Directors determines, based on the
recommendation of the Advisor, that the terms of an acquisition and lease of a
Property, taken as a whole, are favorable to the Company, the Board of Directors
may, in its sole discretion, cause the Company to enter into leases with terms
which are substantially different than the terms described below, but only to
the extent consistent with the Company's objective of qualifying as a REIT. In
making such determination, the Advisor will consider such factors as the type
and location of the Property, the creditworthiness of the tenant, the purchase
price of the Property, the prior performance of the tenant, and the prior
business experience of management of the Company and the Company's Affiliates
with a Restaurant Chain or Hotel Chain, or the operator.
General. In general, the leases are expected to be "triple-net" leases,
which means that the tenants generally will be required to pay for all repairs,
maintenance, property taxes, utilities, and insurance. The tenants also will be
required to pay for special assessments, sales and use taxes, and the cost of
any renovations permitted under the leases. The Company will be the lessor under
each lease except in certain circumstances in which it may be a party to a Joint
Venture which will own the Property. In those cases, the Joint Venture, rather
than the Company, will be the lessor, and all references in this section to the
Company as lessor therefore should be read accordingly. See "Joint Venture
Arrangements" below.
Term of Leases. It presently is anticipated that Properties will be
leased for an initial term of 10 to 20 years with up to four, five-year renewal
options. The minimum rental payment under the renewal option generally is
expected to be greater than that due for the final lease year of the initial
term of the lease. Upon
- 55 -
<PAGE>
termination of the lease, the tenant will surrender possession of the Property
to the Company, together with any improvements made to the Property during the
term of the lease, except that for Properties in which the Company owns only the
building and not the underlying land, the owner of the land may assume ownership
of the building.
Computation of Lease Payments. During the initial term of the lease,
the tenant will pay the Company, as lessor, minimum annual rent equal to a
specified percentage of the Company's cost of purchasing the Property. In the
case of acquisition of Properties that are to be constructed or renovated
pursuant to a development agreement, the Company's costs of purchasing the
Property will include the purchase price of the land, including all fees, costs,
and expenses paid by the Company in connection with its purchase of the land,
and all fees, costs, and expenses disbursed by the Company for construction of
building improvements. See "Site Selection and Acquisition of Properties -
Construction and Renovation" above. In addition to minimum annual rent, the
tenant will generally pay the Company "percentage rent" and/or automatic
increases in the minimum annual rent at predetermined intervals during the term
of the lease. Percentage rent is generally computed as a percentage of the gross
sales above a specified level at a particular Property.
In the case of Properties in which the Company owns only the building,
the Company will structure its leases to have recovered its investment in the
building by the expiration of the lease.
Assignment and Sublease. In general, it is expected that no lease may
be assigned or subleased without the Company's prior written consent (which may
not be unreasonably withheld) except to a tenant's corporate franchisor,
corporate affiliate or subsidiary, a successor by merger or acquisition, or, in
certain cases, another franchisee, if such assignee or subtenant agrees to
operate the same type of restaurant or hotel on the premises, but only to the
extent consistent with the Company's objective of qualifying as a REIT. The
leases set forth certain factors (such as the financial condition of the
proposed tenant or subtenant) that are deemed to be a reasonable basis for the
Company's refusal to consent to an assignment or sublease. In addition, the
Company may refuse to permit any assignment or sublease that would jeopardize
the Company's continued qualification as a REIT. The original tenant generally
will remain fully liable, however, for the performance of all tenant obligations
under the lease following any such assignment or sublease unless the Company
agrees in writing to release the original tenant from its lease obligations.
Alterations to Premises. A tenant generally will have the right,
without the prior written consent of the Company and at the tenant's own
expense, to make certain improvements, alterations or modifications to the
Property. Under certain leases, the tenant, at its own expense, may make certain
immaterial structural improvements (with a cost of up to $10,000) without the
prior consent of the Company. Certain leases may require the tenant to post a
payment and performance bond for any structural alterations with a cost in
excess of a specified amount.
Right of Tenant to Purchase. It is anticipated that if the Company
wishes at any time to sell a Property pursuant to a bona fide offer from a third
party, the tenant of that Property will have the right to purchase the Property
for the same price, and on the same terms and conditions, as contained in the
offer. In certain cases, the tenant also may have a right to purchase the
Property seven to 20 years after commencement of the lease at a purchase price
equal to the greater of (i) the Property's appraised value at the time of the
tenant's purchase, or (ii) a specified amount, generally equal to the Company's
purchase price of the Property, plus a predetermined percentage (generally, 15%
to 20%) of such purchase price. See "Federal Income Tax Considerations -
Characterization of Leases."
Substitution of Properties. Under certain leases, the tenant of a
Property, at its own expense and with the Company's prior written consent, may
be entitled to operate another form of approved restaurant or hotel on the
Property as long as such approved restaurant or hotel has an operating history
which reflects an ability to generate gross sales and potential sales growth
equal to or greater than that experienced by the tenant in operating the
original restaurant or hotel.
- 56 -
<PAGE>
In addition, it is anticipated that certain restaurant Property leases
will provide the tenant with the right, to the extent consistent with the
Company's objective of qualifying as a REIT, to offer the substitution of
another property selected by the tenant in the event that (i) the Property that
is the subject of the lease is not producing percentage rent pursuant to the
terms of the lease, and (ii) the tenant determines that the Property has become
uneconomic (other than as a result of an insured casualty loss or condemnation)
for the tenant's continued use and occupancy in its business operation and the
tenant's board of directors has determined to close and discontinue use of the
Property. The tenant's determination that a Property has become uneconomic is to
be made in good faith based on the tenant's reasonable business judgment after
comparing the results of operations of the Property to the results of operations
at the majority of other properties then operated by the tenant. If either of
these events occurs, the tenant will have the right to offer the Company the
opportunity to exchange the Property for another property (the "Substituted
Property") with a total cost for land and improvements thereon (including
overhead, construction interest, and other related charges) equal to or greater
than the cost of the Property to the Company.
Generally, the Company will have 30 days following receipt of the
tenant's offer for exchange of the Property to accept or reject such offer. In
the event that the Company requests an appraisal of the Substituted Property, it
will have at least ten days following receipt of the appraisal to accept or
reject the offer. If the Company accepts such offer, (i) the Substituted
Property will be exchanged for the Property in a transaction designed and
intended to qualify as a "like-kind exchange" within the meaning of section 1031
of the Code with respect to the Company and (ii) the lease of the Property will
be amended to (a) provide for minimum rent in an amount equal to the sum
determined by multiplying the cost of the Substituted Property by the Property
lease rate and (b) provide for the number of five-year lease renewal options
sufficient to permit the tenant, at its option, to continue its occupancy of the
Substituted Property for up to 35 years from the date on which the exchange is
made. The Company will pay the tenant the excess, if any, of the cost of the
Substituted Property over the cost of the Property. If the substitution does not
take place within a specified period of time after the tenant makes the offer to
exchange the Property for the Substituted Property, either party thereafter will
have the right not to proceed with the substitution. If the Company rejects the
Substituted Property offered by the tenant, the tenant is generally required to
offer at least three additional alternative properties for the Company's
acceptance or rejection. If the Company rejects all Substituted Properties
offered to it pursuant to the lease, or otherwise fails or refuses to consummate
a substitution for any reason other than the tenant's failure to fulfill the
conditions precedent to the exchange, then the tenant will be entitled to
terminate the lease on the date scheduled for such exchange by purchasing the
Property from the Company for a price equal to the then-fair market value of the
Property.
Neither the tenant nor any of its subsidiaries, licensees,
concessionaires, or sublicensees or any other affiliate will be permitted to use
the original Property as a restaurant or other business of the same type and
style for at least one year after the closing of the original Property. In
addition, in the event the tenant or any of its affiliates sells the Property
within twelve months after the Company acquires the Substituted Property, the
Company will receive, to the extent consistent with its objective of qualifying
as a REIT, from the proceeds of the sale the amount by which the selling price
exceeds the cost of the Property to the Company.
Special Conditions. Certain leases may provide that the lessee will not
be permitted to own or operate, directly or indirectly, another Property of the
same or similar type as the leased Property that is or will be located within a
specified distance of the leased Property.
Insurance, Taxes, Maintenance, and Repairs. Tenants of restaurant
Properties generally will be required, under the terms of the leases, to
maintain, for the benefit of the Company and the tenant, casualty insurance in
an amount not less than the full replacement value of the building and other
permanent improvements (or a percent of such value in the case of certain
leases, but in no case less than 90%), as well as liability insurance, generally
in an amount not less than $2,000,000 for each location and event. Tenants of
hotel Properties will be required, under the terms of the leases, to maintain,
for the benefit of the Company and the tenant, insurance that is commercially
reasonable given the size, location and nature of the Property. All tenants,
other than those tenants with a substantial net worth, generally also will be
required to obtain
- 57 -
<PAGE>
"rental value" or "business interruption" insurance to cover losses due to the
occurrence of an insured event for a specified period, generally six to twelve
months. In general, no lease will be entered into unless, in the opinion of the
Advisor, as approved by the Board of Directors, the insurance required by the
lease adequately insures the Property.
All of the restaurant Property leases are expected to require that the
tenant pay all taxes and assessments, maintenance, repair, utility, and
insurance costs applicable to the real estate and permanent improvements.
Tenants will be required to maintain such Properties in good order and repair.
Such tenants generally will be required to maintain the Property and repair any
damage to the Property, except damage occurring during the last 24 to 48 months
of the lease term (as extended), which in the opinion of the tenant renders the
Property unsuitable for occupancy, in which case the tenant will have the right
instead to pay the insurance proceeds to the Company and terminate the lease.
The nature of the obligations of hotel Property tenants for maintenance and
repairs of the Properties will vary depending upon individual lease
negotiations. In some instances, the Company may be obligated to make repairs
and fund capital improvements. In these instances, the lease will adjust the
lease payments so that the economic terms would be the same as if the tenant
were responsible to make repairs and fund capital improvements.
The restaurant Property tenant generally will be required to repair the
Property in the event that less than a material portion of the Property (for
example, more than 20% of the building or more than 40% of the land) is taken
for public or quasi-public use. The Company's leases generally will provide
that, in the event of any condemnation of the restaurant Property that does not
give rise to an option to terminate the lease or in the event of any
condemnation which does give rise to an option to terminate the lease and the
tenant elects not to terminate, the Company will remit to the tenant the award
from such condemnation and the tenant will be required to repair and restore the
Property. To the extent that the award exceeds the estimated costs of restoring
or repairing the Property, the tenant is required to deposit such excess amount
with the Company. Until a specified time (generally, ten days) after the tenant
has restored the premises and all improvements thereon to the same condition as
existed immediately prior to such condemnation insofar as is reasonably
possible, a "just and proportionate" amount of the minimum annual rent will be
abated from the date of such condemnation. In addition, the minimum annual rent
will be reduced in proportion to the reduction in the then rental value of the
premises or the fair market value of the premises after the condemnation in
comparison with the rental value or fair market value prior to such
condemnation.
Events of Default. The leases generally are expected to provide that
the following events, among others, will constitute a default under the lease:
(i) the insolvency or bankruptcy of the tenant, provided that the tenant may
have the right, under certain circumstances, to cure such default, (ii) the
failure of the tenant to make timely payment of rent or other charges due and
payable under the lease, if such failure continues for a specified period of
time (generally, five to 30 days) after notice from the Company of such failure,
(iii) the failure of the tenant to comply with any of its other obligations
under the lease (for example, the discontinuance of operations of the leased
Property) if such failure continues for a specified period of time (generally,
ten to 45 days), (iv) a default under or termination of the franchise agreement
between the tenant and its franchisor, (v) in cases where the Company enters
into a development agreement relating to the construction or renovation of a
building, a default under the development agreement or the Indemnity Agreement
or the failure to establish the minimum annual rent at the end of the
development period, and (vi) in cases where the Company has entered into other
leases with the same tenant, a default under such lease.
Upon default by the tenant, the Company generally will have the right
under the lease and under most state laws to evict the tenant, re-lease the
Property to others, and hold the tenant responsible for any deficiency in the
minimum lease payments. Similarly, if the Company determined not to re-lease the
Property, it could sell the Property. (Unless required to do so by the lease or
its investment objectives, however, the Company does not intend to sell any
Property prior to five to ten years after the commencement of the lease on such
Property. See "Right of Tenant to Purchase" above.) In the event that a lease
requires the tenant to make a
- 58 -
<PAGE>
security deposit, the Company will have the right under the lease to apply the
security deposit, upon default by the tenant, towards any payments due from the
defaulting tenant. In general, the tenant will remain liable for all amounts due
under the lease to the extent not paid from a security deposit or by a new
tenant.
In the event that a tenant defaults under a lease with the Company, the
Company either will attempt to locate a replacement operator acceptable to the
Restaurant Chain or Hotel Chain involved or will discontinue operation of the
restaurant or hotel. In lieu of obtaining a replacement operator, some
Restaurant Chains and Hotel Chains may have the option and may elect to operate
the restaurants or hotels themselves. The Company will have no obligation to
operate the restaurants or hotels, and no Restaurant Chain or Hotel Chain will
be obligated to permit the Company or a replacement operator to operate the
restaurants or hotels.
JOINT VENTURE ARRANGEMENTS
The Company may enter into a Joint Venture to own and operate a
Property with various unaffiliated persons or entities or with another program
formed by the principals of the Company or the Advisor or their Affiliates, if a
majority of the Directors, including a majority of the Independent Directors,
not otherwise interested in the transaction determine that the investment in the
Joint Venture is fair and reasonable to the Company and on substantially the
same terms and conditions as those to be received by the co-venturer or co-
venturers. The Company may take more or less than a 50% interest in any Joint
Venture, subject to obtaining the requisite approval of the Directors. See "Risk
Factors - Real Estate and Financing Risks - Risks of Joint Investment in
Properties."
Under the terms of each Joint Venture agreement, the Company and each
joint venture partner will be jointly and severally liable for all debts,
obligations, and other liabilities of the Joint Venture, and the Company and
each joint venture partner will have the power to bind each other with any
actions they take within the scope of the Joint Venture's business. In addition,
it is expected that the Advisor or its Affiliates will be entitled to
reimbursement, at cost, for actual expenses incurred by the Advisor or its
Affiliates on behalf of the Joint Venture. Joint Ventures entered into to
purchase and hold a Property for investment generally will have an initial term
of 10 to 20 years (generally the same term as the initial term of the lease for
the Property in which the Joint Venture invests), and, after the expiration of
the initial term, will continue in existence from year to year unless terminated
at the option of either joint venturer or unless terminated by an event of
dissolution. Events of dissolution will include the bankruptcy, insolvency, or
termination of any co-venturer, sale of the Property owned by the Joint Venture,
mutual agreement of the Company and its joint venture partner to dissolve the
Joint Venture, and the expiration of the term of the Joint Venture. The Joint
Venture agreement typically will restrict each venturer's ability to sell,
transfer, or assign its joint venture interest without first offering it for
sale to its co-venturer. In addition, in any Joint Venture with another program
sponsored by the Advisor or its Affiliates, where such arrangements are entered
into for the purpose of purchasing and holding Properties for investment, in the
event that one party desires to sell the Property and the other party does not
desire to sell, either party will have the right to trigger dissolution of the
Joint Venture by sending a notice to the other party. The notice will establish
the price and terms for the sale or purchase of the other party's interest in
the Joint Venture to the other party. The Joint Venture agreement will grant the
receiving party the right to elect either to purchase the other party's interest
on the terms set forth in the notice or to sell its own interest on such terms.
The following paragraphs describe the allocations and distributions
under the expected terms of the joint venture agreement for any Joint Venture in
which the Company and its co-venturer each have a 50% ownership interest. In any
other case, the allocations and distributions are expected to be similar to
those described below, except that allocations and distributions which are
described below as being made 50% to each co-venturer will instead be made in
proportion to each co-venturer's respective ownership interest.
Under the terms of each joint venture agreement, operating profits and
losses generally will be allocated 50% to each co-venturer. Profits from the
sale or other disposition of Joint Venture property first will be allocated to
any co-venturers with negative capital account balances in proportion to such
balances until
- 59 -
<PAGE>
such capital accounts equal zero, and thereafter 50% to each co-venturer.
Similarly, losses from the sale or other disposition of Joint Venture property
first will be allocated to joint venture partners with positive capital account
balances in proportion to such balances until such capital accounts equal zero,
and thereafter 50% to each co-venturer. Notwithstanding any other provisions in
the Joint Venture agreement, income, gain, loss, and deductions with respect to
any contributed property will be shared in a manner which takes into account the
variation between the basis of such property and its fair market value at the
time of contribution in accordance with section 704(c) of the Code.
Net cash flow from operations of the Joint Venture will be distributed
50% to each joint venture partner. Any liquidation proceeds, after paying joint
venture debts and liabilities and funding reserves for contingent liabilities,
will be distributed first to the joint venture partners with positive capital
account balances in proportion to such balances until such balances equal zero,
and thereafter 50% to each joint venture partner.
In order that the allocations of Joint Venture income, gain, loss, and
deduction provided in Joint Venture agreements may be respected for federal
income tax purposes, it is expected that any Joint Venture agreement (i) will
contain a "qualified income offset" provision, (ii) will prohibit allocations of
loss or deductions to the extent such allocation would cause or increase an
"Adjusted Capital Account Deficit," and (iii) will require (a) that capital
accounts be maintained for each joint venture partner in a manner which complies
with Treasury Regulation ss.1.704-1(b)(2)(iv) and (b) that distributions of
proceeds from the liquidation of a partner's interest in the Joint Venture
(whether or not in connection with the liquidation of the Joint Venture) be made
in accordance with the partner's positive capital account balance. See "Federal
Income Tax Considerations - Investment in Joint Ventures."
Prior to entering into any Joint Venture arrangement with any
unaffiliated co-venturer (or the principals of any unaffiliated co-venturer),
the Company will confirm that such person or entity has demonstrated to the
satisfaction of the Company that requisite financial qualifications are met.
The Company may acquire Properties from time to time by issuing limited
partnership units in CNL Hospitality Partners, LP to sellers of such Properties
pursuant to which the seller, as owner, would receive partnership interests
convertible at a later date into Common Stock of the Company. The Company is the
general partner of CNL Hospitality Partners, LP. This structure enables a
property owner to transfer property without incurring immediate tax liability,
and therefore may allow the Company to acquire Properties on more favorable
terms than otherwise.
MORTGAGE LOANS
The Company may provide Mortgage Loans to operators of Restaurant
Chains or Hotel Chains, or their affiliates, to enable them to acquire the
building and improvements on real property. Generally, in these cases, the
Company will acquire the underlying land and will enter into a long-term ground
lease for the Property with the borrower as the tenant. The Mortgage Loan will
be secured by the building and improvements on the land.
Generally, management believes the interest rate and terms of these
transactions are substantially the same as those of the Company's Property
leases. The borrower will be responsible for all of the expenses of owning the
property, as with the "triple-net" leases, including expenses for insurance and
repairs and maintenance. Management expects the Mortgage Loans will be fully
amortizing loans over a period of 10 to 20 years (generally, the same term as
the initial term of the Property leases), with payments of principal and
interest due monthly. In addition, management expects the interest rate charged
under the terms of the Mortgage Loan will be fixed over the term of the loan and
generally will be comparable to, or slightly lower than, lease rates charged to
tenants for the Properties.
- 60 -
<PAGE>
The Company may combine leasing and financing in connection with a
Property. For example, it may make a Mortgage Loan with respect to the building
and lease the underlying land to the borrower. Management believes that the
combined leasing and financing structure provides the benefit of allowing the
Company to receive, on a fixed income basis, the return of its initial
investment in each financed building, which is generally a depreciating asset,
plus interest. At the same time, the Company retains ownership of the underlying
land, which may appreciate in value, thus providing an opportunity for a capital
gain on the sale of the land. In such cases, in which the borrower is also the
tenant under a Property lease for the underlying land, if the borrower does not
elect to exercise its purchase option to acquire the Property under the terms of
the lease, the building and improvements on the Property will revert to the
Company at the end of term of the lease, including any renewal periods. If the
borrower does elect to exercise its purchase option as the tenant of the
underlying land, the Company will generally have the option of selling the
Property at the greater of fair market value or cost plus a specified
percentage.
The Company will not make or invest in Mortgage Loans unless an
appraisal is obtained concerning the property that secures the Mortgage Loan.
Mortgage indebtedness on any property shall not exceed such property's appraised
value. In cases in which the majority of the Independent Directors so determine,
and in all cases in which the Mortgage Loan involves the Advisor, Directors, or
Affiliates, such appraisal must be obtained from an independent expert
concerning the underlying property. Such appraisal shall be maintained in the
Company's records for at least five years, and shall be available for inspection
and duplication by any stockholder. In addition to the appraisal, a mortgagee's
or owner's title insurance policy or commitment as to the priority of the
mortgage or condition of the title must be obtained.
Management believes that the criteria for investing in Mortgage Loans
are substantially the same as those involved in the Company's investments in
Properties; therefore, the Company will use the same underwriting criteria as
described above in "Business - Standards for Investment in Properties." In
addition, the Company will not make or invest in Mortgage Loans on any one
property if the aggregate amount of all mortgage loans outstanding on the
property, including the loans of the Company, would exceed an amount equal to
85% of the appraised value of the property as determined by appraisal unless
substantial justification exists because of the presence of other underwriting
criteria. For purposes of this limitation, the aggregate amount of all mortgage
loans outstanding on the property, including the loans of the Company, shall
include all interest (excluding contingent participation in income and/or
appreciation in value of the mortgaged property), the current payment of which
may be deferred pursuant to the terms of such loans, to the extent that deferred
interest on each loan exceeds 5% per annum of the principal balance of the loan.
Further, the Company will not make or invest in any Mortgage Loans that
are subordinate to any mortgage, other indebtedness or equity interest of the
Advisor, the Directors, or Affiliates of the Company. The Company currently
expects to provide Mortgage Loans in the aggregate principal amount of
approximately 5% to 10% of Gross Proceeds.
MANAGEMENT SERVICES
The Advisor will provide management services relating to the Company,
the Properties, the Mortgage Loans, and the Secured Equipment Lease program
pursuant to an Advisory Agreement between it and the Company. Under this
agreement, the Advisor will be responsible for assisting the Company in
negotiating leases, Mortgage Loans and Secured Equipment Leases, collecting
rental, Mortgage Loan and Secured Equipment Lease payments, inspecting the
Properties and the tenants' books and records, and responding to tenant
inquiries and notices. The Advisor also will provide information to the Company
about the status of the leases, the Properties, the Mortgage Loans, the Line of
Credit, the Permanent Financing and the Secured Equipment Leases. In exchange
for these services, the Advisor will be entitled to receive certain fees from
the Company. For supervision of the Properties and Mortgage Loans, the Advisor
will receive the Asset Management Fee, which, generally, is payable monthly in
an amount equal to one-twelfth of .60% of Real Estate Asset Value and the
outstanding principal amount of the Mortgage Loans, as of the end of the
preceding month. For negotiating Secured Equipment Leases and supervising the
Secured Equipment Lease program,
- 61 -
<PAGE>
the Advisor will receive, upon entering into each lease, a Secured Equipment
Lease Servicing Fee, payable out of the proceeds of the borrowings, equal to 2%
of the purchase price of the Equipment subject to each Secured Equipment Lease.
See "Management Compensation."
BORROWING
The Company will borrow money to acquire Assets and to pay certain
related fees. The Company intends to encumber Assets in connection with any
borrowing. The Company plans to obtain one or more revolving Lines of Credit in
an aggregate amount up to $45,000,000, and may, in addition, also obtain
Permanent Financing. The Line of Credit may be repaid with offering proceeds,
working capital or Permanent Financing. The Line of Credit and Permanent
Financing are the only source of funds for making Secured Equipment Leases and
for paying the Secured Equipment Lease Servicing Fee.
On July 31, 1998, the Company entered into a revolving line of credit
and security agreement with a bank to be used by the Company to acquire hotel
Properties. The Line of Credit provides that the Company will be able to receive
advances of up to $30,000,000 until July 30, 2003, with an annual review to be
performed by the bank to indicate that there has been no substantial
deterioration, in the bank's reasonable discretion, of the credit quality.
Interest expense on each advance shall be payable monthly, with all unpaid
interest and principal due no later than five years from the date of the
advance. Advances under the Line of Credit will bear interest at either (i) a
rate per annum equal to 318 basis points above the LIBOR or (ii) a rate per
annum equal to 30 basis points above the bank's base rate, whichever the Company
selects at the time advances are made. In addition a fee of .5% per loan will be
due and payable to the bank on funds as advanced. Each loan made under the Line
of Credit will be secured by the assignment of rents and leases. In addition,
the Line of Credit provides that the Company will not be able to further
encumber the applicable hotel Property during the term of the loan without the
bank's consent. The Company will be required, at each closing, to pay all costs,
fees and expenses arising in connection with the Line of Credit. The Company
must also pay the bank's attorneys fees, subject to a maximum cap, incurred in
connection with the Line of Credit and each advance. As of September 1, 1998,
the Company had obtained two advances totalling $8,600,000 relating to the Line
of Credit. In connection with the Line of Credit, the Company incurred a
commitment fee, legal fees and closing costs of $60,266. The proceeds were used
in connection with the purchase of two hotel Properties described in "Business
- -- Property Acquisitions."
Management believes that any financing obtained during the offering
period will allow the Company to make investments in Assets that the Company
otherwise would be forced to delay until it raised a sufficient amount of
proceeds from the sale of Shares. By eliminating this delay, the Company will
also eliminate the risk that these investments will no longer be available, or
the terms of the investment will be less favorable, when the Company has raised
sufficient offering proceeds. Alternatively, Affiliates of the Advisor could
make such investments, pending receipt by the Company of sufficient offering
proceeds, in order to preserve the investment opportunities for the Company.
However, Assets acquired by the Company in this manner would be subject to
closing costs both on the original purchase by the Affiliate and on the
subsequent purchase by the Company, which would increase the amount of expenses
associated with the acquisition of Assets and reduce the amount of offering
proceeds available for investment in income-producing assets. Management
believes that the use of borrowings will enable the Company to reduce or
eliminate the instances in which the Company will be required to pay duplicate
closing costs, which may be substantial in certain states.
Similarly, management believes that the borrowings will benefit the
Company by allowing it to take advantage of its ability to borrow at favorable
interest rates. Specifically, the Company intends to structure the terms of any
financing so that the lease rates for Properties acquired and the interest rates
for Mortgage Loans and Secured Equipment Leases made with the loan proceeds will
exceed the interest rate payable on the financing. To the extent that the
Company is able to structure the financing on these terms, the Company will
increase its net revenues. In addition, the use of financing will increase the
diversification of the Company's portfolio by allowing it to acquire more Assets
than would be possible using only the Gross Proceeds from the offering.
- 62 -
<PAGE>
As a result of existing relationships between Affiliates of the Advisor
and certain financing sources, the Company may have the opportunity to obtain
financing at more favorable interest rates than the Company could otherwise
obtain. In connection with any financing obtained by the Company as a result of
any such relationship, the Company will pay a loan origination fee to the
Affiliate. In addition, certain lenders may require, as a condition of providing
financing to the Company, that the Affiliate with which the lender has an
existing relationship act as a loan servicing agent. In connection with any such
arrangement the Company will pay a loan servicing fee to the Affiliate. Any loan
origination fee or loan servicing fee paid to an Affiliate of the Company is
subject to the approval by a majority of the Board of Directors (including a
majority of the Independent Directors) not otherwise interested in the
transaction as fair and reasonable to the Company and on terms not less
favorable to the Company than those available from unaffiliated third parties
and not less favorable than those available from the Advisor or its Affiliates
in transactions with unaffiliated third parties.
See "Conflicts of Interest - Certain Conflict Resolution Procedures."
The Company may also borrow funds for the purpose of preserving its
status as a REIT. For example, the Company may borrow to the extent necessary to
permit the Company to make Distributions required in order to enable the Company
to qualify as a REIT for federal income tax purposes; however, the Company will
not borrow for the purpose of returning Invested Capital to the stockholders
unless necessary to eliminate corporate-level tax to the Company. The aggregate
borrowing of the Company, secured and unsecured, shall be reasonable in relation
to Net Assets of the Company and shall be reviewed by the Board of Directors at
least quarterly. The Board of Directors anticipates that the aggregate amounts
of any Lines of Credit will be up to $45,000,000 and that the aggregate amount
of the Permanent Financing will not exceed 30% of the Company's total assets.
However, in accordance with the Company's Articles of Incorporation, the maximum
amount of borrowing in relation to Net Assets, in the absence of a satisfactory
showing that a higher level of borrowing is appropriate, shall not exceed 300%
of Net Assets. Any excess in borrowing over such 300% level shall occur only
with approval by a majority of the Independent Directors and will be disclosed
and explained to stockholders in the first quarterly report of the Company
prepared after such approval occurs.
SALE OF PROPERTIES, MORTGAGE LOANS AND SECURED EQUIPMENT LEASES
For the first five to ten years after the commencement of the offering,
the Company intends, to the extent consistent with the Company's objective of
qualifying as a REIT, to reinvest in additional Properties or Mortgage Loans any
proceeds of the Sale of a Property or a Mortgage Loan that are not required to
be distributed to stockholders in order to preserve the Company's REIT status
for federal income tax purposes. The Company may also use such proceeds to
reduce its outstanding indebtedness. Similarly, and to the extent consistent
with REIT qualification, the Company plans to use the proceeds of the Sale of a
Secured Equipment Lease to fund additional Secured Equipment Leases, or to
reduce its outstanding indebtedness on the borrowings. At or prior to the end of
such ten-year period, the Company intends to provide stockholders of the Company
with liquidity of their investment, either in whole or in part, through Listing
(although liquidity cannot be assured thereby) or by commencing orderly sales of
the Company's assets. If Listing occurs, the Company intends to use any Net
Sales Proceeds not required to be distributed to stockholders in order to
preserve the Company's status as a REIT to reinvest in additional Properties,
Mortgage Loans and Secured Equipment Leases or to repay outstanding
indebtedness. If Listing does not occur within ten years after the commencement
of the offering, the Company thereafter will undertake the orderly liquidation
of the Company and the Sale of the Company's assets and will distribute any Net
Sales Proceeds to stockholders. In addition, the Company will not sell any
assets if such Sale would not be consistent with the Company's objective of
qualifying as a REIT.
In deciding the precise timing and terms of Property Sales, the Advisor
will consider factors such as national and local market conditions, potential
capital appreciation, cash flows, and federal income tax considerations. The
terms of certain leases, however, may require the Company to sell a Property at
an earlier time if the tenant exercises its option to purchase a Property after
a specified portion of the lease term has elapsed. See "Business - Description
of Leases - Right of Tenant to Purchase." The Company will have no obligation to
sell all or any portion of a Property at any particular time, except as may be
required under
- 63 -
<PAGE>
property or joint venture purchase options granted to certain tenants. In
connection with Sales of Properties by the Company, purchase money obligations
may be taken by the Company as part payment of the sales price. The terms of
payment will be affected by custom in the area in which the Property is located
and by prevailing economic conditions. When a purchase money obligation is
accepted in lieu of cash upon the Sale of a Property, the Company will continue
to have a mortgage on the Property and the proceeds of the Sale will be realized
over a period of years rather than at closing of the Sale.
The Company does not anticipate selling the Secured Equipment Leases
prior to expiration of the lease term, except in the event that the Company
undertakes orderly liquidation of its assets. In addition, the Company does not
anticipate selling any Mortgage Loans prior to the expiration of the loan term,
except in the event (i) the Company owns the Property (land only) underlying the
building improvements which secure the Mortgage Loan and the Sale of the
Property occurs, or (ii) the Company undertakes an orderly Sale of its assets.
FRANCHISE REGULATION
Many states regulate the franchise or license relationship between a
tenant/franchisee and a franchisor. The Company will not be an Affiliate of any
franchisor, and is not currently aware of any states in which the relationship
between the Company as lessor and the tenant will be subjected to those
regulations, but it will comply with such regulations in the future, if so
required. Restaurant Chains and Hotel Chains which franchise their operations
are subject to regulation by the Federal Trade Commission.
COMPETITION
The restaurant and hotel businesses are characterized by intense
competition. The operators of the restaurants and hotels located on the
Properties will compete with independently owned restaurants and hotels,
restaurants and hotels which are part of local or regional chains, and
restaurants and hotels in other well-known national chains, including those
offering different types of food and accommodations.
Many successful fast-food, family-style, and casual-dining restaurants
are located in "eating islands," which are areas to which people tend to return
frequently and within which they can diversify their eating habits, because in
many cases local competition may enhance the restaurant's success instead of
detracting from it. Fast-food, family-style, and casual-dining restaurants
frequently experience better operating results when there are other restaurants
in the same area. Similarly, many successful hotel "pockets" have developed in
areas of concentrated lodging demand, such as airports, urban office parks and
resort areas where this gathering promotes credibility to the market as a
lodging destination and accords the individual properties efficiencies such as
area transportation, visibility and the promotion of other support amenities.
The Company will be in competition with other persons and entities both
to locate suitable Properties to acquire and to locate purchasers for its
Properties. The Company also will compete with other financing sources such as
banks, mortgage lenders, and sale/leaseback companies for suitable Properties,
tenants, Mortgage Loan borrowers and Equipment tenants.
REGULATION OF MORTGAGE LOANS AND SECURED EQUIPMENT LEASES
The Mortgage Loan and Secured Equipment Lease programs may be subject
to regulation by federal, state and local authorities and subject to various
laws and judicial and administrative decisions imposing various requirements and
restrictions, including among other things, regulating credit granting
activities, establishing maximum interest rates and finance charges, requiring
disclosures to customers, governing secured transactions and setting collection,
repossession, claims handling procedures and other trade practices. In addition,
certain states have enacted legislation requiring the licensing of mortgage
bankers or other lenders and these requirements may affect the Company's ability
to effectuate its Mortgage Loan and Secured Equipment Lease program.
Commencement of operations into these or other jurisdictions may be dependent
upon a finding of
- 64 -
<PAGE>
financial responsibility, character and fitness of the Company. The Company may
determine not to make Mortgage Loans or enter into Secured Equipment Leases in
any jurisdiction in which it believes the Company has not complied in all
material respects with applicable requirements.
SELECTED FINANCIAL DATA
The following table sets forth certain financial information for the
Company, and should be read in conjunction with "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and the Financial
Statements included in Exhibit B.
<TABLE>
<CAPTION>
Six Months Ended Year Ended
June 30, 1998 June 30, 1997 December 31
(Unaudited) (Unaudited) 1997 (1) 1996 (2)
----------- ----------- --------- --------
<S> <C>
Interest Income $ 371,159 $ - $ 46,071 $ -
Net earnings 201,973 - 22,852 -
Cash distributions declared (3) 257,086 - 29,776 -
Funds from operations (4) 201,973 - 22,852 -
Earnings per Share 0.11 - 0.03 -
Cash distributions declared per Share 0.15 - 0.05 -
Weighted average number of Shares outstanding (5) 1,820,362 - 686,063 -
June 30, 1998 June 30, 1997 December 31, December 31,
(Unaudited) (Unaudited) 1997 1996
------------- ------------- ------------ ------------
Total assets $20,332,910 $712,487 $9,443,476 $598,190
Total stockholders' equity 20,240,660 200,000 9,233,917 200,000
</TABLE>
(1) No operations commenced until the Company received minimum offering
proceeds and funds were released from escrow on October 15, 1997.
(2) Selected financial data for 1996 represents the period June 12, 1996
(date of inception) through December 31, 1996.
(3) Approximately 21% and 23% of cash distributions for the six months
ended June 30, 1998 and the year ended December 31, 1997, respectively,
represent a return of capital in accordance with generally accepted
accounting principles ("GAAP"). Cash distributions treated as a return
of capital on a GAAP basis represent the amount of cash distributions
in excess of accumulated net earnings on a GAAP basis. The Company has
not treated such amount as a return of capital for purposes of
calculating Invested Capital and the Stockholders' 8% Return.
(4) Funds from operations ("FFO"), based on the revised definition adopted
by the Board of Governors of the National Association of Real Estate
Investment Trusts ("NAREIT") and as used herein, means net earnings
determined in accordance with GAAP, excluding gains or losses from debt
restructuring and sales of property, plus depreciation and amortization
of real estate assets and after adjustments for unconsolidated
partnerships and joint ventures. FFO was developed by NAREIT as a
relative measure of performance and liquidity of an equity REIT in
order to recognize that income-producing real estate historically has
not depreciated on the basis determined under GAAP. However, FFO (i)
does not represent cash generated from operating activities determined
in accordance with GAAP (which, unlike FFO, generally reflects all cash
effects of transactions and other events that enter into the
determination of net earnings), (ii) is not necessarily indicative of
cash flow available to fund cash needs and (iii) should not be
considered as an alternative to net earnings determined in accordance
with GAAP as an indication of the Company's operating performance, or
to cash flow from operating activities determined in accordance with
GAAP as a measure of either liquidity or the Company's ability to make
distributions. Accordingly, the Company believes that in order to
facilitate a clear understanding of the historical operating results of
the Company, FFO should be considered in conjunction with the Company's
net earnings and cash flows as reported in the accompanying financial
statements and notes thereto. See Exhibit B -- Financial Information.
(5) The weighted average number of Shares outstanding is based upon the
period the Company was operational.
- 65 -
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION OF THE COMPANY
This information contains forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Act of 1934. Although the Company believes that the expectations reflected in
such forward-looking statements are based upon reasonable assumptions, the
Company's actual results could differ materially from those set forth in the
forward-looking statements. Certain factors that might cause such a difference
include the following: changes in general economic conditions, changes in local
and national real estate conditions, continued availability of proceeds from the
Company's offering, the ability of the Company to obtain permanent financing on
satisfactory terms, the ability of the Company to identify suitable investments,
the ability of the Company to locate suitable tenants for its Properties and
borrowers for its Mortgage Loans and Secured Equipment Leases, and the ability
of such tenants and borrowers to make payments under their respective leases,
Mortgage Loans or Secured Equipment Leases.
The Company is a Maryland corporation that was organized on June 12,
1996. On June 15, 1998, the Company formed CNL Hospitality Partners, LP, a
wholly owned Delaware limited partnership (the "Partnership"). Properties
acquired are expected to be held by the Partnership and, as a result, owned by
the Company through the Partnership. The term "Company" includes CNL Hospitality
Properties, Inc. and its subsidiaries, CNL Hospitality GP Corp., CNL Hospitality
LP Corp. and CNL Hospitality Partners, LP.
As of June 30,1998, the Company had not yet acquired any Properties and
had no significant operating history. Since leases generally will be entered
into on a "triple-net" basis, the Company does not expect, although it has the
right, to maintain a reserve for operating expenses. The Company's Properties,
Mortgage Loans and Secured Equipment Leases will not be readily marketable and
their value may be affected by general market conditions. Nevertheless,
management believes that capital and revenues of the Company will be sufficient
to fund the Company's anticipated investments, proposed operations, and cash
Distributions to the stockholders.
LIQUIDITY AND CAPITAL RESOURCES
Effective July 9, 1997, the Company commenced its offering of Shares of
common stock. As of June 30, 1998, the Company had received aggregate
subscription proceeds of $23,578,169 (2,357,817 Shares) from the offering,
including $9,704 (970 Shares) through the Company's Reinvestment Plan.
As of June 30, 1998, net proceeds to the Company from its offering of
Shares and capital contributions from the Advisor, after deduction of Selling
Commissions, marketing support and due diligence expense reimbursement fees and
Organizational and Offering Expenses totalled approximately $20,283,000. As of
June 30, 1998, the Company has invested $50,000 as earnest money deposits on two
Properties, and had incurred approximately $1,107,500 in Acquisition Fees and
Acquisition Expenses, leaving approximately $19,125,500 in Net Offering Proceeds
available for investment in Properties and Mortgage Loans.
The Company will use Net Offering Proceeds from this offering to
purchase Properties and to invest in Mortgage Loans. See "Investment Objectives
and Policies." In addition, the Company intends to borrow money to acquire
Assets and to pay certain related fees. The Company intends to encumber Assets
in connection with such borrowing. The Company plans to obtain one or more
revolving Lines of Credit in an aggregate amount up to $45,000,000, and may, in
addition, also obtain Permanent Financing. The Line of Credit may be repaid with
offering proceeds, working capital or Permanent Financing. Although the Board of
Directors anticipates that the Line of Credit will be in the amount up to
$45,000,000 and that the aggregate
- 66 -
<PAGE>
amount of any Permanent Financing will not exceed 30% of the Company's total
assets, the maximum amount the Company may borrow, absent a satisfactory showing
that a higher level of borrowing is appropriate as approved by a majority of the
Independent Directors, is 300% of the Company's Net Assets.
On July 31, 1998, the Company entered into an initial revolving line of
credit and security agreement with a bank to be used by the Company to acquire
hotel Properties. The initial Line of Credit provides that the Company will be
able to receive advances of up to $30,000,000 until July 30, 2003, with an
annual review to be performed by the bank to indicate that there has been no
substantial deterioration, in the bank's reasonable discretion, of the credit
quality. Interest expense on each advance shall be payable monthly, with all
unpaid interest and principal due no later than five years from the date of the
advance. Advances under the Line of Credit will bear interest at either (i) a
rate per annum equal to 318 basis points above the LIBOR or (ii) a rate per
annum equal to 30 basis points above the bank's base rate, whichever the Company
selects at the time advances are made. In addition a fee of .5% per advance will
be due and payable to the bank on funds as advanced. Each advance made under the
Line of Credit will be secured by the assignment of rents and leases. In
addition, the Line of Credit provides that the Company will not be able to
further encumber the applicable hotel Property during the term of the advance
without the bank's consent. The Company will be required, at each closing, to
pay all costs, fees and expenses arising in connection with the Line of Credit.
The Company must also pay the bank's attorneys fees, subject to a maximum cap,
incurred in connection with the Line of Credit and each advance. On July 31,
1998, the Company obtained two advances totalling $8,600,000 relating to the
Line of Credit. In connection with the Line of Credit, the Company incurred a
commitment fee, legal fees and closing costs of $60,266. The proceeds were used
in connection with the purchase of the two hotel Properties. The Company has not
yet received a commitment for any Permanent Financing and there is no assurance
that the Company will obtain any Permanent Financing on satisfactory terms.
As of September 1, 1998, the Company had received subscription proceeds
of $26,736,275 (2,673,628 Shares) from its offering of Shares. As of September
1, 1998, net proceeds to the Company from its offering of Shares and capital
contributions from the Advisor, after deduction of Selling Commissions,
marketing support and due diligence expense reimbursement fees and
Organizational and Offering Expenses totalled approximately $23,188,000. As of
September 1, 1998, the Company had invested approximately $18,670,000 of Net
Offering Proceeds and $8,600,000 of advances from the Line of Credit in two
hotel Properties, and had incurred approximately $1,400,000 in Acquisition Fees
and Acquisition Expenses, leaving approximately $3,118,000 in Net Offering
Proceeds available for investment in additional Properties and Mortgage Loans.
As of September 1, 1998, the Company had initial commitments to acquire
three hotel Properties. The acquisition of each of these Properties is subject
to the fulfillment of certain conditions including, but not limited to, a
satisfactory environmental survey and property appraisal. In order to acquire
these Properties, the Company must obtain additional funds through the receipt
of additional offering proceeds and/or advances on the Line of Credit. There can
be no assurance that any or all of the conditions will be satisfied or, if
satisfied, that one or more of these Properties will be acquired by the Company.
As of September 1, 1998, the Company had not entered into any arrangements
creating a reasonable probability a particular Mortgage Loan or Secured
Equipment Lease would be funded. The Company is presently negotiating to acquire
additional Properties, but as of September 1, 1998, the Company had not acquired
any such Properties or entered into any Mortgage Loans.
Properties will be leased on a long-term, triple-net basis, meaning
that tenants are generally required to pay all repairs and maintenance, property
taxes, insurance and utilities. Rental payments under the leases are expected to
exceed the Company's operating expenses. For these reasons, no short-term or
long-term liquidity problems associated with operating the Properties are
currently anticipated by management.
Until Properties are acquired, or Mortgage Loans are entered into, Net
Offering Proceeds are held in short-term, highly liquid investments which
management believes to have appropriate safety of principal. This investment
strategy provides high liquidity in order to facilitate the Company's use of
these funds to acquire
- 67 -
<PAGE>
Properties at such time as Properties suitable for acquisition are located or to
fund Mortgage Loans. At June 30, 1998, the Company had $19,156,223 invested in
such short-term investments (including certificates of deposit totalling
$1,500,417) as compared to $8,869,838 at December 31, 1997. The increase in the
amount invested in short-term investments reflects subscription proceeds derived
from the sale of Shares during the six months ended June 30, 1998. The majority
of these funds were used to acquire the two Properties described above. The
remaining funds will be used primarily to purchase and develop or renovate
Properties, to make Mortgage Loans, to pay Organizational and Offering Expenses
and Acquisition Expenses, to pay Distributions to stockholders, to pay other
Company expenses and, in management's discretion, to create cash reserves.
During the six months ended June 30, 1998 and 1997, Affiliates of the
Company incurred on behalf of the Company $58,403 and $87,774, respectively, for
certain Organizational and Offering Expenses. In addition, during the six months
ended June 30, 1998, Affiliates of the Company incurred on behalf of the Company
$20,302 for certain Acquisition Expenses and $58,172 for certain Operating
Expenses. As of June 30, 1998, the Company owed the Advisor $60,918 for such
amounts, unpaid fees and administrative expenses. The Advisor has agreed to pay
or reimburse to the Company all Organizational and Offering Expenses in excess
of three percent of Gross Proceeds.
During the six months ended June 30, 1998, the Company generated cash
from operations (which includes interest received less cash paid for operating
expenses) of $210,452. Based on current and anticipated future cash from
operations, the Company declared Distributions to its stockholders of $257,086
during the six months ended June 30, 1998. No Distributions were paid or
declared for the six months ended June 30, 1997, because operations had not
commenced. On July 1, August 1, and September 1, 1998, the Company declared
Distributions to its stockholders totalling $99,631, $105,707 and $157,038,
respectively ($0.0417, $0.0417 and $0.058 per share, respectively), payable in
September 1998. For the six months ended June 30, 1998, 100 percent of the
Distributions received by stockholders were considered to be ordinary income for
federal income tax purposes. No amounts distributed or to be distributed to the
stockholders as of September 1, 1998, were required to be or have been treated
by the Company as a return of capital for purposes of calculating the
Stockholders' 8% Return on Invested Capital.
Due to anticipated low operating expenses, rental income expected to be
obtained from Properties after they are acquired, the fact that Permanent
Financing has not been obtained and that the Company has not entered into
Mortgage Loans or Secured Equipment Leases, management does not believe that
working capital reserves will be necessary at this time. Management has the
right to cause the Company to maintain reserves if, in their discretion, they
determine such reserves are required to meet the Company's working capital
needs.
Management is not aware of any material trends, favorable or
unfavorable, in either capital resources or the outlook for long-term cash
generation, nor does management expect any material changes in the availability
and relative cost of such capital resources, other than as referred to in the
Prospectus.
Management expects that the cash to be generated from operations will
be adequate to pay operating expenses and to make Distributions to stockholders.
RESULTS OF OPERATIONS
No operations commenced until the Company received the minimum offering
proceeds of $2,500,000 on October 15, 1997. As of June 30, 1998, the Company had
not yet acquired any Properties nor entered into any Mortgage Loans or Secured
Equipment Leases.
- 68 -
<PAGE>
During the quarter and six months ended June 30, 1998, the Company
earned $232,006 and $371,159, respectively, in interest income from investments
in money market accounts and other short-term, highly liquid investments . As
Net Offering Proceeds are invested in Properties and used to make Mortgage
Loans, the percentage of the Company's total revenues from interest income from
investments in money market accounts or other short term, highly liquid
investments is expected to decrease.
Operating expenses, including amortization expense, were $77,341 and
$169,186 for the quarter and six months ended June 30, 1998, respectively.
Operating expenses, including amortization expense, represent only a portion of
operating expenses which the Company is expected to incur during a full period
in which the Company owns Properties . The dollar amount of operating expenses
is expected to increase as the Company acquires Properties and invests in
Mortgage Loans. However, general and administrative expenses as a percentage of
total revenues is expected to decrease as the Company acquires Properties and
invests in Mortgage Loans.
Effective January 1, 1998, the Company adopted Statement of Financial
Accounting Standards No. 130, "Reporting Comprehensive Income." This Statement
requires the reporting of net earnings and all other changes to equity during
the period, except those resulting from investments by owners and distributions
to owners, in a separate statement that begins with net earnings. Currently, the
Company's only component of comprehensive income is net earnings.
In March 1998, the Emerging Issues Task Force of the Financial
Accounting Standards Board reached a consensus in EITF 97-11, entitled
"Accounting for Internal Costs Relating to Real Estate Property Acquisitions."
EITF 97-11 provides that internal costs of identifying and acquiring operating
Property should be expensed as incurred. Due to the fact that the Company does
not have an internal acquisitions function and instead, contracts these services
from the Advisor, the effectiveness of EITF 97-11 had no material effect on the
Company's financial position or results of operations.
In April 1998, the American Institute of Certified Public Accountants
issued Statement of Position (SOP) 98-5, "Reporting on the Costs of Start-Up
Activities," which is effective for the Company as of January 1, 1999. This SOP
requires start-up and organization costs to be expensed as incurred and also
requires previously deferred start-up costs to be recognized as a cumulative
effect adjustment in the statement of income. The Company does not believe that
adoption of this SOP will have a material effect on the Company's financial
position or results of operations .
MANAGEMENT
GENERAL
The Company will operate under the direction of the Board of Directors,
the members of which are accountable to the Company as fiduciaries. As required
by applicable regulations, a majority of the Independent Directors and a
majority of the Directors have reviewed and ratified the Articles of
Incorporation and have adopted the Bylaws.
The Company currently has five Directors; it may have no fewer than
three Directors and no more than 15. Directors will be elected annually, and
each Director will hold office until the next annual meeting of stockholders or
until his successor has been duly elected and qualified. There is no limit on
the number of times that a Director may be elected to office. Although the
number of Directors may be increased or decreased as discussed above, a decrease
shall not have the effect of shortening the term of any incumbent Director.
- 69 -
<PAGE>
Any Director may resign at any time and may be removed with or without
cause by the stockholders upon the affirmative vote of at least a majority of
all the Shares outstanding and entitled to vote at a meeting called for this
purpose. The notice of such meeting shall indicate that the purpose, or one of
the purposes, of such meeting is to determine if a Director shall be removed.
FIDUCIARY RESPONSIBILITY OF THE BOARD OF DIRECTORS
The Board of Directors will be responsible for the management and
control of the affairs of the Company; however, the Board of Directors will
retain the Advisor to manage the Company's day-to-day affairs and the
acquisition and disposition of investments, subject to the supervision of the
Board of Directors.
The Directors are not required to devote all of their time to the
Company and are only required to devote such of their time to the affairs of the
Company as their duties require. The Board of Directors will meet quarterly in
person or by telephone, or more frequently if necessary. It is not expected that
the Directors will be required to devote a substantial portion of their time to
discharge their duties as directors. Consequently, in the exercise of their
fiduciary responsibilities, the Directors will rely heavily on the Advisor. In
this regard, the Advisor, in addition to the Directors, will have a fiduciary
duty to the Company.
The Directors will establish written policies on investments and
borrowings and will monitor the administrative procedures, investment
operations, and performance of the Company and the Advisor to assure that such
policies are in the best interest of the stockholders and are fulfilled. Until
modified by the Directors, the Company will follow the policies on investments
set forth in this Prospectus. See "Investment Objectives and Policies."
The Independent Directors are responsible for reviewing the fees and
expenses of the Company at least annually or with sufficient frequency to
determine that the total fees and expenses of the Company are reasonable in
light of the Company's investment performance, Net Assets, Net Income, and the
fees and expenses of other comparable unaffiliated real estate investment
trusts. This determination shall be reflected in the minutes of the meetings of
the Board of Directors. For purposes of this determination, Net Assets are the
Company's total assets (other than intangibles), calculated at cost before
deducting depreciation or other non-cash reserves, less total liabilities, and
computed at least quarterly on a basis consistently applied. Such determination
will be reflected in the minutes of the meetings of the Board of Directors. In
addition, a majority of the Independent Directors and a majority of Directors
not otherwise interested in the transaction must approve each transaction with
the Advisor or its Affiliates. The Board of Directors also will be responsible
for reviewing and evaluating the performance of the Advisor before entering into
or renewing an advisory agreement. The Independent Directors shall determine
from time to time and at least annually that compensation to be paid to the
Advisor is reasonable in relation to the nature and quality of services to be
performed and shall supervise the performance of the Advisor and the
compensation paid to it by the Company to determine that the provisions of the
Advisory Agreement are being carried out. Specifically, the Independent
Directors will consider factors such as the amount of the fee paid to the
Advisor in relation to the size, composition and performance of the Company's
investments, the success of the Advisor in generating appropriate investment
opportunities, rates charged to other comparable REITs and other investors by
advisors performing similar services, additional revenues realized by the
Advisor and its Affiliates through their relationship with the Company, whether
paid by the Company or by others with whom the Company does business, the
quality and extent of service and advice furnished by the Advisor, the
performance of the investment portfolio of the Company and the quality of the
portfolio of the Company relative to the investments generated by the Advisor,
if any, for its own account. Such review and evaluation will be reflected in the
minutes of the meetings of the Board of Directors. The Board of Directors shall
determine that any successor Advisor possesses sufficient qualifications to (i)
perform the advisory function for the Company and (ii) justify the compensation
provided for in its contract with the Company.
- 70 -
<PAGE>
The liability of the officers and Directors while serving in such
capacity is limited in accordance with the Articles of Incorporation and
applicable law. See "Summary of the Articles of Incorporation and Bylaws -
Limitation of Director and Officer Liability."
DIRECTORS AND EXECUTIVE OFFICERS
The Directors and executive officers of the Company are listed below:
Name Age Position with the Company
---- --- -------------------------
James M. Seneff, Jr. 52 Director, Chairman of the Board,
and Chief Executive Officer
Robert A. Bourne 51 Director and President
G. Richard Hostetter 58 Independent Director
J. Joseph Kruse 65 Independent Director
Richard C. Huseman 59 Independent Director
Charles A. Muller 40 Executive Vice President
John T. Walker 39 Executive Vice President
Jeanne A. Wall 40 Executive Vice President
Lynn E. Rose 49 Secretary and Treasurer
James M. Seneff, Jr. Director, Chairman of the Board, and Chief
Executive Officer. Mr. Seneff currently holds the position of Chairman of the
Board, Chief Executive Officer and director of CNL Real Estate Advisors, Inc.,
the Advisor. Mr. Seneff also serves as Chairman of the Board, Chief Executive
Officer and a director of CNL American Properties Fund, Inc. and CNL Fund
Advisors, Inc. Mr. Seneff is a principal stockholder of CNL Group, Inc., a
diversified real estate company, and has served as its Chairman of the Board of
Directors, director, and Chief Executive Officer since its formation in 1980.
CNL Group, Inc. is the parent company of CNL Securities Corp., which is acting
as the Managing Dealer in this offering, CNL Investment Company, CNL Fund
Advisors, Inc. and CNL Real Estate Advisors, Inc. Mr. Seneff has been Chairman
of the Board, Chief Executive Officer and a director of CNL Securities Corp.
since its formation in 1979. Mr. Seneff also has held the position of Chairman
of the Board, Chief Executive Officer, President and a director of CNL
Management Company, a registered investment advisor, since its formation in
1976, has served as Chief Executive Officer, Chairman of the Board and a
director of CNL Investment Company, and Chief Executive Officer and Chairman of
the Board of Commercial Net Lease Realty, Inc. since 1992, served as Chief
Executive Officer and Chairman of the Board of CNL Realty Advisors, Inc. from
its inception in 1991 through 1997 at which time such company merged with
Commercial Net Lease Realty, Inc., and has held the position of Chief Executive
Officer, Chairman of the Board and a director of CNL Institutional Advisors,
Inc., a registered investment advisor, since its inception in 1990. Mr. Seneff
previously served on the Florida State Commission on Ethics and is a former
member and past Chairman of the State of Florida Investment Advisory Council,
which recommends to the Florida Board of Administration investments for various
Florida employee retirement funds. The Florida Board of Administration,
Florida's principal investment advisory and money management agency, oversees
the investment of more than $60 billion of retirement funds. Since 1971, Mr.
Seneff has been active in the acquisition, development, and management of real
estate projects and, directly or through an affiliated entity, has served as a
general partner or joint venturer in over 100 real estate ventures involved in
the financing, acquisition, construction, and rental of restaurants, office
buildings, apartment complexes, hotels, and other real estate. Included in these
real estate ventures are approximately 65 privately offered real estate limited
partnerships with investment objectives similar to one or more of the Company's
investment objectives, in which Mr. Seneff, directly or through an affiliated
entity, serves or has served as a general partner. Mr. Seneff received his
degree in Business Administration from Florida State University in 1968.
Robert A. Bourne. Director and President. Mr. Bourne currently holds
the position of President and director of CNL Real Estate Advisors, Inc., the
Advisor. Mr. Bourne also serves as President and a director of CNL American
Properties Fund, Inc. Mr. Bourne currently holds the position of Vice Chairman
of the
- 71 -
<PAGE>
Board of Directors, director and Treasurer of CNL Fund Advisors, Inc. Mr. Bourne
served as President of CNL Fund Advisors, Inc. from the date of its inception
through October 1997. Mr. Bourne is President and Treasurer of CNL Group, Inc.,
President, Treasurer, a director, and a registered principal of CNL Securities
Corp. (the Managing Dealer of this offering), President, Treasurer, a director,
and a registered principal of CNL Investment Company, and Chief Investment
Officer, a director and Treasurer of CNL Institutional Advisors, Inc., a
registered investment advisor. Mr. Bourne served as President of CNL
Institutional Advisors, Inc. from the date of its inception through June 30,
1997. Mr. Bourne served as President and a director from July 1992 to February
1996, served as Secretary and Treasurer from February 1996 through December
1997, and has served as Vice Chairman of the Board of Directors since February
1996, of Commercial Net Lease Realty, Inc. In addition, Mr. Bourne served as
President of CNL Realty Advisors, Inc. from 1991 to February 1996, and served as
a director of CNL Realty Advisors, Inc. from 1991 through December 1997, and as
Treasurer and Vice Chairman from February 1996 through December 1997, at which
time such company merged with Commercial Net Lease Realty, Inc. Upon graduation
from Florida State University in 1970, where he received a B.A. in Accounting,
with honors, Mr. Bourne worked as a certified public accountant and, from
September 1971 through December 1978 was employed by Coopers & Lybrand,
Certified Public Accountants, where he held the position of tax manager
beginning in 1975. From January 1979 until June 1982, Mr. Bourne was a partner
in the accounting firm of Cross & Bourne and from July 1982 through January 1987
he was a partner in the accounting firm of Bourne & Rose, P.A., Certified Public
Accountants. Mr. Bourne, who joined CNL Securities Corp. in 1979, has
participated as a general partner or joint venturer in over 100 real estate
ventures involved in the financing, acquisition, construction, and rental of
restaurants, office buildings, apartment complexes, hotels, and other real
estate. Included in these real estate ventures are approximately 64 privately
offered real estate limited partnerships with investment objectives similar to
one or more of the Company's investment objectives, in which Mr. Bourne,
directly or through an affiliated entity, serves or has served as a general
partner.
G. Richard Hostetter, Esq. Independent Director. Mr. Hostetter also
serves as a director of CNL American Properties Fund, Inc. Mr. Hostetter was
associated with the law firm of Miller and Martin from 1966 through 1989, the
last ten years of such association as a senior partner. As a lawyer, he served
for more than 20 years as counsel for various corporate real estate groups,
fast-food companies and public companies, including The Krystal Company,
resulting in his extensive participation in transactions involving the sale,
lease, and sale/leaseback of approximately 250 restaurant units. Mr. Hostetter
graduated from the University of Georgia and received his J.D. from Emory Law
School in 1966. He is licensed to practice law in Tennessee and Georgia. From
1989 to date, Mr. Hostetter has served as President and General Counsel of
Mills, Ragland & Hostetter, Inc., the corporate general partner of MRH, L.P., a
holding company involved in corporate acquisitions, in which he also is a
general and limited partner.
J. Joseph Kruse. Independent Director. Mr. Kruse also serves as a
director of CNL American Properties Fund, Inc. From 1993 to the present, Mr.
Kruse has been President and Chief Executive Officer of Kruse & Co., Inc., a
merchant banking company engaged in real estate. Formerly, Mr. Kruse was a
Senior Vice President with Textron, Inc. for twenty years, and then served as
Senior Vice President at G. William Miller & Co., a firm founded by the former
Chairman of the Federal Reserve Board and the Treasury Secretary. Mr. Kruse was
responsible for evaluations of commercial real estate and retail shopping mall
projects and continues to serve of counsel to the firm. Mr. Kruse received a
Bachelors of Science in Education degree from the University of Florida in 1957
and a Masters of Science in Administration in 1958 from Florida State
University. He also graduated from the Advanced Management Program of the
Harvard Graduate School of Business.
Richard C. Huseman. Independent Director. Mr. Huseman also serves as a
director of CNL American Properties Fund, Inc. Mr. Huseman is presently a
professor in the College of Business Administration, and from 1990 through 1995,
served as the Dean of the College of Business Administration of the University
of Central Florida. He has served as a consultant in the area of managerial
strategies to a number of Fortune 500 corporations, including IBM, AT&T, and 3M,
as well as to several branches of the U.S.
- 72 -
<PAGE>
government, including the U.S. Department of Health and Human Services, the U.S.
Department of Justice, and the Internal Revenue Service. Mr. Huseman received a
B.A. from Greenville College in 1961 and an M.A. and a Ph.D. from the University
of Illinois in 1963 and 1965, respectively.
Charles A. Muller. Executive Vice President. Mr. Muller joined CNL in
October 1996 and is responsible for the planning and implementation of CNL's
interest in hotel industry investments, including acquisitions, development,
project analysis and due diligence. Mr. Muller currently serves as Executive
Vice President of CNL Real Estate Advisors, Inc., the Advisor, and Chief
Operating Officer of CNL Hotel Development Company. Mr. Muller joined CNL
following more than 15 years of broadbased hotel industry experience. From 1993
to 1996, Mr. Muller served as a Director of Operations for Tishman Hotel
Corporation where he was responsible for the company's market review and
valuation analysis efforts. At Tishman, Mr. Muller played a significant role in
the development of a new 600-room golf resort in Puerto Rico, and was active in
several project management, asset management and development assignments. From
1989 to 1993, Mr. Muller served as a Development Manager for Wyndham Hotels &
Resorts where he was responsible for new business development and company growth
through acquisitions, development and management contracts. At Wyndham, Mr.
Muller was also responsible for market review and feasibility analysis efforts
in markets across the United States and the Caribbean. Prior to joining Wyndham,
Mr. Muller worked for Pannell Kerr Forster as a hotel industry consultant and
spent four years with AIRCOA (currently Richfield Hospitality) where he was
responsible for capital expenditure planning, property renovations and
construction management. From 1981 through 1985, Mr. Muller held several
management positions in hotel operations. Mr. Muller received a Bachelor of
Science degree in Hotel Administration from Cornell University in 1981, has
served on the Market, Finance and Investment Analysis Committee of the American
Hotel & Motel Association.
John T. Walker. Executive Vice President. Mr. Walker joined CNL Fund
Advisors, Inc. in September 1994, as Senior Vice President, responsible for
Research and Development. He currently serves as the Executive Vice President of
CNL Real Estate Advisors, Inc., the Advisor. Mr. Walker is also Chief Operating
Officer and Executive Vice President of CNL American Properties Fund, Inc. and
CNL Fund Advisors, Inc. From May 1992 to May 1994, he was Executive Vice
President for Finance and Administration and Chief Financial Officer of Z Music,
Inc., a cable television network which was subsequently acquired by Gaylord
Entertainment, where he was responsible for overall financial and administrative
management and planning. From January 1990 through April 1992, Mr. Walker was
Chief Financial Officer of the First Baptist Church in Orlando, Florida. From
April 1984 through December 1989, he was a partner in the accounting firm of
Chastang, Ferrell & Walker, P.A., where he was the partner in charge of audit
and consulting services, and from 1981 to 1984, Mr. Walker was a Senior
Consultant/Audit Senior at Price Waterhouse. Mr. Walker is a Cum Laude graduate
of Wake Forest University with a B.S. in Accountancy and is a certified public
accountant.
Jeanne A. Wall. Executive Vice President. Ms. Wall serves as Executive
Vice President of CNL Real Estate Advisors, Inc., the advisor to the Company.
Ms. Wall is also Executive Vice President of CNL American Properties Fund, Inc.
and CNL Fund Advisors, Inc. Ms. Wall has served as Chief Operating Officer of
CNL Investment Company and of CNL Securities Corp. since November 1994 and has
served as Executive Vice President of CNL Investment Company since January 1991.
In 1984, Ms. Wall joined CNL Securities Corp. In 1985, Ms. Wall became Vice
President of CNL Securities Corp. in 1987, she became a Senior Vice President
and in July 1997, she became Executive Vice President of CNL Securities Corp. In
this capacity, Ms. Wall serves as national marketing and sales director and
oversees the national marketing plan for the CNL investment programs. In
addition, Ms. Wall oversees product development, partnership administration and
investor services for programs offered through participating brokers and
corporate communications for CNL Group, Inc. and Affiliates. Ms. Wall also has
served as Senior Vice President of CNL Institutional Advisors, Inc., a
registered investment advisor, from 1990 to 1993, as Vice President of CNL
Realty Advisors, Inc. since its inception in 1991 through 1997, and as Vice
President of Commercial Net Lease Realty, Inc. since 1992 through 1997. Ms. Wall
holds a B.A. in Business Administration from Linfield College and is a
registered
- 73 -
<PAGE>
principal of CNL Securities Corp. Ms. Wall currently serves as a trustee on the
Board of the Investment Program Association and on the Direct Participation
Program committee for the National Association of Securities Dealers.
Lynn E. Rose. Secretary and Treasurer. Ms. Rose serves as Secretary,
Treasurer and a director of CNL Real Estate Advisors, Inc., the Advisor. Ms.
Rose is also Secretary and Treasurer of CNL American Properties Fund, Inc. and
Secretary and a director of CNL Fund Advisors, Inc. Ms. Rose, a certified public
accountant, has served as Secretary of CNL Group, Inc. since 1987, as Chief
Financial Officer of CNL Group, Inc., since December 1993, and served as
Controller of CNL Group, Inc. from 1987 until December 1993. In addition, Ms.
Rose has served as Chief Financial Officer and Secretary of CNL Securities Corp.
since July 1994. She has served as Chief Operating Officer, Vice President and
Secretary of CNL Corporate Services, Inc. since November 1994. Ms. Rose also has
served as Chief Financial Officer and Secretary of CNL Institutional Advisors,
Inc. since its inception in 1990 as Secretary and a director of CNL Realty
Advisors, Inc. from its inception in 1991 through 1997, and as Treasurer of CNL
Realty Advisors, Inc. from 1991 to February 1996. In addition, Ms. Rose served
as Secretary and Treasurer of Commercial Net Lease Realty, Inc. from 1992 to
February 1996. Ms. Rose also currently serves as Secretary for approximately 50
additional corporations. Ms. Rose oversees the management information services,
administration, legal compliance, accounting, tenant compliance, and reporting
for over 250 corporations, partnerships and joint ventures. Prior to joining
CNL, Ms. Rose was a partner with Robert A. Bourne in the accounting firm of
Bourne & Rose, P.A., Certified Public Accountants. Ms. Rose holds a B.A. in
Sociology from the University of Central Florida. She was licensed as a
certified public accountant in 1979.
INDEPENDENT DIRECTORS
Under the Articles of Incorporation, a majority of the Board of
Directors must consist of Independent Directors, except for a period of 90 days
after the death, removal or resignation of an Independent Director. The
Independent Directors shall nominate replacements for vacancies in the
Independent Director positions. An Independent Director may not, directly or
indirectly (including through a member of his immediately family), own any
interest in, be employed by, have any present business or professional
relationship with, serve as an officer or director of the Advisor or its
Affiliates, or serve as a director of more than three REITs organized by the
Advisor or its Affiliates. Except to carry out the responsibilities of a
Director, an Independent Director may not perform material services for the
Company.
COMMITTEES OF THE BOARD OF DIRECTORS
The Company has a standing Audit Committee, the members of which are
selected by the full Board of Directors each year. The Audit Committee makes
recommendations to the Board of Directors in accordance with those of the
independent accountants of the Company. The Board of Directors shall review with
such accounting firm the scope of the audit and the results of the audit upon
its completion.
In addition, the Company has formed a Compensation Committee, the
members of which are selected by the full Board of Directors each year.
At least a majority of the members of each committee of the Company's
Board of Directors must be Independent Directors.
COMPENSATION OF DIRECTORS AND EXECUTIVE OFFICERS
Each Director is entitled to receive $6,000 annually for serving on the
Board of Directors, as well as fees of $750 per meeting attended ($375 for each
telephonic meeting in which the Director participates), including committee
meetings. No executive officer or Director of the Company has received a bonus
from the Company. The Company will not pay any compensation to the officers and
Directors of the Company who also serve as officers and directors of the
Advisor.
- 74 -
<PAGE>
MANAGEMENT COMPENSATION
For a description of the types, recipients, methods of computation, and
estimated amounts of all compensation, fees, and distributions to be paid
directly or indirectly by the Company to the Advisor, Managing Dealer, and their
Affiliates, see "Management Compensation."
THE ADVISOR AND THE ADVISORY AGREEMENT
THE ADVISOR
CNL Real Estate Advisors, Inc. is a Florida corporation organized in
January 1997 to provide management, advisory and administrative services. The
Company entered into the Advisory Agreement with the Advisor effective July 9,
1997. CNL Real Estate Advisors, Inc., as Advisor, has a fiduciary responsibility
to the Company and the stockholders.
The directors and officers of the Advisor are as follows:
James M. Seneff, Jr. ...............Chairman of the Board, Chief Executive
Officer, and Director
Robert A. Bourne....................President and Director
Charles A. Muller...................Executive Vice President
John T. Walker......................Executive Vice President
Jeanne A. Wall......................Executive Vice President
Lynn E. Rose........................Secretary, Treasurer and Director
The backgrounds of these individuals are described above under
"Management - Directors and Executive Officers."
The Advisor employs personnel, in addition to the directors and
executive officers listed above, who have extensive experience in selecting and
managing restaurant properties similar to the Properties.
The Advisor currently owns 20,000 shares of Common Stock. The Advisor
may not sell these shares while the Advisory Agreement is in effect, although
the Advisor may transfer such shares to Affiliates. Neither the Advisor, a
Director, or any Affiliate may vote or consent on matters submitted to the
stockholders regarding removal of, or any transaction between the Company and
the Advisor, Directors, or an Affiliate. In determining the requisite percentage
in interest of shares of Common Stock necessary to approve a matter on which the
Advisor, Directors, and any Affiliate may not vote or consent, any shares of
Common Stock owned by any of them will not be included.
THE ADVISORY AGREEMENT
Under the terms of the Advisory Agreement, the Advisor has
responsibility for the day-to-day operations of the Company, administers the
Company's bookkeeping and accounting functions, serves as the Company's
consultant in connection with policy decisions to be made by the Board of
Directors, manages the Company's Properties and Mortgage Loans, administers the
Company's Secured Equipment Lease program and renders other services as the
Board of Directors deems appropriate. The Advisor is subject to the supervision
of the Company's Board of Directors and has only such functions as are delegated
to it.
The Company will reimburse the Advisor for all of the costs it incurs
in connection with the services it provides to the Company, including, but not
limited to: (i) Organizational and Offering Expenses, which are defined to
include expenses attributable to preparing the documents relating to this
offering, the formation and organization of the Company, qualification of the
Shares for sale in the states, escrow arrangements, filing fees and expenses
attributable to selling the Shares, (ii) Selling Commissions, advertising
expenses, expense
- 75 -
<PAGE>
reimbursements, and legal and accounting fees, (iii) the actual cost of goods
and materials used by the Company and obtained from entities not affiliated with
the Advisor, including brokerage fees paid in connection with the purchase and
sale of securities, (iv) administrative services (including personnel costs;
provided, however that no reimbursement shall be made for costs of personnel to
the extent that such personnel perform services in transactions for which the
Advisor receives a separate fee, at the lesser of actual cost or 90% of the
competitive rate charged by unaffiliated persons providing similar goods and
services in the same geographic location), (v) Acquisition Expenses, which are
defined to include expenses related to the selection and acquisition of
Properties, for goods and services provided by the Advisor at the lesser of
actual cost or 90% of the competitive rate charged by unaffiliated persons
providing similar goods and services in the same geographic location), and (vi)
expenses related to negotiating and servicing the Mortgage Loans and Secured
Equipment Leases.
The Company shall not reimburse the Advisor at the end of any fiscal
quarter for Operating Expenses that, in the four consecutive fiscal quarters
then ended (the "Expense Year") exceed the greater of 2% of Average Invested
Assets or 25% of Net Income (the "2%/25% Guidelines") for such year. Within 60
days after the end of any fiscal quarter of the Company for which total
Operating Expenses for the Expense Year exceed the 2%/25% Guidelines, the
Advisor shall reimburse the Company the amount by which the total Operating
Expenses paid or incurred by the Company exceed the 2%/25% Guidelines.
The Company will not reimburse the Advisor or its Affiliates for
services for which the Advisor or its Affiliates are entitled to compensation in
the form of a separate fee.
Pursuant to the Advisory Agreement, the Advisor is entitled to receive
certain fees and reimbursements, as listed in "Management Compensation." The
Subordinated Incentive Fee payable to the Advisor under certain circumstances if
Listing occurs may be paid, at the option of the Company, in cash, in Shares, by
delivery of a promissory note payable to the Advisor, or by any combination
thereof. In the event the Subordinated Incentive Fee is paid to the Advisor
following Listing, no Performance Fee, as described below, will be paid to the
Advisor under the Advisory Agreement nor will any additional share of Net Sales
Proceeds be paid to the Advisor. The total of all Acquisition Fees and any
Acquisition Expenses payable to the Advisor and its Affiliates shall be
reasonable and shall not exceed an amount equal to 6% of the Real Estate Asset
Value of a Property, or in the case of a Mortgage Loan, 6% of the funds
advanced, unless a majority of the Board of Directors, including a majority of
the Independent Directors not otherwise interested in the transaction, approves
fees in excess of this limit subject to a determination that the transaction is
commercially competitive, fair and reasonable to the Company. The Acquisition
Fees payable in connection with the selection or acquisition of any Property
shall be reduced to the extent that, and if necessary to limit, the total
compensation paid to all persons involved in the acquisition of such Property to
the amount customarily charged in arm's-length transactions by other persons or
entities rendering similar services as an ongoing public activity in the same
geographical location and for comparable types of Properties, and to the extent
that other acquisition fees, finder's fees, real estate commissions, or other
similar fees or commissions are paid by any person in connection with the
transaction.
If the Advisor or a CNL Affiliate performs services that are outside of
the scope of the Advisory Agreement, compensation is at such rates and in such
amounts as are agreed to by the Advisor and the Independent Directors of the
Company.
Further, if Listing occurs, the Company automatically will become a
perpetual life entity. At such time, the Company and the Advisor will negotiate
in good faith a fee structure appropriate for an entity with a perpetual life,
subject to approval by a majority of the Independent Directors. In negotiating a
new fee structure, the Independent Directors shall consider all of the factors
they deem relevant. These are expected to include, but will not necessarily be
limited to: (i) the amount of the advisory fee in relation to the asset value,
composition, and profitability of the Company's portfolio; (ii) the success of
the Advisor in generating opportunities that meet the investment objectives of
the Company; (iii) the rates charged to other REITs and to investors other than
REITs by advisors that perform the same or similar services; (iv) additional
revenues
- 76 -
<PAGE>
realized by the Advisor and its Affiliates through their relationship with the
Company, including loan administration, underwriting or broker commissions,
servicing, engineering, inspection and other fees, whether paid by the Company
or by others with whom the Company does business; (v) the quality and extent of
service and advice furnished by the Advisor; (vi) the performance of the
investment portfolio of the Company, including income, conservation or
appreciation of capital, and number and frequency of problem investments; and
(vii) the quality of the Property, Mortgage Loan and Secured Equipment Lease
portfolio of the Company in relationship to the investments generated by the
Advisor for its own account. The Board of Directors, including a majority of the
Independent Directors, may not approve a new fee structure that, in its
judgment, is more favorable to the Advisor than the current fee structure.
The Advisory Agreement, which was entered into by the Company with the
unanimous approval of the Board of Directors, including the Independent
Directors, expires one year after the date of execution, on July 10, 1999,
subject to successive one-year renewals upon mutual consent of the parties. In
the event that a new Advisor is retained, the previous Advisor will cooperate
with the Company and the Directors in effecting an orderly transition of the
advisory functions. The Board of Directors (including a majority of the
Independent Directors) shall approve a successor Advisor only upon a
determination that the Advisor possesses sufficient qualifications to perform
the advisory functions for the Company and that the compensation to be received
by the new Advisor pursuant to the new Advisory Agreement is justified.
The Advisory Agreement may be terminated without cause or penalty by
either party, or by the mutual consent of the parties (by a majority of the
Independent Directors of the Company or a majority of the directors of the
Advisor, as the case may be), upon 60 days' prior written notice. At that time,
the Advisor shall be entitled to receive the Performance Fee if performance
standards satisfactory to a majority of the Board of Directors, including a
majority of the Independent Directors, when compared to (a) the performance of
the Advisor in comparison with its performance for other entities, and (b) the
performance of other advisors for similar entities, have been met. If Listing
has not occurred, the Performance Fee, if any, shall equal 10% of the amount, if
any, by which (i) the appraised value of the assets of the Company on the date
of termination of the Advisory Agreement (the "Termination Date"), less the
amount of all indebtedness secured by the assets of the Company, plus the total
Distributions made to stockholders from the Company's inception through the
Termination Date, exceeds (ii) Invested Capital plus an amount equal to the
Stockholders' 8% Return from inception through the Termination Date. The Advisor
shall be entitled to receive all accrued but unpaid compensation and expense
reimbursements in cash within 30 days of the Termination Date. All other amounts
payable to the Advisor in the event of a termination shall be evidenced by a
promissory note and shall be payable from time to time. The Performance Fee
shall be paid in 12 equal quarterly installments without interest on the unpaid
balance, provided, however, that no payment will be made in any quarter in which
such payment would jeopardize the Company's REIT status, in which case any such
payment or payments will be delayed until the next quarter in which payment
would not jeopardize REIT status. Notwithstanding the preceding sentence, any
amounts which may be deemed payable at the date the obligation to pay the
Performance Fee is incurred which relate to the appreciation of the Company's
assets shall be an amount which provides compensation to the terminated Advisor
only for that portion of the holding period for the respective assets during
which such terminated Advisor provided services to the Company. If Listing
occurs, the Performance Fee, if any, payable thereafter will be as negotiated
between the Company and the Advisor. The Advisor shall not be entitled to
payment of the Performance Fee in the event the Advisory Agreement is terminated
because of failure of the Company and the Advisor to establish a fee structure
appropriate for a perpetual-life entity at such time, if any, as the Shares
become listed on a national securities exchange or over-the-counter market. The
Performance Fee, to the extent payable at the time of Listing, will not be paid
in the event that the Subordinated Incentive Fee is paid.
The Advisor has the right to assign the Advisory Agreement to an
Affiliate subject to approval by the Independent Directors of the Company. The
Company has the right to assign the Advisory Agreement to any successor to all
of its assets, rights, and obligations.
- 77 -
<PAGE>
The Advisor will not be liable to the Company or its stockholders or
others, except by reason of acts constituting bad faith, fraud, misconduct, or
negligence, and will not be responsible for any action of the Board of Directors
in following or declining to follow any advice or recommendation given by it.
The Company has agreed to indemnify the Advisor with respect to acts or
omissions of the Advisor undertaken in good faith, in accordance with the
foregoing standards and pursuant to the authority set forth in the Advisory
Agreement. Any indemnification made to the Advisor may be made only out of the
net assets of the Company and not from stockholders.
CERTAIN TRANSACTIONS
The Managing Dealer is entitled to receive Selling Commissions
amounting to 7.5% of the total amount raised from the sale of Shares of common
stock for services in connection with the offering of Shares, a substantial
portion of which has been or will be paid as commissions to other
broker-dealers. For the period January 1, 1998 through September 1, 1998, and
the year ended December 31, 1997, the Company incurred $1,155,816 and $849,405,
respectively, of such fees, a substantial portion of which was paid by the
Managing Dealer as commissions to other broker-dealers.
In addition, the Managing Dealer is entitled to receive a Marketing
Support and Due Diligence Expense Reimbursement Fee equal to 0.5% of the total
amount raised from the sale of Shares, a portion of which may be reallowed to
other broker-dealers. For the period January 1, 1998 through September 1, 1998,
and the year ended December 31, 1997, the Company incurred $77,054 and $56,627,
respectively, of such fees, substantially all of which were reallowed to other
broker-dealers and from which all bona fide due diligence expenses were paid.
The Advisor is entitled to receive Acquisition Fees for services in
identifying the Properties and structuring the terms of the acquisition and
leases of the Properties and structuring the terms of the Mortgage Loans equal
to 4.5% of the total amount raised from the sale of Shares, loan proceeds from
Permanent Financing and amounts outstanding on the Line of Credit, if any, at
the time of Listing, but excluding that portion of the Permanent Financing used
to finance Secured Equipment Leases. For the period January 1, 1998 through
September 1, 1998, and the year ended December 31, 1997, the Company incurred
$693,489 and $509,643, respectively, of such fees.
The Advisor and its Affiliates provide administrative services to the
Company (including administrative services in connection with the offering of
Shares) on a day-to-day basis. For the six months ended June 30, 1998, the year
ended December 31, 1997 and the period June 12, 1996 (date of inception) through
December 31, 1996, the Company incurred a total of $230,419, $192,224 and
$28,665, respectively, for these services, $154,337, $185,335 and $28,665,
respectively, of such costs representing stock issuance costs and $76,082,
$6,889 and $0, respectively, representing general operating and administrative
expenses, including costs related to preparing and distributing reports required
by the Securities and Exchange Commission.
PRIOR PERFORMANCE INFORMATION
The information presented in this section represents the historical
experience of certain real estate programs organized by certain officers and
directors of the Advisor. PRIOR PUBLIC PROGRAMS HAVE INVESTED ONLY IN RESTAURANT
PROPERTIES AND HAVE NOT INVESTED IN HOTEL PROPERTIES. INVESTORS IN THE COMPANY
SHOULD NOT ASSUME THAT THEY WILL EXPERIENCE RETURNS, IF ANY, COMPARABLE TO THOSE
EXPERIENCED BY INVESTORS IN SUCH PRIOR PUBLIC REAL ESTATE PROGRAMS. INVESTORS
WHO PURCHASE SHARES IN THE COMPANY WILL NOT THEREBY ACQUIRE ANY OWNERSHIP
INTEREST IN ANY PARTNERSHIPS OR CORPORATIONS TO WHICH THE FOLLOWING INFORMATION
RELATES.
- 78 -
<PAGE>
Two Directors of the Company, Robert A. Bourne and James M. Seneff,
Jr., individually or with others have served as general partners of 88 and 89
real estate limited partnerships, respectively, including the 18 publicly
offered CNL Income Fund partnerships, and as directors and officers of CNL
American Properties Fund, Inc., which purchased restaurant properties similar to
those to be acquired by the Company, listed in the table below. None of these
limited partnerships or the unlisted REIT has been audited by the IRS. Of
course, there is no guarantee that the Company will not be audited. Based on an
analysis of the operating results of the prior partnerships, the general
partners of these partnerships believe that each of such partnerships has met or
is meeting its principal investment objectives in a timely manner.
CNL Realty Corporation, which was organized as a Florida corporation in
November 1985 and whose sole stockholders are Messrs. Bourne and Seneff,
currently serves as the corporate general partner with Messrs. Bourne and Seneff
as individual general partners of 18 CNL Income Fund limited partnerships, all
of which were organized to invest in fast-food, family-style and in the case of
two of the partnerships, casual-dining restaurant properties similar to those
that the Company intends to acquire and have investment objectives similar to
those of the Company. In addition, Messrs. Bourne and Seneff currently serve as
directors and officers of CNL American Properties Fund, Inc., an unlisted public
REIT, which was organized to invest in fast-food, family-style and casual-dining
restaurant properties, mortgage loans and secured equipment leases similar to
those that the Company intends to invest in and has investment objectives
similar to those of the Company. As of June 30, 1998, the 18 partnerships and
the unlisted REIT had raised a total of $1,129,500,099 from a total of 72,558
investors, and had invested in 1,033 fast-food, family-style and casual-dining
restaurant properties. Certain additional information relating to the offerings
and investment history of the 18 public partnerships and the unlisted public
REIT is set forth below.
<TABLE>
<CAPTION>
Number of Date 90% of Net
Limited Proceeds Fully
Maximum Partnership Invested or
Name of Offering Units or Committed to
Entity Amount (1) Date Closed Shares Sold Investment (2)
- ------ ---------- ----------- ----------- --------------
<S> <C>
CNL Income $15,000,000 December 31, 1986 30,000 December 1986
Fund, Ltd. (30,000 units)
CNL Income $25,000,000 August 21, 1987 50,000 November 1987
Fund II, Ltd. (50,000 units)
CNL Income $25,000,000 April 29, 1988 50,000 June 1988
Fund III, Ltd. (50,000 units)
CNL Income $30,000,000 December 6, 1988 60,000 February 1989
Fund IV, Ltd. (60,000 units)
CNL Income $25,000,000 June 7, 1989 50,000 December 1989
Fund V, Ltd. (50,000 units)
CNL Income $35,000,000 January 19, 1990 70,000 May 1990
Fund VI, Ltd. (70,000 units)
CNL Income $30,000,000 August 1, 1990 30,000,000 January 1991
Fund VII, Ltd. (30,000,000 units)
CNL Income $35,000,000 March 7, 1991 35,000,000 September 1991
Fund VIII, Ltd. (35,000,000 units)
CNL Income $35,000,000 September 6, 1991 3,500,000 November 1991
Fund IX, Ltd. (3,500,000 units)
- 79 -
<PAGE>
CNL Income $40,000,000 April 22, 1992 4,000,000 June 1992
Fund X, Ltd. (4,000,000 units)
CNL Income $40,000,000 October 8, 1992 4,000,000 September 1992
Fund XI, Ltd. (4,000,000 units)
CNL Income $45,000,000 April 15, 1993 4,500,000 July 1993
Fund XII, Ltd. (4,500,000 units)
CNL Income $40,000,000 September 13, 1993 4,000,000 August 1993
Fund XIII, Ltd. (4,000,000 units)
CNL Income $45,000,000 March 23, 1994 4,500,000 May 1994
Fund XIV, Ltd. (4,500,000 units)
CNL Income $40,000,000 September 22, 1994 4,000,000 December 1994
Fund XV, Ltd. (4,000,000 units)
CNL Income $45,000,000 July 18, 1995 4,500,000 August 1995
Fund XVI, Ltd. (4,500,000 units)
CNL Income $30,000,000 October 10, 1996 3,000,000 December 1996
Fund XVII, Ltd. (3,000,000 units)
CNL Income $35,000,000 February 6, 1998 3,500,000 December 1997
Fund XVIII, Ltd. (3,500,000 units)
CNL American $745,000,000 (3) (3) (3)
Properties (74,500,000
Fund, Inc. shares)
</TABLE>
- ------------------------------------
(1) The amount stated includes the exercise by the general partners of each
partnership of their option to increase by $5,000,000 the maximum size of
the offering of CNL Income Fund, Ltd., CNL Income Fund II, Ltd., CNL
Income Fund III, Ltd., CNL Income Fund IV, Ltd., CNL Income Fund VI, Ltd.,
CNL Income Fund VIII, Ltd., CNL Income Fund X, Ltd., CNL Income Fund XII,
Ltd., CNL Income Fund XIV, Ltd., CNL Income Fund XVI, Ltd. and CNL Income
Fund XVIII, Ltd.
(2) For a description of the property acquisitions by these programs, see the
table set forth on the following page.
(3) In April 1995, CNL American Properties Fund, Inc. commenced an offering of
a maximum of 15,000,000 shares of common stock ($150,000,000), excluding
1,500,000 shares ($15,000,000), available to investors participating in
the distribution reinvestment plan. On February 6, 1997, the initial
offering closed upon receipt of subscriptions totalling $150,591,765
(15,059,177 shares), including $591,765 (59,177 shares) through the
reinvestment plan. Following completion of the initial offering on
February 6, 1997, CNL American Properties Fund, Inc. commenced a
subsequent offering (the "1997 Offering ") of up to 27,500,000 shares
($275,000,000) of common stock. On March 2, 1998, the 1997 Offering closed
upon receipt of subscriptions totalling $251,872,648 (25,187,265 shares),
including $1,872,648 (187,265 shares) through the reinvestment plan.
Following completion of the 1997 Offering on March 2, 1998, CNL American
Properties Fund, Inc. commenced a subsequent offering (the "1998 Offering
") of up to 34,500,000 shares ($345,000,000) of common stock. As of June
30, 1998, CNL American Properties Fund, Inc. had received subscriptions
totalling $111,880,663 (11,188,006 shares), including $1,828,291 (182,829
shares) through the reinvestment plan, from the 1998 Offering. As of such
date, CNL American Properties Fund, Inc. had purchased 320 properties.
- 80 -
<PAGE>
As of June 30, 1998, Mr. Seneff and Mr. Bourne, directly or through
affiliated entities, also had served as joint general partners of 69 nonpublic
real estate limited partnerships. The offerings of 68 of these 69 nonpublic
limited partnerships had terminated as of June 30, 1998. These 68 partnerships
raised a total of $170,327,353 from approximately 4,241 investors, and
purchased, directly or through participation in a joint venture or limited
partnership, interests in a total of 206 projects as of June 30, 1998. These 206
projects consist of 19 apartment projects (comprising 11% of the total amount
raised by all 68 partnerships), 13 office buildings (comprising 5% of the total
amount raised by all 68 partnerships), 159 fast-food or family-style restaurant
property and business investments (comprising 68% of the total amount raised by
all 68 partnerships), one condominium development (comprising .5% of the total
amount raised by all 68 partnerships), four hotels/motels (comprising 5% of the
total amount raised by all 68 partnerships), eight commercial/retail properties
(comprising 10% of the total amount raised by all 68 partnerships), and two
tracts of undeveloped land (comprising .5% of the total amount raised by all 68
partnerships). The offering of the one remaining nonpublic limited partnership
(offering totalling $15,000,000) had raised $13,637,500 from 263 investors
(approximately 90.91% of the total offering amount) as of June 30, 1998.
Mr. Bourne also has served, without Mr. Seneff, as a general partner of
one additional nonpublic real estate limited partnership program which raised a
total of $600,000 from 13 investors and purchased, through participation in a
limited partnership, one apartment building located in Georgia with a purchase
price of $1,712,000.
Mr. Seneff also has served, without Mr. Bourne, as a general partner of
two additional nonpublic real estate limited partnerships which raised a total
of $240,000 from 12 investors and purchased two office buildings with an
aggregate purchase price of $928,390. Both of the office buildings are located
in Florida.
Of the 89 real estate limited partnerships whose offerings had closed
as of June 30, 1998 (including 18 CNL Income Fund limited partnerships) in which
Mr. Seneff and/or Mr. Bourne serve or have served as general partners in the
past ten years, 38 invested in restaurant properties leased on a "triple-net"
basis, including seven which also invested in franchised restaurant businesses
(accounting for approximately 93% of the total amount raised by all 89 real
estate limited partnerships).
The following table sets forth summary information, as of June 30,
1998, regarding property acquisitions by the 18 limited partnerships and the one
unlisted REIT that, either individually or through a joint venture or
partnership arrangement, acquired restaurant properties and that have investment
objectives similar to those of the Company.
<TABLE>
<CAPTION>
Name of Type of Method of Type of
Entity Property Location Financing Program
- ------ -------- -------- --------- -------
<S> <C>
CNL Income 22 fast-food or AL, AZ, CA, FL, All cash Public
Fund, Ltd. family-style GA, LA, MD, OK,
restaurants PA, TX, VA, WA
CNL Income 49 fast-food or AL, AZ, CO, FL, All cash Public
Fund II, Ltd. family-style GA, IL, IN, KS,
restaurants LA, MI, MN, MO,
NC, NM, OH, TN,
TX, WA, WY
CNL Income 37 fast-food or AZ, CA, CO, FL, All cash Public
Fund III, Ltd. family-style GA, IA, IL, IN,
restaurants KS, KY, MD, MI,
MN, MO, NC,
NE, OK, TX
- 81 -
<PAGE>
CNL Income 45 fast-food or AL, DC, FL, GA, All cash Public
Fund IV, Ltd. family-style IL, IN, KS, MA,
restaurants MD, MI, MS, NC,
OH, PA, TN, TX,
VA
CNL Income 35 fast-food or AZ, FL, GA, IL, All cash Public
Fund V, Ltd. family-style IN, MI, NH, NY,
restaurants OH, SC, TN, TX,
UT, WA
CNL Income 55 fast-food or AR, AZ, FL, GA, All cash Public
Fund VI, Ltd. family-style IL, IN, KS, MA,
restaurants MI, MN, NC, NE,
NM, NY, OH,
OK, PA, TN, TX,
VA, WA, WY
CNL Income 49 fast-food or AZ, CO, FL, GA, All cash Public
Fund VII, Ltd. family-style IN, LA, MI, MN,
restaurants NC, OH, SC, TN,
TX, UT, WA
CNL Income 42 fast-food or AZ, FL, IN, LA, All cash Public
Fund VIII, Ltd. family-style MI, MN, NC, NY,
restaurants OH, TN, TX, VA
CNL Income 43 fast-food or AL, CO, FL, GA, All cash Public
Fund IX, Ltd. family-style IL, IN, LA, MI,
restaurants MN, MS, NC, NH,
NY, OH, SC, TN,
TX
CNL Income 51 fast-food or AL, CA, CO, FL, All cash Public
Fund X, Ltd. family-style ID, IL, LA, MI,
restaurants MO, MT, NC,
NH, NM, NY,
OH, PA, SC, TN,
TX
CNL Income 40 fast-food or AL, AZ, CA, CO, All cash Public
Fund XI, Ltd. family-style CT, FL, KS, LA,
restaurants MA, MI, MS, NC,
NH, NM, OH,
OK, PA, SC, TX,
VA, WA
CNL Income 49 fast-food or AL, AZ, CA, FL, All cash Public
Fund XII, Ltd. family-style GA, LA, MO, MS,
restaurants NC, NM, OH, SC,
TN, TX, WA
- 82 -
<PAGE>
CNL Income 50 fast-food or AL, AR, AZ, CA, All cash Public
Fund XIII, Ltd. family-style CO, FL, GA, IN,
restaurants KS, LA, MD, NC,
OH, PA, SC, TN,
TX, VA
CNL Income 64 fast-food or AL, AZ, CO, FL, All cash Public
Fund XIV, Ltd. family-style GA, KS, LA, MN,
restaurants MO, MS, NC, NJ,
NV, OH, SC, TN,
TX, VA
CNL Income 55 fast-food or AL, CA, FL, GA, All cash Public
Fund XV, Ltd. family-style KS, KY, MN,
restaurants MO, MS, NC, NJ,
NM, OH, OK, PA,
SC, TN, TX, VA
CNL Income 47 fast-food or AZ, CA, CO, DC, All cash Public
Fund XVI, Ltd. family-style FL, GA, ID, IN,
restaurants KS, MN, MO, NC,
NM, NV, OH, TN,
TX, UT, WI
CNL Income 29 fast-food, CA, FL, GA, IL, All cash Public
Fund XVII, Ltd. family-style or IN, MI, NC, NV,
casual-dining OH, SC, TN, TX
restaurant
properties
CNL Income 23 fast-food, AZ, CA, FL, GA, All cash Public
Fund XVIII, Ltd. family-style or IL, KY, MD, MN,
casual-dining NC, NV, NY, OH,
restaurant properties TN, TX
CNL American 320 fast-food, AL, AZ, CA, CO, All cash Public REIT
Properties Fund, Inc. family-style or CT, DE, FL, GA,
casual-dining IA, ID, IL, IN,
restaurants KS, KY, MD, MI,
MN, MO, NC,
NE, NJ, NM, NV,
NY, OH, OK, OR,
PA, RI, SC, TN,
TX, UT, VA, WA,
WI, WV
</TABLE>
-----------------------------------------------------
A more detailed description of the acquisitions by real estate limited
partnerships and the unlisted REIT sponsored by Messrs. Bourne and Seneff is set
forth in prior performance Table VI, included in Part II of the registration
statement filed with the Securities and Exchange Commission for this offering. A
copy of Table VI is available to stockholders from the Company upon request,
free of charge. In addition, upon request to the Company, the Company will
provide, without charge, a copy of the most recent Annual Report on Form 10-K
filed with the
- 83 -
<PAGE>
Securities and Exchange Commission for CNL Income Fund, Ltd., CNL Income Fund
II, Ltd., CNL Income Fund III, Ltd., CNL Income Fund IV, Ltd., CNL Income Fund
V, Ltd., CNL Income Fund VI, Ltd., CNL Income Fund VII, Ltd., CNL Income Fund
VIII, Ltd., CNL Income Fund IX, Ltd., CNL Income Fund X, Ltd., CNL Income Fund
XI, Ltd., CNL Income Fund XII, Ltd., CNL Income Fund XIII, Ltd., CNL Income Fund
XIV, Ltd., CNL Income Fund XV, Ltd., CNL Income Fund XVI, Ltd., CNL Income Fund
XVII, Ltd., CNL Income Fund XVIII, Ltd. and CNL American Properties Fund, Inc.
as well as a copy, for a reasonable fee, of the exhibits filed with such
reports.
In order to provide potential purchasers of Shares in the Company with
information to enable them to evaluate the prior experience of the Messrs.
Seneff and Bourne as general partners of real estate limited partnerships and as
directors and officers of the unlisted REIT, including those set forth in the
foregoing table, certain financial and other information concerning those
limited partnerships and the unlisted REIT with investment objectives similar to
one or more of the Company's investment objectives is provided in the Prior
Performance Tables included as Exhibit C. Information about the previous public
partnerships, the offerings of which became fully subscribed between July 1993
and June 1998, is included therein. Potential stockholders are encouraged to
examine the Prior Performance Tables attached as Exhibit C (in Table III), which
include information as to the operating results of these prior partnerships, for
more detailed information concerning the experience of Messrs. Seneff and
Bourne.
INVESTMENT OBJECTIVES AND POLICIES
GENERAL
The Company's primary investment objectives are to preserve, protect,
and enhance the Company's assets while (i) making quarterly Distributions ; (ii)
obtaining fixed income through the receipt of base rent, and increasing the
Company's income (and Distributions) and providing protection against inflation
through automatic increases in base rent and/or receipt of percentage rent, and
obtaining fixed income through the receipt of payments on Mortgage Loans and
Secured Equipment Leases; (iii) continuing to qualify as a REIT for federal
income tax purposes; and (iv) providing stockholders of the Company with
liquidity of their investment, either in whole or in part, within five to ten
years after commencement of the offering, through (a) Listing, or, (b) if
Listing does not occur within ten years after commencement of the offering, the
commencement of orderly Sales of the Company's assets, outside the ordinary
course of business and consistent with its objective of qualifying as a REIT,
and distribution of the proceeds thereof. The sheltering from tax of income from
other sources is not an objective of the Company. If the Company is successful
in achieving its investment and operating objectives, the stockholders (other
than tax-exempt entities) are likely to recognize taxable income in each year.
While there is no order of priority intended in the listing of the Company's
objectives, stockholders should realize that the ability of the Company to meet
these objectives may be severely handicapped by any lack of diversification of
the Company's investments and the terms of the leases.
The Company intends to meet its objectives through its investment
policies of (i) purchasing carefully selected, well-located Properties and
leasing them on a "triple-net" basis (which means that the tenant will be
responsible for paying the cost of all repairs, maintenance, property taxes, and
insurance) to operators of Restaurant Chains and Hotel Chains under leases
generally requiring the tenant to pay base annual rental, with automatic
increases in base rent and/or percentage rent based on gross sales, and (ii)
offering Mortgage Loans and Secured Equipment Leases to tenants and operators of
Restaurant Chains and Hotel Chains.
In accordance with its investment policies, the Company intends to
invest in Properties whose tenants are franchisors or franchisees of one of the
Restaurant Chains or Hotel Chains to be selected by the Company, based upon
recommendations by the Advisor. Although there is no limit on the number of
properties of a particular Restaurant Chain or Hotel Chain which the Company may
acquire, the Company currently does not expect to acquire a Property if the
Board of Directors, including a majority of the Independent Directors,
determines that the acquisition would adversely affect the Company in terms of
geographic, property type or chain diversification. Potential Mortgage Loan
borrowers and Secured Equipment Lease lessees or borrowers will similarly be
operators
- 84 -
<PAGE>
of Restaurant Chains and Hotel Chains selected by the Company, following the
Advisor's recommendations. The Company has undertaken, consistent with its
objective of qualifying as a REIT for federal income tax purposes, to ensure
that the value of all Secured Equipment Leases, in the aggregate, will not
exceed 25% of the Company's total assets, while Secured Equipment Leases to any
single lessee or borrower, in the aggregate, will not exceed 5% of the Company's
total assets. It is intended that investments will be made in Properties,
Mortgage Loans and Secured Equipment Leases in various locations in an attempt
to achieve diversification and thereby minimize the effect of changes in local
economic conditions and certain other risks. The extent of such diversification,
however, depends in part upon the amount raised in the offering. See "Estimated
Use of Proceeds" and "Risk Factors - Investment Risks - Possible Lack of
Diversification." For a more complete description of the manner in which the
structure of the Company's business, including its investment policies, will
facilitate the Company's ability to meet its investment objectives. See
"Business."
The investment objectives of the Company may not be changed without the
approval of stockholders owning a majority of the shares of outstanding Common
Stock. The Bylaws of the Company require the Independent Directors to review the
Company's investment policies at least annually to determine that the policies
are in the best interests of the stockholders. The determination shall be set
forth in the minutes of the Board of Directors along with the basis for such
determination. The Directors (including a majority of the Independent Directors)
have the right, without a stockholder vote, to alter the Company's investment
policies but only to the extent consistent with the Company's investment
objectives and investment limitations. See "Certain Investment Limitations,"
below.
CERTAIN INVESTMENT LIMITATIONS
In addition to other investment restrictions imposed by the Directors
from time to time, consistent with the Company's objective of qualifying as a
REIT, the Articles of Incorporation or the Bylaws provide for the following
limitations on the Company's investments.
1. Not more than 10% of the Company's total assets shall be invested in
unimproved real property or mortgage loans on unimproved real property. For
purposes of this paragraph, "unimproved real property" does not include any
Property under construction, under contract for development or planned for
development within one year.
2. The Company shall not invest in commodities or commodity future
contracts. This limitation is not intended to apply to interest rate futures,
when used solely for hedging purposes.
3. The Company shall not invest in or make mortgage loans unless an
appraisal is obtained concerning the underlying property. Mortgage indebtedness
on any property shall not exceed such property's appraised value. In cases in
which the majority of Independent Directors so determine, and in all cases in
which the mortgage loan involves the Advisor, Directors, or Affiliates, such
appraisal must be obtained from an independent expert concerning the underlying
property. Such appraisal shall be maintained in the Company's records for at
least five years, and shall be available for inspection and duplication by any
stockholder. In addition to the appraisal, a mortgagee's or owner's title
insurance policy or commitment as to the priority of the mortgage or condition
of the title must be obtained. The Company may not invest in real estate
contracts of sale otherwise known as land sale contracts.
4. The Company may not make or invest in mortgage loans, including
construction loans, on any one Property if the aggregate amount of all mortgage
loans outstanding on the Property, including the loans of the Company, would
exceed an amount equal to 85% of the appraised value of the Property as
determined by appraisal unless substantial justification exists because of the
presence of other underwriting criteria. For purposes of this subsection, the
"aggregate amount of all mortgage loans outstanding on the Property, including
the loans of the Company" shall include all interest (excluding contingent
participation in income and/or appreciation in value of the mortgaged property),
the current payment of which may be deferred pursuant to the terms of such
loans, to the extent that deferred interest on each loan exceeds 5% per annum of
the principal balance of the loan.
- 85 -
<PAGE>
5. Invest in indebtedness ("Junior Debt") secured by a mortgage on real
property which is subordinate to the lien or other indebtedness ("Senior Debt"),
except where the amount of such Junior Debt, plus the outstanding amount of the
Senior Debt, does not exceed 90% of the appraised value of such property, if
after giving effect thereto, the value of all such investments of the Company
(as shown on the books of the Company in accordance with generally accepted
accounting principles after all reasonable reserves but before provision for
depreciation) would not then exceed 25% of the Company's Net Assets. The value
of all investments in Junior Debt of the Company which does not meet the
aforementioned requirements is limited to 10% of the Company's tangible assets
(which is included within the 25% limitation).
6. Engage in any short sale, or borrow, on an unsecured basis, if such
borrowing will result in an asset coverage of less than 300%, except that such
borrowing limitation shall not apply to a first mortgage trust. "Asset
coverage," for the purpose of this section, means the ratio which the value of
the total assets of an issuer, less all liabilities and indebtedness except
indebtedness for unsecured borrowings, bears to the aggregate amount of all
unsecured borrowings of such issuer.
7. Unless at least 80% of the Company's tangible assets are comprised
of Properties or first mortgage loans, the Company may not incur any
indebtedness which would result in an aggregate amount of indebtedness in excess
of 300% of Net Assets.
8. The Company may not make or invest in any mortgage loans that are
subordinate to any mortgage, other indebtedness or equity interest of the
Advisor, the Directors, or Affiliates of the Company.
9. The Company will not invest in equity securities unless a majority
of the Directors (including a majority of Independent Directors) not otherwise
interested in such transaction approve the transaction as being fair,
competitive, and commercially reasonable and determine that the transaction will
not jeopardize the Company's ability to qualify and remain qualified as a REIT.
Investments in entities affiliated with the Advisor, a Director, the Company, or
Affiliates thereof are subject to the restrictions on joint venture investments.
In addition, the Company shall not invest in any security of any entity holding
investments or engage in activities prohibited by the Company's Articles of
Incorporation.
10. The Company will not issue (i) equity securities redeemable solely
at the option of the holder (except that stockholders may offer their Shares to
the Company as described under "Redemption of Shares"); (ii) debt securities
unless the historical debt service coverage (in the most recently completed
fiscal year), as adjusted for known charges, is sufficient to service that
higher level of debt properly; (iii) Shares on a deferred payment basis or under
similar arrangements; (iv) non-voting or assessable securities; or (v) options,
warrants, or similar evidences of a right to buy its securities (collectively,
"Options") unless (1) issued to all of its stockholders ratably, (2) as part of
a financing arrangement, or (3) as part of a stock option plan available to
Directors, officers, or employees of the Company or the Advisor. Options may not
be issued to the Advisor, Directors or any Affiliate thereof except on the same
terms as such Options are sold to the general public. Options may be issued to
persons other than the Advisor, Directors or any Affiliate thereof but not at
exercise prices less than the fair market value of the underlying securities on
the date of grant and not for consideration that in the judgment of the
Independent Directors has a market value less than the value of such Option on
the date of grant. Options issuable to the Advisor, Directors or any Affiliate
thereof shall not exceed 10% of the outstanding Shares on the date of grant.
11. A majority of the Directors shall authorize the consideration to be
paid for each Property, based on the fair market value of the Property. If a
majority of the Independent Directors determine, or if the Property is acquired
from the Advisor, a Director, or Affiliates thereof, such fair market value
shall be determined by a qualified independent real estate appraiser selected by
the Independent Directors.
12. The Company will not engage in underwriting or the agency
distribution of securities issued by others or in trading, as compared to
investment activities.
- 86 -
<PAGE>
13. The Company will not invest in real estate contracts of sale unless
such contracts of sale are in recordable form and appropriately recorded in the
chain of title.
14. The Company will not invest in any foreign currency or bullion or
engage in short sales.
15. The Company will not issue senior securities except notes to banks
and other lenders and preferred shares.
16. The Company will not make loans to the Advisor or its Affiliates.
17. The Company will not operate so as to be classified as an
"investment company" under the Investment Company Act of 1940, as amended.
18. The Company will not make any investment that the Company believes
will be inconsistent with its objective of qualifying as a REIT.
The foregoing limitations may not be modified or eliminated without the
approval of a majority of the shares of outstanding Common Stock.
Except as set forth above or elsewhere in this Prospectus, the Company
does not intend to issue senior securities; borrow money; make loans to other
persons; invest in the securities of other issuers for the purpose of exercising
control; underwrite securities of other issuers; engage in the purchase and sale
(or turnover) of investments; offer securities in exchange for property,
repurchase or otherwise reacquire its shares or other securities; or make annual
or other reports to security holders. The Company evaluates investments in
Mortgage Loans on an individual basis and does not have a standard turnover
policy with respect to such investments.
DISTRIBUTION POLICY
GENERAL
In order to qualify as a REIT for federal income tax purposes, among
other things, the Company must make distributions each taxable year (not
including any return of capital for federal income tax purposes) equal to at
least 95% of its real estate investment trust taxable income, although the Board
of Directors, in its discretion, may increase that percentage as it deems
appropriate. See "Federal Income Tax Considerations - Taxation of the Company
Distribution Requirements." The declaration of Distributions is within the
discretion of the Board of Directors and depends upon the Company's
distributable funds, current and projected cash requirements, tax considerations
and other factors.
DISTRIBUTIONS
The following table reflects total Distributions and Distributions per
Share declared and paid by the Company for each month since the Company
commenced operations.
- 87 -
<PAGE>
Total Distributions
Month Distributions Per Share
- ----- ------------- ---------
November 1997 $10,757 $0.02500
December 1997 19,019 0.002500
January 1998 28,814 0.002500
February 1998 32,915 0.002500
March 1998 39,627 0.002500
April 1998 46,677 0.002500
May 1998 52,688 0.002500
June 1998 56,365 0.002500
In addition, in July, August and September 1998, the Company declared
Distributions totalling $99,631, $105,707 and $157,038, respectively
(representing $0.0417, $0.0417 and $0.0583 per share, respectively), payable in
September 1998. The Company intends to continue to make regular Distributions to
stockholders. The payment of Distributions commenced in December 1997.
Distributions will be made to those stockholders who are stockholders as of the
record date selected by the Directors. Distributions will be declared monthly
during the offering period, declared monthly during any subsequent offering,
paid on a quarterly basis during an offering period, and declared and paid
quarterly thereafter. The Company is required to distribute annually at least
95% of its real estate investment trust taxable income to maintain its objective
of qualifying as a REIT. Generally, income distributed will not be taxable to
the Company under federal income tax laws if the Company complies with the
provisions relating to qualification as a REIT. If the cash available to the
Company is insufficient to pay such Distributions, the Company may obtain the
necessary funds by borrowing, issuing new securities, or selling assets. These
methods of obtaining funds could affect future Distributions by increasing
operating costs. To the extent that Distributions to stockholders exceed
earnings and profits, such amounts constitute a return capital for federal
income tax purposes, although such Distributions will not reduce stockholders'
aggregate Invested Capital. Distributions in kind shall not be permitted, except
for distributions of readily marketable securities; distributions of beneficial
interests in a liquidating trust established for the dissolution of the Company
and the liquidation of its assets in accordance with the terms of the Articles
of Incorporation; or distributions of in-kind property as long as the Directors
(i) advise each stockholder of the risks associated with direct ownership of the
property; (ii) offer each stockholder the election of receiving in-kind property
distributions; and (iii) distribute in-kind property only to those stockholders
who accept the Directors' offer.
For the period October 15, 1997 (the date operations of the Company
commenced) through December 31, 1997, 100 percent of the Distributions declared
and paid were considered ordinary income for federal income tax purposes. Due to
the fact that the Company had not yet acquired any Properties and was still in
the offering stage as of December 31, 1997, the characterization of
Distributions for federal income tax purposes is not necessarily considered by
management to be representative of the characterization of Distributions in
future years.
Distributions will be made at the discretion of the Directors,
depending primarily on net cash from operations (which includes cash received
from tenants except to the extent that such cash represents a return of
principal in regard to the lease of a Property consisting of building only,
distributions from joint ventures, and interest income from lessees of Equipment
and borrowers under Mortgage Loans, less expenses paid) and the general
financial condition of the Company, subject to the obligation of the Directors
to cause the Company to qualify and remain qualified as a REIT for federal
income tax purposes. The Company intends to increase Distributions in accordance
with increases in net cash from operations.
- 88 -
<PAGE>
SUMMARY OF THE
ARTICLES OF INCORPORATION AND BYLAWS
GENERAL
The Company is organized as a corporation under the laws of the State
of Maryland. As a Maryland corporation, the Company is governed by the Maryland
General Corporation Law. Maryland corporate law deals with a variety of matters
regarding Maryland corporations, including liabilities of the Company,
stockholders, directors, and officers, the amendment of the Articles of
Incorporation, and mergers of a Maryland corporation with other entities. Since
many matters are not addressed by Maryland corporate law, it is customary for a
Maryland corporation to address these matters through provisions in its Articles
of Incorporation.
The Articles of Incorporation and the Bylaws of the Company contain
certain provisions that could make it more difficult to acquire control of the
Company by means of a tender offer, a proxy contest, or otherwise. These
provisions are expected to discourage certain types of coercive takeover
practices and inadequate takeover bids and to encourage persons seeking to
acquire control of the Company to negotiate first with its Board of Directors.
The Company believes that these provisions increase the likelihood that
proposals initially will be on more attractive terms than would be the case in
their absence and facilitate negotiations which may result in improvement of the
terms of an initial offer.
The Articles of Incorporation also permit Listing by the Board of
Directors after completion or termination of this offering.
The discussion below sets forth material provisions of governing laws,
instruments and guidelines applicable to the Company. For more complete
provisions, reference is made to the Maryland General Corporation Law, the
guidelines for REITs published by the North American Securities Administrators
Association and the Company's Articles of Incorporation and Bylaws.
DESCRIPTION OF CAPITAL STOCK
The Company has authorized a total of 126,000,000 shares of capital
stock, consisting of 60,000,000 shares of Common Stock, $.01 par value per
share, 3,000,000 shares of Preferred Stock ("Preferred Stock"), and 63,000,000
additional shares of excess stock ("Excess Shares"), $.01 par value per share.
Of the 63,000,000 Excess Shares, 60,000,000 are issuable in exchange for Common
Stock and 3,000,000 are issuable in exchange for Preferred Stock as described
below at "- Restriction of Ownership." As of September 1, 1998, the Company had
2,693,628 shares of Common Stock outstanding (including 20,000 shares issued to
the Advisor prior to the commencement of this offering and 970 Shares issued
pursuant to the Reinvestment Plan) and no Preferred Stock or Excess Shares
outstanding. The Board of Directors may determine to engage in future offerings
of Common Stock of up to the number of unissued authorized shares of Common
Stock available.
The Company will not issue share certificates except to stockholders
who make a written request to the Company. Each stockholder's investment will be
recorded on the books of the Company, and information concerning the
restrictions and rights attributable to Shares (whether in connection with an
initial issuance or a transfer) will be sent to the stockholder receiving Shares
in connection with an issuance or transfer. A stockholder wishing to transfer
his or her Shares will be required to send only an executed form to the Company,
and the Company will provide the required form upon a stockholder's request. The
executed form and any other required documentation must be received by the
Company at least one calendar month prior to the last date of the current
quarter. Subject to restrictions in the Articles of Incorporation, transfers of
Shares shall be effective, and the transferee of the Shares will be recognized
as the holder of such Shares as of the first day of the following quarter on
which the Company receives properly executed documentation. Stockholders who are
residents of New York may not transfer fewer than 250 shares at any time.
- 89 -
<PAGE>
Stockholders have no preemptive rights to purchase or subscribe for
securities that the Company may issue subsequently. Each Share is entitled to
one vote per Share, and Shares do not have cumulative voting rights. The
Stockholders are entitled to Distributions in such amounts as may be declared by
the Board of Directors from time to time out of funds legally available for such
payments and, in the event of liquidation, to share ratably in any assets of the
Company remaining after payment in full of all creditors.
All of the Shares offered hereby will be fully paid and nonassessable
when issued.
The Articles of Incorporation authorize the Board of Directors to
designate and issue from time to time one or more classes or series of Preferred
Shares without stockholder approval. The Board of Directors may determine the
relative rights, preferences, and privileges of each class or series of
Preferred Stock so issued. Because the Board of Directors has the power to
establish the preferences and rights of each class or series of Preferred Stock,
it may afford the holders of any series or class of Preferred Stock preferences,
powers, and rights senior to the rights of holders of Common Stock; however, the
voting rights for each share of Preferred Stock shall not exceed voting rights
which bear the same relationship to the voting rights of the Shares as the
consideration paid to the Company for each share of Preferred Stock bears to the
book value of the Shares on the date that such Preferred Stock is issued. The
issuance of Preferred Stock could have the effect of delaying or preventing a
change in control of the Company.
The Board of Directors has no present plans to issue any Preferred Stock.
Similarly, the voting rights per share of equity securities of the
Company (other than the publicly held equity securities of the Company) sold in
a private offering shall not exceed the voting rights which bear the same
relationship to the voting rights of the publicly held equity securities as the
consideration paid to the Company for each privately offered Company share bears
to the book value of each outstanding publicly held equity security. The Board
of Directors currently has no plans to offer equity securities of the Company in
a private offering.
For a description of the characteristics of the Excess Shares, which
differ from Common Stock and Preferred Stock in a number of respects, including
voting and economic rights, see "Restriction of Ownership," below.
BOARD OF DIRECTORS
The Articles of Incorporation provide that the number of Directors of
the Company cannot be less than three nor more than 15. A majority of the Board
of Directors will be Independent Directors. See "Management Independent
Directors." Each Director, other than a Director elected to fill the unexpired
term of another Director, will be elected at each annual meeting or at any
special meeting of the stockholders called for that purpose, by a majority of
the shares of Common Stock present in person or by proxy and entitled to vote.
Independent Directors will nominate replacements for vacancies among the
Independent Directors. Under the Articles of Incorporation, the term of office
for each Director will be one year, expiring each annual meeting of
stockholders; however, nothing in the Articles of Incorporation prohibits a
director from being reelected by the stockholders. The Directors may not (a)
amend the Articles of Incorporation, except for amendments which do not
adversely affect the rights, preferences and privileges of stockholders; (b)
sell all or substantially all of the Company's assets other than in the ordinary
course of business or in connection with liquidation and dissolution; (c) cause
the merger or other reorganization of the Company; or (d) dissolve or liquidate
the Company, other than before the initial investment in property. The Directors
may establish such committees as they deem appropriate (provided that the
majority of the members of each committee are Independent Directors).
STOCKHOLDER MEETINGS
An annual meeting will be held for the purpose of electing Directors
and for the transaction of such other business as may come before the meeting,
and will be held not less than 30 days after delivery of the annual report.
Under the Company's Bylaws, a special meeting of stockholders may be called by
the chief executive officer, a majority of the Directors, or a majority of the
Independent Directors. Special meetings of the stockholders also shall be called
by an officer of the Company upon the written request of stockholders holding in
the aggregate not less than 10% of the outstanding Common Stock entitled to vote
at such meeting. Upon receipt of such a written request,
- 90 -
<PAGE>
either in person or by mail, stating the purpose or purposes of the meeting, the
Company shall provide all stockholders, within ten days of receipt of the
written request, written notice, either in person or by mail, of a meeting and
its purpose. Such meeting will be held not less than fifteen nor more than sixty
days after distribution of the notice, at a time and place specified in the
request, or if none is specified, at a time and place convenient to
stockholders.
At any meeting of stockholders, each stockholder is entitled to one
vote per share of Common Stock owned of record on the applicable record date. In
general, the presence in person or by proxy of 50% of the shares of Common Stock
then outstanding shall constitute a quorum, and the majority vote of the shares
of Common Stock present in person or by proxy will be binding on all the
stockholders of the Company.
ADVANCE NOTICE FOR STOCKHOLDER NOMINATIONS FOR
DIRECTORS AND PROPOSALS OF NEW BUSINESS
The Bylaws of the Company require notice at least 60 days and not more
than 90 days before the anniversary of the prior annual meeting of stockholders
in order for a stockholder to (a) nominate a Director, or (b) propose new
business other than pursuant to the notice of the meeting or by or on behalf of
the Directors. The Bylaws contain a similar notice requirement in connection
with nominations for Directors at a special meeting of stockholders called for
the purpose of electing one or more Directors. Accordingly, failure to comply
with the notice provisions will make stockholders unable to nominate Directors
or propose new business.
AMENDMENTS TO THE ARTICLES OF INCORPORATION
Pursuant to the Company's Articles of Incorporation, the Directors can
amend the Articles of Incorporation by a two-thirds majority from time to time
if necessary in order to qualify initially or in order to continue to qualify as
a REIT. Except as set forth above, the Articles of Incorporation may be amended
only by the affirmative vote of a majority, and, in some cases a two-thirds
majority, of the shares of Common Stock outstanding and entitled to vote. The
stockholders may vote to amend the Articles of Incorporation, terminate or
dissolve the Company or remove one or more Directors without necessity for
concurrence by the Board of Directors.
MERGERS, COMBINATIONS, AND SALE OF ASSETS
A merger, combination, sale, or other disposition of all or
substantially all of the Company's assets other than in the ordinary course of
business must be approved by the Directors and a majority of the shares of
Common Stock outstanding and entitled to vote. In addition, any such transaction
involving an Affiliate of the Company or the Advisor also must be approved by a
majority of the Directors (including a majority of the Independent Directors)
not otherwise interested in such transaction as fair and reasonable to the
Company and on terms and conditions not less favorable to the Company than those
available from unaffiliated third parties.
TERMINATION OF THE COMPANY AND REIT STATUS
The Articles of Incorporation provide for the voluntary termination and
dissolution of the Company by the affirmative vote of a majority of the shares
of Common Stock outstanding and entitled to vote at a meeting called for that
purpose. In addition, the Articles of Incorporation permit the stockholders to
terminate the status of the Company as a REIT under the Code only by the
affirmative vote of the holders of a majority of the shares of Common Stock
outstanding and entitled to vote.
Under the Articles of Incorporation, the Company automatically will
terminate and dissolve on December 31, 2007, unless Listing occurs, in which
event the Company automatically will become a perpetual life entity.
- 91 -
<PAGE>
RESTRICTION OF OWNERSHIP
To qualify as a REIT under the Code (i) not more than 50% of the value
of the REIT's outstanding stock may be owned, directly or indirectly (applying
certain attribution rules), by five or fewer individuals (as defined in the Code
to include certain entities) during the last half of a taxable year, (ii) the
REIT's stock must be beneficially owned (without reference to any attribution
rules) by 100 or more persons during at least 335 days of a taxable year of 12
months or during a proportionate part of a shorter taxable year; and (iii)
certain other requirements must be satisfied. See "Federal Income Tax
Considerations - Taxation of the Company."
To ensure that the Company satisfies these requirements, the Articles
of Incorporation restrict the direct or indirect ownership (applying certain
attribution rules) of shares of Common Stock and Preferred Stock by any Person
(as defined in the Articles of Incorporation) to no more than 9.8% of the
outstanding shares of such Common Stock or 9.8% of any series of Preferred
Shares (the "Ownership Limit"). However, the Articles of Incorporation provide
that this Ownership Limit may be modified, either entirely or with respect to
one or more Persons, by a vote of a majority of the Directors, if such
modification does not jeopardize the Company's status as a REIT. As a condition
of such modification, the Board of Directors may require opinions of counsel
satisfactory to it and/or an undertaking from the applicant with respect to
preserving the status of the Company as a REIT.
It is the responsibility of each Person (as defined in the Articles of
Incorporation) owning (or deemed to own) more than 5% of the outstanding shares
of Common Stock or any series of outstanding Preferred Stock to give the Company
written notice of such ownership. In addition, to the extent deemed necessary by
the Directors, the Company can demand that each stockholder disclose to the
Company in writing all information regarding the Beneficial and Constructive
Ownership (as such terms are defined in the Articles of Incorporation) of the
Common Stock and Preferred Stock.
If the ownership, transfer or acquisition of shares of Common or
Preferred Stock, or change in capital structure of the Company or other event or
transaction would result in (i) any Person owning (applying certain attribution
rules) Common Stock or Preferred Stock in excess of the Ownership Limit, (ii)
fewer than 100 Persons owning the Common Stock and Preferred Stock, (iii) the
Company being "closely held" within the meaning of section 856(h) of the Code,
or (iv) the Company failing any of the gross income requirements of section
856(c) of the Code or otherwise failing to qualify as a REIT, then the
ownership, transfer, or acquisition, or change in capital structure or other
event or transaction that would have such effect will be void as to the
purported transferee or owner, and the purported transferee or owner will not
have or acquire any rights to the Common Stock and/or Preferred Stock, as the
case may be, to the extent required to avoid such a result. Common Stock or
Preferred Stock owned, transferred or proposed to be transferred in excess of
the Ownership Limit or which would otherwise jeopardize the Company's status as
a REIT will automatically be converted to Excess Shares. A holder of Excess
Shares is not entitled to Distributions, voting rights, and other benefits with
respect to such shares except for the right to payment of the purchase price for
the shares (or, in the case of a devise or gift or similar event which results
in the issuance of Excess Shares, the fair market value at the time of such
devise or gift or event) and the right to certain distributions upon
liquidation. Any Distribution paid to a proposed transferee or holder of Excess
Shares shall be repaid to the Company upon demand. Excess Shares shall be
subject to repurchase by the Company at its election. The purchase price of any
Excess Shares shall be equal to the lesser of (a) the price paid in such
purported transaction (or, in the case of a devise or gift or similar event
resulting in the issuance of Excess Shares, the fair market value at the time of
such devise or gift or event), or (b) the fair market value of such Shares on
the date on which the Company or its designee determines to exercise its
repurchase right. If the foregoing transfer restrictions are determined to be
void or invalid by virtue of any legal decision, statute, rule or regulation,
then the purported transferee of any Excess Shares may be deemed, at the option
of the Company, to have acted as an agent on behalf of the Company in acquiring
such Excess Shares and to hold such Excess Shares on behalf of the Company.
For purposes of the Articles of Incorporation, the term "Person" shall
mean an individual, corporation, partnership, estate, trust (including a trust
qualified under Section 401(a) or 501(c)(17) of the Code), a portion of a trust
permanently set aside to be used exclusively for the purposes described in
Section 642(c) of the Code, association, private foundation within the meaning
of Section 509(a) of the Code, joint stock company or other entity,
- 92 -
<PAGE>
or a group as that term is used for purposes of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended; but does not include (i) CNL Real
Estate Advisors, Inc., during the period ending on December 31, 1997, or (ii) an
underwriter which participated in a public offering of Shares for a period of
sixty (60) days following the purchase by such underwriter of Shares therein,
provided that the foregoing exclusions shall apply only if the ownership of such
Shares by CNL Real Estate Advisors, Inc. or an underwriter would not cause the
Company to fail to qualify as a REIT by reason of being "closely held" within
the meaning of Section 856(a) of the code or otherwise cause the Company to fail
to qualify as a REIT.
RESPONSIBILITY OF DIRECTORS
Directors serve in a fiduciary capacity and shall have a fiduciary duty
to the stockholders of the Company, which duty shall include a duty to supervise
the relationship of the Company with the Advisor. See "Management - Fiduciary
Responsibilities of the Board of Directors."
LIMITATION OF LIABILITY AND INDEMNIFICATION
Pursuant to Maryland corporate law and the Company's Articles of
Incorporation, the Company is required to indemnify and hold harmless a present
or former Director, officer, Advisor, or Affiliate and may indemnify and hold
harmless a present or former employee or agent of the Company (the "Indemnitee")
against any or all losses or liabilities reasonably incurred by the Indemnitee
in connection with or by reason of any act or omission performed or omitted to
be performed on behalf of the Company while a Director, officer, Advisor,
Affiliate, employee, or agent and in such capacity, provided, that the
Indemnitee has determined, in good faith, that the act or omission which caused
the loss or liability was in the best interests of the Company. The Company will
not indemnify or hold harmless the Indemnitee if: (i) the loss or liability was
the result of negligence or misconduct, or if the Indemnitee is an Independent
Director, the loss or liability was the result of gross negligence or willful
misconduct, (ii) the act or omission was material to the loss or liability and
was committed in bad faith or was the result of active or deliberate dishonesty,
(iii) the Indemnitee actually received an improper personal benefit in money,
property, or services, (iv) in the case of any criminal proceeding, the
Indemnitee had reasonable cause to believe that the act or omission was
unlawful, or (v) in a proceeding by or in the right of the Company, the
Indemnitee shall have been adjudged to be liable to the Company. In addition,
the Company will not provide indemnification for any loss or liability arising
from an alleged violation of federal or state securities laws unless one or more
of the following conditions are met: (i) there has been a successful
adjudication on the merits of each count involving alleged securities law
violations as to the particular Indemnitee; (ii) such claims have been dismissed
with prejudice on the merits by a court of competent jurisdiction as to the
particular Indemnitee; or (iii) a court of competent jurisdiction approves a
settlement of the claims against a particular Indemnitee and finds that
indemnification of the settlement and the related costs should be made, and the
court considering the request for indemnification has been advised of the
position of the Securities and Exchange Commission and of the published position
of any state securities regulatory authority in which securities of the Company
were offered or sold as to indemnification for violations of securities laws.
Pursuant to its Articles of Incorporation, the Company is required to pay or
reimburse reasonable expenses incurred by a present or former Director, officer,
Advisor or Affiliate and may pay or reimburse reasonable expenses incurred by
any other Indemnitee in advance of final disposition of a proceeding if the
following are satisfied: (i) the Indemnitee was made a party to the proceeding
by reasons of his or her service as a Director, officer, Advisor, Affiliate,
employee or agent of the Company, (ii) the Indemnitee provides the Company with
written affirmation of his or her good faith belief that he or she has met the
standard of conduct necessary for indemnification by the Company as authorized
by the Articles of Incorporation, (iii) the Indemnitee provides the Company with
a written agreement to repay the amount paid or reimbursed by the Company,
together with the applicable legal rate of interest thereon, if it is ultimately
determined that the Indemnitee did not comply with the requisite standard of
conduct, and (iv) the legal proceeding was initiated by a third party who is not
a stockholder or, if by a stockholder of the Company acting in his or her
capacity as such, a court of competent jurisdiction approves such advancement.
The Company's Articles of Incorporation further provide that any
indemnification, payment, or reimbursement of the expenses permitted by the
Articles of Incorporation will be furnished in accordance with the procedures in
Section 2-418 of the Maryland General Corporation Law.
- 93 -
<PAGE>
Any indemnification may be paid only out of Net Assets of the Company,
and no portion may be recoverable from the stockholders.
There are certain defenses under Maryland law available to the
Directors, officers and the Advisor in the event of a stockholder action against
them. One such defense is the "business judgment rule." A Director, officer or
the Advisor can argue that he or she performed the action giving rise to the
stockholder's action in good faith and in a manner he or she reasonably believed
to be in the best interests of the Company, and with such care as an ordinarily
prudent person in a like position would have used under similar circumstances.
The Directors, officers and the Advisor are also entitled to rely on
information, opinions, reports or records prepared by experts (including
accountants, consultants, counsel, etc.) who were selected with reasonable care.
However, the Directors, officers and the Advisor may not invoke the business
judgment rule to further limit the rights of the stockholders to access records
as provided in the Articles of Incorporation.
The Company has entered into indemnification agreements with each of
the Company's officers and Directors. The indemnification agreements will
require, among other things, that the Company indemnify its officers and
Directors to the fullest extent permitted by law, and advance to the officers
and Directors all related expenses, subject to reimbursement if it is
subsequently determined that indemnification is not permitted. In accordance
with this agreement, the Company must indemnify and advance all expenses
reasonably incurred by officers and Directors seeking to enforce their rights
under the indemnification agreements. The Company also must cover officers and
Directors under the Company's directors' and officers' liability insurance.
Although these indemnification agreements offer substantially the same scope of
coverage afforded by the indemnification provisions in the Articles of
Incorporation and the Bylaws, it provides greater assurance to Directors and
officers that indemnification will be available because these contracts cannot
be modified unilaterally by the Board of Directors or by the stockholders.
REMOVAL OF DIRECTORS
Under the Articles of Incorporation, a Director may resign or be
removed with or without cause by the affirmative vote of a majority of the
capital stock of the Company outstanding and entitled to vote.
INSPECTION OF BOOKS AND RECORDS
The Advisor will keep, or cause to be kept, on behalf of the Company,
full and true books of account on an accrual basis of accounting, in accordance
with generally accepted accounting principles. All of such books of account,
together with all other records of the Company, including a copy of the Articles
of Incorporation and any amendments thereto, will at all times be maintained at
the principal office of the Company, and will be open to inspection,
examination, and, for a reasonable charge, duplication upon reasonable notice
and during normal business hours by a stockholder or his agent.
As a part of its books and records, the Company will maintain at its
principal office an alphabetical list of names of stockholders, along with their
addresses and telephone numbers and the number of Shares held by each
stockholder. Such list shall be updated at least quarterly and shall be
available for inspection at the Company's home office by a stockholder or his or
her designated agent upon such stockholder's request. Such list also shall be
mailed to any stockholder requesting the list within 10 days of a request. The
copy of the stockholder list shall be printed in alphabetical order, on white
paper, and in readily readable type size that is not smaller than 10-point type.
The Company may impose a reasonable charge for expenses incurred in reproducing
such list. The list may not be sold or used for commercial purposes.
If the Advisor or Directors neglect or refuse to exhibit, produce or
mail a copy of the stockholder list as requested, the Advisor and the Directors
shall be liable to any stockholder requesting the list for the costs, including
attorneys' fees, incurred by that stockholder for compelling the production of
the stockholder list. It shall be a defense that the actual purpose and reason
for the requests for inspection or for a copy of the stockholder list is to
secure such list of stockholders or other information for the purpose of selling
such list or copies thereof, or of using the same for a commercial purpose other
than in the interest of the applicant as a stockholder relative to the affairs
- 94 -
<PAGE>
of the Company. The Company may require the stockholder requesting the
stockholder list to represent that the list is not requested for a commercial
purpose unrelated to the stockholder's interest in the Company. The remedies
provided by the Articles of Incorporation to stockholders requesting copies of
the stockholder list are in addition to, and do not in any way limit, other
remedies available to stockholders under federal law, or the law of any state.
RESTRICTIONS ON "ROLL-UP" TRANSACTIONS
In connection with a proposed Roll-Up Transaction, which, in general
terms, is any transaction involving the acquisition, merger, conversion, or
consolidation, directly or indirectly, of the Company and the issuance of
securities of a Roll-Up Entity that would be created or would survive after the
successful completion of the Roll-Up Transaction, an appraisal of all Properties
shall be obtained from an Independent Expert. In order to qualify as an
Independent Expert for this purpose(s), the person or entity shall have no
material current or prior business or personal relationship with the Advisor or
Directors and shall be engaged to a substantial extent in the business of
rendering opinions regarding the value of assets of the type held by the
Company. The Properties shall be appraised on a consistent basis, and the
appraisal shall be based on the evaluation of all relevant information and shall
indicate the value of the Properties as of a date immediately prior to the
announcement of the proposed Roll-Up Transaction. The appraisal shall assume an
orderly liquidation of Properties over a 12-month period. The terms of the
engagement of such Independent Expert shall clearly state that the engagement is
for the benefit of the Company and the stockholders. A summary of the
independent appraisal, indicating all material assumptions underlying the
appraisal, shall be included in a report to stockholders in connection with a
proposed Roll-Up Transaction. In connection with a proposed Roll-Up Transaction
which has not been approved by at least two-thirds of the stockholders, the
person sponsoring the Roll-Up Transaction shall offer to stockholders who vote
against the proposal the choice of:
(i) accepting the securities of the Roll-Up Entity offered in the
proposed Roll-Up Transaction; or
(ii) one of the following:
(A) remaining stockholders of the Company and preserving their
interests therein on the same terms and conditions as existed previously; or
(B) receiving cash in an amount equal to the stockholder's pro rata
share of the appraised value of the net assets of the Company.
The Company is prohibited from participating in any proposed Roll-Up
Transaction:
(i) which would result in the stockholders having democracy rights in
the Roll-Up Entity that are less than those provided in the Company's Articles
of Incorporation, Sections 8.1, 8.2, 8.4, 8.5, 8.6 and 9.1 and described
elsewhere in this Prospectus, including rights with respect to the election and
removal of Directors, annual reports, annual and special meetings, amendment of
the Articles of Incorporation, and dissolution of the Company. See "Description
of Capital Stock" and "Stockholder Meetings," above;
(ii) which includes provisions that would operate as a material
impediment to, or frustration of, the accumulation of shares by any purchaser of
the securities of the Roll-Up Entity (except to the minimum extent necessary to
preserve the tax status of the Roll-Up Entity), or which would limit the ability
of an investor to exercise the voting rights of its securities of the Roll-Up
Entity on the basis of the number of shares held by that investor;
(iii) in which investor's rights to access of records of the Roll-Up
Entity will be less than those provided in Sections 8.4 and 8.5 of the Company's
Articles of Incorporation and described in "Inspection of Books and Records,"
above; or
(iv) in which any of the costs of the Roll-Up Transaction would be
borne by the Company if the Roll- Up Transaction is not approved by the
stockholders.
- 95 -
<PAGE>
FEDERAL INCOME TAX CONSIDERATIONS
INTRODUCTION
The following is a summary of the material federal income tax
consequences of the ownership of Shares of the Company, prepared by Shaw Pittman
Potts & Trowbridge, as Counsel. This discussion is based upon the laws,
regulations, and reported judicial and administrative rulings and decisions in
effect as of the date of this Prospectus, all of which are subject to change,
retroactively or prospectively, and to possibly differing interpretations. This
discussion does not purport to deal with the federal income or other tax
consequences applicable to all investors in light of their particular investment
or other circumstances, or to all categories of investors, some of whom may be
subject to special rules (including, for example, insurance companies,
tax-exempt organizations, financial institutions, broker-dealers, foreign
corporations and persons who are not citizens or residents of the United
States). No ruling on the federal, state or local tax considerations relevant to
the operation of the Company, or to the purchase, ownership or disposition of
the Shares, has been requested from the Internal Revenue Service (the "IRS" or
the "Service") or other tax authority. Counsel has rendered certain opinions
discussed herein and believes that if the Service were to challenge the
conclusions of Counsel, such conclusions should prevail in court. However,
opinions of counsel are not binding on the Service or on the courts, and no
assurance can be given that the conclusions reached by Counsel would be
sustained in court. Prospective investors should consult their own tax advisors
in determining the federal, state, local, foreign and other tax consequences to
them of the purchase, ownership and disposition of the Shares of the Company,
the tax treatment of a REIT and the effect of potential changes in applicable
tax laws.
TAXATION OF THE COMPANY
General. The Company has elected to be taxed as a REIT for federal
income tax purposes, as defined in Sections 856 through 860 of the Code,
commencing with its taxable year ending December 31, 1997. The Company believes
that it is organized and will operate in such a manner as to qualify as a REIT,
and the Company intends to continue to operate in such a manner, but no
assurance can be given that it will operate in a manner so as to qualify or
remain qualified as a REIT. The provisions of the Code pertaining to REITs are
highly technical and complex. Accordingly, this summary is qualified in its
entirety by the applicable Code sections, rules and regulations issued
thereunder, and administrative and judicial interpretations thereof.
If the Company qualifies for taxation as a REIT, it generally will not
be subject to federal corporate income tax on its net income that is currently
distributed to holders of Shares. This treatment substantially eliminates the
"double taxation" (at the corporate and stockholder levels) that generally
results from an investment in a corporation. However, the Company will be
subject to federal income tax in the following circumstances. First, the Company
will be taxed at regular corporate rates on any undistributed real estate
investment trust taxable income, including undistributed net capital gains.
Second, under certain circumstances, the Company may be subject to the
alternative minimum tax on its items of tax preference. Third, if the Company
has net income from foreclosure property, it will be subject to tax on such
income at the highest corporate rate. Foreclosure property generally means real
property (and any personal property incident to such real property) which is
acquired as a result of a default either on a lease of such property or on
indebtedness which such property secured and with respect to which an
appropriate election is made. Fourth, if the Company has net income derived from
prohibited transactions, such income will be subject to a 100% tax. A prohibited
transaction generally includes a sale or other disposition of property (other
than foreclosure property) that is held primarily for sale to customers in the
ordinary course of business. Fifth, if the Company should fail to satisfy the
75% gross income test or the 95% gross income test (as discussed below), but has
nonetheless maintained its qualification as a REIT because certain other
requirements have been met, it will be subject to a 100% tax on the net income
attributable to the greater of the amount by which the Company fails the 75% or
95% test. Sixth, if, during each calendar year, the Company fails to distribute
at least the sum of (i) 85% of its real estate investment trust ordinary income
for such year; (ii) 95% of its real estate investment trust capital gain net
income for such year; and (iii) any undistributed taxable income from prior
periods, the Company will be subject to a 4% excise tax on the excess of such
required distribution over the amounts actually distributed. Seventh,
- 96 -
<PAGE>
if the Company acquires any asset from a C corporation (i.e. a corporation
generally subject to full corporate level tax) in a transaction in which the
basis of the asset in the Company's hands is determined by reference to the
basis of the asset (or any other property) in the hands of the corporation, and
the Company recognizes gain on the disposition of such asset during the 10-year
period beginning on the date on which such asset was acquired by the Company,
then, to the extent of such property's "built-in gain" (the excess of the fair
market value of such property at the time of acquisition by the Company over the
adjusted basis in such property at such time), such gain will be subject to tax
at the highest regular corporate rate applicable (as provided in regulations
promulgated by the United States Department of Treasury under the Code
("Treasury Regulations") that have not yet been promulgated). (The results
described above with respect to the recognition of "built-in gain" assume that
the Company will make an election pursuant to IRS Notice 88-19.)
If the Company fails to qualify as a REIT for any taxable year and
certain relief provisions do not apply, the Company will be subject to federal
income tax (including alternative minimum tax) as an ordinary corporation on its
taxable income at regular corporate rates without any deduction or adjustment
for distributions to holders of Shares. To the extent that the Company would, as
a consequence, be subject to tax liability for any such taxable year, the amount
of cash available for satisfaction of its liabilities and for distribution to
holders of Shares would be reduced. Distributions made to holders of Shares
generally would be taxable as ordinary income to the extent of current and
accumulated earnings and profits and, subject to certain limitations, would be
eligible for the corporate dividends received deduction, but there can be no
assurance that any such Distributions would be made. The Company would not be
eligible to elect REIT status for the four taxable years after the taxable year
it failed to qualify as a REIT, unless its failure to qualify was due to
reasonable cause and not willful neglect and certain other requirements were
satisfied.
Opinion of Counsel. Based upon representations made by officers of the
Company with respect to relevant factual matters, upon the existing Code
provisions, rules and regulations promulgated thereunder (including proposed
regulations) and reported administrative and judicial interpretations thereof,
upon Counsel's independent review of such documents as Counsel deemed relevant
in the circumstances and upon the assumption that the Company will operate in
the manner described in this Prospectus, Counsel has advised the Company that,
in its opinion, the Company qualified as a REIT under the Code for the taxable
year ending December 31, 1997, the Company is organized in conformity with the
requirements for qualification as a REIT, and the Company's proposed method of
operation will enable it to continue to meet the requirements for qualification
as a REIT. It must be emphasized, however, that the Company's ability to qualify
and remain qualified as a REIT is dependent upon actual operating results and
future actions by and events involving the Company and others, and no assurance
can be given that the actual results of the Company's operations and future
actions and events will enable the Company to satisfy in any given year the
requirements for qualification and taxation as a REIT.
Requirements for Qualification as a REIT. As discussed more fully
below, the Code defines a REIT as a corporation, trust or association (i) which
is managed by one or more trustees or directors; (ii) the beneficial ownership
of which is evidenced by transferable shares, or by transferable certificates of
beneficial interest; (iii) which would be taxable, but for Sections 856 through
860 of the Code, as a domestic corporation; (iv) which is neither a financial
institution nor an insurance company; (v) the beneficial ownership of which is
held (without reference to any rules of attribution) by 100 or more persons;
(vi) which is not closely held as defined in section 856(h) of the Code; and
(vii) which meets certain other tests regarding the nature of its assets and
income and the amount of its distributions.
In the case of a REIT which is a partner in a partnership, Treasury
Regulations provide that the REIT will be deemed to own its proportionate share
of the assets of the partnership and will be deemed to be entitled to the income
of the partnership attributable to such share. In addition, the assets and gross
income (as defined in the Code) of the partnership attributed to the REIT shall
retain the same character as in the hands of the partnership for purposes of
Section 856 of the Code, including satisfying the gross income tests and the
asset tests described below. Thus, the Company's proportionate share of the
assets, liabilities and items of income of any Joint Venture, as described in
"Business - Joint Venture Arrangements," will be treated as assets, liabilities
and items of income of the Company for purposes of applying the asset and gross
income tests described herein.
- 97 -
<PAGE>
Ownership Tests. The ownership requirements for qualification as a REIT
are that (i) during the last half of each taxable year not more than 50% in
value of the REIT's outstanding shares may be owned, directly or indirectly
(applying certain attribution rules), by five or fewer individuals (or certain
entities as defined in the Code) and (ii) there must be at least 100
stockholders (without reference to any attribution rules) on at least 335 days
of such 12-month taxable year (or a proportionate number of days of a short
taxable year). These two requirements do not apply to the first taxable year for
which an election is made to be treated as a REIT. In order to meet these
requirements for subsequent taxable years, or to otherwise obtain, maintain, or
reestablish REIT status, the Articles of Incorporation generally prohibit any
person or entity from actually, constructively or beneficially acquiring or
owning (applying certain attribution rules) more than 9.8% of the outstanding
Common Stock or 9.8% of any series of outstanding Preferred Stock. Among other
provisions, the Articles of Incorporation empower the Board of Directors to
redeem, at its option, a sufficient number of Shares to bring the ownership of
Shares of the Company in conformity with these requirements or to assure
continued conformity with such requirements.
Under the Articles of Incorporation, each holder of Shares is required,
upon demand, to disclose to the Board of Directors in writing such information
with respect to actual, constructive or beneficial ownership of Shares of the
Company as the Board of Directors deems necessary to comply with provisions of
the Code applicable to the Company or the provisions of the Articles of
Incorporation, or the requirements of any other appropriate taxing authority.
Certain Treasury regulations govern the method by which the Company is required
to demonstrate compliance with these stock ownership requirements and the
failure to satisfy such regulations could cause the Company to fail to qualify
as a REIT. The Company has represented that it expects to meet these stock
ownership requirements for each taxable year and it will be able to demonstrate
its compliance with these requirements.
Asset Tests. At the end of each quarter of a REIT's taxable year, at
least 75% of the value of its total assets must consist of "real estate assets,"
cash and cash items (including receivables) and certain government securities.
The balance of a REIT's assets generally may be invested without restriction,
except that holdings of securities not within the 75% class of assets generally
must not, with respect to any issuer, exceed 5% of the value of the REIT's
assets or 10% of the issuer's outstanding voting securities. The term "real
estate assets" includes real property, interests in real property, leaseholds of
land or improvements thereon, and mortgages on the foregoing and any property
attributable to the temporary investment of new capital (but only if such
property is stock or a debt instrument and only for the one-year period
beginning on the date the REIT receives such capital). When a mortgage is
secured by both real property and other property, it is considered to constitute
a mortgage on real property to the extent of the fair market value of the real
property when the REIT is committed to make the loan (or, in the case of a
construction loan, the reasonably estimated cost of construction). Initially,
the bulk of the Company's assets will be real property. However, the Company
will also hold the Secured Equipment Leases. Counsel is of the opinion, based on
certain assumptions, that the Secured Equipment Leases will be treated as loans
secured by personal property for federal income tax purposes. See "Federal
Income Tax Considerations - Characterization of the Secured Equipment Leases."
Therefore, the Secured Equipment Leases will not qualify as "real estate
assets." However, the Company has represented that at the end of each quarter
the value of the Secured Equipment Leases, together with any personal property
owned by the Company, will in the aggregate represent less than 25% of the
Company's total assets and that the value of the Secured Equipment Leases
entered into with any particular tenant will represent less than 5% of the
Company's total assets. No independent appraisals will be acquired to support
this representation, and Counsel, in rendering its opinion as to the
qualification of the Company as a REIT, is relying on the conclusions of the
Company and its senior management as to the relative values of its assets. There
can be no assurance, however, that the IRS may not contend that either (i) the
value of the Secured Equipment Leases entered into with any particular tenant
represents more than 5% of the Company's total assets, or (ii) the value of the
Secured Equipment Leases, together with any personal property owned by the
Company, exceeds 25% of the Company's total assets.
As indicated in "Business - Joint Venture Arrangements," the Company
may participate in Joint Ventures. If a Joint Venture were classified, for
federal income tax purposes, as an association taxable as a corporation rather
than as a partnership, the Company's ownership of a 10% or greater interest in
the Joint Venture would cause the
- 98 -
<PAGE>
Company to fail to meet the requirement that it not own 10% or more of an
issuer's voting securities. However, Counsel is of the opinion, based on certain
assumptions, that any Joint Ventures will constitute partnerships for federal
income tax purposes. See "Federal Income Tax Considerations - Investment in
Joint Ventures."
Income Tests. A REIT also must meet two separate tests with respect to
its sources of gross income for each taxable year.
(a) The 75 Percent and 95 Percent Tests. In general, at least 75% of a
REIT's gross income for each taxable year must be from "rents from real
property," interest on obligations secured by mortgages on real property, gains
from the sale or other disposition of real property and certain other sources,
including "qualified temporary investment income." For these purposes,
"qualified temporary investment income" means any income (i) attributable to a
stock or debt instrument purchased with the proceeds received by the REIT in
exchange for stock (or certificates of beneficial interest) in such REIT (other
than amounts received pursuant to a distribution reinvestment plan) or in a
public offering of debt obligations with a maturity of at least five years and
(ii) received or accrued during the one-year period beginning on the date the
REIT receives such capital. In addition, a REIT must derive at least 95% of its
gross income for each taxable year from any combination of the items of income
which qualify under the 75% test, from dividends and interest, and from gains
from the sale, exchange or other disposition of certain stock and securities.
Initially, the bulk of the Company's income will be derived from rents
with respect to the Properties. Rents from Properties received by the Company
qualify as "rents from real property" in satisfying these two tests only if
several conditions are met. First, the rent must not be based in whole or in
part, directly or indirectly, on the income or profits of any person. An amount
received or accrued generally will not be excluded from the term "rents from
real property" solely by reason of being based on a fixed percentage or
percentages of receipts or sales. Second, the Code provides that rents received
from a tenant will not qualify as "rents from real property" if the REIT, or a
direct or indirect owner of 10% or more of the REIT owns, directly or
constructively, 10% or more of such tenant (a "Related Party Tenant"). Third, if
rent attributable to personal property leased in connection with a lease of real
property is greater than 15% of the total rent received under the lease, then
the portion of rent attributable to such personal property will not qualify as
"rents from real property." Finally, for rents to qualify as "rents from real
property," a REIT generally must not operate or manage the property or furnish
or render services to the tenants of such property, other than through an
independent contractor from whom the REIT derives no revenue, except that a REIT
may directly perform services which are "usually or customarily rendered" in
connection with the rental of space for occupancy, other than services which are
considered to be rendered to the occupant of the property. However, a REIT is
currently permitted to earn up to one percent of its gross income from tenants,
determined on a property-by-property basis, by furnishing services that are
noncustomary or provided directly to the tenants, without causing the rental
income to fail to qualify as rents from real property.
The Company has represented with respect to its leasing of the
Properties that it will not (i) charge rent for any Property that is based in
whole or in part on the income or profits of any person (except by reason of
being based on a percentage or percentages of receipts or sales, as described
above); (ii) charge rent that will be attributable to personal property in an
amount greater than 15% of the total rent received under the applicable lease;
(iii) directly perform services considered to be rendered to the occupant of a
Property or which are not usually or customarily furnished or rendered in
connection with the rental of real property; or (iv) enter into any lease with a
Related Party Tenant. Specifically, the Company expects that virtually all of
its income will be derived from leases of the type described in "Business -
Description of Leases," and it does not expect such leases to generate income
that would not qualify as rents from real property for purposes of the 75% and
95% income tests.
In addition, the Company will be paid interest on the Mortgage Loans.
All interest income qualifies under the 95% gross income test. If a Mortgage
Loan is secured by both real property and other property, all the interest on it
will nevertheless qualify under the 75% gross income test if the amount of the
loan did not exceed the fair market value of the real property at the time of
the loan commitment. The Company has represented that this will always be the
case. Therefore, in the opinion of Counsel, income generated through the
Company's investments in Mortgage Loans will be treated as qualifying income
under the 75% gross income test.
- 99 -
<PAGE>
The Company will also receive payments under the terms of the Secured
Equipment Leases. Although the Secured Equipment Leases will be structured as
leases or loans, Counsel is of the opinion that, subject to certain assumptions,
they will be treated as loans secured by personal property for federal income
tax purposes. See "Federal Income Tax Considerations - Characterization of the
Secured Equipment Leases." If the Secured Equipment Leases are treated as loans
secured by personal property for federal income tax purposes, then the portion
of the payments under the terms of the Secured Equipment Leases that represent
interest, rather than a return of capital for federal income tax purposes, will
not satisfy the 75% gross income test (although it will satisfy the 95% gross
income test). The Company believes, however, that the aggregate amount of such
non-qualifying income will not cause the Company to exceed the limits on
non-qualifying income under the 75% gross income test.
If, contrary to the opinion of Counsel, the Secured Equipment Leases
are treated as true leases, rather than as loans secured by personal property
for federal income tax purposes, the payments under the terms of the Secured
Equipment Leases would be treated as rents from personal property. Rents from
personal property will satisfy either the 75% or 95% gross income tests if they
are received in connection with a lease of real property and the rent
attributable to the personal property does not exceed 15% of the total rent
received from the tenant in connection with the lease. However, if rents
attributable to personal property exceed 15% of the total rent received from a
particular tenant, then the portion of the total rent attributable to personal
property will not satisfy either the 75% or 95% gross income tests.
If, notwithstanding the above, the Company fails to satisfy one or both
of the 75% or 95% tests for any taxable year, it may still qualify as a REIT if
(i) such failure is due to reasonable cause and not willful neglect; (ii) it
reports the nature and amount of each item of its income on a schedule attached
to its tax return for such year; and (iii) the reporting of any incorrect
information is not due to fraud with intent to evade tax. However, even if these
three requirements are met and the Company is not disqualified as a REIT, a
penalty tax would be imposed by reference to the amount by which the Company
failed the 75% or 95% test (whichever amount is greater).
(b) The Impact of Default Under the Secured Equipment Leases. In
applying the gross income tests to the Company, it is necessary to consider the
impact that a default under one or more of the Secured Equipment Leases would
have on the Company's ability to satisfy such tests. A default under one or more
of the Secured Equipment Leases would result in the Company directly holding the
Equipment securing such leases for federal income tax purposes. In the event of
a default, the Company may choose to either lease or sell such Equipment.
However, any income resulting from a rental or sale of Equipment not
incidental to the rental or sale of real property would not qualify under the
75% and 95% gross income tests. In addition, in certain circumstances, income
derived from a sale or other disposition of Equipment could be considered "net
income from prohibited transactions," subject to a 100% tax. The Company does
not, however, anticipate that its income from the rental or sale of Equipment
would be material in any taxable year.
Distribution Requirements. A REIT must distribute to its stockholders
for each taxable year ordinary income dividends in an amount equal to at least
(a) 95% of the sum of (i) its "real estate investment trust taxable income"
(before deduction of dividends paid and excluding any net capital gains) and
(ii) the excess of net income from foreclosure property over the tax on such
income, minus (b) certain excess non-cash income. Real estate investment trust
taxable income generally is the taxable income of a REIT computed as if it were
an ordinary corporation, with certain adjustments. Distributions must be made in
the taxable year to which they relate or, if declared before the timely filing
of the REIT's tax return for such year and paid not later than the first regular
dividend payment after such declaration, in the following taxable year.
The Company has represented that it intends to make Distributions to
stockholders that will be sufficient to meet the 95% distribution requirement.
Under some circumstances, however, it is possible that the Company may not have
sufficient funds from its operations to make cash Distributions to satisfy the
95% distribution requirement. For example, in the event of the default or
financial failure of one or more tenants or lessees, the Company might be
required to continue to accrue rent for some period of time under federal income
tax principles even though the Company would not currently be receiving the
corresponding amounts of cash. Similarly, under federal income tax
- 100 -
<PAGE>
principles, the Company might not be entitled to deduct certain expenses at the
time those expenses are incurred. In either case, the Company's cash available
for making Distributions might not be sufficient to satisfy the 95% distribution
requirement. If the cash available to the Company is insufficient, the Company
might raise cash in order to make the Distributions by borrowing funds, issuing
new securities or selling assets. If the Company ultimately were unable to
satisfy the 95% distribution requirement, it would fail to qualify as a REIT
and, as a result, would be subject to federal income tax as an ordinary
corporation without any deduction or adjustment for dividends paid to holders of
the Shares. If the Company fails to satisfy the 95% distribution requirement, as
a result of an adjustment to its tax returns by the Service, under certain
circumstances, it may be able to rectify its failure by paying a "deficiency
dividend" (plus a penalty and interest) within 90 days after such adjustment.
This deficiency dividend will be included in the Company's deductions for
dividends paid for the taxable year affected by such adjustment. However, the
deduction for a deficiency dividend will be denied, if any part of the
adjustment resulting in the deficiency is attributable to fraud with intent to
evade tax or to willful failure to timely file an income tax return.
TAXATION OF STOCKHOLDERS
Taxable Domestic Stockholders. For any taxable year in which the
Company qualifies as a REIT for federal income tax purposes, Distributions made
by the Company to its stockholders that are United States persons (generally,
any person other than a nonresident alien individual, a foreign trust or estate
or a foreign partnership or corporation) generally will be taxed as ordinary
income. Amounts received by such United States persons that are properly
designated as capital gain dividends by the Company generally will be taxed as
long-term capital gain, without regard to the period for which such person has
held its Shares, to the extent that they do not exceed the Company's actual net
capital gain for the taxable year. Corporate stockholders may be required to
treat up to 20% of certain capital gains dividends as ordinary income. Such
ordinary income and capital gain are not eligible for the dividends received
deduction allowed to corporations. In addition, the Company may elect to retain
and pay income tax on its long-term capital gains. If the Company so elects,
each stockholder will take into income the stockholder's share of the retained
capital gain as long-term capital gain and will receive a credit or refund for
that stockholder's share of the tax paid by the Company. The stockholder will
increase the basis of such stockholder's share by an amount equal to the excess
of the retained capital gain included in the stockholder's income over the tax
deemed paid by such stockholder. Distributions to such United States persons in
excess of the Company's current or accumulated earnings and profits will be
considered first a tax-free return of capital for federal income tax purposes,
reducing the tax basis of each stockholder's Shares, and then, to the extent the
Distribution exceeds each stockholder's basis, a gain realized from the sale of
Shares. The Company will notify each stockholder as to the portions of each
Distribution which, in its judgment, constitute ordinary income, capital gain or
return of capital for federal income tax purposes. Any Distribution that is (i)
declared by the Company in October, November or December of any calendar year
and payable to stockholders of record on a specified date in such months and
(ii) actually paid by the Company in January of the following year, shall be
deemed to have been received by each stockholder on December 31 of such calendar
year and, as a result, will be includable in gross income of the stockholder for
the taxable year which includes such December 31. Stockholders who elect to
participate in the Reinvestment Plan will be treated as if they received a cash
Distribution from the Company and then applied such Distribution to purchase
Shares in the Reinvestment Plan. Stockholders may not deduct on their income tax
returns any net operating or net capital losses of the Company.
Upon the sale or other disposition of the Company's Shares, a
stockholder generally will recognize capital gain or loss equal to the
difference between the amount realized on the sale or other disposition and the
adjusted basis of the Shares involved in the transaction. Such gain or loss will
be long-term capital gain or loss if, at the time of sale or other disposition,
the Shares involved have been held for more than one year. In addition, if a
stockholder receives a capital gain dividend with respect to Shares which he has
held for six months or less at the time of sale or other disposition, any loss
recognized by the stockholder will be treated as long-term capital loss to the
extent of the amount of the capital gain dividend that was treated as long-term
capital gain.
- 101 -
<PAGE>
Generally, the redemption of Shares by the Company will result in
recognition of ordinary income by the stockholder unless the stockholder
completely terminates or substantially reduces his or her interest in the
Company. A redemption of Shares for cash will be treated as a distribution that
is taxable as a dividend to the extent of the Company's current or accumulated
earnings and profits at the time of the redemption under Section 302 of the Code
unless the redemption (a) results in a "complete termination" of the
stockholder's interest in the Company under Section 302(b)(3) of the Code, (b)
is "substantially disproportionate" with respect to the stockholder under
Section 302(b)(2) of the Code, or (c) is "not essentially equivalent to a
dividend" with respect to the stockholder under Section 302(b)(1) of the Code.
Under Code Section 302(b)(2) a redemption is considered "substantially
disproportionate" if the percentage of the voting stock of the corporation owned
by a stockholder immediately after the redemption is less than eighty percent of
the percentage of the voting stock of the corporation owned by such stockholder
immediately before the redemption. In determining whether the redemption is not
treated as a dividend, Shares considered to be owned by a stockholder by reason
of certain constructive ownership rules set forth in Section 318 of the Code, as
well as Shares actually owned, must generally be taken into account. A
distribution to a stockholder will be "not essentially equivalent to a dividend"
if its results in a "meaningful reduction" in the stockholder's interest in the
Company. The Service has published a ruling indicating that a redemption which
results in a reduction in the proportionate interest in a corporation (taking
into account the Section 318 constructive ownership rules) of a stockholder
whose relative stock interest is minimal (an interest of less than 1% should
satisfy this requirement) and who exercises no control over the corporation's
affairs should be treated as being "not essentially equivalent to a dividend."
If the redemption is not treated as a dividend, the redemption of the
Shares for cash will result in taxable gain or loss equal to the difference
between the amount of cash received and the stockholder's tax basis in the
Shares redeemed. Such gain or loss would be capital gain or loss if the Shares
were held as a capital asset and would be long-term capital gain or loss if the
holding period for the Shares exceeds one year.
The Company will report to its U.S. stockholders and the Service the
amount of dividends paid or treated as paid during each calendar year, and the
amount of tax withheld, if any. Under the backup withholding rules, a
stockholder may be subject to backup withholding at the rate of 31% with respect
to dividends paid unless such holder (a) is a corporation or comes within
certain other exempt categories and, when required, demonstrates this fact or
(b) provides a taxpayer identification number, certifies as to no loss of
exemption from backup withholding, and otherwise complies with applicable
requirements of the backup withholding rules. A stockholder that does not
provide the Company with a correct taxpayer identification number may also be
subject to penalties imposed by the Service. Any amount paid to the Service as
backup withholding will be creditable against the stockholder's income tax
liability. In addition, the Company may be required to withhold a portion of
capital gain dividends to any stockholders who fail to certify their non-foreign
status to the Company. See "Foreign Stockholders" below.
The state and local income tax treatment of the Company and its
stockholders may not conform to the federal income tax treatment described
above. As a result, stockholders should consult their own tax advisors for an
explanation of how other state and local tax laws would affect their investment
in Shares.
Tax-Exempt Stockholders. Dividends paid by the Company to a stockholder
that is a tax-exempt entity generally will not constitute "unrelated business
taxable income" ("UBTI") as defined in Section 512(a) of the Code, provided that
the tax-exempt entity has not financed the acquisition of its Shares with
"acquisition indebtedness" within the meaning of Section 514(c) of the Code and
the Shares are not otherwise used in an unrelated trade or business of the
tax-exempt entity.
Notwithstanding the foregoing, qualified trusts that hold more than 10%
(by value) of the shares of certain REITs may be required to treat a certain
percentage of such REIT's distributions as UBTI. This requirement will apply
only if (i) treating qualified trusts holding REIT shares as individuals would
result in a determination that the REIT is "closely held" within the meaning of
Section 856(h)(1) of the Code and (ii) the REIT is "predominantly held" by
qualified trusts. A REIT is predominantly held if either (i) a single qualified
trust holds more than 25% by value of the REIT interests or (ii) one or more
qualified trusts, each owning more than 10% by value of the REIT interests, hold
in the aggregate more than 50% of the REIT interests. The percentage of any REIT
dividend treated
- 102 -
<PAGE>
as UBTI is equal to the ratio of (a) the UBTI earned by the REIT (treating the
REIT as if it were a qualified trust and therefore subject to tax on UBTI) to
(b) the total gross income (less certain associated expenses) of the REIT. A de
minimis exception applies where the ratio set forth in the preceding sentence is
less than 5% for any year. For these purposes, a qualified trust is any trust
described in Section 401(a) of the Code and exempt from tax under Section 501(a)
of the Code. The restrictions on ownership of Shares in the Articles of
Incorporation will prevent application of the provisions treating a portion of
REIT distributions as UBTI to tax-exempt entities purchasing Shares in the
Company, absent a waiver of the restrictions by the Board of Directors. See
"Summary of the Articles of Incorporation and Bylaws - Restriction of
Ownership."
Assuming that there is no waiver of the restrictions on ownership of
Shares in the Articles of Incorporation and that a tax-exempt stockholder does
not finance the acquisition of its Shares with "acquisition indebtedness" within
the meaning of Section 514(c) of the Code or otherwise use its Shares in an
unrelated trade or business, in the opinion of Counsel the distributions of the
Company with respect to such tax-exempt stockholder will not constitute UBTI.
The tax discussion of distributions by qualified retirement plans,
IRAs, Keogh plans and other tax-exempt entities is beyond the scope of this
discussion, and such entities should consult their own tax advisors regarding
such questions.
Foreign Stockholders. The rules governing United States federal income
taxation of nonresident alien individuals, foreign corporations, foreign
participants and other foreign stockholders (collectively, "Non-U.S.
Stockholders") are complex, and no attempt will be made herein to provide more
than a summary of such rules. The following discussion assumes that the income
from investment in the Shares will not be effectively connected with the
Non-U.S. Stockholders' conduct of a United States trade or business. Prospective
Non-U.S. Stockholders should consult with their own tax advisors to determine
the impact of federal, state and local laws with regard to an investment in
Shares, including any reporting requirements. Non-U.S. Stockholders will be
admitted as stockholders with the approval of the Advisor.
Distributions that are not attributable to gain from sales or exchanges
by the Company of United States real property interests and not designated by
the Company as capital gain dividends will be treated as dividends of ordinary
income to the extent that they are made out of current and accumulated earnings
and profits of the Company. Such dividends ordinarily will be subject to a
withholding tax equal to 30% of the gross amount of the dividend, unless an
applicable tax treaty reduces or eliminates that tax. A number of U.S. tax
treaties that reduce the rate of withholding tax on corporate dividends do not
reduce, or reduce to a lesser extent, the rate of withholding applied to
dividends from a REIT. The Company expects to withhold U.S. income tax at the
rate of 30% on the gross amount of any such distributions paid to a Non-U.S.
Stockholder unless (i) a lower treaty rate applies (and, with regard to payments
on or after January 1, 1999, the Non-U.S. Stockholder files IRS Form W-8 with
the Company and, if the Shares are not traded on an established securities
market, acquires a taxpayer identification number from the IRS) or (ii) the
Non-U.S. Stockholder files an IRS Form 4224 (or, with respect to payments on or
after January 1, 1999, files IRS Form W-8 with the Company) with the Company
claiming that the distribution is effectively connected income. Distributions in
excess of the Company's current and accumulated earnings and profits will not be
taxable to a stockholder to the extent that such distributions paid do not
exceed the adjusted basis of the stockholder's Shares, but rather will reduce
the adjusted basis of such Shares. To the extent that distributions in excess of
current and accumulated earnings and profits exceed the adjusted basis of a
Non-U.S. Stockholders' Shares, such distributions will give rise to tax
liability if the Non-U.S. Stockholder would otherwise be subject to tax on any
gain from the sale or disposition of the Shares, as described below. If it
cannot be determined at the time a distribution is paid whether or not such
distribution will be in excess of current and accumulated earnings and profits,
the distribution will be subject to withholding at the rate of 30%. However, a
Non-U.S. Stockholder may seek a refund of such amounts from the IRS if it is
subsequently determined that such distribution was, in fact, in excess of the
Company's current and accumulated earnings and profits. Beginning with payments
made on or after January 1, 1999, the Company will be permitted, but not
required, to make reasonable estimates of the extent to
- 103 -
<PAGE>
which distributions exceed current or accumulated earnings and profits. Such
distributions will generally be subject to a 10% withholding tax, which may be
refunded to the extent they exceed the stockholder's actual U.S. tax liability,
provided the required information is furnished to the IRS.
For any year in which the Company qualifies as a REIT, distributions
that are attributable to gain from sales or exchanges by the Company of United
States real property interests will be taxed to a Non-U.S. Stockholder under the
provisions of the Foreign Investment in Real Property Tax Act of 1980, as
amended ("FIRPTA"). Under FIRPTA, distributions attributable to gain from sales
of United States real property interests are taxed to a Non-U.S. Stockholder as
if such gain were effectively connected with a United States business. Non-U.S.
Stockholders would thus be taxed at the normal capital gain rates applicable to
U.S. Stockholders (subject to applicable alternative minimum tax and a special
alternative minimum tax in the case of nonresident alien individuals). Also,
distributions subject to FIRPTA may be subject to a 30% branch profits tax in
the hands of a foreign corporate stockholder not entitled to treaty exemption or
rate reduction. The Company is required by applicable Treasury Regulations to
withhold 35% of any distribution that could be designated by the Company as a
capital gain dividend. This amount is creditable against the Non-U.S.
Stockholder's FIRPTA tax liability.
Gain recognized by a Non-U.S. Stockholder upon a sale of Shares
generally will not be taxed under FIRPTA if the Company is a "domestically
controlled REIT," defined generally as a REIT in which at all times during a
specified testing period less than 50% in value of the stock was held directly
or indirectly by foreign persons. It is currently anticipated that the Company
will be a "domestically controlled REIT," and in such case the sale of Shares
would not be subject to taxation under FIRPTA. However, gain not subject to
FIRPTA nonetheless will be taxable to a Non-U.S. Stockholder if (i) investment
in the Shares is treated as "effectively connected" with the Non-U.S.
Stockholders' U.S. trade or business or (ii) the Non-U.S. Stockholder is a
nonresident alien individual who was present in the United States for 183 days
or more during the taxable year and certain other conditions are met.
Effectively connected gain realized by a foreign corporate shareholder may be
subject to an additional 30% branch profits tax, subject to possible exemption
or rate reduction under an applicable tax treaty. If the gain on the sale of
Shares were to be subject to taxation under FIRPTA, the Non-U.S. Stockholder
would be subject to the same treatment as U.S. Stockholders with respect to such
gain (subject to applicable alternative minimum tax and a special alternative
minimum tax in the case of nonresident alien individuals), and the purchaser of
the Shares would be required to withhold and remit to the Service 10% of the
purchase price.
STATE AND LOCAL TAXES
The Company and its shareholders may be subject to state and local
taxes in various states and localities in which it or they transact business,
own property, or reside. The tax treatment of the Company and the stockholders
in such jurisdictions may differ from the federal income tax treatment described
above. Consequently, prospective stockholders should consult their own tax
advisors regarding the effect of state and local tax laws upon an investment in
the Common Stock of the Company.
CHARACTERIZATION OF PROPERTY LEASES
The Company will purchase both new and existing Properties and lease
them to franchisees or corporate franchisors pursuant to leases of the type
described in "Business - Description of Property Leases." The ability of the
Company to claim certain tax benefits associated with ownership of the
Properties, such as depreciation, depends on a determination that the lease
transactions engaged in by the Company are true leases, under which the Company
is the owner of the leased Property for federal income tax purposes, rather than
a conditional sale of the Property or a financing transaction. A determination
by the Service that the Company is not the owner of the Properties for federal
income tax purposes may have adverse consequences to the Company, such as the
denying of the Company's depreciation deductions. Moreover, a denial of the
Company's depreciation deductions could result in a determination that the
Company's Distributions to stockholders were insufficient to satisfy the 95%
distribution requirement for qualification as a REIT. However, as discussed
above, if the Company has sufficient cash, it may be able to remedy any past
failure to satisfy the distribution requirements by paying a "deficiency
dividend" (plus a penalty and interest). See "Taxation of the Company --
Distribution Requirements," above. Furthermore, in the
- 104 -
<PAGE>
event that the Company were determined not to be the owner of a particular
Property, in the opinion of Counsel the income that the Company would receive
pursuant to the recharacterized lease would constitute interest qualifying under
the 95% and 75% gross income tests by reason of being interest on an obligation
secured by a mortgage on an interest in real property, because the legal
ownership structure of such Property will have the effect of making the building
serve as collateral for the debt obligation.
The characterization of transactions as leases, conditional sales, or
financings has been addressed in numerous cases. The courts have not identified
any one factor as being determinative of whether the lessor or the lessee of
property is to be treated as the owner. Judicial decisions and pronouncements of
the Service with respect to the characterization of transactions as either
leases, conditional sales, or financing transactions have made it clear that the
characterization of leases for tax purposes is a question which must be decided
on the basis of a weighing of many factors, and courts have reached different
conclusions even where characteristics of two lease transactions were
substantially similar.
While certain characteristics of the leases anticipated to be entered
into by the Company suggest the Company might not be the owner of the
Properties, such as the fact that such leases are "triple-net" leases, a
substantial number of other characteristics indicate the bona fide nature of
such leases and that the Company will be the owner of the Properties. For
example, under the types of leases described in "Business - Description of
Property Leases," the Company will bear the risk of substantial loss in the
value of the Properties, since the Company will acquire its interests in the
Properties with an equity investment, rather than with nonrecourse indebtedness.
Further, the Company, rather than the tenant, will benefit from any appreciation
in the Properties, since the Company will have the right at any time to sell or
transfer its Properties, subject to the tenant's right to purchase the property
at a price not less than the Property's fair market value (determined by
appraisal or otherwise).
Other factors that are consistent with the ownership of the Properties
by the Company are (i) the tenants are liable for repairs and to return the
Properties in reasonably good condition; (ii) insurance proceeds generally are
to be used to restore the Properties and, to the extent not so used, belong to
the Company; (iii) the tenants agree to subordinate their interests in the
Properties to the lien of any first mortgage upon delivery of a nondisturbance
agreement and agree to attorn to the purchaser upon any foreclosure sale; and
(iv) based on the Company's representation that the Properties can reasonably be
expected to have at the end of their lease terms (generally a maximum of 30 to
40 years) a fair market value of at least 20% of the Company's cost and a
remaining useful life of at least 20% of their useful lives at the beginning of
the leases, the Company has not relinquished the Properties to the tenants for
their entire useful lives, but has retained a significant residual interest in
them. Moreover, the Company will not be primarily dependent upon tax benefits in
order to realize a reasonable return on its investments.
Concerning the Properties for which the Company owns the buildings and
the underlying land, on the basis of the foregoing, assuming (i) the Company
leases the Properties on substantially the same terms and conditions described
in "Business - Description of Property Leases," and (ii) as is represented by
the Company, the residual value of the Properties remaining after the end of
their lease terms (including all renewal periods) may reasonably be expected to
be at least 20% of the Company's cost of such Properties, and the remaining
useful lives of the Properties after the end of their lease terms (including all
renewal periods) may reasonably be expected to be at least 20% of the
Properties' useful lives at the beginning of their lease terms, it is the
opinion of Counsel that the Company will be treated as the owner of the
Properties for federal income tax purposes and will be entitled to claim
depreciation and other tax benefits associated with such ownership. In the case
of Properties for which the Company does not own the underlying land, Counsel
cannot opine that such transactions will be characterized as leases.
CHARACTERIZATION OF SECURED EQUIPMENT LEASES
The Company will purchase Equipment and lease it to franchisees or
corporate franchisors pursuant to leases of the type described in "Business -
General." The ability of the Company to qualify as a REIT depends on a
determination that the Secured Equipment Leases are financing arrangements,
under which the lessees acquire
- 105 -
<PAGE>
ownership of the Equipment for federal income tax purposes. If the Secured
Equipment Leases are instead treated as true leases, the Company may be unable
to satisfy the income tests for REIT qualification. See "Federal Income Tax
Considerations - Taxation of the Company - Income Tests."
While certain characteristics of the Secured Equipment Leases to be
entered into by the Company suggest that the Company retains ownership of the
Equipment, such as the fact that certain of the Secured Equipment Leases are
structured as leases, with the Company retaining title to the Equipment, a
substantial number of other characteristics indicate that the Secured Equipment
Leases are financing arrangements and that the lessees are the owners of the
Equipment for federal income tax purposes. For example, under the types of
Secured Equipment Leases described in "Business - General," the lease term will
equal or exceed the useful life of the Equipment, and the lessee will have the
option to purchase the Equipment at the end of the lease term for a nominal sum.
Moreover, under the terms of the Secured Equipment Leases, the Company and the
lessees will each agree to treat the Secured Equipment Leases as loans secured
by personal property, rather than leases, for tax purposes.
On the basis of the foregoing, assuming (i) the Secured Equipment
Leases are made on substantially the same terms and conditions described in
"Business - General," and (ii) as represented by the Company, each of the
Secured Equipment Leases will have a term that equals or exceeds the useful life
of the Equipment subject to the lease, it is the opinion of Counsel that the
Company will not be treated as the owner of the Equipment that is subject to the
Secured Equipment Leases for federal income tax purposes and that the Company
will be able to treat the Secured Equipment Leases as loans secured by personal
property. Counsel's opinion that the Company will be organized in conformity
with the requirements for qualification as a REIT is based, in part, on the
assumption that each of the Secured Equipment Leases will conform to the
conditions outlined in clauses (i) and (ii) of the preceding sentence.
INVESTMENT IN JOINT VENTURES
As indicated in "Business - Joint Venture Arrangements," the Company
may participate in Joint Ventures which own and lease Properties. Assuming that
the Joint Ventures have the characteristics described in "Business - Joint
Venture Arrangements," and are operated in the same manner that the Company
operates with respect to Properties that it owns directly, it is the opinion of
Counsel that (i) the Joint Ventures will be treated as partnerships, as defined
in Sections 7701(a)(2) and 761(a) of the Code and not as associations taxable as
corporations, and that the Company will be subject to tax as a partner pursuant
to Sections 701-761 of the Code and (ii) all material allocations to the Company
of income, gain, loss and deduction as provided in the Joint Venture agreements
and as discussed in the Prospectus will be respected under Section 704(b) of the
Code. The Company has represented that it will not become a participant in any
Joint Venture unless the Company has first obtained advice of Counsel that the
Joint Venture will constitute a partnership for federal income tax purposes and
that the allocations to the Company contained in the Joint Venture agreement
will be respected.
If, contrary to the opinion of Counsel, a Joint Venture were to be
treated as an association taxable as a corporation, the Company would be treated
as a stockholder for tax purposes and would not be treated as owning a pro rata
share of the Joint Venture's assets. In addition, the items of income and
deduction of the Joint Venture would not pass through to the Company. Instead,
the Joint Venture would be required to pay income tax at regular corporate tax
rates on its net income, and distributions to partners would constitute
dividends that would not be deductible in computing the Joint Venture's taxable
income. Moreover, a determination that a Joint Venture is taxable as a
corporation could cause the Company to fail to satisfy the asset tests for
qualification as a REIT. See "Taxation of the Company -- Asset Tests" and
"Taxation of the Company -- Income Tests," above.
REPORTS TO STOCKHOLDERS
The Company will furnish each stockholder with its audited annual
report within 120 days following the close of each fiscal year. These annual
reports will contain the following: (i) financial statements, including a
balance sheet, statement of operations, statement of stockholders' equity, and
statement of cash flows, prepared in
- 106 -
<PAGE>
accordance with generally accepted accounting principles which are audited and
reported on by independent certified public accountants; (ii) the ratio of the
costs of raising capital during the period to the capital raised; (iii) the
aggregate amount of advisory fees and the aggregate amount of other fees paid to
the Advisor and any Affiliate of the Advisor by the Company and including fees
or charges paid to the Advisor and any Affiliate of the Advisor by third parties
doing business with the Company; (iv) the Operating Expenses of the Company,
stated as a percentage of the Average Invested Assets (the average of the
aggregate book value of the assets of the Company, for a specified period,
invested, directly or indirectly, in equity interests in and loans secured by
real estate, before reserves for depreciation or bad debts or other similar
non-cash reserves, computed by taking the average of such values at the end of
each month during such period) and as a percentage of its Net Income; (v) a
report from the Independent Directors that the policies being followed by the
Company are in the best interest of its stockholders and the basis for such
determination; (vi) separately stated, full disclosure of all material terms,
factors and circumstances surrounding any and all transactions involving the
Company, Directors, Advisor and any Affiliate thereof occurring in the year for
which the annual report is made, and the Independent Directors shall be
specifically charged with a duty to examine and comment in the report on the
fairness of such transactions; and (vii) Distributions to the stockholders for
the period, identifying the source of such Distributions and if such information
is not available at the time of the distribution, a written explanation of the
relevant circumstances will accompany the Distributions (with the statement as
to the source of Distributions to be sent to stockholders not later than 60 days
after the end of the fiscal year in which the distribution was made).
Within 75 days following the close of each Company fiscal year, each
stockholder that is a Qualified Plan will be furnished with an annual statement
of Share valuation to enable it to file annual reports required by ERISA as they
relate to its investment in the Company. The statement will report an estimated
value of each Share, prior to the termination of the offering, of $10 per Share
and, after the termination of the offering, based on (i) appraisal updates
performed by the Company based on a review of the existing appraisal and lease
of each Property, focusing on a re-examination of the capitalization rate
applied to the rental stream to be derived from that Property; and (ii) a review
of the outstanding Mortgage Loans and Secured Equipment Leases focusing on a
determination of present value by a re-examination of the capitalization rate
applied to the stream of payments due under the terms of each Mortgage Loan and
Secured Equipment Leases. The Company may elect to deliver such reports to all
stockholders. Stockholders will not be forwarded copies of appraisals or
updates. In providing such reports to stockholders, neither the Company nor its
Affiliates thereby make any warranty, guarantee, or representation that (i) the
stockholders or the Company, upon liquidation, will actually realize the
estimated value per Share, or (ii) the stockholders will realize the estimated
net asset value if they attempt to sell their Shares.
If the Company is required by the Securities Exchange Act of 1934, as
amended, to file quarterly reports with the Securities and Exchange Commission
on Form 10-Q, stockholders will be furnished with a summary of the information
contained in each such report within 60 days after the end of each fiscal
quarter. Such summary information generally will include a balance sheet, a
quarterly statement of income, and a statement of cash flows, and any other
pertinent information regarding the Company and its activities during the
quarter. Stockholders also may receive a copy of any Form 10-Q upon request to
the Company. If the Company is not subject to this filing requirement,
stockholders will be furnished with a semi-annual report within 60 days after
each six-month period containing information similar to that contained in the
quarterly report but applicable to such six-month period.
Stockholders and their duly authorized representatives are entitled to
inspect and copy, at their expense, the books and records of the Company at all
times during regular business hours, upon reasonable prior notice to the
Company, at the location where such reports are kept by the Company.
Stockholders, upon request and at their expense, may obtain full information
regarding the financial condition of the Company, a copy of the Company's
federal, state, and local income tax returns for each fiscal year of the
Company, and, subject to certain confidentiality requirements, a list containing
the name, address, and Shares held by each stockholder.
The fiscal year of the Company will be the calendar year.
- 107 -
<PAGE>
The Company's federal tax return (and any applicable state income tax
returns) will be prepared by the accountants regularly retained by the Company.
Appropriate tax information will be submitted to the stockholders within 30 days
following the end of each fiscal year of the Company. A specific reconciliation
between GAAP and income tax information will not be provided to the
stockholders; however, such reconciling information will be available in the
office of the Company for inspection and review by any interested stockholder.
THE OFFERING
As of September 1, 1998, the Company had received aggregate
subscription proceeds of $26,736,275 (2,673,628 Shares), including $9,704 (970
Shares) issued pursuant to the Reinvestment Plan. As of September 1, 1998, the
Company had invested approximately $18,670,000 of such proceeds and $8,600,000
of advances from the Line of Credit in two hotel Properties, and had incurred
approximately $1,400,000 in Acquisition Fees and certain Acquisition Expenses,
leaving approximately $3,118,000 in Net Offering Proceeds available for
investment in additional Properties and Mortgage Loans.
GENERAL
A maximum of 15,000,000 Shares ($150,000,000) are being offered at a
purchase price of $10.00 per share. In addition, the Company has registered an
additional 1,500,000 Shares ($15,000,000) available only to stockholders who
receive a copy of this Prospectus and who elect to participate in the
Reinvestment Plan. Any participation in such plan by a person who becomes a
stockholder otherwise than by participating in this offering will require
solicitation under a separate prospectus. See "Summary of Reinvestment Plan."
The Board of Directors may determine to engage in future offerings of Common
Stock of up to the number of unissued authorized shares of Common Stock
available following termination of this offering.
A minimum investment of 250 Shares ($2,500) is required, except for
Nebraska, New York, and North Carolina investors who must make a minimum
investment of 500 Shares ($5,000). IRAs, Keogh plans, and pension plans must
make a minimum investment of at least 100 Shares ($1,000), except for Iowa
tax-exempt investors who must make a minimum investment of 250 Shares ($2,500).
For Minnesota investors only, IRAs and qualified plans must make a minimum
investment of 200 Shares ($2,000). Any investor who makes the required minimum
investment may purchase additional Shares in increments of one Share. Maine
investors, however, may not purchase additional Shares in amounts less than the
applicable minimum investment except at the time of the initial subscription or
with respect to Shares purchased pursuant to the Reinvestment Plan. See "The
Offering - General," "The Offering - Subscription Procedures," and "Summary of
Reinvestment Plan."
PLAN OF DISTRIBUTION
The Shares are being offered to the public on a "best efforts" basis
(which means that no one is guaranteeing that any minimum amount will be sold)
through the Soliciting Dealers, who will be members of the National Association
of Securities Dealers, Inc. (the "NASD") or other persons or entities exempt
from broker-dealer registration, and the Managing Dealer. The Soliciting Dealers
will use their best efforts during the offering period to find eligible persons
who desire to subscribe for the purchase of Shares from the Company. Both James
M. Seneff, Jr. and Robert A. Bourne are Affiliates and licensed principals of
the Managing Dealer, and the Advisor is an Affiliate of the Managing Dealer.
Prior to a subscriber's admission to the Company as a stockholder,
funds paid by such subscriber will be deposited in an interest-bearing escrow
account with SouthTrust Asset Management Company of Florida, N.A. The Company,
within 30 days after the date a subscriber is admitted to the Company, will pay
to such subscriber the interest (generally calculated on a daily basis) actually
earned on the funds of such subscribers whose funds have been held in escrow by
such bank for at least 20 days. Stockholders otherwise are not entitled to
interest earned on Company funds or to receive interest on their Invested
Capital. See "Escrow Arrangements" below.
- 108 -
<PAGE>
Subject to the provisions for reduced Selling Commissions described
below, the Company will pay the Managing Dealer an aggregate of 7.5% of the
Gross Proceeds as Selling Commissions. The Managing Dealer shall reallow fees of
up to 7% to the Soliciting Dealers with respect to Shares sold by them. In
addition, the Company will pay the Managing Dealer, as an expense allowance, a
marketing support and due diligence expense reimbursement fee equal to 0.5% of
Gross Proceeds. The Managing Dealer, in its sole discretion, may reallow to any
Soliciting Dealer all or any portion of this fee based on such factors as the
number of Shares sold by such Soliciting Dealer, the assistance, if any, of such
Soliciting Dealer in marketing the offering, and bona fide due diligence
expenses incurred. Stockholders who elect to participate in the Reinvestment
Plan will be charged Selling Commissions and the marketing support and due
diligence fee on Shares purchased for their accounts on the same basis as
investors who purchase Shares in the offering. See "Summary of Reinvestment
Plan."
A registered principal or representative of the Managing Dealer or a
Soliciting Dealer, employees, officers, and Directors of the Company, or
employees, officers and directors of the Advisor, any of their Affiliates and
any Plan established exclusively for the benefit of such persons or entities may
purchase Shares net of 7% commissions, at a per Share purchase price of $9.30.
Clients of an investment adviser registered under the Investment Advisers Act of
1940, as amended, who have been advised by such adviser on an ongoing basis
regarding investments other than in the Company, and who are not being charged
by such adviser or its Affiliates, through the payment of commissions or
otherwise, for the advice rendered by such adviser in connection with the
purchase of the Shares, may purchase the Shares net of 7% commissions. In
addition, Soliciting Dealers that have a contractual arrangement with their
clients for the payment of fees which is consistent with accepting Selling
Commissions, in their sole discretion, may elect not to accept any Selling
Commissions offered by the Company for Shares that they sell. In that event,
such Shares shall be sold to the investor net of all Selling Commissions, at a
per Share purchase price of $9.30. In connection with the purchases of certain
minimum numbers of Shares, the amount of Selling Commissions otherwise payable
to the Managing Dealer or a Soliciting Dealer shall be reduced in accordance
with the following schedule:
<TABLE>
<CAPTION>
Dollar Amount
of Shares Purchase Price Reallowed Commissions on Sales Per Share
Purchased Per Share Percent Dollar Amount
------------- -------------- ------- -------------
<S> <C>
$10 -- $249,990 $10.00 7.0% $0.70
$250,000 -- $499,990 9.90 6.0% 0.60
$500,000 -- $999,990 9.70 4.0% 0.40
$1,000,000 -- $1,499,990 9.60 3.0% 0.30
$1,500,000 or more 9.50 2.0% 0.20
</TABLE>
For example, if an investor purchases 100,000 Shares, the investor
could pay as little as $960,000 rather than $1,000,000 for the Shares, in which
event the Selling Commissions on the sale of such Shares would be $35,000 ($0.35
per Share). The net proceeds to the Company will not be affected by such
discounts.
Subscriptions may be combined for the purpose of determining the volume
discounts in the case of subscriptions made by any "purchaser," provided all
such Shares are purchased through the same Soliciting Dealer or through the
Managing Dealer. The volume discount will be prorated among the separate
subscribers considered to be a single "purchaser." Shares purchased pursuant to
the Reinvestment Plan on behalf of a Participant in the Reinvestment Plan will
not be combined with other subscriptions for Shares by the investor in
determining the volume discount to which such investor may be entitled. See
"Summary of Reinvestment Plan." Further subscriptions for Shares will not be
combined for purposes of the volume discount in the case of subscriptions by any
"purchaser" who subscribes for additional Shares subsequent to the purchaser's
initial purchase of Shares.
- 109 -
<PAGE>
Any request to combine more than one subscription must be made in
writing in a form satisfactory to the Company and must set forth the basis for
such request. Any such request will be subject to verification by the Managing
Dealer that all of such subscriptions were made by a single "purchaser." If a
"purchaser" does not reduce the per Share purchase price, the excess purchase
price over the discounted purchase price will be returned to the actual separate
subscribers for Shares.
For purposes of such volume discounts, "purchaser" includes (i) an
individual, his or her spouse, and their children under the age of 21, who
purchase the Shares for his or her or their own accounts, and all pension or
trust funds established by each such individual; (ii) a corporation,
partnership, association, joint-stock company, trust fund, or any organized
group of persons, whether incorporated or not (provided that the entities
described in this clause (ii) must have been in existence for at least six
months before purchasing the Shares and must have formed such group for a
purpose other than to purchase the Shares at a discount); (iii) an employee's
trust, pension, profit-sharing, or other employee benefit plan qualified under
Section 401 of the Code; and (iv) all pension, trust, or other funds maintained
by a given bank. In addition, the Company, in its sole discretion, may aggregate
and combine separate subscriptions for Shares received during the offering
period from (i) the Managing Dealer or the same Soliciting Dealer, (ii)
investors whose accounts are managed by a single investment adviser registered
under the Investment Advisers Act of 1940, (iii) investors over whose accounts a
designated bank, insurance company, trust company, or other entity exercises
discretionary investment responsibility, or (iv) a single corporation,
partnership, trust association, or other organized group of persons, whether
incorporated or not, and whether such subscriptions are by or for the benefit of
such corporation, partnership, trust association, or group. Except as provided
in this paragraph, subscriptions will not be cumulated, combined, or aggregated.
Any reduction in commissions will reduce the effective purchase price
per Share to the investor involved but will not alter the net proceeds payable
to the Company as a result of such sale. All investors will be deemed to have
contributed the same amount per Share to the Company whether or not the investor
receives a discount. Accordingly, for purposes of Distributions, investors who
pay reduced commissions will receive higher returns on their investments in the
Company as compared to investors who do not pay reduced commissions.
In connection with the sale of Shares, certain registered principals or
representatives of the Managing Dealer may perform wholesaling functions for
which they will receive compensation payable by the Managing Dealer in an
aggregate amount not in excess of one percent of Gross Proceeds. The first 0.5%
of Gross Proceeds of any such fee will be paid from the 7.5% of Gross Proceeds
payable to the Managing Dealer as Selling Commissions. In addition, the Advisor
and its Affiliates, including the Managing Dealer and its registered principals
or representatives, may incur due diligence fees and other expenses, including
expenses related to sales seminars and wholesaling activities, a portion of
which may be paid by the Company.
The Company or its Affiliates also may provide incentive items for
registered representatives of the Managing Dealer and the Soliciting Dealers,
which in no event shall exceed an aggregate of $100 per annum per participating
salesperson. In the event other incentives are provided to registered
representatives of the Managing Dealer or the Soliciting Dealers, they will be
paid only in cash, and such payments will be made only to the Managing Dealer or
the Soliciting Dealers rather than to their registered representatives. Any such
sales incentive program must first have been submitted for review by the NASD,
and must comply with Rule 2710(c)(6)(B)(xii). Costs incurred in connection with
such sales incentive programs, if any, will be considered underwriting
compensation. See "Estimated Use of Proceeds."
The Company will also reimburse the Managing Dealer and the Soliciting
Dealers for bona fide due diligence expenses and certain expenses as incurred in
connection with the offering.
The total amount of underwriting compensation, including commissions
and reimbursement of expenses, paid in connection with the offering will not
exceed 10.5% of Gross Proceeds.
- 110 -
<PAGE>
The Managing Dealer and the Soliciting Dealers severally will indemnify
the Company and its officers and Directors, the Advisor and its officers and
directors and their Affiliates, against certain liabilities, including
liabilities under the Securities Act of 1933.
SUBSCRIPTION PROCEDURES
Procedures Applicable to All Subscriptions. In order to purchase
Shares, the subscriber must complete and execute the Subscription Agreement. Any
subscription for Shares must be accompanied by cash or check payable to
"SouthTrust Asset Management Company of Florida, N.A., Escrow Agent" (or to the
Company after subscription funds are released from escrow), in the amount of
$10.00 per Share. See "Escrow Arrangements" below. Certain Soliciting Dealers
who have "net capital," as defined in the applicable federal securities
regulations, of $250,000 or
more may instruct their customers to make their checks for Shares for which
they have subscribed payable directly to the Soliciting Dealer. In such case,
the Soliciting Dealer will issue a check made payable to the order of the Escrow
Agent for the aggregate amount of the subscription proceeds.
Each subscription will be accepted or rejected by the Company within 30
days after its receipt, and no sale of Shares shall be completed until at least
five business days after the date on which the subscriber receives a copy of
this Prospectus. If a subscription is rejected, the funds will be returned to
the subscriber within ten business days after the date of such rejection,
without interest and without deduction. A form of the Subscription Agreement is
set forth as Exhibit D to this Prospectus. The subscription price of each Share
is payable in full upon execution of the Subscription Agreement. A subscriber
whose subscription is accepted shall be sent a confirmation of his or her
purchase.
The Advisor and each Soliciting Dealer who sells Shares on behalf of
the Company have the responsibility to make every reasonable effort to determine
that the purchase of Shares is appropriate for an investor and that the
requisite suitability standards are met. See "Suitability Standards and How to
Subscribe - Suitability Standards." In making this determination, the Soliciting
Dealers will rely on relevant information provided by the investor, including
information as to the investor's age, investment objectives, investment
experience, income, net worth, financial situation, other investments, and any
other pertinent information. Each investor should be aware that determining
suitability is the responsibility of the Soliciting Dealer.
The Advisor and each Soliciting Dealer shall maintain records of the
information used to determine that an investment in the Shares is suitable and
appropriate for an investor. The Advisor and each Soliciting Dealer shall
maintain these records for at least six years.
Subscribers will be admitted as stockholders not later than the last
day of the calendar month following acceptance of their subscriptions.
Procedures Applicable to Non-Telephonic Orders. Each Soliciting Dealer
receiving a subscriber's check made payable solely to the bank escrow agent
(where, pursuant to such Soliciting Dealer's internal supervisory procedures,
internal supervisory review must be conducted at the same location at which
subscription documents and checks are received from subscribers), will deliver
such checks to the Managing Dealer no later than the close of business of the
first business day after receipt of the subscription documents by the Soliciting
Dealer except that, in any case in which the Soliciting Dealer maintains a
branch office, and, pursuant to a Soliciting Dealer's internal supervisory
procedures, final internal supervisory review is conducted at a different
location, the branch office shall transmit the subscription documents and check
to the Soliciting Dealer conducting such internal supervisory review by the
close of business on the first business day following their receipt by the
branch office and the Soliciting Dealer shall review the subscription documents
and subscriber's check to ensure their proper execution and form and, if they
are acceptable, transmit the check to the Managing Dealer by the close of
business on the first business day after the check is received by the Soliciting
Dealer. The Managing Dealer will transmit the check to the Escrow Agent by no
later than the close of business on the first business day after the check is
received from the Soliciting Dealer.
- 111 -
<PAGE>
Procedures Applicable to Telephonic Orders. Certain Soliciting Dealers
may permit investors to subscribe for Shares by telephonic order to the
Soliciting Dealer. There are no additional fees associated with telephonic
orders. Subscribers who wish to subscribe for Shares by telephonic order to the
Soliciting Dealer may complete the telephonic order either by delivering a check
in the amount necessary to purchase the Shares to be covered by the subscription
agreement to the Soliciting Dealer or by authorizing the Soliciting Dealer to
pay the purchase price for the Shares to be covered by the subscription
agreement from funds available in an account maintained by the Soliciting Dealer
on behalf of the subscriber. A subscriber must specifically authorize the
registered representative and branch manager to execute the subscription
agreement on behalf of the subscriber and must already have made or agreed to
make payment for the Shares covered by the subscription agreement.
To the extent that customers of any Soliciting Dealer wish to subscribe
and pay for Shares with funds held by or to be deposited with those firms, then
such firms shall, subject to Rule 15c2-4 promulgated under the Securities
Exchange Act of 1934, either (i) upon receipt of an executed subscription
agreement or direction to execute a subscription agreement on behalf of a
customer, to forward the offering price for the Shares covered by the
subscription agreement on or before the close of business of the first business
day following receipt or execution of a subscription agreement by such firms to
the Managing Dealer (except that, in any case in which the Soliciting Dealer
maintains a branch office, and, pursuant to a Soliciting Dealer's internal
supervisory procedures, final internal supervisory review is conducted at a
different location, the branch office shall transmit the subscription documents
and subscriber's check to the Soliciting Dealer conducting such internal
supervisory review by the close of business on the first business day following
their receipt by the branch office and the Soliciting Dealer shall review the
subscription documents and subscriber's check to ensure their proper execution
and form and, if they are acceptable, transmit the check to the Managing Dealer
by the close of business on the first business day after the check is received
by the Soliciting Dealer), or (ii) to solicit indications of interest in which
event (a) such Soliciting Dealers must subsequently contact the customer
indicating interest to confirm the interest and give instructions to execute and
return a subscription agreement or to receive authorization to execute the
subscription agreement on the customer's behalf, (b) such Soliciting Dealers
must mail acknowledgments of receipt of orders to each customer confirming
interest on the business day following such confirmation, (c) such Soliciting
Dealers must debit accounts of such customers on the fifth business day (the
"debit date") following receipt of the confirmation referred to in (a), and (d)
such Soliciting Dealers must forward funds to the Managing Dealer in accordance
with the procedures and on the schedule set forth in clause (i) of this
sentence. If the procedure in (ii) is adopted, subscribers' funds are not
required to be in their accounts until the debit date. The Managing Dealer will
transmit the check to the Escrow Agent by no later than the close of business on
the first business day after the check is received from the Soliciting Dealer.
Investors, however, who are residents of Florida, Iowa, Maine,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Mexico,
North Carolina, Ohio, Oregon, South Dakota, Tennessee or Washington must
complete and sign the Subscription Agreement in order to subscribe for Shares
and, therefore, may not subscribe for Shares by telephone. Representatives of
Soliciting Dealers who accept telephonic orders will execute the Subscription
Agreement on behalf of investors who place such orders. All investors who
telephonically subscribe for Shares will receive, with confirmation of their
subscription, a second copy of the Prospectus.
Residents of California, Oklahoma, and Texas who telephonically
subscribe for Shares will have the right to rescind such subscriptions within
ten days from receipt of the confirmation. Such investors who do not rescind
their subscriptions within such ten-day period shall be deemed to have assented
to all of the terms and conditions of the Subscription Agreement.
Additional Subscription Procedures. Investors who have questions or who
wish to place orders for Shares by telephone or to participate in the
Reinvestment Plan should contact their Soliciting Dealer. Certain Soliciting
Dealers do not permit telephonic subscriptions or participation in the
Reinvestment Plan. See "Summary of Reinvestment Plan." The form of Subscription
Agreement for certain Soliciting Dealers who do not permit telephonic
subscriptions or participation in the Reinvestment Plan differs slightly from
the form attached hereto as Exhibit D, primarily in that it will eliminate one
or both of these options.
- 112 -
<PAGE>
Investors who wish to establish an IRA for the purpose of investing
solely in Shares may do so by completing, in addition to the Subscription
Agreement, the special IRA account form attached hereto as a part of Exhibit D
appointing Franklin Bank, N.A., an unaffiliated bank, to act as their IRA
custodian. The custodian will not have the authority to vote any of the Shares
held in an IRA except in accordance with written instructions from the
beneficiary of the IRA, although it will hold the Shares on behalf of the
beneficiary and make distributions and, at the direction and in the discretion
of the beneficiary, investments in Shares or in other securities issued by
Affiliates of the Advisor. The custodian will not have authority at any time to
make investments through any such IRA on behalf of the beneficiary if the
investments do not constitute Shares or other securities issued by Affiliates of
the Advisor. The investors will not be required to pay any initial or annual
fees in connection with any such IRA. The fees for establishing and maintaining
all such IRAs will be paid by the Advisor initially and annually up to an
aggregate amount of $5,000, and by the Company above such amount.
ESCROW ARRANGEMENTS
The Escrow Agreement between the Company and the Bank provides that
escrowed funds will be invested by the Bank in an interest-bearing account with
the power of investment in short-term, highly liquid securities issued or
guaranteed by the U.S. Government, other investments permitted under Rule 15c2-4
of the Securities Exchange Act of 1934, as amended, or, in other short-term,
highly liquid investments with appropriate safety of principal. Such
subscription funds will be released periodically (at least once per month) upon
admission of stockholders to the Company.
The interest, if any, earned on subscription proceeds will be payable
only to those subscribers whose funds have been held in escrow by the Bank for
at least 20 days. Stockholders will not otherwise be entitled to interest earned
on Company funds or to receive interest on their Invested Capital.
ERISA CONSIDERATIONS
The following is a summary of material considerations arising under the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") and the
prohibited transaction provisions of Section 4975 of the Code that may be
relevant to prospective investors. This discussion does not purport to deal with
all aspects of ERISA or the Code that may be relevant to particular investors in
light of their particular circumstances.
A PROSPECTIVE INVESTOR THAT IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO
ERISA, A TAX-QUALIFIED RETIREMENT PLAN, AN IRA, OR A GOVERNMENTAL, CHURCH, OR
OTHER PLAN THAT IS EXEMPT FROM ERISA IS ADVISED TO CONSULT ITS OWN LEGAL ADVISOR
REGARDING THE SPECIFIC CONSIDERATIONS ARISING UNDER APPLICABLE PROVISIONS OF
ERISA, THE CODE, AND STATE LAW WITH RESPECT TO THE PURCHASE, OWNERSHIP, OR SALE
OF THE SHARES BY SUCH PLAN OR IRA.
Fiduciary Duties and Prohibited Transactions. A fiduciary of a pension,
profit-sharing, retirement or other employee benefit plan subject to ERISA (an
"ERISA Plan") should consider the fiduciary standards under ERISA in the context
of the ERISA Plan's particular circumstances before authorizing an investment of
any portion of the ERISA Plan's assets in the Common Stock. Accordingly, such
fiduciary should consider (i) whether the investment satisfies the
diversification requirements of Section 404(a)(1)(C) of ERISA; (ii) whether the
investment is in accordance with the documents and instruments governing the
ERISA Plan as required by Section 404(a)(1)(D) of ERISA; (iii) whether the
investment is prudent under Section 404(a)(1)(B) of ERISA; and (iv) whether the
investment is solely in the interests of the ERISA Plan participants and
beneficiaries and for the exclusive purpose of providing benefits to the ERISA
Plan participants and beneficiaries and defraying reasonable administrative
expenses of the ERISA Plan as required by Section 404(a)(1)(A) of ERISA.
In addition to the imposition of fiduciary standards, ERISA and Section
4975 of the Code prohibit a wide range of transactions between an ERISA Plan, an
IRA, or certain other plans (collectively, a "Plan") and persons who have
certain specified relationships to the Plan ("parties in interest" within the
meaning of ERISA and
- 113 -
<PAGE>
"disqualified persons" within the meaning of the Code). Thus, a Plan fiduciary
or person making an investment decision for a Plan also should consider whether
the acquisition or the continued holding of the Shares might constitute or give
rise to a direct or indirect prohibited transaction.
Plan Assets. The prohibited transaction rules of ERISA and the Code
apply to transactions with a Plan and also to transactions with the "plan
assets" of the Plan. The "plan assets" of a Plan include the Plan's interest in
an entity in which the Plan invests and, in certain circumstances, the assets of
the entity in which the Plan holds such interest. The term "plan assets" is not
specifically defined in ERISA or the Code, nor, as of the date hereof, has it
been interpreted definitively by the courts in litigation. On November 13, 1986,
the United States Department of Labor, the governmental agency primarily
responsible for administering ERISA, adopted a final regulation (the "DOL
Regulation") setting out the standards it will apply in determining whether an
equity investment in an entity will cause the assets of such entity to
constitute "plan assets." The DOL Regulation applies for purposes of both ERISA
and Section 4975 of the Code.
Under the DOL Regulation, if a Plan acquires an equity interest in an
entity, which equity interest is not a "publicly-offered security," the Plan's
assets generally would include both the equity interest and an undivided
interest in each of the entity's underlying assets unless certain specified
exceptions apply. The DOL Regulation defines a publicly-offered security as a
security that is "widely held," "freely transferable," and either part of a
class of securities registered under Section 12(b) or 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or sold pursuant to an
effective registration statement under the Securities Act (provided the
securities are registered under the Exchange Act within 120 days after the end
of the fiscal year of the issuer during which the offering occurred). The Shares
are being sold in an offering registered under the Securities Act of 1933, as
amended, and will be registered within the relevant time period under Section
12(b) of the Exchange Act.
The DOL Regulation provides that a security is "widely held" only if it
is part of a class of securities that is owned by 100 or more investors
independent of the issuer and of one another. However, a class of securities
will not fail to be "widely held" solely because the number of independent
investors falls below 100 subsequent to the initial public offering as a result
of events beyond the issuer's control. The Company expects the Shares to be
"widely held" upon completion of the offering.
The DOL Regulation provides that whether a security is "freely
transferable" is a factual question to be determined on the basis of all the
relevant facts and circumstances. The DOL Regulation further provides that when
a security is part of an offering in which the minimum investment is $10,000 or
less, as is the case with this offering, certain restrictions ordinarily will
not affect, alone or in combination, the finding that such securities are freely
transferable. The Company believes that the restrictions imposed under the
Articles of Incorporation on the transfer of the Common Stock are limited to
restrictions on transfer generally permitted under the DOL Regulation and are
not likely to result in the failure of the Common Stock to be "freely
transferable." See "Summary of the Articles of Incorporation and Bylaws -
Restriction on Ownership." The DOL Regulation only establishes a presumption in
favor of a finding of free transferability and, therefore, no assurance can be
given that the Department of Labor and the U.S. Treasury Department would not
reach a contrary conclusion with respect to the Common Stock.
Assuming that the Shares will be "widely held" and "freely
transferable," the Company believes that the Shares will be publicly-offered
securities for purposes of the DOL Regulation and that the assets of the Company
will not be deemed to be "plan assets" of any Plan that invests in the Shares.
DETERMINATION OF OFFERING PRICE
The offering price per Share was determined by the Company based upon
the estimated costs of investing in the Properties and the Mortgage Loans, the
fees to be paid to the Advisor and its Affiliates, as well as fees to third
parties, and the expenses of this offering.
- 114 -
<PAGE>
SUPPLEMENTAL SALES MATERIAL
Shares are being offered only through this Prospectus. In addition to
this Prospectus, the Company may use certain sales materials in connection with
this offering, although only when accompanied or preceded by the delivery of
this Prospectus. No sales material may be used unless it has first been approved
in writing by the Company. As of the date of this Prospectus, it is anticipated
that the following sales material will be authorized for use by the Company in
connection with this offering: (i) a brochure entitled CNL Hospitality
Properties, Inc. (formerly CNL American Realty Fund, Inc.); (ii) a fact sheet
describing the general features of the Company; (iii) a cover letter
transmitting the Prospectus; (iv) a summary description of the offering; (v) a
slide presentation; (vi) broker updates; (vii) an audio cassette presentation;
(viii) a video presentation; (ix) an electronic media presentation; (x) a cd-rom
presentation; (xi) a script for telephonic marketing; (xii) seminar
advertisements and invitations; and (xiii) certain third-party articles. All
such materials will be used only by registered broker-dealers which are members
of the NASD. The Company also may respond to specific questions from Soliciting
Dealers and prospective investors. Additional materials relating to the offering
may be made available to Soliciting Dealers for their internal use.
LEGAL OPINIONS
The legality of the Shares being offered hereby has been passed upon
for the Company by Shaw Pittman Potts & Trowbridge. Statements made under "Risk
Factors - Federal Income Tax Risks" and "Federal Income Tax Considerations" have
been reviewed by Shaw Pittman Potts & Trowbridge, who have given their opinion
that such statements as to matters of law are correct in all material respects.
Shaw Pittman Potts & Trowbridge serves as securities and tax counsel to the
Company and to the Advisor and certain of their Affiliates. Certain members of
the firm have invested in prior programs sponsored by the Affiliates of the
Company in aggregate amounts which do not exceed one percent of the amounts sold
by any such program, and members of the firm also may invest in the Company.
EXPERTS
The audited balance sheets of the Company as of December 31, 1997 and
1996, and the related statements of earnings, stockholders' equity and cash
flows for the year ended December 31, 1997, and for the period June 12, 1996
(date of inception) through December 31, 1996, included in this Prospectus, have
been included herein in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of that firm as experts in
accounting and auditing.
ADDITIONAL INFORMATION
A Registration Statement has been filed with the Securities and
Exchange Commission with respect to the securities offered hereby. This
Prospectus does not contain all information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. The information so omitted may be obtained from
the principal office of the Commission in Washington, D.C., upon payment of the
fee prescribed by the Commission, or examined at the principal office of the
Commission without charge. The Commission maintains a Web site located at
http://www.sec.gov. that contains information regarding registrants that file
electronically with the Commission.
- 115 -
<PAGE>
DEFINITIONS
"Acquisition Expenses" means any and all expenses incurred by the
Company, the Advisor, or any Affiliate of either in connection with the
selection or acquisition of any Property or the making of any Mortgage Loan,
whether or not acquired, including, without limitation, legal fees and expenses,
travel and communication expenses, costs of appraisals, nonrefundable option
payments on property not acquired, accounting fees and expenses, and title
insurance.
"Acquisition Fees" means any and all fees and commissions, exclusive of
Acquisition Expenses, paid by any person or entity to any other person or entity
(including any fees or commissions paid by or to any Affiliate of the Company or
the Advisor) in connection with making or investing in Mortgage Loans or the
purchase, development or construction of a Property, including, without
limitation, real estate commissions, acquisition fees, finder's fees, selection
fees, development fees, construction fees, nonrecurring management fees,
consulting fees, loan fees, points, the Secured Equipment Lease Servicing Fee,
or any other fees or commissions of a similar nature. Excluded shall be
development fees and construction fees paid to any person or entity not
affiliated with the Advisor in connection with the actual development and
construction of any Property.
"Advisor" means CNL Real Estate Advisors, Inc., a Florida corporation,
any successor advisor to the Company, or any person or entity to which CNL Real
Estate Advisors, Inc. or any successor advisors subcontracts substantially all
of its functions.
"Advisory Agreement" means the Advisory Agreement between the Company
and the Advisor, pursuant to which the Advisor will act as the advisor to the
Company and provide specified services to the Company.
"Affiliate" means (i) any person or entity directly or indirectly
through one or more intermediaries controlling, controlled by, or under common
control with another person or entity; (ii) any person or entity directly or
indirectly owning, controlling, or holding with power to vote ten percent (10%)
or more of the outstanding voting securities of another person or entity; (iii)
any officer, director, partner, or trustee of such person or entity; (iv) any
person ten percent (10%) or more of whose outstanding voting securities are
directly or indirectly owned, controlled or held, with power to vote, by such
other person; and (v) if such other person or entity is an officer, director,
partner, or trustee of a person or entity, the person or entity for which such
person or entity acts in any such capacity.
"Articles of Incorporation" means the Articles of Incorporation, as the
same may be amended from time to time, of the Company.
"Asset Management Fee" means the fee payable to the Advisor for
day-to-day professional management services in connection with the Company and
its investments in Properties and Mortgage Loans pursuant to the Advisory
Agreement.
"Assets" means Properties, Mortgage Loans and Secured Equipment Leases,
collectively.
"Average Invested Assets" means, for a specified period, the average of
the aggregate book value of the assets of the Company invested, directly or
indirectly, in equity interests in and loans secured by real estate before
reserves for depreciation or bad debts or other similar non-cash reserves,
computed by taking the average of such values at the end of each month during
such period.
"Bank" means SouthTrust Asset Management Company of Florida, N.A.,
escrow agent for the offering.
"Board of Directors" means the Directors of the Company.
"Bylaws" means the bylaws of the Company.
"CNL" means CNL Group, Inc., the parent company of the Advisor and the
Managing Dealer.
- 116 -
<PAGE>
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the common stock, par value $.01 per share, of the
Company.
"Competitive Real Estate Commission" means a real estate or brokerage
commission for the purchase or sale of property which is reasonable, customary,
and competitive in light of the size, type, and location of the property. The
total of all real estate commissions paid by the Company to all persons and
entities (including the subordinated real estate disposition fee payable to the
Advisor) in connection with any Sale of one or more of the Company's Properties
shall not exceed the lesser of (i) a Competitive Real Estate Commission or (ii)
six percent of the gross sales price of the Property or Properties.
"Counsel" means tax counsel to the Company.
"Director" means a member of the Board of Directors of the Company.
"Distributions" means any distributions of money or other property by
the Company to owners of Shares, including distributions that may constitute a
return of capital for federal income tax purposes.
"Equipment" means the furniture, fixtures and equipment used at
Restaurant Chains and Hotel Chains.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Plan" means a pension, profit-sharing, retirement, or other
employee benefit plan subject to ERISA.
"Excess Shares" means the excess shares exchanged for shares of Common
Stock or Preferred Stock, as the case may be, transferred or proposed to be
transferred in excess of the Ownership Limit or which would otherwise jeopardize
the Company's status as a REIT under the Code.
"Front-End Fees" means fees and expenses paid by any person or entity
to any person or entity for any services rendered in connection with the
organization of the Company and investing in Properties and Mortgage Loans,
including Selling Commissions, marketing support and due diligence expense
reimbursement fees, Organizational and Offering Expenses, Acquisition Expenses
and Acquisition Fees paid out of Gross Proceeds, and any other similar fees,
however designated. During the term of the Company, Front-End Fees shall not
exceed 20% of Gross Proceeds.
"Gross Proceeds" means the aggregate purchase price of all Shares sold
for the account of the Company through the offering, without deduction for
Selling Commissions, volume discounts, the marketing support and due diligence
expense reimbursement fee or Organization and Offering Expenses. For the purpose
of computing Gross Proceeds, the purchase price of any Share for which reduced
Selling Commissions are paid to the Managing Dealer or a Soliciting Dealer
(where net proceeds to the Company are not reduced) shall be deemed to be
$10.00.
"Hotel Chains" means the national and regional hotel chains, primarily
limited service, extended stay and full service hotel chains, to be selected by
the Advisor, and who themselves or their franchisees will either (i) lease
Properties purchased by the Company, (ii) become borrowers under Mortgage Loans,
or (iii) become lessees or borrowers under Secured Equipment Leases.
"Independent Director" means a Director who is not and within the last
two years has not been directly or indirectly associated with the Advisor by
virtue of (i) ownership of an interest in the Advisor or its Affiliates, (ii)
employment by the Advisor or its Affiliates, (iii) service as an officer or
director of the Advisor or its Affiliates, (iv) the performance of services,
other than as a Director, for the Company, (v) service as a director or trustee
of more than three real estate investment trusts advised by the Advisor, or (vi)
maintenance of a material business or
- 117 -
<PAGE>
professional relationship with the Advisor or any of its Affiliates. An indirect
relationship shall include circumstances in which a Director's spouse, parents,
children, siblings, mothers- or fathers-in-law or sons- or daughters-in-law, or
brothers- or sisters-in-law is or has been associated with the Advisor, any of
its affiliates, or the Company. A business or professional relationship is
considered material if the gross revenue derived by the Director from the
Advisor and Affiliates exceeds 5% of either the Company's annual gross revenue
during either of the last two years or the Director's net worth on a fair market
value basis.
"Independent Expert" means a person or entity with no material current
or prior business or personal relationship with the Advisor or the Directors and
who is engaged to a substantial extent in the business of rendering opinions
regarding the value of assets of the type held by the Company.
"Invested Capital" means the amount calculated by multiplying the total
number of Shares purchased by stockholders by the issue price, reduced by the
portion of any Distribution that is attributable to Net Sales Proceeds and by
any amounts paid by the Company to repurchase Shares pursuant to the plan for
redemption of Shares.
"IRA" means an Individual Retirement Account.
"IRS" means the Internal Revenue Service.
"Joint Ventures" means the joint venture or general partnership
arrangements in which the Company is a co-venturer or general partner which are
established to acquire Properties.
"Leverage" means the aggregate amount of indebtedness of the Company
for money borrowed (including purchase money mortgage loans) outstanding at any
time, both secured and unsecured.
"Line of Credit" means one or more lines of credit in an aggregate
amount up to $45,000,000, the proceeds of which will be used to acquire
Properties and make Mortgage Loans and Secured Equipment Leases and to pay the
Secured Equipment Lease Servicing Fee. The Line of Credit may be in addition to
any Permanent Financing.
"Listing" means the listing of the Shares of the Company on a national
securities exchange or over-the-counter market.
"Managing Dealer" means CNL Securities Corp., an Affiliate of the
Advisor, or such other person or entity selected by the Board of Directors to
act as the managing dealer for the offering. CNL Securities Corp. is a member of
the National Association of Securities Dealers, Inc.
"Mortgage Loans" means, in connection with mortgage financing provided
by the Company, notes or other evidences of indebtedness or obligations which
are secured or collateralized by real estate owned by the borrower.
"Net Assets" means the total assets of the Company (other than
intangibles) at cost before deducting depreciation or other non-cash reserves
less total liabilities, calculated quarterly by the Company, on a basis
consistently applied.
"Net Income" means for any period, the total revenues applicable to
such period, less the total expenses applicable to such period excluding
additions to reserves for depreciation, bad debts, or other similar non-cash
reserves; provided, however, Net Income for purposes of calculating total
allowable Operating Expenses (as defined herein) shall exclude the gain from the
sale of the Company's assets.
"Net Offering Proceeds" means Gross Proceeds less (i) Selling
Commissions, (ii) Organizational and Offering Expenses, and (iii) the marketing
support and due diligence expense reimbursement fee.
- 118 -
<PAGE>
"Net Sales Proceeds" means, in the case of a transaction described in
clause (i)(A) of the definition of Sale, the proceeds of any such transaction
less the amount of all real estate commissions and closing costs paid by the
Company. In the case of a transaction described in clause (i)(B) of such
definition, Net Sales Proceeds means the proceeds of any such transaction less
the amount of any legal and other selling expenses incurred in connection with
such transaction. In the case of a transaction described in clause (i)(C) of
such definition, Net Sales Proceeds means the proceeds of any such transaction
actually distributed to the Company from the Joint Venture. In the case of a
transaction or series of transactions described in clause (i)(D) of the
definition of Sale, Net Sales Proceeds means the proceeds of any such
transaction less the amount of all commissions and closing costs paid by the
Company. In the case of a transaction described in clause (ii) of the definition
of Sale, Net Sales Proceeds means the proceeds of such transaction or series of
transactions less all amounts generated thereby and reinvested in one or more
Properties within 180 days thereafter and less the amount of any real estate
commissions, closing costs, and legal and other selling expenses incurred by or
allocated to the Company in connection with such transaction or series of
transactions. Net Sales Proceeds shall also include, in the case of any lease of
a Property consisting of a building only, any Mortgage Loan or any Secured
Equipment Lease, any amounts from tenants, borrowers or lessees that the Company
determines, in its discretion, to be economically equivalent to proceeds of a
Sale. Net Sales Proceeds shall not include, as determined by the Company in its
sole discretion, any amounts reinvested in one or more Properties, Mortgage
Loans or Secured Equipment Leases, to repay outstanding indebtedness, or to
establish reserves.
"Operating Expenses" includes all costs and expenses incurred by the
Company, as determined under generally accepted accounting principles, which in
any way are related to the operation of the Company or to Company business,
including (a) advisory fees, (b) the Soliciting Dealer Servicing Fee, (c) the
Asset Management Fee, (d) the Performance Fee, and (e) the Subordinated
Incentive Fee, but excluding (i) the expenses of raising capital such as
Organizational and Offering Expenses, legal, audit, accounting, underwriting,
brokerage, listing, registration, and other fees, printing and other such
expenses, and tax incurred in connection with the issuance, distribution,
transfer, registration, and Listing of the Shares, (ii) interest payments, (iii)
taxes, (iv) non-cash expenditures such as depreciation, amortization, and bad
debt reserves, (v) the Advisor's subordinated 10% share of Net Sales Proceeds,
and (vi) Acquisition Fees and Acquisition Expenses, real estate commissions on
the sale of property and other expenses connected with the acquisition and
ownership of real estate interests, mortgage loans, or other property (such as
the costs of foreclosure, insurance premiums, legal services, maintenance,
repair, and improvement of property).
"Organizational and Offering Expenses" means any and all costs and
expenses, other than Selling Commissions, the 0.5% marketing support and due
diligence expense reimbursement fee, and the Soliciting Dealer Servicing Fee
incurred by the Company, the Advisor or any Affiliate of either in connection
with the formation, qualification, and registration of the Company and the
marketing and distribution of Shares, including, without limitation, the
following: legal, accounting, and escrow fees; printing, amending,
supplementing, mailing, and distributing costs; filing, registration, and
qualification fees and taxes; telegraph and telephone costs; and all advertising
and marketing expenses, including the costs related to investor and
broker-dealer sales meetings. The Organizational and Offering Expenses paid by
the Company in connection with the formation of the Company, together with the
7.5% Selling Commissions, the 0.5% marketing support and due diligence
reimbursement fee, and the Soliciting Dealer Servicing Fee incurred by the
Company will not exceed thirteen percent (13%) of the proceeds raised in
connection with this offering.
"Ownership Limit" means, with respect to shares of Common Stock and
Preferred Stock, the percent limitation placed on the ownership of Common Stock
and Preferred Stock by any one Person (as defined in the Articles of
Incorporation). As of the initial date of this Prospectus, the Ownership Limit
is 9.8% of the outstanding Common Stock and 9.8% of the outstanding Preferred
Stock.
"Participants" means those stockholders who elect to participate in the
Reinvestment Plan.
"Performance Fee" means the fee payable to the Advisor under certain
circumstances if certain performance standards have been met and the
Subordinated Incentive Fee has not been paid.
- 119 -
<PAGE>
"Permanent Financing" means financing to acquire Assets, to pay the
Secured Equipment Lease Servicing Fee to pay a fee of 4.5% of any Permanent
Financing, excluding amounts to fund Secured Equipment Leases, as Acquisition
Fees, and, possibly, to refinance outstanding amounts on the Line of Credit.
Permanent Financing may be in addition to any borrowing under the Line of
Credit.
"Plan" means ERISA Plans, IRAs, Keogh plans, stock bonus plans, and
certain other plans.
"Preferred Stock" means any class or series of preferred stock of the
Company that may be issued in accordance with the terms of the Articles of
Incorporation and applicable law.
"Properties" means (i) the real properties, including the buildings
located thereon and with respect to hotel Properties, including Equipment, (ii)
the real properties only, or (iii) the buildings only, which are acquired by the
Company and with respect to hotel Properties, including Equipment, either
directly or through joint venture arrangements or other partnerships.
"Prospectus" means the final prospectus included in the Company's
Registration Statement filed with the Securities and Exchange Commission,
pursuant to which the Company will offer Shares to the public, as the same may
be amended or supplemented from time to time after the effective date of such
Registration Statement.
"Qualified Plans" means qualified pension, profit-sharing, and stock
bonus plans, including Keogh plans and IRAs.
"Real Estate Asset Value" means the amount actually paid or allocated
to the purchase, development, construction or improvement of a Property,
exclusive of Acquisition Fees and Acquisition Expenses.
"Reinvestment Agent" or "Agent" means the independent agent, which
currently is MMS Escrow and Transfer Agency, Inc., for Participants in the
Reinvestment Plan.
"Reinvestment Plan" means the Reinvestment Plan, in the form attached
hereto as Exhibit A.
"Reinvestment Proceeds" means net proceeds available from the sale of
Shares under the Reinvestment Plan to redeem Shares or, under certain
circumstances, to invest in additional Properties or Mortgage Loans.
"REIT" means real estate investment trust, as defined pursuant to
Sections 856 through 860 of the Code.
"Related Party Tenant" means a related party tenant, as defined
pursuant to Section 856(d)(2)(B) of the Code.
"Restaurant Chains" means the national and regional restaurant chains,
primarily fast-food, family-style, and casual-dining chains, to be selected by
the Advisor, and who themselves or their franchisees will either (i) lease
Properties purchased by the Company, (ii) become borrowers under Mortgage Loans,
or (iii) become lessees or borrowers of Secured Equipment Leases.
"Roll-Up Entity" means a partnership, real estate investment trust,
corporation, trust, or similar entity that would be created or would survive
after the successful completion of a proposed Roll-Up Transaction.
"Roll-Up Transaction" means a transaction involving the acquisition,
merger, conversion, or consolidation, directly or indirectly, of the Company and
the issuance of securities of a Roll-Up Entity. Such term does not include: (i)
a transaction involving securities of the Company that have been listed on a
national securities exchange or the National Association of Securities Dealers
Automated Quotation National Market System for at least 12 months; or (ii) a
transaction involving the conversion to corporate, trust, or association form of
only the Company if, as a consequence of the transaction, there will be no
significant adverse change in stockholder voting rights, the term of existence
of the Company, compensation to the Advisor, or the investment objectives of the
Company.
- 120 -
<PAGE>
"Sale" (i) means any transaction or series of transactions whereby: (A)
the Company sells, grants, transfers, conveys, or relinquishes its ownership of
any Property or portion thereof, including the lease of any Property consisting
of the building only, and including any event with respect to any Property which
gives rise to a significant amount of insurance proceeds or condemnation awards;
(B) the Company sells, grants, transfers, conveys, or relinquishes its ownership
of all or substantially all of the interest of the Company in any Joint Venture
in which it is a co-venturer or partner; (C) any Joint Venture in which the
Company as a co-venturer or partner sells, grants, transfers, conveys, or
relinquishes its ownership of any Property or portion thereof, including any
event with respect to any Property which gives rise to insurance claims or
condemnation awards or, (D) the Company sells, grants, conveys or relinquishes
its interest in any Mortgage Loan or Secured Equipment Lease or portion thereof,
including any event with respect to any Mortgage Loan or Secured Equipment Lease
which gives rise to a significant amount of insurance proceeds or similar
awards, but (ii) shall not include any transaction or series of transactions
specified in clause (i)(A), (i)(B) or (i)(C) above in which the proceeds of such
transaction or series of transactions are reinvested in one or more Properties
within 180 days thereafter.
"Secured Equipment Leases" means the Equipment financing made available
by the Company to operators of Restaurant Chains and Hotel Chains pursuant to
which the Company will finance, through loans or direct financing leases, the
Equipment.
"Secured Equipment Lease Servicing Fee" means the fee payable to the
Advisor by the Company out of the proceeds of the Line of Credit or Permanent
Financing for negotiating Secured Equipment Leases and supervising the Secured
Equipment Lease program equal to 2% of the purchase price of the Equipment
subject to each Secured Equipment Lease and paid upon entering into such lease
or loan.
"Selling Commissions" means any and all commissions payable to
underwriters, managing dealers, or other broker-dealers in connection with the
sale of Shares as described in the Prospectus, including, without limitation,
commissions payable to CNL Securities Corp.
"Shares" means the up to 16,500,000 shares of Common Stock of the
Company to be sold in the offering.
"Soliciting Dealer Servicing Fee" means an annual fee of .20% of
Invested Capital on December 31 of each year following the year in which the
offering terminates, payable to the Managing Dealer, which, in its sole
discretion, in turn may reallow all or a portion of such fee to the Soliciting
Dealers whose clients hold Shares on such date.
"Soliciting Dealers" means those broker-dealers that are members of the
National Association of Securities Dealers, Inc., or that are exempt from
broker-dealer registration, and that, in either case, enter into participating
broker or other agreements with the Managing Dealer to sell Shares.
"Sponsor" means any Person directly or indirectly instrumental in
organizing, wholly or in part, the Company or any person who will control,
manage or participate in the management of the Company, and any Affiliate of
such Person. Not included is any Person whose only relationship with the Company
is that of an independent property manager of Company assets, and whose only
compensation is as such. Sponsor does not include independent third parties such
as attorneys, accountants, and underwriters whose only compensation is for
professional services. A Person may also be deemed a Sponsor of the Company by:
a. taking the initiative, directly or indirectly, in founding or
organizing the business or enterprise of the Company, either
alone or in conjunction with one or more other Persons;
b. receiving a material participation in the Company in
connection with the founding or organizing of the business of
the Company, in consideration of services or property, or both
services and property;
c. having a substantial number of relationships and contacts with
the Company;
- 121 -
<PAGE>
d. possessing significant rights to control Company properties;
e. receiving fees for providing services to the Company which are
paid on a basis that is not customary in the industry; or
f. providing goods or services to the Company on a basis which
was not negotiated at arms length with the Company.
"Stockholders' 8% Return," as of each date, shall mean an aggregate
amount equal to an 8% cumulative, noncompounded, annual return on Invested
Capital.
"Subscription Agreement" means the Subscription Agreement in the form
attached hereto as Exhibit D.
"Subordinated Incentive Fee" means the fee payable to the Advisor under
certain circumstances if the Shares are listed on a national securities exchange
or over-the-counter market.
"Termination Date" means the date of termination of the Advisory
Agreement.
"Total Proceeds" means Gross Proceeds, loan proceeds from Permanent
Financing and amounts outstanding on the Line of Credit, if any, at the time of
Listing, but excluding loan proceeds used to finance Secured Equipment Leases.
"Triple-Net Lease" generally means a Property lease pursuant to which
the tenant is responsible for property costs associated with ongoing operations,
including repairs, maintenance, property taxes, utilities and insurance.
"Unimproved Real Property" means Property in which the Company has an
equity interest that is not acquired for the purpose of producing rental or
other operating income, that has no development or construction in process and
for which no development or construction is planned, in good faith, to commence
within one year.
EXHIBIT A
FORM OF
REINVESTMENT PLAN
<PAGE>
FORM OF
REINVESTMENT PLAN
CNL HOSPITALITY PROPERTIES, INC. (formerly CNL American Realty Fund,
Inc.), a Maryland corporation (the "Company"), pursuant to its Articles of
Incorporation, adopted a Reinvestment Plan (the "Reinvestment Plan") on the
terms and conditions set forth below.
1. Reinvestment of Distributions. MMS Escrow and Transfer Agency, Inc.,
the agent (the "Reinvestment Agent") for participants (the "Participants") in
the Reinvestment Plan, will receive all cash distributions made by the Company
with respect to shares of common stock of the Company (the "Shares") owned by
each Participant (collectively, the "Distributions"). The Reinvestment Agent
will apply such Distributions as follows:
(a) At anytime that the Company is engaged in an offering of
Shares, the Reinvestment Agent will invest Distributions in Shares
acquired from the managing dealer or participating brokers for the
offering at the public offering price per Share, or $10.00 per Share.
During such period, commissions and the marketing support and due
diligence fee equal to 0.5% of the total amount raised from sale of the
Shares will be reallowed to the broker who made the initial sale of
Shares to the Participant at the same rate as for initial purchases.
(b) At anytime that the Company is not engaged in an offering of
Shares, the Reinvestment Agent will purchase Shares from any additional
shares which the Company elects to register with the Securities and
Exchange Commission (the "SEC") for the Reinvestment Plan, at a per
Share price equal to the fair market value of the Shares determined by
(i) quarterly appraisal updates performed by the Company based on a
review of the existing appraisal and lease of each Property, focusing
on a re-examination of the capitalization rate applied to the rental
stream to be derived from that Property; and (ii) a review of the
outstanding Mortgage Loans and Secured Equipment Leases focusing on a
determination of present value by a re-examination of the
capitalization rate applied to the stream of payments due under the
terms of each Mortgage Loan and Secured Equipment Lease. The
capitalization rate used by the Company and, as a result, the price per
Share paid by Participants in the Reinvestment Plan prior to Listing
will be determined by the Advisor in its sole discretion. The factors
that the Advisor will use to determine the capitalization rate include
(i) its experience in selecting, acquiring and managing properties
similar to the Properties; (ii) an examination of the conditions in the
market; and (iii) capitalization rates in use by private appraisers, to
the extent that the Advisor deems such factors appropriate, as well as
any other factors that the Advisor deems relevant or appropriate in
making its determination. The Company's internal accountants will then
convert the most recent
A-1
<PAGE>
quarterly balance sheet of the Company from a "GAAP" balance sheet to a
"fair market value" balance sheet. Based on the "fair market value"
balance sheet, the internal accountants will then assume a sale of the
Company's assets and the liquidation of the Company in accordance with
its constitutive documents and applicable law and compute the
appropriate method of distributing the cash available after payment of
reasonable liquidation expenses, including closing costs typically
associated with the sale of assets and shared by the buyer and seller,
and the creation of reasonable reserves to provide for the payment of
any contingent liabilities. Upon listing of the Shares on a national
securities exchange or over-the-counter market, the Reinvestment Agent
may purchase Shares either through such market or directly from the
Company pursuant to a registration statement relating to the
Reinvestment Plan, in either case at a per Share price equal to the
then-prevailing market price on the national securities exchange or
over-the-counter market on which the Shares are listed at the date of
purchase by the Reinvestment Agent.
(c) For each Participant, the Reinvestment Agent will maintain a
record which shall reflect for each fiscal quarter the Distributions
received by the Reinvestment Agent on behalf of such Participant. The
Reinvestment Agent will use the aggregate amount of Distributions to
all Participants for each fiscal quarter to purchase Shares for the
Participants. If the aggregate amount of Distributions to Participants
exceeds the amount required to purchase all Shares then available for
purchase, the Reinvestment Agent will purchase all available Shares and
will return all remaining Distributions to the Participants within 30
days after the date such Distributions are made. The purchased Shares
will be allocated among the Participants based on the portion of the
aggregate Distributions received by the Reinvestment Agent on behalf of
each Participant, as reflected in the records maintained by the
Reinvestment Agent. The ownership of the Shares purchased pursuant to
the Reinvestment Plan shall be reflected on the books of the Company.
(d) Distributions shall be invested by the Reinvestment Agent in
Shares promptly following the payment date with respect to such
Distributions to the extent Shares are available. If sufficient Shares
are not available, Distributions shall be invested on behalf of the
Participants in one or more interest-bearing accounts in Franklin Bank,
N.A., Southfield, Michigan, or in another commercial bank approved by
the Company which is located in the continental United States and has
assets of at least $100,000,000, until Shares are available for
purchase, provided that any Distributions that have not been invested
in Shares within 30 days after such Distributions are made by the
Company shall be returned to Participants.
(e) The allocation of Shares among Participants may result in the
ownership of fractional Shares, computed to four decimal places.
A-2
<PAGE>
(f) Distributions attributable to Shares purchased on behalf of
the Participants pursuant to the Reinvestment Plan will be reinvested
in additional Shares in accordance with the terms hereof.
(g) No certificates will be issued to a Participant for Shares
purchased on behalf of the Participant pursuant to the Reinvestment
Plan. Participants in the Reinvestment Plan will receive statements of
account in accordance with Paragraph 7 below.
2. Election to Participate. Any stockholder who participates in a
public offering of Shares and who has received a copy of the related final
prospectus included in the Company's registration statement filed with the SEC
may elect to participate in and purchase Shares through the Reinvestment Plan at
any time by written notice to the Company and would not need to receive a
separate prospectus relating solely to the Reinvestment Plan. A person who
becomes a stockholder otherwise than by participating in a public offering of
Shares may purchase Shares through the Reinvestment Plan only after receipt of a
separate prospectus relating solely to the Reinvestment Plan. Participation in
the Reinvestment Plan will commence with the next Distribution made after
receipt of the Participant's notice, provided it is received more than ten days
prior to the last day of the fiscal month or quarter, as the case may be, to
which such Distribution relates. Subject to the preceding sentence, regardless
of the date of such election, a shareholder will become a Participant in the
Reinvestment Plan effective on the first day of the fiscal month (prior to
termination of the offering of Shares) or fiscal quarter (after termination of
the offering of Shares) following such election, and the election will apply to
all Distributions attributable to the fiscal quarter or month (as the case may
be) in which the shareholder makes such written election to participate in the
Reinvestment Plan and to all fiscal quarters or months thereafter.
3. Distribution of Funds. In making purchases for Participants'
accounts, the Reinvestment Agent may commingle Distributions attributable to
Shares owned by Participants in the Reinvestment Plan.
4. Proxy Solicitation. The Reinvestment Agent will distribute to
Participants proxy solicitation material received by it from the Company which
is attributable to Shares held in the Reinvestment Plan. The Reinvestment Agent
will vote any Shares that it holds for the account of a Participant in
accordance with the Participant's written instructions. If a Participant gives a
proxy to person(s) representing the Company covering Shares registered in the
Participant's name, such proxy will be deemed to be an instruction to the
Reinvestment Agent to vote the full Shares in the Participant's account in like
manner. If a Participant does not direct the Reinvestment Agent as to how the
Shares should be voted and does not give a proxy to person(s) representing the
Company covering these Shares, the Reinvestment Agent will not vote said Shares.
A-3
<PAGE>
5. Absence of Liability. Neither the Company nor the Reinvestment Agent
shall have any responsibility or liability as to the value of the Company's
Shares, any change in the value of the Shares acquired for the Participant's
account, or the rate of return earned on, or the value of, the interest-bearing
accounts, in which Distributions are invested. Neither the Company nor the
Reinvestment Agent shall be liable for any act done in good faith, or for any
good faith omission to act, including, without limitation, any claims of
liability (a) arising out of the failure to terminate a Participant's
participation in the Reinvestment Plan upon such Participant's death prior to
receipt of notice in writing of such death and the expiration of 15 days from
the date of receipt of such notice and (b) with respect to the time and the
prices at which Shares are purchased for a Participant. Notwithstanding the
foregoing, liability under the federal securities laws cannot be waived.
Similarly, the Company and the Reinvestment Agent have been advised that in the
opinion of certain state securities commissioners, indemnification is also
considered contrary to public policy and therefore unenforceable.
6. Suitability.
(a) Within 60 days prior to the end of each fiscal year, CNL
Securities Corp. ("CSC"), will mail to each Participant a participation
agreement (the "Participation Agreement"), in which the Participant
will be required to represent that there has been no material change in
the Participant's financial condition and confirm that the
representations made by the Participant in the Subscription Agreement
(a form of which shall be attached to the Participation Agreement) are
true and correct as of the date of the Participation Agreement, except
as noted in the Participation Agreement or the attached form of
Subscription Agreement.
(b) Each Participant will be required to return the executed
Participation Agreement to CSC within 30 days after receipt. In the
event that a Participant fails to respond to CSC or return the
completed Participation Agreement on or before the fifteenth (15th) day
after the beginning of the fiscal year following receipt of the
Participation Agreement, the Participant's Distribution for the first
fiscal quarter of that year will be sent directly to the Participant
and no Shares will be purchased on behalf of the Participant for that
fiscal quarter and, subject to (c) below, any fiscal quarters
thereafter, until CSC receives an executed Participation Agreement from
the Participant.
(c) If a Participant fails to return the executed Participation
Agreement to CSC prior to the end of the second fiscal quarter for any
year of the Participant's participation in the Reinvestment Plan, the
Participant's participation in the Reinvestment Plan shall be
terminated in accordance with Paragraph 11 below.
(d) Each Participant shall notify CSC in the event that, at any
time during his participation in the Reinvestment
A-4
<PAGE>
Plan, there is any material change in the Participant's financial
condition or inaccuracy of any representation under the Subscription
Agreement.
(e) For purposes of this Paragraph 6, a material change shall
include any anticipated or actual decrease in net worth or annual gross
income or any other change in circumstances that would cause the
Participant to fail to meet the suitability standards set forth in the
Company's Prospectus.
7. Reports to Participants. Within 60 days after the end of each fiscal
quarter, the Reinvestment Agent will mail to each Participant a statement of
account describing, as to such Participant, the Distributions received during
the quarter, the number of Shares purchased during the quarter, the per Share
purchase price for such Shares, the total administrative charge to such
Participant, and the total Shares purchased on behalf of the Participant
pursuant to the Reinvestment Plan. Each statement shall also advise the
Participant that, in accordance with Paragraph 6(d) hereof, he is required to
notify CSC in the event that there is any material change in his financial
condition or if any representation under the Subscription Agreement becomes
inaccurate.
8. Administrative Charges, Commissions, and Plan Expenses. The Company
shall be responsible for all administrative charges and expenses charged by the
Reinvestment Agent. The administrative charge for each Participant for each
fiscal quarter shall be the lesser of 5% of the amount reinvested for the
Participant or $2.50, with a minimum charge of $.50. Any interest earned on
Distributions will be paid to the Company to defray costs relating to the
Reinvestment Plan. Additionally, in connection with any Shares purchased from
the Company both prior to and after the termination of a public offering of the
Shares, the Company will pay to CSC selling commissions of 7.5%, a marketing
support and due diligence expense reimbursement fee of .5%, and, in the event
that proceeds of the sale of Shares pursuant to the Reinvestment Plan are used
to acquire Properties or to invest in Mortgage Loans, will pay to CNL Real
Estate Advisors, Inc. acquisition fees of 4.5% of the purchase price of the
Shares sold pursuant to the Reinvestment Plan.
9. No Drawing. No Participant shall have any right to draw checks or
drafts against his account or give instructions to the Company or the
Reinvestment Agent except as expressly provided herein.
10. Taxes. Taxable Participants may incur a tax liability for
Distributions made with respect to such Participant's Shares, even though they
have elected not to receive their Distributions in cash but rather to have their
Distributions held in their account under the Reinvestment Plan.
11. Termination.
(a) A Participant may terminate his participation in the
Reinvestment Plan at any time by written notice to the
A-5
<PAGE>
Company. To be effective for any Distribution, such notice must be
received by the Company at least ten business days prior to the last
day of the fiscal month or quarter to which such Distribution relates.
(b) The Company or the Reinvestment Agent may terminate a
Participant's individual participation in the Reinvestment Plan, and
the Company may terminate the Reinvestment Plan itself at any time by
ten days' prior written notice mailed to a Participant, or to all
Participants, as the case may be, at the address or addresses shown on
their account or such more recent address as a Participant may furnish
to the Company in writing.
(c) After termination of the Reinvestment Plan or termination of a
Participant's participation in the Reinvestment Plan, the Reinvestment
Agent will send to each Participant (i) a statement of account in
accordance with Paragraph 7 hereof, and (ii) a check for (a) the amount
of any Distributions in the Participant's account that have not been
reinvested in Shares, and (b) the value of any fractional Shares
standing to the credit of a Participant's account based on the market
price of the Shares. The record books of the Company will be revised to
reflect the ownership of record of the Participant's full Shares and
any future Distributions made after the effective date of the
termination will be sent directly to the former Participant.
12. Notice. Any notice or other communication required or permitted to
be given by any provision of this Reinvestment Plan shall be in writing and
addressed to Investor Services Department, CNL Securities Corp., 400 East South
Street, Suite 500, Orlando, Florida 32801, if to the Company, or to 1845
Maxwell, Suite 101, Troy, Michigan 48084-4510, if to the Reinvestment Agent, or
such other addresses as may be specified by written notice to all Participants.
Notices to a Participant may be given by letter addressed to the Participant at
the Participant's last address of record with the Company. Each Participant
shall notify the Company promptly in writing of any change of address.
13. Amendment. The terms and conditions of this Reinvestment Plan may
be amended or supplemented by an agreement between the Reinvestment Agent and
the Company at any time, including but not limited to an amendment to the
Reinvestment Plan to add a voluntary cash contribution feature or to substitute
a new Reinvestment Agent to act as agent for the Participants or to increase the
administrative charge payable to the Reinvestment Agent, by mailing an
appropriate notice at least 30 days prior to the effective date thereof to each
Participant at his last address of record; provided, that any such amendment
must be approved by a majority of the Independent Directors of the Company. Such
amendment or supplement shall be deemed conclusively accepted by each
Participant except those Participants from whom the Company receives written
notice of termination prior to the effective date thereof.
A-6
<PAGE>
14. Governing Law. THIS REINVESTMENT PLAN AND A PARTICIPANT'S ELECTION
TO PARTICIPATE IN THE REINVESTMENT PLAN SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF FLORIDA.
A-7
<PAGE>
EXHIBIT B
FINANCIAL INFORMATION
<PAGE>
INDEX TO FINANCIAL STATEMENTS
CNL HOSPITALITY PROPERTIES, INC.
AND SUBSIDIARIES
(formerly CNL American Realty Fund, Inc.)
Pro Forma Consolidated Financial Information (unaudited):
Pro Forma Consolidated Balance Sheet as of June 30, 1998 B-2
Pro Forma Consolidated Statement of Earnings for the six
months ended June 30, 1998 B-3
Pro Forma Consolidated Statement of Earnings for the year
ended December 31, 1997 B-4
Notes to Pro Forma Consolidated Financial Statements for
the six months ended June 30, 1998 and the year ended
December 31, 1997 B-5
Updated Unaudited Condensed Consolidated Financial Statements:
Condensed Consolidated Balance Sheets as of June 30, 1998
and December 31, 1997 B-7
Condensed Consolidated Statements of Earnings for the six
months ended June 30, 1998 and 1997 B-8
Condensed Consolidated Statements of Stockholders' Equity
for the six months ended June 30, 1998 and the year
ended December 31, 1997 B-9
Condensed Consolidated Statements of Cash Flows for the six
months ended June 30, 1998 and 1997 B-10
Notes to Condensed Consolidated Financial Statements for
the six months ended June 30, 1998 and 1997 B-12
Audited Financial Statements:
Report of Independent Accountants B-19
Balance Sheets as of December 31, 1997 and 1996 B-20
Statements of Earnings for the year ended December 31,
1997 and the period June 12, 1996 (date of inception)
through December 31, 1996 B-21
Consolidated Statements of Stockholders' Equity for the
year ended December 31, 1997 and the period June 12,
1996 (date of inception) through December 31, 1996 B-22
Consolidated Statements of Cash Flows for the year ended
December 31, 1997 and the period June 12, 1996 (date
of inception) through December 31, 1996 B-23
Notes to Consolidated Financial Statements for the year
ended December 31, 1997 and the period June 12, 1996
(date of inception) through December 31, 1996 B-25
<PAGE>
PRO FORMA FINANCIAL INFORMATION
The following Pro Forma Consolidated Balance Sheet of CNL Hospitality
Properties, Inc. and subsidiaries (the "Company") gives effect to (i) the
receipt of $23,578,282 in gross offering proceeds from the sale of 2,357,828
shares of common stock pursuant to a registration statement on Form S-11 under
the Securities Act of 1933, as amended, effective July 9, 1997, for the period
from inception through June 30, 1998 (ii) the receipt of $3,157,993 in gross
offering proceeds from the sale of 315,799 additional shares and $8,600,000 from
borrowings on the line of credit, for the period July 1, 1998 through September
1, 1998, and (iii) the application of such funds to purchase two properties, and
to pay offering expenses, acquisition fees, and miscellaneous acquisition
expenses, all as reflected in the pro forma adjustments described in the related
notes. The Pro Forma Consolidated Balance Sheet as of June 30, 1998, includes
the transactions described in (i) above, from its historical balance sheet,
adjusted to give effect to the transactions in (ii) and (iii) above, as if they
had occurred on June 30, 1998.
The Pro Forma Consolidated Statements of Earnings for the six months
ended June 30, 1998 and the year ended December 31, 1997, include the historical
operating results of the properties described in (iii) above that were acquired
by the Company during the period July 1, 1998 through September 1, 1998, from
the later of (1) the date the property became operational or (2) October 15,
1997, the date the Company became operational, to the end of the pro forma
period presented.
This pro forma financial information is presented for informational
purposes only and does not purport to be indicative of the Company's financial
results or condition if the various events and transactions reflected therein
had occurred on the dates, or been in effect during the periods, indicated. This
pro forma financial information should not be viewed as predictive of the
Company's financial results or conditions in the future.
B-1
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
AND SUBSIDIARIES
(formerly CNL American Realty Fund, Inc.)
UNAUDITED PRO FORMA CONSOLIDATED BALANCE SHEET
JUNE 30, 1998
<TABLE>
<CAPTION>
Pro Forma
ASSETS Historical Adjustments Pro Forma
---------- ----------- ---------
<S> <C>
Investment in hotel properties $ - $28,705,899 (a) $28,705,899
Cash and cash equivalents 17,655,806 (15,947,615)(a) 1,708,191
Certificates of deposit 1,500,417 - 1,500,417
Prepaid expenses 2,046 - 2,046
Organization costs 17,167 17,167
Other assets 1,157,474 (917,493)(a) 239,981
$20,332,910 $11,840,791 $32,173,701
=========== =============== ===========
LIABILITIES AND
STOCKHOLDERS' EQUITY
Line of credit $ - $ 8,600,000 (a) $ 8,600,000
Accounts payable and accrued
expenses 7,000 - 7,000
Due to related parties 85,250 335,437 (a) 420,687
----------- ----------- -----------
Total liabilities 92,250 8,935,437 9,027,687
----------- ----------- -----------
STOCKHOLDERS' EQUITY
Preferred stock, without par
value. Authorized and
unissued 3,000,000 shares - - -
Excess shares, $.01 par value
per share. Authorized and
unissued 63,000,000 shares - - -
Common stock, $.01 par value
per share. Authorized
60,000,000 shares; issued
and outstanding 2,377,828
shares; issued and outstanding,
as adjusted, 2,693,628 shares 23,778 3,158 (a) 26,936
Capital in excess of par value 20,278,919 2,902,196 (a) 23,181,115
Accumulated distributions in
excess of net earnings (62,037) - (62,037)
----------- ---------- -----------
Total stockholders' equity 20,240,660 2,905,354 23,146,014
----------- ---------- ----------
$20,332,910 $11,840,791 $32,173,701
=========== =========== ===========
</TABLE>
See accompanying notes to unaudited pro forma consolidated balance sheet.
B-2
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
AND SUBSIDIARIES
(formerly CNL American Realty Fund, Inc.)
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF EARNINGS
SIX MONTHS ENDED JUNE 30, 1998
<TABLE>
<CAPTION>
Pro Forma
Historical Adjustments Pro Forma
---------- ----------- ---------
<S><C>
Revenues:
Rental income from
operating leases $ - $1,462,913 (1) $1,462,913
Interest income 371,159 (362,674)(2) 8,485
---------- ---------- ----------
371,159 1,100,239 1,471,398
---------- ---------- ----------
Expenses:
General operating and
administrative 146,656 146,656
Professional fees 20,530 20,530
Asset management fees
to related party - 81,737 (3) 81,737
Interest expense - 378,400 (4) 378,400
Depreciation and amortization 2,000 491,304 (5) 493,304
---------- ---------- ----------
169,186 951,441 1,120,627
---------- ---------- ----------
Net Earnings $ 201,973 $ 148,798 $ 350,771
========== ========== ==========
Earnings Per Share of
Common Stock (Basic
and Diluted) (6) $ 0.11 $ 0.16
========== ==========
Weighted Average Number of
Shares of Common Stock
Outstanding (6) 1,820,362 2,145,446
=========== ==========
See accompanying notes to unaudited pro forma consolidated financial statements.
B-4
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
AND SUBSIDIARIES
(formerly CNL American Realty Fund, Inc.)
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF EARNINGS
YEAR ENDED DECEMBER 31, 1997
Pro Forma
Historical Adjustments Pro Forma
---------- ----------- ---------
Revenues:
Rental income from
operating leases $ - $ 623,899 (1) $ 623,899
Interest income 46,071 (46,071)(2) -
---------- ---------- ----------
46,071 577,828 623,899
---------- ---------- ----------
Expenses:
General operating and
administrative 22,386 22,386
Asset and mortgage management
fees to related party - 27,245 (3) 27,245
Interest expense - 157,667 (4) 157,667
Depreciation and amortization 833 204,710 (5) 205,543
---------- ---------- ----------
23,219 389,622 412,841
---------- ---------- ----------
Net Earnings $ 22,852 $ 188,206 $ 211,058
========== ========== ==========
Earnings Per Share of
Common Stock (Basic
and Diluted) (6) $ 0.03 $ 0.10
========== ==========
Weighted Average Number of
Shares of Common Stock
Outstanding (6) 686,063 2,115,004
========== ==========
</TABLE>
See accompanying notes to unaudited pro forma consolidated financial statements.
B-6
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
AND SUBSIDIARIES
(formerly CNL American Realty Fund, Inc.)
NOTES TO UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS
FOR THE SIX MONTHS ENDED JUNE 30, 1998 AND
THE YEAR ENDED DECEMBER 31, 1997
Pro Forma Consolidated Balance Sheet:
- -------------------------------------
(a) Represents gross proceeds of $3,157,993 from the sale of 315,799 shares
during the period July 1, 1998 through September 1, 1998, the receipt
of $8,600,000 on borrowings from the line of credit and $15,947,615 of
cash and cash equivalents used (i) to acquire two properties for
$27,245,539, (ii) to pay acquisition fees and costs of $155,867
($13,757 of which was accrued as due to related parties at June 30,
1998), to accrue acquisition fees of $387,000 relating to the acquired
properties, and reclassify from other assets $917,493 of acquisition
fees previously incurred relating to the acquired properties, and (iii)
to pay selling commissions and offering expenses (syndication costs) of
$304,202 which have been netted against stockholders' equity (a total
of $51,563 of which had been incurred as of June 30, 1998).
The pro forma adjustments to investment in hotel properties as a result
of the above transactions were as follows:
<TABLE>
<CAPTION>
Estimated Acquisition
purchase price fees
(including allocated
closing costs) to property Total
-------------- ----------- -----
<S> <C>
Residence Inn Buckhead
(Lenox Park) in Atlanta, GA $15,731,414 $ 843,203 $16,574,617
Residence Inn Gwinnett Place 11,514,125 617,157 12,131,282
in Duluth, GA ----------- ---------- -----------
$27,245,539 $1,460,360 $28,705,899
=========== ========== ===========
</TABLE>
Pro Forma Consolidated Statements of Earnings:
- ----------------------------------------------
(1) Represents rental income from operating leases for the properties
acquired during the period July 1, 1998 through September 1, 1998,
which were operational prior to the acquisition of the property by the
Company (the "Pro Forma Properties "), for the period commencing the
later of (i) the date the Pro Forma Property became operational by the
previous owner or (ii) October 15, 1997, the date the Company became
operational, to the end of the pro forma period presented. The
following presents the actual date the Pro Forma Properties were
acquired or placed in service by the Company as compared to the date
the Pro Forma Properties were treated as becoming operational as a
rental property for purposes of the Pro Forma Consolidated Statement of
Earnings.
B-8
<PAGE>
Date Pro Forma
Date Placed Property Became
in Service Operational as
By the Company Rental Property
-------------- ---------------
Residence Inn Buckhead (Lenox
Park) in Atlanta, GA July 31, 1998 October 15, 1997
Residence Inn Gwinnett Place
in Duluth, GA July 31, 1998 October 15, 1997
Generally, the leases provide for the payment of percentage rent in
addition to base rental income. However, due to the fact that no
percentage rent was due under the leases for the Pro Forma Properties
during the portion of 1997 and 1998 that the previous owners held the
properties, no pro forma adjustment was made for percentage rental
income for the six months ended June 30, 1998 and year ended December
31, 1997.
B-9
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
AND SUBSIDIARIES
(formerly CNL American Realty Fund, Inc.)
NOTES TO UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL
STATEMENTS - CONTINUED
FOR THE SIX MONTHS ENDED JUNE 30, 1998 AND
THE YEAR ENDED DECEMBER 31, 1997
Pro Forma Consolidated Statements of Earnings - Continued:
- ----------------------------------------------------------
(2) Represents adjustment to interest income due to the decrease in the
amount of cash available for investment in interest bearing accounts
during the periods commencing the later of (i) the dates the Pro Forma
Properties became operational by the previous owners or (ii) October
15, 1997, the date the Company became operational, through the end of
the pro forma period presented, as described in Note (1) above. The
estimated pro forma adjustment is based upon the fact that (i) all of
the net offering proceeds received during the year ended December 31,
1997 and invested in interest bearing accounts for historical purposes
were considered invested in Pro Forma Properties for pro forma purposes
and (ii) interest income from interest bearing accounts was earned at a
rate of approximately four percent per annum by the Company during the
six months ended June 30, 1998.
(3) Represents asset management fees relating to the Pro Forma Properties
for the period commencing the later of (i) the date the Pro Forma
Properties became operational by the previous owners or (ii) October
15, 1997, the date the Company became operational, through the end of
the pro forma period presented, as described in Note (1) above. Asset
management fees are equal to 0.60% of the Company's Real Estate Asset
Value (estimated to be approximately $27,245,539 for the Pro Forma
Properties for the six months ended June 30, 1998 and the year ended
December 31, 1997), as defined in the Company's prospectus.
B-10
<PAGE>
(4) Represents interest expense incurred at a rate of 8.8% per annum in
connection with the assumed borrowings from the line of credit of
$8,600,000 on October 15, 1997.
(5) Represents depreciation expense of the building and the furniture,
fixture and equipment ( "FF&E ") portions of the Pro Forma Properties
accounted for as operating leases using the straight-line method. The
buildings and FF&E are depreciated over useful lives of 40 and seven
years, respectively. Also represents amortization of the loan
origination fee of $43,000 (.5% on the $8,600,000 from borrowings on
the line of credit) and $17,266 of other miscellaneous closing costs,
amortized under the straight-line method over a period of five years.
(6) Historical earnings per share were calculated based upon the weighted
average number of shares of common stock outstanding during the period
the Company was operational, October 15, 1997 (the date following when
the Company received the minimum offering proceeds and funds were
released from escrow) through December 31, 1997 and the six months
ended June 30, 1998.
As a result of the two Pro Forma Properties being treated in the Pro
Forma Consolidated Statement of Earnings as placed in service on
October 15, 1997 (the date the Company became operational), the Company
assumed approximately 2,095,004 shares of common stock were sold, and
the net offering proceeds were available for investment, on October 15,
1997. Due to the fact that approximately 1,817,546 of these shares of
common stock were actually sold subsequently, during the period October
15, 1997 through May 1, 1998, the weighted average number of shares
outstanding for the pro forma period was adjusted. Pro forma earnings
per share were calculated based upon the weighted average number of
shares of common stock outstanding, as adjusted, during the period the
Company was operational, October 15, 1997 through June 30, 1998.
B-11
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
AND SUBSIDIARIES
(formerly known as CNL American Realty Fund, Inc.)
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
June 30, December 31,
ASSETS 1998 1997
----------- ------------
<S> <C>
Cash and cash equivalents $17,655,806 $ 8,869,838
Certificates of deposit 1,500,417 -
Due from related party - 7,500
Prepaid expenses 2,046 11,179
Organization costs, less
accumulated amortization of
$2,833 and $833, respectively 17,167 19,167
Other assets 1,157,474 535,792
----------- -----------
$20,332,910 $ 9,443,476
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Accounts payable and accrued
expenses $ 7,000 $ 16,305
Due to related parties 85,250 193,254
----------- -----------
Total liabilities 92,250 209,559
----------- -----------
Commitments (Note 7)
Stockholders' equity:
Preferred stock, without par
value. Authorized and unissued
3,000,000 shares - -
Excess shares, $.01 par value per
share. Authorized and unissued
63,000,000 shares - -
Common stock, $.01 par value per
share. Authorized 60,000,000
shares, issued and outstanding
2,377,828 and 1,152,540,
respectively 23,778 11,525
Capital in excess of par value 20,278,919 9,229,316
Accumulated distributions in excess
of net earnings (62,037) (6,924)
----------- -----------
Total stockholders' equity 20,240,660 9,233,917
----------- -----------
$20,332,910 $ 9,443,476
=========== ===========
</TABLE>
See accompanying notes to condensed consolidated
financial statements.
B-12
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
AND SUBSIDIARIES
(formerly known as CNL American Realty Fund, Inc.)
CONDENSED CONSOLIDATED STATEMENTS OF EARNINGS
<TABLE>
<CAPTION>
Quarter Ended Six Months Ended
June 30, June 30,
1998 1997 1998 1997
---------- ---------- ---------- -------
<S> <C>
Revenues:
Interest income $ 232,006 $ - $ 371,159 $ -
---------- ---------- ---------- ---------
Expenses:
General operating and
administrative 61,263 - 146,656 -
Professional services 15,078 - 20,530 -
Amortization 1,000 - 2,000 -
---------- ---------- ---------- ---------
77,341 - 169,186 -
---------- ---------- ---------- ---------
Net Earnings $ 154,665 $ - $ 201,973 $ -
========== ========== ========== =========
Earnings Per Share of
Common Stock (Basic
and Diluted) $ 0.07 $ - $ 0.11 $ -
========== ========== ========== =========
Weighted Average Number
of Shares of Common
Stock Outstanding 2,162,300 - 1,820,362 -
========== ========== ========== =========
</TABLE>
See accompanying notes to condensed consolidated
financial statements.
B-13
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
AND SUBSIDIARIES
(formerly known as CNL American Realty Fund, Inc.)
CONDENSED CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
Six Months Ended June 30, 1998 and
Year Ended December 31, 1997
<TABLE>
<CAPTION>
Accumulated
distributions
Common stock Capital in in excess
Number Par excess of of net
of shares value par value earnings Total
--------- ----- --------- -------- -----
<S> <C>
Balance at
December 31, 1996 20,000 $ 200 $ 199,800 $ - $ 200,000
Subscriptions
received for
common stock
through public
offering and
distribution
reinvestment
plan 1,132,540 11,325 11,314,077 - 11,325,402
Stock issuance
costs - - (2,284,561) - (2,284,561)
Net earnings - - - 22,852 22,852
Distributions
declared and
paid ($.05
per share) - - - (29,776) (29,776)
---------- ------- ----------- --------- -----------
Balance at
December 31, 1997 1,152,540 11,525 9,229,316 (6,924) 9,233,917
Subscriptions
received for
common stock
through public
offering and
distribution
reinvestment
plan 1,225,288 12,253 12,240,627 - 12,252,880
Stock issuance
costs - - (1,191,024) - (1,191,024)
Net earnings - - - 201,973 201,973
Distributions
declared and
paid ($.15
per share) - - - (257,086) (257,086)
---------- ------- ----------- --------- -----------
Balance at
June 30, 1998 2,377,828 $23,778 $20,278,919 $ (62,037) $20,240,660
========== ======= =========== ========== ===========
</TABLE>
See accompanying notes to condensed consolidated
financial statements.
B-16
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
AND SUBSIDIARIES
(formerly known as CNL American Realty Fund, Inc.)
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Six Months Ended
June 30,
1998 1997
----------- ---------
<S> <C>
Increase (Decrease) in Cash and Cash
Equivalents:
Net cash provided by
operating activities $ 210,452 $ -
----------- ----------
Cash Flows From Investing
Activities:
Investment in certificates
of deposit (1,500,000) -
Increase in other assets (633,866) -
Other - (67)
----------- -----------
Net cash used in
investing activities (2,133,866) (67)
----------- -----------
Cash Flows From Financing
Activities:
Reimbursement of acquisition
and stock issuance costs
paid by related parties on
behalf of the Company (70,150) -
Subscriptions received from
stockholders 12,252,880 -
Distributions to stockholders (257,086) -
Payment of stock issuance
costs (1,213,762) -
Other (2,500) -
----------- ----------
Net cash provided by
financing activities 10,709,382 -
----------- ----------
Net Increase (Decrease) in Cash and
Cash Equivalents 8,785,968 (67)
Cash and Cash Equivalents at
Beginning of Period 8,869,838 2,084
----------- -----------
Cash and Cash Equivalents at End
of Period $17,655,806 $ 2,017
=========== ===========
</TABLE>
See accompanying notes to condensed consolidated
financial statements.
B-17
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
AND SUBSIDIARIES
(formerly known as CNL American Realty Fund, Inc.)
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS - CONTINUED
<TABLE>
<CAPTION>
Six Months Ended
June 30,
1998 1997
----------- ---------
<S> <C>
Supplemental Schedule of Non-Cash
Investing and Financing
Activities:
Related parties paid certain acquisition
and stock issuance costs on behalf
of the Company as follows:
Acquisition costs $ 20,302 $ -
Stock issuance costs 58,403 87,774
----------- -----------
$ 78,705 $ 87,774
=========== ===========
</TABLE>
See accompanying notes to condensed consolidated
financial statements.
B-18
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
AND SUBSIDIARIES
(formerly known as CNL American Realty Fund, Inc.)
NOTES TO CONDENSED FINANCIAL STATEMENTS
Quarters and Six Months Ended June 30, 1998 and 1997
1. Organization and Nature of Business:
CNL Hospitality Properties, Inc., formerly known as CNL American Realty
Fund, Inc., was organized in Maryland on June 12, 1996. CNL Hospitality
GP Corp. and CNL Hospitality LP Corp. are wholly owned subsidiaries of
the Company, organized in Delaware in June 1998. CNL Hospitality
Partners, LP is a Delaware limited partnership formed in June 1998. CNL
Hospitality GP Corp. and CNL Hospitality LP Corp. are the general and
limited partners, respectively, of CNL Hospitality Partners, LP. The
term "Company" includes, unless the context otherwise requires, CNL
Hospitality Properties, Inc., CNL Hospitality Partners LP, CNL
Hospitality GP Corp. and CNL Hospitality LP Corp.
The Company was formed primarily to acquire properties ("Properties")
located across the United States to be leased on a long-term,
triple-net basis. The Company intends to invest the proceeds from its
public offering, after deducting offering expenses, in hotel Properties
to be leased to operators of national and regional limited service,
extended stay and full service hotel chains (the "Hotel Chains") and in
restaurant Properties to be leased to operators of selected national
and regional fast-food, family-style and casual dining restaurant
chains (the "Restaurant Chains"). The Company may also provide mortgage
financing (the "Mortgage Loans"). The Company also intends to offer
furniture, fixture and equipment financing ("Secured Equipment Leases")
to operators of Hotel Chains and Restaurant Chains.
The accompanying unaudited condensed consolidated financial statements
include the accounts of the Company, CNL Hospitality Properties, Inc.,
and its wholly owned subsidiaries, CNL Hospitality GP Corp. and CNL
Hospitality LP Corp., as well as the accounts of CNL Hospitality
Partners, LP. All significant intercompany balances and transactions
have been eliminated.
2. Basis of Presentation:
The accompanying unaudited condensed financial statements have been
prepared in accordance with the instructions to Form 10-Q and do not
include all of the information and note disclosures required by
generally accepted accounting principles. The financial statements
reflect all adjustments, consisting of normal recurring adjustments,
which are, in the opinion of management, necessary to a fair statement
of the results for the interim period presented. Operating results for
the quarter and six months ended June 30, 1998, may not be indicative
of the results that may be expected for the year
B-19
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
AND SUBSIDIARIES
(formerly known as CNL American Realty Fund, Inc.)
NOTES TO CONDENSED FINANCIAL STATEMENTS
Quarters and Six Months Ended June 30, 1998 and 1997
2. Basis of Presentation - Continued:
ending December 31, 1998. Amounts as of December 31, 1997, included in
the financial statements, have been derived from audited financial
statements as of that date.
These unaudited financial statements should be read in conjunction with
the financial statements and notes thereto included in the Company's
Form 10-K for the year ended December 31, 1997.
The Company was a development stage enterprise from June 12, 1996
through October 15, 1997. Since operations had not begun, activities
through October 15, 1997 were devoted to organization of the Company.
Effective January 1, 1998, the Company adopted Statement of Financial
Accounting Standards No. 130, "Reporting Comprehensive Income." This
Statement requires the reporting of net earnings and all other changes
to equity during the period, except those resulting from investments by
owners and distributions to owners, in a separate statement that begins
with net earnings. Currently the Company's only component of
comprehensive income is net earnings.
In March 1998, the Emerging Issues Task Force of the Financial
Accounting Standards Board ("FASB") reached a consensus in EITF 97-11,
entitled "Accounting for Internal Costs Relating to Real Estate
Property Acquisitions." EITF 97-11 provides that internal costs of
identifying and acquiring operating Property should be expensed as
incurred. Due to the fact that the Company does not have an internal
acquisitions function and instead, contracts these services from an
external advisor, the effectiveness of EITF 97-11 had no material
effect on the Company's financial position or results of operations.
In April 1998, the American Institute of Certified Public Accountants
issued Statement of Position (SOP) 98-5, "Reporting on the Costs of
Start-Up Activities," which is effective for the Company as of January
1, 1999. This SOP requires start-up and organization costs to be
expensed as incurred and also requires previously deferred start-up
costs to be recognized as a cumulative effect adjustment in the
statement of income. The Company does not believe that adoption of this
SOP will have a material effect on the Company's financial position or
results of operations.
B-20
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
AND SUBSIDIARIES
(formerly known as CNL American Realty Fund, Inc.)
NOTES TO CONDENSED FINANCIAL STATEMENTS
Quarters and Six Months Ended June 30, 1998 and 1997
3. Other Assets:
Other assets consisted of the following at:
<TABLE>
<CAPTION>
June 30, December 31,
1998 1997
---- ----
<S> <C>
Acquisition fees and mis-
cellaneous acquisition
expenses to be allocated
to future properties $1,107,474 $ 535,792
Deposits on properties 50,000 -
---------- ----------
$1,157,474 $ 535,792
========== ==========
</TABLE>
4. Stock Issuance Costs:
The Company has incurred certain expenses of its offering of shares,
including commissions, marketing support and due diligence expense
reimbursement fees, filing fees, legal, accounting, printing and escrow
fees, which have been deducted from the gross proceeds of the offering.
Preliminary costs incurred prior to raising capital were advanced by an
affiliate of the Company, CNL Real Estate Advisors, Inc. (the
"Advisor"). The Advisor has agreed to pay all organizational and
offering expenses (excluding commissions and marketing support and due
diligence expense reimbursement fees) which exceed three percent of the
gross offering proceeds received from the sale of shares of the
Company.
During the six months ended June 30, 1998 and the year ended December
31, 1997, the Company incurred $1,191,024 and $2,304,561, respectively,
in organizational and offering costs, including $980,230 and $906,032,
respectively, in commissions and marketing support and due diligence
expense reimbursement fees (see Note 6). Of these amounts $1,191,024
and $2,284,561, respectively, have been treated as stock issuance costs
and $20,000 have been treated as organization costs. The stock issuance
costs have been charged to stockholders' equity subject to the three
percent cap described above.
B-22
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
AND SUBSIDIARIES
(formerly known as CNL American Realty Fund, Inc.)
NOTES TO CONDENSED FINANCIAL STATEMENTS
Quarters and Six Months Ended June 30, 1998 and 1997
5. Distributions:
For the six months ended June 30, 1998, 100 percent of the
distributions paid to stockholders were considered ordinary income. No
amounts distributed to the stockholders for the six months ended June
30, 1998 are required to be or have been treated by the Company as a
return of capital for purposes of calculating the stockholders' return
on their invested capital. The characterization for tax purposes of
distribu-tions declared for the six months ended June 30, 1998 may not
be indicative of the results that may be expected for the year ending
December 31, 1998.
6. Related Party Transactions:
During the six months ended June 30, 1998, the Company incurred
$918,966 in selling commissions due to CNL Securities Corp. for
services in connection with the offering of shares. A substantial
portion of this amount ($857,875) was or will be paid by CNL Securities
Corp. as commissions to other broker dealers.
In addition, CNL Securities Corp. is entitled to receive a marketing
support and due diligence expense reimbursement fee equal to 0.5% of
the total amount raised from the sale of shares, a portion of which may
be reallowed to other broker-dealers. During the six months ended June
30, 1998, the Company incurred $61,264 of such fees, the majority of
which were reallowed to other broker-dealers and from which all bona
fide due diligence expenses were paid.
The Advisor is entitled to receive acquisition fees for services in
finding, negotiating the leases of and acquiring Properties on behalf
of the Company equal to 4.5% of gross proceeds, loan proceeds from
permanent financing and amounts outstanding on the line of credit, if
any, at the time of listing, but excluding that portion of the
permanent financing used to finance Secured Equipment Leases. During
the six months ended June 30, 1998, the Company incurred $551,380 of
such fees. Such fees are included in other assets at June 30, 1998.
B-24
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
AND SUBSIDIARIES
(formerly known as CNL American Realty Fund, Inc.)
NOTES TO CONDENSED FINANCIAL STATEMENTS
Quarters and Six Months Ended June 30, 1998 and 1997
6. Related Party Transactions - Continued:
The Advisor and its affiliates provide various administrative services
to the Company, including services related to accounting; financial,
tax and regulatory compliance reporting; stockholder distributions and
reporting; due diligence and marketing; and investor relations
(including administrative services in connection with the offering of
shares), on a day-to-day basis. The expenses incurred for these
services were classified as follows for the six months ended June 30:
1998 1997
-------- ------
Deferred offering costs $ - $ 38,152
Stock issuance costs 154,337 -
General operating and
administrative expenses 76,082 -
-------- -------
$230,419 $ 38,152
======== ========
The amounts due to related parties consisted of the following at:
June 30, December 31,
1998 1997
---- ----
Due to CNL Securities Corp.:
Commissions $ 22,811 $100,709
Marketing support and due
diligence expense reim-
bursement fee 1,521 7,268
-------- --------
24,332 107,977
-------- --------
Due to CNL Real Estate
Advisors, Inc.:
Expenditures incurred on
behalf of the Company
and accounting and
administrative services 47,231 39,105
Acquisition fees 13,687 46,172
-------- --------
60,918 85,277
-------- --------
$ 85,250 $193,254
======== ========
B-26
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
AND SUBSIDIARIES
(formerly known as CNL American Realty Fund, Inc.)
NOTES TO CONDENSED FINANCIAL STATEMENTS
Quarters and Six Months Ended June 30, 1998 and 1997
7. Commitments:
In April 1998, the Company entered into agreements to acquire two
Properties for purchase prices totalling $27,000,000 excluding closing
costs. In connection with the agreements, the Company placed refundable
deposits totalling $50,000 ($25,000 for each Property) with an escrow
agent. These Properties were acquired on July 31, 1998 (see Note 8).
8. Subsequent Events:
During the period July 1, 1998 through August 3, 1998, the Company
received subscription proceeds for an additional 174,616 shares
($1,746,157) of common stock.
B-27
<PAGE>
On July 1, 1998 and August 1, 1998, the Company declared distributions
totalling $99,631 and $105,707, respectively, or $.0417 per share of
common stock, payable in September 1998, to stockholders of record on
July 1, 1998 and August
1, 1998, respectively.
On July 31, 1998, the Company acquired the two Properties referenced
above for cash and advances on the line of credit at a total cost of
approximately $27,246,000 (see Note 7). In connection with the purchase
of each Property, the Company, as lessor, entered into a long-term
lease
agreement.
On July 31, 1998, the Company entered into a revolving line of credit
and security agreement with a bank to be used by the Company to acquire
hotel Properties. The line of credit provides that the Company will be
able to receive advances of up to $30,000,000 until July 30, 2003, with
an annual review to be performed by the bank to indicate that there has
been no substantial deterioration, in the bank's reasonable discretion,
of the credit quality. Interest expense on each advance shall be
payable monthly, with all unpaid interest and principal due no later
than five years from the date of the advance. Advances under the line
of credit will bear interest at either (i) a rate per annum equal to
318 basis points above the LIBOR or (ii) a rate per annum equal to 30
basis points above the bank's base rate, whichever the Company selects
at the time advances are made. In addition a fee of .5% per advance
will be due and payable to the bank on funds as advanced. Each advance
made under the line of credit will be secured by the assignment of
rents and leases. In addition, the line of credit provides that the
Company will not be able to further encumber the applicable hotel
Property during the
B-28
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
AND SUBSIDIARIES
(formerly known as CNL American Realty Fund, Inc.)
NOTES TO CONDENSED FINANCIAL STATEMENTS
Quarters and Six Months Ended June 30, 1998 and 1997
8. Subsequent Events - Continued:
term of the advance without the bank's consent. The Company will be
required, at each closing, to pay all costs, fees and expenses arising
in connection with the line of credit. The Company must also pay the
bank's attorneys fees, subject to a maximum cap, incurred in connection
with the line of credit and each advance. On July 31, 1998, the Company
obtained two advances totalling $8,600,000 relating to the line of
credit. In connection with the line of credit, the Company incurred a
commitment fee, legal fees and closing costs of $60,266. The proceeds
were used in connection with the purchase of the two hotel Properties
referenced above.
B-29
<PAGE>
Report of Independent Accountants
To the Board of Directors
CNL American Realty Fund, Inc.
We have audited the accompanying balance sheets of CNL American Realty Fund,
Inc. (a Maryland corporation) as of December 31, 1997 and 1996, and the related
statements of earnings, stockholders' equity, and cash flows for the year ended
December 31, 1997 and for the period June 12, 1996 (date of inception) through
December 31, 1996. These financial statements are the responsibility of the
Company's management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and per-form the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits pro-vide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of CNL American Realty Fund, Inc.
as of December 31, 1997 and 1996, and the results of its operations and its cash
flows for the year ended December 31, 1997 and the period June 12, 1996 (date of
inception) through December 31, 1996, in conformity with generally accepted
accounting principles.
/s/Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Orlando, Florida
January 22, 1998
B-30
<PAGE>
CNL AMERICAN REALTY FUND, INC.
BALANCE SHEETS
--------------
December 31,
ASSETS 1997 1996
------------ --------
Cash and cash equivalents $8,869,838 $ 2,084
Due from related party 7,500 -
Prepaid expenses 11,179 -
Organization costs, less accumulated
amortization of $833 in 1997 19,167 -
Deferred offering costs - 596,106
Other assets 535,792 -
---------- ---------
$9,443,476 $ 598,190
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Accounts payable and accrued expenses $ 16,305 $ 11,629
Due to related parties 193,254 386,561
---------- ----------
Total liabilities 209,559 398,190
---------- ----------
Stockholders' equity:
Preferred stock, without par value.
Authorized and unissued 3,000,000
shares in 1997 - -
Excess shares, $.01 par value per
share. Authorized and unissued
63,000,000 shares in 1997 - -
Common stock, $.01 par value per
share. Authorized 60,000,000
shares and 100,000 shares,
respectively, issued and
outstanding 1,152,540 and 20,000,
respectively 11,525 200
Capital in excess of par value 9,229,316 199,800
Accumulated distributions in excess
of net earnings (6,924 ) -
---------- ----------
Total stockholders' equity 9,233,917 200,000
---------- ----------
$9,443,476 $ 598,190
========== ==========
See accompanying notes to financial statements.
B-31
<PAGE>
CNL AMERICAN REALTY FUND, INC.
STATEMENTS OF EARNINGS
June 12, 1996
(Date of
Inception)
Year Ended through
December 31, December 31,
1997 1996
------------ ---------
Interest income $ 46,071 $ -
---------- ---------
Expenses:
General operating and
administrative 22,386 -
Amortization 833 -
---------- ---------
23,219 -
---------- ---------
Net Earnings $ 22,852 $ -
========== =========
Earnings Per Share of Common
Stock (Basic and Diluted) $ 0.03 $ -
========== =========
Weighted Average Number of
Shares of Common Stock
Outstanding 686,063 -
========== =========
See accompanying notes to financial statements.
B-32
<PAGE>
CNL AMERICAN REALTY FUND, INC.
STATEMENTS OF STOCKHOLDERS' EQUITY
----------------------------------
Year Ended December 31, 1997 and the
Period June 12, 1996 (Date of Inception) through
December 31, 1996
<TABLE>
<CAPTION>
Accumulated
distributions
Common stock Capital in in excess
Number Par excess of of net
of shares value par value earnings Total
--------- ----- --------- -------- -----
<S> <C>
Balance at
June 12, 1996 - $ - $ - $ - $ -
Sale of common
stock to related
party 20,000 200 199,800 - 200,000
---------- ------- ----------- --------- -----------
Balance at
December 31, 1996 20,000 200 199,800 - 200,000
Subscriptions
received for
common stock
through public
offering and
distribution
reinvestment plan 1,132,540 11,325 11,314,077 - 11,325,402
Stock issuance costs - - (2,284,561) - (2,284,561)
Net earnings - - - 22,852 22,852
Distributions
declared ($0.05
per share) - - - (29,776) (29,776)
---------- ------- ----------- --------- -----------
Balance at
December 31, 1997 1,152,540 $11,525 $ 9,229,316 $ (6,924) $ 9,233,917
========== ======= =========== ========= ===========
</TABLE>
See accompanying notes to financial statements.
B-33
<PAGE>
CNL AMERICAN REALTY FUND, INC.
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
June 12, 1996
(Date of
Inception)
Year Ended through
December 31, December 31,
1997 1996
------------ ---------
<S> <C>
Increase (Decrease) in Cash and Cash
Equivalents:
Cash Flows From Operating Activities:
Interest received $ 46,071 $ -
Cash paid for expenses (23,602) -
------------ -----------
Net cash provided by operating
activities 22,469 -
------------ -----------
Cash Flows From Investing Activities:
Increase in other assets (463,470) -
------------ -----------
Net cash used in investing
activities (463,470) -
------------ -----------
Cash Flows From Financing Activities:
Reimbursement of acquisition, organi-
zation and stock issuance costs paid
by related parties on behalf of the
Company (1,003,031) (197,916)
Sale of common stock to related party - 200,000
Subscriptions received from stock-
holders 11,327,900 -
Distributions to stockholders (29,776) -
Payment of stock issuance costs (986,338) -
------------ -----------
Net cash provided by financing
activities 9,308,755 2,084
------------ ------------
Net Increase in Cash and Cash Equivalents 8,867,754 2,084
Cash and Cash Equivalents at Beginning of
Period 2,084 -
------------ ------------
Cash and Cash Equivalents at End of Period $ 8,869,838 $ 2,084
============ ============
</TABLE>
See accompanying notes to financial statements.
B-35
<PAGE>
CNL AMERICAN REALTY FUND, INC.
STATEMENTS OF CASH FLOWS - CONTINUED
------------------------------------
<TABLE>
<CAPTION>
June 12, 1996
(Date of
Inception)
Year Ended through
December 31, December 31,
1997 1996
------------ --------------
<S> <C>
Reconciliation of Net Earnings to Net Cash
Provided by Operating Activities:
Net earnings $ 22,852 $ -
------------ -----------
Adjustments to reconcile net earnings
to net cash provided by operating
activities:
Amortization 833 -
Increase in prepaid expenses (11,179) -
Increase in accounts payable and
accrued expenses 6,141 -
Increase in due to related parties,
excluding reimbursement of acqui-
sition, organization and stock
issuance costs paid on behalf
of the Company 3,822 -
------------ -----------
Total adjustments (383) -
------------ -----------
Net Cash Provided by Operating Activities $ 22,469 $ -
============ ===========
Supplemental Schedule of Non-Cash
Investing and Financing Activities:
Related parties paid certain acquisition,
organization and stock issuance
costs on behalf of the Company as follows:
Acquisition costs $ 26,149 $ -
Organization costs - 20,000
Deferred offering costs - 535,812
Stock issuance costs 638,274 -
------------ ------------
$ 664,423 $ 555,812
============ ============
</TABLE>
See accompanying notes to financial statements.
B-36
<PAGE>
CNL AMERICAN REALTY FUND, INC.
NOTES TO FINANCIAL STATEMENTS
Year Ended December 31, 1997 and the Period
June 12, 1996 (Date of Inception) through
December 31, 1996
1. Significant Accounting Policies:
Organization and Nature of Business - CNL American Realty Fund, Inc.
(the "Company") was organized in Maryland on June 12, 1996 primarily to
acquire properties ("Properties") located across the United States to
be leased on a long-term triple-net basis. The Company intends to
invest the proceeds from its public offering, after deducting offering
expenses, in hotel Properties to be leased to operators of national and
regional limited service, extended stay and full service hotel chains
(the "Hotel Chains") and in restaurant Properties to be leased to
operators of selected national and regional fast-food, family-style and
casual dining restaurant chains (the "Restaurant Chains"). The Company
may also provide mortgage financing ( the "Mortgage Loans"). The
Company also intends to offer furniture, fixture and equipment
financing (the "Secured Equipment Leases") to operators of Hotel Chains
and Restaurant Chains.
The Company was a development stage enterprise from June 12, 1996
through October 15, 1997. Since operations had not begun, activities
through October 15, 1997 were devoted to organization of the Company.
Cash and Cash Equivalents - The Company considers all highly liquid
investments with a maturity of three months or less when purchased to
be cash equivalents. Cash and cash equivalents consist of demand
deposits at commercial banks and money market funds (some of which are
backed by government securities). Cash equivalents are stated at cost
plus accrued interest, which approximates market value.
Cash accounts maintained on behalf of the Company in demand deposits at
commercial banks and money market funds may exceed federally insured
levels; however, the Company has not experienced any losses in such
accounts. The Company limits investment of temporary cash investments
to financial institutions with high credit standing; therefore,
management believes it is not exposed to any significant credit risk on
cash and cash equivalents.
Organization Costs - Organization costs are amortized over five years
using the straight-line method.
B-37
<PAGE>
CNL AMERICAN REALTY FUND, INC.
NOTES TO FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1997 and the Period
June 12, 1996 (Date of Inception) through
December 31, 1996
1. Significant Accounting Policies - Continued:
Income Taxes - The Company intends to make an election to be taxed as a
real estate investment trust ("REIT") under Sections 856 through 860 of
the Internal Revenue Code of 1986, as amended, commencing with its
taxable year ended December 31, 1997. If the Company qualifies for
taxation as a REIT, the Company generally will not be subject to
federal corporate income taxes to the extent it distributes its REIT
taxable income to its stockholders, so long as it distributes at least
95 percent of its REIT taxable income and meets certain other
requirements for qualifying as a REIT. Accordingly, no provision for
federal income taxes has been made in the financial statements. Even if
the Company qualifies for taxation as a REIT, it may be subject to
certain state and local taxes on its income and property, and federal
income and excise taxes on its undistributed income.
Earnings Per Share - Basic earnings per share are calculated based upon
net earnings (income available to common stockholders) divided by the
weighted average number of shares of common stock outstanding during
the reporting period. The Company does not have any dilutive potential
common shares.
Use of Estimates - Management of the Company has made a number of
estimates and assumptions relating to the reporting of assets and
liabilities and the disclosure of contingent assets and liabilities to
prepare these financial statements in conformity with generally
accepted accounting principles. Actual results could differ from those
estimates.
New Accounting Standard - In February 1997, the Financial Accounting
Standards Board issued Statement of Financial Accounting Standards No.
129, "Disclosure of Information about Capital Structure." The
Statement, which is effective for fiscal years ending after December
15, 1997, provides for disclosure of the Company's capital structure.
At this time, the Company's Board of Directors has not determined the
relative rights, preferences, and privileges of each class or series of
preferred stock authorized. Since the Company has not issued preferred
shares, the disclosures to this Statement are not applicable.
B-38
<PAGE>
CNL AMERICAN REALTY FUND, INC.
NOTES TO FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1997 and the Period
June 12, 1996 (Date of Inception) through
December 31, 1996
1. Significant Accounting Policies - Continued:
In June 1997, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 130, "Reporting Comprehensive
Income." The Statement, which is effective for fiscal years beginning
after December 15, 1997, requires the reporting of net earnings and all
other changes to equity during the period, except those resulting from
investments by owners and distributions to owners, in a separate
statement that begins with net earnings. Currently, the Company's only
component of comprehensive income is its net earnings. The Company does
not believe that adoption of this Statement will have a material effect
on the Company's financial position or results of operations.
2. Public Offering:
The Company has filed a currently effective registration statement on
Form S-11 with the Securities and Exchange Commission.
A maximum of 16,500,000 shares ($165,000,000) may be sold, including
1,500,000 shares ($15,000,000) which is available only to stockholders
who elect to participate in the Company's reinvestment plan. The
Company has adopted a reinvestment plan pursuant to which stockholders
may elect to have the full amount of their cash distributions from the
Company reinvested in additional shares of common stock of the Company.
As of December 31, 1997, the Company had received subscription proceeds
of $11,325,402 (1,132,540 shares), including $1,056 (106 shares)
through the reinvestment plan.
3. Other Assets:
Other assets at December 31, 1997, consisted of acquisition fees and
miscellaneous acquisition expenses which will be allocated to future
Properties.
B-40
<PAGE>
CNL AMERICAN REALTY FUND, INC.
NOTES TO FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1997 and the Period
June 12, 1996 (Date of Inception) through
December 31, 1996
4. Stock Issuance Costs:
The Company has incurred certain expenses of its offering of shares,
including commissions, marketing support and due diligence expense
reimbursement fees, filing fees, legal, accounting, printing and escrow
fees, which have been deducted from the gross proceeds of the offering.
Preliminary costs incurred prior to raising capital were advanced by an
affiliate of the Company, CNL Real Estate Advisors, Inc. (the
"Advisor"). The Advisor has agreed to pay all organizational and
offering
B-41
<PAGE>
expenses (excluding commissions and marketing support and due diligence
expense reimbursement fees) which exceed three percent of the gross
offering proceeds received from the sale of shares of the Company.
As of December 31, 1997, the Company had incurred $2,304,561 in
organizational and offering costs, including $906,032 in commissions
and marketing support and due diligence expense reimbursement fees (see
Note 6). Of this amount $2,284,561 has been treated as stock issuance
costs and $20,000 has been treated as organization costs. The stock
issuance costs have been charged to stockholders' equity subject to the
three percent cap described above.
5. Distributions:
For the year ended December 31, 1997, 100 percent of the distributions
were considered to be ordinary income for federal income tax purposes.
No amounts distributed to stockholders for the year ended December 31,
1997, are required to be or have been treated by the Company as a
return of capital for purposes of calculating the stockholders' return
on their invested capital.
6. Related Party Transactions:
Certain affiliates of the Company will receive fees and compensation in
connection with the offering, and the acquisition, management, and sale
of the assets of the Company.
On June 12, 1996 (date of inception), CNL Fund Advisors, Inc.
contributed $200,000 in cash to the Company and became its sole
stockholder. In February 1997, the Advisor purchased the Company's
outstanding common stock from CNL Fund Advisors, Inc. and became the
sole stockholder of the Company.
B-42
<PAGE>
CNL AMERICAN REALTY FUND, INC.
NOTES TO FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1997 and the Period
June 12, 1996 (Date of Inception) through
December 31, 1996
6. Related Party Transactions - Continued:
CNL Securities Corp. is entitled to receive commissions amounting to
7.5% of the total amount raised from the sale of shares for services in
connection with the offering of the shares, a substantial portion of
which has been or will be paid as commissions to other broker-dealers.
During the year ended December 31, 1997, the Company incurred $849,405
of such fees of which $792,832 were or will be paid by CNL Securities
Corp. as commissions to other broker-dealers.
In addition, CNL Securities Corp. is entitled to receive a marketing
support and due diligence expense reimbursement fee equal to 0.5% of
the total amount raised from the sale of shares, a portion of which may
be reallowed to other broker-dealers. During the year ended December
31, 1997, the Company incurred $56,627 of such fee, the majority of
which were reallowed to other broker-dealers and from which all bona
fide due diligence expenses were paid.
CNL Securities Corp. will also receive a soliciting dealer servicing
fee payable annually by the Company beginning on December 31 of the
year following the year in which the offering is completed in the
amount of 0.20% of the stockholders' investment in the Company. As of
December 31, 1997, no such fees had been incurred.
The Advisor is entitled to receive acquisition fees for services in
finding, negotiating the leases of and acquiring properties on behalf
of the Company equal to 4.5% of gross proceeds, loan proceeds from
permanent financing and amounts outstanding on the line of credit, if
any, at the time of Listing, but excluding that portion of the
permanent financing used to finance Secured Equipment Leases. During
the year ended December 31, 1997, the Company incurred $509,643 of such
fees. Such fees are included in other assets at December 31, 1997.
B-43
<PAGE>
CNL AMERICAN REALTY FUND, INC.
NOTES TO FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1997 and the Period
June 12, 1996 (Date of Inception) through
December 31, 1996
6. Related Party Transactions - Continued:
The due to related parties consisted of the following at December 31:
1997 1996
---------- ---------
Due to CNL Securities Corp.:
Commissions $100,709 $ -
Marketing support and due
diligence expense reim-
bursement fee 7,268 -
-------- -------
107,977 -
-------- -------
Due to CNL Real Estate Advisors,
Inc.:
Expenditures incurred for
organizational and offering
expenses on behalf
of the Company 21,729 357,896
Accounting and administrative
services 17,376 28,665
Acquisition fees 46,172 -
-------- -------
85,277 386,561
-------- --------
$193,254 $386,561
======== ========
B-45
<PAGE>
CNL AMERICAN REALTY FUND, INC.
NOTES TO FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1997 and the Period
June 12, 1996 (Date of Inception) through
December 31, 1996
6. Related Party Transactions - Continued:
The Advisor and its affiliates provide accounting and administrative
services to the Company (including accounting and administrative
services in connection with the offering of shares) on a day-to-day
basis. For the year ended December 31, 1997 and the period June 12,
1996 (date of inception) through December 31, 1996, the expenses
incurred for these services were classified as follows:
June 12, 1996
(Date of
Inception)
Year Ended through
December 31, December 31,
1997 1996
------------ ---------
Deferred offering costs $ - $ 28,665
Stock issuance costs 185,335 -
General operating and
administrative expenses 6,889 -
-------- -------
$192,224 $ 28,665
======== ========
7. Subsequent Events:
During the period January 1, 1998 through January 22, 1998, the Company
received subscription proceeds of 130,262 shares ($1,302,620) of common
stock.
On January 1, 1998, the Company declared distributions of $28,814 or
$0.025 per share of common stock, payable in March 1998, to
stockholders of record on January 1, 1998.
On January 16, 1998, the Company declared distributions of $0.025 per
share of common stock to stockholders of record on February 1, 1998,
also payable in March 1998.
B-47
<PAGE>
INDEX TO OTHER FINANCIAL STATEMENTS
The following financial information is provided in connection with the Company's
acquisition of the Buckhead (Lenox Park) and the Gwinnett Place Properties. Due
to the fact that the tenant of the Company is a newly formed entity, the
information presented represents the historical financial performance of the
hotel businesses. The Buckhead (Lenox Park) Property and the Gwinnett Place
Property became operational on August 7, 1997 and July 29, 1997, respectively.
This information was obtained from the seller of the Properties. The Company has
acquired the hotel Properties and does not own any interest in the hotel
businesses. For information on the Properties and the long-term, triple-net
leases in which the Company has entered, see "Business -- Property
Acquisitions."
BUCKHEAD RESIDENCE ASSOCIATES, L.L.C.
Updated Financial Statements (unaudited):
Balance Sheet as of June 30, 1998 B-33
Statement of Loss for the six months ended June 30, 1998 B-34
Audited Financial Statements:
Report of Independent Public Accountants B-35
Balance Sheet as of December 31, 1997 B-36
Statement of Loss for the year ended December 31, 1997 B-37
Statement of Member's Equity for the year ended December
31, 1997 B-38
Statement of Cash Flows for the year ended December 31,
1997 B-39
Notes to Financial Statement for the year ended December
31, 1997 B-40
GWINNETT RESIDENCE ASSOCIATES, L.L.C.
Updated Financial Statements (unaudited):
Balance Sheet as of June 30, 1998 B-45
Statement of Loss for the six months ended June 30, 1998 B-46
Audited Financial Statements:
Report of Independent Public Accountants B-47
Balance Sheet as of December 31, 1997 B-48
Statement of Loss for the year ended December 31, 1997 B-49
Statement of Member's Deficit for the year ended December
31, 1997 B-50
Statement of Cash Flows for the year ended December 31,
1997 B-51
Notes to Financial Statement for the year ended December 31,
1997 B-52
B-48
<PAGE>
BUCKHEAD RESIDENCE ASSOCIATES, L.L.C.
BALANCE SHEET
JUNE 30, 1998
<TABLE>
<CAPTION>
ASSETS LIABILITIES AND MEMBERS' EQUITY
------ -------------------------------
<S> <C>
CURRENT ASSETS: CURRENT LIABILITIES:
Cash $ 1,229,955 Accounts payable $ 711,974
Accounts receivable, net 173,287 Accrued liabilities 427,306
-----------
Prepaid expenses 18,080
------------ Total current liabilities 1,139,280
Total current assets 1,421,322
------------
PROPERTY, at cost: FIRST MORTGAGE LOAN 10,634,958
Land 1,505,591
Buildings 8,842,642
Furniture, fixtures, and equipment 1,470,899 MEZZANINE LOAN 1,601,152
------------ -----------
11,819,132 Total liabilities 13,375,390
Less accumulated depreciation (467,063)
------------
Net property 11,352,069
------------
LOAN COSTS, net of accumulated MEMBERS' EQUITY 62,078
amortization of $109,395 377,910 -----------
------------
ORGANIZATION COSTS, net of Total liabilities and members'
accumulated amortization of equity $13,437,468
$38,269 43,272 ===========
------------
FRANCHISE COSTS, net of
accumulated amortization of
$2,750 57,250
------------
DEVELOPMENT IN PROGRESS 185,645
------------
Total assets $ 13,437,468
============
</TABLE>
B-49
<PAGE>
BUCKHEAD RESIDENCE ASSOCIATES, L.L.C.
STATEMENT OF LOSS
FOR THE SIX MONTHS ENDED JUNE 30, 1998
REVENUES:
Rooms $ 2,007,424
Telephone 79,188
Other 50,203
-------------
Total revenues 2,136,815
-------------
EXPENSES:
Rooms 453,769
Telephone 18,730
Other operating departments 9,368
Administrative and general 158,036
Credit card commissions 44,111
Franchise fees 80,337
Advertising, marketing, and promotion 141,041
Repairs and maintenance 66,750
Utilities 52,275
Property insurance and taxes 117,165
Management fees 64,098
Other 5,134
Interest 604,186
Depreciation and amortization 337,891
-------------
Total expenses 2,152,891
-------------
NET LOSS $ (16,076)
=============
B-50
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Members of
Buckhead Residence Associates, L.L.C.:
We have audited the accompanying balance sheet of BUCKHEAD RESIDENCE ASSOCIATES,
L.L.C. as of December 31, 1997 and the related statement of loss, members'
equity, and cash flows for the year then ended. These financial statements are
the responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Buckhead Residence Associates,
L.L.C. as of December 31, 1997 and the results of its operations and its cash
flows for the year then ended in conformity with generally accepted accounting
principles.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Atlanta, Georgia
February 27, 1998
B-51
BUCKHEAD RESIDENCE ASSOCIATES, L.L.C.
BALANCE SHEET
DECEMBER 31, 1997
<TABLE>
<CAPTION>
ASSETS LIABILITIES AND MEMBERS' EQUITY
------ -------------------------------
<S> <C>
CURRENT ASSETS: CURRENT LIABILITIES:
Cash and short-term investments, including Accounts payable $ 285,134
restricted cash of $18,387 $ 225,703 Accrued liabilities 140,911
Accounts receivable, net of allowance for doubtful Current portion of mortgage loan 38,522
accounts of $1,973 114,685 -----------
Prepaid expenses 12,398 Total current liabilities 464,567
------------
Total current assets 352,786
------------
PROPERTY, at cost: DEFERRED DEVELOPMENT FEE 619,000
Land 1,505,591
Buildings 8,969,838
Furniture, fixtures, and equipment 1,470,899 FIRST MORTGAGE LOAN, less current portion 9,949,319
------------ (Note 2)
11,946,328
Less accumulated depreciation (211,216)
Net property 11,735,112 MEZZANINE LOAN (Note 2) 1,533,202
------------ -----------
LOAN COSTS, net of accumulated amortization of $49,725 437,580 Total liabilities 12,566,088
------------
ORGANIZATION COSTS, net of accumulated amortization of
$17,395 64,146 COMMITMENTS AND CONTINGENCIES (Note 2)
------------
FRANCHISE COSTS, net of accumulated amortization of
$1,250 58,750 MEMBERS' EQUITY 82,286
------------ -----------
Total assets $ 12,648,374 Total liabilities and members'
============ equity $12,648,374
===========
</TABLE>
The accompanying notes are an integral part of
this balance sheet.
B-52
<PAGE>
BUCKHEAD RESIDENCE ASSOCIATES, L.L.C.
STATEMENT OF LOSS
FOR THE YEAR ENDED DECEMBER 31, 1997
REVENUES:
Rooms $ 862,815
Telephone 40,832
Other 15,684
----------
Total revenues 919,331
----------
EXPENSES:
Rooms 280,204
Telephone 8,603
Other operating departments 2,725
Administrative and general 103,471
Credit card commissions 19,124
Franchise fees 34,513
Advertising, marketing, and promotion 88,954
Repairs and maintenance 46,188
Utilities 37,097
Property insurance and taxes 18,758
Management fees 27,580
Other 34,541
Interest 447,026
Depreciation and amortization 279,586
----------
Total expenses 1,428,370
----------
NET LOSS $ (509,039)
==========
The accompanying notes are an integral part of this statement.
B-53
<PAGE>
BUCKHEAD RESIDENCE ASSOCIATES, L.L.C.
STATEMENT OF MEMBERS' EQUITY
FOR THE YEAR ENDED DECEMBER 31, 1997
Stormont
Trice
Development RI HWE
Corporation Partners IV Total
----------- -------- --- -----
BALANCE, December 31, 1996 $ 193,800 $ 193,800 $ 203,725 $ 591,325
Net loss (193,800) (193,800) (121,439) (509,039)
---------- ---------- --------- ---------
BALANCE, December 31, 1997 $ 0 $ 0 $ 82,286 $ 82,286
========== ========== ========= =========
The accompanying notes are an integral part of this statement.
B-54
<PAGE>
BUCKHEAD RESIDENCE ASSOCIATES, L.L.C.
STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1997
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ (509,039)
Adjustments to reconcile net loss to net cash provided
by operating activities:
Depreciation and amortization 279,586
Changes in assets and liabilities:
Accounts receivable, net (114,685)
Prepaid expenses (12,398)
Accounts payable 285,134
Accrued liabilities 130,196
-----------
Total adjustments 567,833
-----------
Net cash provided by operating activities 58,794
-----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (8,627,218)
Organization costs (7,361)
-----------
Net cash used in investing activities (8,634,579)
-----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Principal received from loans payable 8,715,244
Loan costs (7,362)
-----------
Net cash provided by financing activities 8,707,882
-----------
NET INCREASE IN CASH AND CASH EQUIVALENTS 132,097
-----------
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 93,606
-----------
CASH AND CASH EQUIVALENTS AT END OF YEAR $ 225,703
===========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid for interest during the year $ 0
===========
The accompanying notes are an integral part of this statement.
B-55
<PAGE>
BUCKHEAD RESIDENCE ASSOCIATES, L.L.C.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1997
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Organization and Operations
Buckhead Residence Associates, L.L.C. (the "Company") is a Georgia limited
liability company that was organized for the purpose of constructing,
operating, and owning the Residence Inn Lenox Park (the "Hotel") in
Atlanta, Georgia. The Hotel is comprised of 150 suites and became
operational on August 7, 1997.
The members of the Company (the"Members"), their ownership percentages, and
their initial capital contributions are as follows:
Initial
Ownership Capital
Percentage Contribution
---------- ------------
Members:
Stormont Trice Development
Corporation ("STDC" or the
"Manager ") 40.74% $212,000
RI Partners ( "RI ") 40.74 212,000
HWE IV 18.52 212,000
The operating agreement provides for allocation of profits, losses, and
cash distributions, as follows:
Profits
o To the Members in proportion to their respective ownership
percentage interests, as defined in the agreement
Losses
o First, to the Members in proportion to their respective ownership
percentage interests until any Member's capital account is reduced
to zero
o Second, to the Member, if any, to the extent of its remaining
positive capital account balance (as adjusted to reflect any prior
allocation of loss)
B-56
<PAGE>
o Third, to the partners in proportion to their respective ownership
percentage interests
Notwithstanding the above loss allocations, to the extent losses
allocated to a Member would cause a Member to have an adjusted capital
account deficit, such losses shall not be allocated to such Member but
instead shall be allocated to other Members in proportion to, and to
the extent that, the amounts in which losses may be allocated to the
other Members without causing the other Members to have an adjusted
capital account deficit and then to the Members in proportion to their
respective contribution percentage interests.
Cash Distributions
o First, to the repayment or prepayment of such debts or
liabilities, other than any debts of the Company to any of the
Members, as the Manager shall determine to be in the best interest
of the Company
o Second, to the establishment of such reserves as the Manager deems
appropriate
o Third, to the repayment or prepayment of any back-up loans, as
defined in the agreement
o Fourth, to the repayment or prepayment of any Member loans
o Fifth, to the Members in equal shares until such time as $63,600
has been distributed to the Members
o Sixth, in equal amounts to the Manager and RI until such time as
$50,871 has been distributed to the Members
o Seventh, the balance available to the Members in proportion to
their respective ownership percentage interests
Allocation of profits, losses, and cash distributions from the sale or
refinancing of the property are allocated in a different manner and will be
affected by the terms of notes payable agreements discussed in Note 2.
Cash and Cash Equivalents
For purposes of reporting cash flows, the Company considers cash on hand,
deposits in banks, and short-term investments with original maturities of
90 days or less to be cash and cash equivalents.
The first mortgage, mezzanine loan, and management agreements require the
Hotel to establish a furniture, fixtures, and equipment reserve, as
follows: 0% in year one, 2% in year two, 3% in year three, 4% in year four,
and 5% in year five of gross revenues, as defined in the loan agreement. As
of December 31, 1997, $18,387 of cash and cash equivalents was designated
as the furniture, fixtures, and equipment reserve.
B-57
<PAGE>
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
Franchise and Organization Expenses
A franchise application fee has been capitalized and is being amortized
over the 20-year life of the franchise agreement. Organization costs have
been capitalized and are being amortized over 5 years.
Property
Property is recorded at cost, including capitalized interest, and is
depreciated using the straight-line method over the estimated useful lives
of the assets, which are 30 years for buildings and 3 to 7 years for
furniture, fixtures, and equipment. Expenditures for replacements and
betterments are capitalized, while expenditures for maintenance and repairs
are expensed as incurred.
Income Taxes
No provisions for income taxes have been made in the accounts of the
Company, since the Members report their respective shares of taxable income
and loss in their individual tax returns.
2. NOTES PAYABLE
First Mortgage Loan
On August 29, 1996, the Company entered into a loan agreement with Ocwen
Federal Bank FSB ("Ocwen"), formerly Berkeley Federal Bank & Trust FSB, for
a total available amount of $11,262,500 to fund costs of developing and
operating the Hotel. The note bears 10.25% interest until its maturity date
of August 31, 2001. The loan is collateralized by the Company's interest in
the Hotel. Interest accrues monthly and is added to the outstanding balance
until the budgeted interest reserve is depleted or September 1, 1998,
whichever is earlier. Beginning October 1, 1998, interest and principal are
due monthly, with all remaining repaid principal and interest being due on
August 31, 2001. The principal outstanding at December 31, 1997 is
repayable as follows:
1998 $ 38,522
1999 164,304
2000 181,960
2001 9,603,055
-----------
$ 9,987,841
===========
B-58
<PAGE>
In addition, Ocwen receives noncumulative participating interest based on a
percentage of the Company's excess cash flow, as defined in the loan
agreement. These percentages are as follows: 22.5% in year one, 25% in
years two and three, and 30% in years four and five. No amounts were
payable in 1997.
In the event the Company sells the Hotel or refinances the loan, an amount
shall be due to Ocwen as follows: in year one, the greater of $525,000 or
22.5% of the greater of the net proceeds or net economic value, as defined
in the loan; in years two or three, the greater of $525,000 or 25% of the
greater of the net proceeds or net economic value; in year four, the
greater of $800,000 or 30% of the greater of the net proceeds or net
economic value; in year five, the greater of $1,300,000 or 30% of the
greater of the net proceeds or net economic value.
Mezzanine Loan
On August 29, 1996, the Company entered into a loan agreement with Heller
Financial, Inc. ("Heller") for a total available amount of $1,621,800. At
December 31, 1997, $1,533,202 is outstanding, including $181,702 of accrued
interest. The note bears an interest rate of 10% and is interest only until
its maturity date of August 31, 2001. Interest is due monthly, commencing
when the accrued interest exceeds $270,300 or 20% of the outstanding
principal amount of the loan or when distributable cash flow, as defined,
is available. In addition, Heller receives quarterly, as additional
consideration, the excess of the percentage of the Company's excess cash
flow, as defined in the loan agreement, over the amount of interest accrued
during the previous quarter. These percentages are as follows: 42.625% in
year one, 41.25% in years two and three, and 38.5% in years four and five
(effectively, this equals 55% of the cash flow after paying Ocwen's
participating interest).
Through August 31, 2006, upon the occurrence of any participation event, as
defined in the loan agreement, Heller will receive an amount calculated as
follows: in year one, the greater of $800,000 or 55% of the net adjusted
proceeds, as defined in the loan agreement, less $250,000 and the Company's
equity (the "Participation Amount"); in year two, the greater of $1,100,000
or 55% of the Participation Amount; in year three, the greater of
$1,200,000 or 55% of the Participation Amount; in year four, the greater of
$1,400,000 or 55% of the Participation Amount; in year five and thereafter,
the greater of $1,500,000 or 55% of the Participation Amount. In no event
may Heller's participation exceed 49.9% of the total profit of the
participation event.
3. FRANCHISE AND MANAGEMENT AGREEMENTS
The Hotel is operated under a franchise agreement with Marriott
International, Inc. ("Marriott"). The term of the agreement is 20 years
unless otherwise extended or terminated. The Company paid Marriott an
application fee of $60,000. This has been capitalized as franchise costs in
the accompanying balance sheet. Amortization began when the Hotel became
operational, and the cost is being amortized over the life of the franchise
agreement. The agreement provides for the Hotel to reimburse Marriott for
certain common expenses, including, but not limited to, the use of
Marriott's national reservation system. The Hotel also pays Marriott
certain fees, as follows:
B-59
<PAGE>
o Royalty Fee. Percent of the gross sales, as defined in the
agreement. Royalty fees for the year ended December 31, 1997 were
$34,513.
o Marketing Fund Fee. Percent of gross sales. Marketing fund fees
for the year ended December 31, 1997 were $21,571 and are included
in advertising, marketing, and promotion expenses in the
accompanying statement of loss.
The Hotel is operated under a management agreement with Stormont Trice
Management Corporation ("STMC"), an affiliate of STDC. The term of the
management agreement is ten years. Under the terms of the agreement, the
Company pays STMC 3% of gross revenues, as defined in the agreement. At
December 31, 1997, $6,907 in management fees were payable to STMC.
Management fee expense for 1997 was $27,580.
4. RELATED-PARTY TRANSACTIONS
In addition to the management agreement (Note 3), Stormont Trice
Corporation, an affiliate of STDC, provides workers' compensation, group
insurance, and certain employee benefits to all of the Stormont Trice
Corporation group of hotels, and a pro rata portion of the total insurance
and certain employee benefits expense is allocated to each hotel. The
amount allocated to the Company for the year ended December 31, 1997 was
$11,493.
Stormont Trice Corporation also provides property, umbrella, and casualty
insurance to all of the Stormont Trice Corporation group of hotels, and a
pro rata portion of the total insurance expense is allocated to each hotel.
The amount allocated to the Company for the year ended December 31, 1997
was $15,925.
STDC provided development management services to the Company in
construction of the Hotel. The costs for these services in 1997 were
$619,000 and are included in buildings in the accompanying balance sheet.
Amounts due to STDC for these services are $619,000 at December 31, 1997.
In accordance with the terms of the agreement, the fee will not be payable
until the Company repays all of the Ocwen loan obligation and a portion of
the Heller loan obligation, as defined.
STDC also provided the director of design and development for the Hotel.
The cost for these services in 1997 was $34,082 and is included in
buildings in the accompanying balance sheet. Amounts due to STDC for these
services were approximately $14,000 at December 31, 1997 and are included
in accounts payable in the accompanying balance sheet.
B-60
<PAGE>
GWINNETT RESIDENCE ASSOCIATES, L.L.C.
BALANCE SHEET
JUNE 30, 1998
<TABLE>
<CAPTION>
ASSETS LIABILITIES AND MEMBERS' DEFICIT
------ --------------------------------
<S> <C>
CURRENT ASSETS: CURRENT LIABILITIES:
Cash $ 768,261 Accounts payable $ 459,653
Accounts receivable, net 106,194 Accrued liabilities 292,461
-----------
Prepaid expenses 18,985
----------- Total current liabilities 752,114
Total current assets 893,440
-----------
PROPERTY, at cost: FIRST MORTGAGE LOAN 7,691,138
Land 800,000
Buildings 6,509,423
Furniture, fixtures, and equipment 1,311,137 MEZZANINE LOAN 1,204,270
----------- -----------
8,620,560 Total liabilities 9,647,522
Less accumulated depreciation (369,063)
-----------
Net property 8,251,497
-----------
LOAN COSTS, net of accumulated MEMBERS' DEFICIT (75,739)
amortization of $86,686 299,461 -----------
-----------
ORGANIZATION COSTS, net of Total liabilities and members'
accumulated amortization of deficit $ 9,571,783
$39,585 44,664 ===========
-----------
FRANCHISE COSTS, net of
accumulated amortization of
$2,420 50,380
-----------
DEVELOPMENT IN PROGRESS 32,341
-----------
Total assets $ 9,571,783
===========
</TABLE>
B-61
<PAGE>
GWINNETT RESIDENCE ASSOCIATES, L.L.C.
STATEMENT OF LOSS
FOR THE SIX MONTHS ENDED JUNE 30, 1998
REVENUES:
Rooms $ 1,454,846
Telephone 66,129
Other 44,609
------------
Total revenues 1,565,584
------------
EXPENSES:
Rooms 290,519
Telephone 10,900
Other operating departments 14,259
Administrative and general 134,926
Credit card commissions 33,083
Franchise fees 58,194
Advertising, marketing, and promotion 120,237
Repairs and maintenance 64,418
Utilities 62,361
Property insurance and taxes 66,783
Management fees 62,623
Other 4,010
Interest 439,034
Depreciation and amortization 272,287
------------
Total expenses 1,633,634
------------
NET LOSS $ (68,050)
============
B-62
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Members of
Gwinnett Residence Associates, L.L.C.:
We have audited the accompanying balance sheet of GWINNETT RESIDENCE ASSOCIATES,
L.L.C. as of December 31, 1997 and the related statement of loss, members'
deficit, and cash flows for the year then ended. These financial statements are
the responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Gwinnett Residence Associates,
L.L.C. as of December 31, 1997 and the results of its operations and its cash
flows for the year then ended in conformity with generally accepted accounting
principles.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Atlanta, Georgia
February 27, 1998
B-63
<PAGE>
GWINNETT RESIDENCE ASSOCIATES, L.L.C.
BALANCE SHEET
DECEMBER 31, 1997
<TABLE>
<CAPTION>
ASSETS LIABILITIES AND MEMBERS' DEFICIT
------ --------------------------------
<S> <C>
CURRENT ASSETS: CURRENT LIABILITIES:
Cash and short-term investments, including Accounts payable $ 311,598
restricted cash of $15,483 $ 212,745 Accrued liabilities 105,740
Accounts receivable, net of allowance for Current portion of mortgage loan 27,736
doubtful accounts of $744 51,372 ----------
Prepaid expenses 24,414 Total current liabilities 445,074
------------
Total current assets 288,531
------------
PROPERTY, at cost: DEFERRED DEVELOPMENT FEE 451,000
Land 800,000
Buildings 6,509,423
Furniture, fixtures, and equipment 1,311,137 FIRST MORTGAGE LOAN, less current portion 7,163,684
------------ (Note 2)
8,620,560
Less accumulated depreciation (166,971)
------------
Net property 8,453,589 MEZZANINE LOAN (Note 2) 1,153,163
------------- ----------
LOAN COSTS, net of accumulated amortization Total liabilities 9,212,921
of $39,403 346,744
------------
ORGANIZATION COSTS, net of accumulated
amortization of $17,993 66,256 COMMITMENTS AND CONTINGENCIES (Note 2)
------------
FRANCHISE COSTS, net of accumulated amortization of
$1,100 51,700 MEMBERS' DEFICIT (6,101)
------------ ----------
Total assets $ 9,206,820 Total liabilities and members' deficit $9,206,820
============ ==========
</TABLE>
The accompanying notes are an integral part of this balance sheet.
B-64
<PAGE>
GWINNETT RESIDENCE ASSOCIATES, L.L.C.
STATEMENT OF LOSS
FOR THE YEAR ENDED DECEMBER 31, 1997
REVENUES:
Rooms $ 691,864
Telephone 32,821
Other 19,473
----------
Total revenues 744,158
----------
EXPENSES:
Rooms 226,612
Telephone 4,079
Other operating departments 3,257
Administrative and general 100,206
Credit card commissions 15,073
Franchise fees 27,675
Advertising, marketing, and promotion 62,531
Repairs and maintenance 46,072
Utilities 46,892
Property insurance and taxes 17,298
Management fees 29,759
Other 9,030
Interest 328,707
Depreciation and amortization 225,467
---------
Total expenses 1,142,658
---------
NET LOSS $(398,500)
=========
The accompanying notes are an integral part of this statement.
B-65
<PAGE>
GWINNETT RESIDENCE ASSOCIATES, L.L.C.
STATEMENT OF MEMBERS' DEFICIT
FOR THE YEAR ENDED DECEMBER 31, 1997
Stormont
Trice
Development RI HWE
Corporation Partners IV Total
----------- -------- --- -----
BALANCE, December 31, 1996 $ 128,197 $ 128,197 $ 136,005 $ 392,399
Net loss (130,703) (130,703) (137,094) (398,500)
--------- --------- --------- ---------
BALANCE, December 31, 1997 $ (2,506) $ (2,506) $ (1,089) $ (6,101)
========= ========= ========= =========
The accompanying notes are an integral part of this statement.
B-66
<PAGE>
GWINNETT RESIDENCE ASSOCIATES, L.L.C.
STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1997
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ (398,500)
-----------
Adjustments to reconcile net loss to net cash provided
by operating activities:
Depreciation and amortization 225,467
Changes in assets and liabilities:
Accounts receivable, net (51,372)
Prepaid expenses (24,414)
Accounts payable 311,598
Accrued liabilities 97,282
-----------
Total adjustments 558,561
-----------
Net cash provided by operating activities 160,061
-----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (6,086,029)
Start-up costs (7,129)
-----------
Net cash used in investing activities (6,093,158)
-----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Principal received from loans payable 6,142,121
Loan costs (7,129)
-----------
Net cash provided by financing activities 6,134,992
-----------
NET INCREASE IN CASH AND CASH EQUIVALENTS 201,895
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 10,850
-----------
CASH AND CASH EQUIVALENTS AT END OF YEAR $ 212,745
===========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid for interest during the year $ 0
===========
The accompanying notes are an integral part of this statement.
B-67
<PAGE>
GWINNETT RESIDENCE ASSOCIATES, L.L.C.
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1997
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Organization and Operations
Gwinnett Residence Associates, L.L.C. (the "Company") is a Georgia limited
liability company that was organized for the purpose of constructing,
operating, and owning the Gwinnett Residence Inn (the "Hotel") in Atlanta,
Georgia. The Hotel is comprised of 132 suites and became operational on
July 29, 1997.
The members of the Company (the"Members"), their ownership percentages, and
their initial capital contributions are as follows:
Initial
Ownership Capital
Percentage Contribution
---------- ------------
Members:
Stormont Trice Development
Corporation ("STDC" or the
"Manager ") 41.08% $142,000
RI Partners ( "RI ") 41.08 142,000
HWE IV 17.84 142,000
The operating agreement provides for allocation of profits, losses, and
cash distributions, as follows:
Profits
o To the Members in proportion to their respective ownership
percentage interests, as defined in the agreement
Losses
o First, to the Members in proportion to their respective ownership
percentage interests until any Member's capital account is reduced
to zero
o Second, to the Member, if any, to the extent of its remaining
positive capital account balance (as adjusted to reflect any prior
allocation of loss)
B-68
<PAGE>
o Third, to the partners in proportion to their respective ownership
percentage interests
Notwithstanding the above loss allocations, to the extent losses
allocated to a Member would cause a Member to have an adjusted capital
account deficit, such losses shall not be allocated to such Member but
instead shall be allocated to other Members in proportion to, and to
the extent that, the amounts in which losses may be allocated to the
other Members without causing the other Members to have an adjusted
capital account deficit and then to the Members in proportion to their
respective ownership percentage interests.
Cash Distributions
o First, to the repayment or prepayment of such debts or
liabilities, other than any debts of the Company to any of the
Members, as the Manager shall determine to be in the best interest
of the Company
o Second, to the establishment of such reserves as the Manager deems
appropriate
o Third, to the repayment or prepayment of any back-up loans, as
defined in the agreement
o Fourth, to the repayment or prepayment of any Member loans
o Fifth, to the Members in equal shares until such time as $42,600
has been distributed to the Members
o Sixth, in equal amounts to the Manager and RI until such time as
$36,996 has been distributed to the Members
o Seventh, the balance available to the Members in proportion to
their respective ownership percentage interests
Allocation of profits, losses, and cash distributions from the sale or
refinancing of the property are allocated in a different manner and will be
affected by the terms of notes payable agreements discussed in Note 2.
Cash and Cash Equivalents
For purposes of reporting cash flows, the Company considers cash on hand,
deposits in banks, and short-term investments with original maturities of
90 days or less to be cash and cash equivalents.
The first mortgage, mezzanine loan, and management agreements require the
Hotel to establish a furniture, fixtures, and equipment reserve, as
follows: 0% in year one, 2% in year two, 3% in year three, 4% in year four,
and 5% in year five of gross revenues, as defined in the loan agreement. As
of December 31, 1997, $15,483 of cash and cash equivalents was designated
as the furniture, fixtures, and equipment reserve.
B-69
<PAGE>
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those
estimates.
Franchise and Organization Expenses
A franchise application fee has been capitalized and is being amortized
over the 20-year life of the franchise agreement. Organization costs have
been capitalized and are being amortized over 5 years.
Property
Property is recorded at cost, including capitalized interest, and is
depreciated using the straight-line method over the estimated useful lives
of the assets, which are 30 years for buildings and 3 to 7 years for
furniture, fixtures, and equipment. Expenditures for replacements and
betterments are capitalized, while expenditures for maintenance and repairs
are expensed as incurred.
Income Taxes
No provisions for income taxes have been made in the accounts of the
Company since the Members report their respective shares of taxable income
and loss in their individual tax returns.
2. NOTES PAYABLE
First Mortgage Loan
On August 29, 1996, the Company entered into a loan agreement with Ocwen
Federal Bank FSB ("Ocwen"), formerly Berkeley Federal Bank & Trust FSB, for
a total available amount of $8,174,500 to fund costs of developing and
operating the Hotel. The note bears 10.25% interest until its maturity date
of August 31, 2001. The loan is collateralized by the Company's interest in
the Hotel. Interest accrues monthly and is added to the outstanding balance
until the budgeted interest reserve is depleted or September 1, 1998,
whichever is earlier. Beginning October 1, 1998, interest and principal are
due monthly, with all remaining repaid principal and interest being due on
August 31, 2001. The principal outstanding at December 31, 1997 is
repayable as follows:
1998 $ 27,736
1999 118,301
2000 131,014
2001 6,914,369
----------
$7,191,420
==========
B-70
<PAGE>
In addition, Ocwen receives noncumulative participating interest based on a
percentage of the Company's excess cash flow, as defined in the loan
agreement. These percentages are as follows: 22.5% in year one, 25% in
years two and three, and 30% in years four and five. No amounts were
payable in 1997.
In the event the Company sells the Hotel or refinances the loan, an amount
shall be due to Ocwen as follows: in year one, the greater of $400,000 or
22.5% of the greater of the net proceeds or net economic value, as defined
in the loan; in years two or three, the greater of $400,000 or 25% of the
greater of the net proceeds or net economic value; in year four, the
greater of $700,000 or 30% of the greater of the net proceeds or net
economic value; in year five, the greater of $1,000,000 or 30% of the
greater of the net proceeds or net economic value.
Mezzanine Loan
On August 29, 1996, the Company entered into a loan agreement with Heller
Financial, Inc. ("Heller") for a total available amount of $1,219,800. At
December 31, 1997, $1,153,163 is outstanding, including $136,663 of accrued
interest. The note bears an interest rate of 10% and is interest only until
its maturity date of August 31, 2001. Interest is due monthly, commencing
when the accrued interest exceeds $203,300 or 20% of the outstanding
principal amount of the loan or when distributable cash flow, as defined,
is available. In addition, Heller receives quarterly, as additional
consideration, the excess of the percentage of the Company's excess cash
flow, as defined in the loan agreement, over the amount of interest accrued
during the previous quarter. These percentages are as follows: 44.175% in
year one, 42.75% in years two and three, and 39.9% in years four and five
(effectively, this equals 57% of the cash flow after paying Ocwen's
participating interest).
Through August 31, 2006, upon the occurrence of any participation event, as
defined in the loan agreement, Heller will receive an amount calculated as
follows: in year one, the greater of $700,000 or 57% of the net adjusted
proceeds, as defined in the loan agreement, less $451,000 and the Company's
equity (the "Participation Amount"); in year two, the greater of $1,000,000
or 57% of the Participation Amount; in year three, the greater of
$1,100,000 or 57% of the Participation Amount; in year four, the greater of
$1,200,000 or 57% of the Participation Amount; in year five and thereafter,
the greater of $1,300,000 or 57% of the Participation Amount. In no event
may Heller's participation exceed 49.9% of the total profit of the
participation event.
3. FRANCHISE AND MANAGEMENT AGREEMENTS
The Hotel is operated under a franchise agreement with Marriott
International, Inc. ("Marriott"). The term of the agreement is 20 years
unless otherwise extended or terminated. The Company paid Marriott an
application fee of $52,800. This has been capitalized as franchise costs in
the accompanying balance sheet. Amortization began when the Hotel became
operational, and the cost is being amortized over the life of the franchise
agreement. The agreement provides for the Hotel to reimburse Marriott for
certain common expenses, including, but not limited to, the use of
Marriott's national reservation system. The Hotel also pays Marriott
certain fees, as follows:
B-71
<PAGE>
o Royalty Fee. Percent of the gross sales, as defined in the
agreement. Royalty fees for the year ended December 31, 1997 were
$27,675.
o Marketing Fund Fee. Percent of gross sales. Marketing fund fees
for the year ended December 31, 1997 were $17,296 and are included
in advertising, marketing, and promotion expenses in the
accompanying statement of loss.
The Hotel is operated under a management agreement with Stormont Trice
Management Corporation ("STMC"), an affiliate of STDC. The term of the
management agreement is ten years. Under the terms of the agreement, the
Company pays STMC 4% of gross revenues, as defined in the agreement. At
December 31, 1997, $6,622 in management fees were payable to STMC.
Management fee expense for 1997 was $29,759.
4. RELATED-PARTY TRANSACTIONS
Julian LeCraw & Co, Inc. ("LeCraw"), which is related to one of the Members
through common ownership, provided general contracting services to the
Company in construction of the Hotel. The costs for these services in 1997
were approximately $3,682,183 and are included in buildings in the
accompanying balance sheet. Amounts due to LeCraw for these services are
approximately $20,000 at December 31, 1997 and are included in accounts
payable in the accompanying balance sheet.
In addition to the management agreement (Note 3), Stormont Trice
Corporation, an affiliate of STDC, provides workers' compensation, group
insurance, and certain employee benefits to all of the Stormont Trice
Corporation group of hotels, and a pro rata portion of the total insurance
and certain employee benefits expense is allocated to each hotel. The
amount allocated to the Company for the year ended December 31, 1997 was
$9,388.
Stormont Trice Corporation also provides property, umbrella, and casualty
insurance to all of the Stormont Trice Corporation group of hotels, and a
pro rata portion of the total insurance expense is allocated to each hotel.
The amount allocated to the Company for the year ended December 31, 1997
was $14,379.
STDC provided development management services to the Company in
construction of the Hotel. The costs for these services in 1997 were
$451,000 and are included in buildings in the accompanying balance sheet.
Amounts due to STDC for these services are approximately $451,000 at
December 31, 1997. In accordance with the terms of the agreement, the fee
will not be payable until the Company repays all of the Ocwen loan
obligation and a portion of the Heller loan obligation, as defined.
STDC also provided the director of design and development for the Hotel.
The cost for these services in 1997 was $40,982 and is included in
buildings in the accompanying balance sheet. Amounts due to STDC for these
services were $20,900 at December 31, 1997 and are included in accounts
payable in the accompanying balance sheet.
B-72
<PAGE>
EXHIBIT C
PRIOR PERFORMANCE TABLES
<PAGE>
EXHIBIT C
PRIOR PERFORMANCE TABLES
The information in this Exhibit C contains certain relevant summary
information concerning certain prior public programs sponsored by two of the
Company's principals (who also serve as the Chairman of the Board and President
of the Company) and their Affiliates (the "Prior Public Programs") which like
the Company, were formed to invest in restaurant properties leased on a
triple-net basis to operators of national and regional fast-food and
family-style restaurant chains similar to those in which the Company may invest.
No Prior Public Programs sponsored by the Company's Affiliates have invested in
hotel properties leased on a triple-net basis to operators of national and
regional limited-service, extended-stay and full-service hotel chains.
A more detailed description of the acquisitions by the Prior Public
Programs is set forth in Part II of the registration statement filed with the
Securities and Exchange Commission for this Offering and is available from the
Company upon request, without charge. In addition, upon request to the Company,
the Company will provide, without charge, a copy of the most recent Annual
Report on Form 10-K filed with the Securities and Exchange Commission for CNL
Income Fund, Ltd., CNL Income Fund II, Ltd., CNL Income Fund III, Ltd., CNL
Income Fund IV, Ltd., CNL Income Fund V, Ltd., CNL Income Fund VI, Ltd., CNL
Income Fund VII, Ltd., CNL Income Fund VIII, Ltd., CNL Income Fund IX, Ltd., CNL
Income Fund X, Ltd., CNL Income Fund XI, Ltd., CNL Income Fund XII, Ltd., CNL
Income Fund XIII, Ltd., CNL Income Fund XIV, Ltd., CNL Income Fund XV, Ltd., CNL
Income Fund XVI, Ltd., CNL Income Fund XVII, Ltd., CNL Income Fund XVIII, Ltd.,
and CNL American Properties Fund, Inc., as well as a copy, for a reasonable fee,
of the exhibits filed with such reports.
The investment objectives of the Prior Public Programs generally
include preservation and protection of capital, the potential for increased
income and protection against inflation, and potential for capital appreciation,
all through investment in restaurant properties. In addition, the investment
objectives of the Prior Public Programs included making partially tax-sheltered
distributions.
STOCKHOLDERS SHOULD NOT CONSTRUE INCLUSION OF THE FOLLOWING TABLES AS
IMPLYING THAT THE COMPANY WILL HAVE RESULTS COMPARABLE TO THOSE REFLECTED IN
SUCH TABLES. DISTRIBUTABLE CASH FLOW, FEDERAL INCOME TAX DEDUCTIONS, OR OTHER
FACTORS COULD BE SUBSTANTIALLY DIFFERENT. STOCKHOLDERS SHOULD NOTE THAT, BY
ACQUIRING SHARES IN THE COMPANY, THEY WILL NOT BE ACQUIRING ANY INTEREST IN ANY
PRIOR PUBLIC PROGRAMS.
Description of Tables
The following Tables are included herein:
Table I - Experience in Raising and Investing Funds
Table II - Compensation to Sponsor
Table III - Operating Results of Prior Programs
Table V - Sales or Disposal of Properties
Unless otherwise indicated in the Tables, all information contained in
the Tables is as of June 30, 1998. The following is a brief description of the
Tables:
Table I - Experience in Raising and Investing Funds
Table I presents information on a percentage basis showing the
experience of two of the principals of the Company and their Affiliates in
raising and investing funds for the Prior Public Programs, the offerings of
which became fully subscribed between July 1993 and June 1998.
C-1
<PAGE>
The Table sets forth information on the offering expenses incurred and
amounts available for investment expressed as a percentage of total dollars
raised. The Table also shows the percentage of property acquisition cost
leveraged, the date the offering commenced, and the time required to raise funds
for investment.
Table II - Compensation to Sponsor
Table II provides information, on a total dollar basis, regarding
amounts and types of compensation paid to the general partners of the Prior
Public Programs.
The Table indicates the total offering proceeds and the portion of such
offering proceeds paid or to be paid to two of the principals of the Company and
their Affiliates in connection with the Prior Public Programs, the offerings of
which became fully subscribed between July 1993 and June 1998. The Table also
shows the amounts paid to two of the principals of the Company and their
Affiliates from cash generated from operations and from cash generated from
sales or refinancing by each of the Prior Public Programs on a cumulative basis
commencing with inception and ending June 30, 1998.
Table III - Operating Results of Prior Programs
Table III presents a summary of operating results for the period from
inception through June 30, 1998, of the Prior Public Programs, the offerings of
which became fully subscribed between July 1993 and June 1998.
The Table includes a summary of income or loss of the Prior Public
Programs, which are presented on the basis of generally accepted accounting
principles ("GAAP"). The Table also shows cash generated from operations, which
represents the cash generated from operations of the properties of the Prior
Public Programs, as distinguished from cash generated from other sources
(special items). The section of the Table entitled "Special Items" provides
information relating to cash generated from or used by items which are not
directly related to the operations of the properties of the Prior Public
Programs, but rather are related to items of a partnership nature. These items
include proceeds from capital contributions of limited partners and
disbursements made from these sources of funds, such as syndication and
organizational costs, acquisition of the properties and other costs which are
related more to the organization of the partnership and the acquisition of
properties than to the actual operations of the partnerships.
The Table also presents information pertaining to investment income,
returns of capital on a GAAP basis, cash distributions from operations, sales
and refinancing proceeds expressed in total dollar amounts as well as
distributions and tax results on a per $1,000 investment basis.
Table IV - Results of Completed Programs
Table IV is omitted from this Exhibit C because none of the directors
of the Company or their Affiliates has been involved in completed programs which
made investments similar to those of the Company.
Table V - Sales or Disposal of Properties
Table V provides information regarding the sale or disposal of
properties owned by the Prior Public Programs between July 1993 and June 1998.
The Table includes the selling price of the property, the cost of the
property, the date acquired and the date of sale.
C-2
<PAGE>
TABLE I
EXPERIENCE IN RAISING AND INVESTING FUNDS
<TABLE>
<CAPTION>
CNL Income CNL Income CNL Income CNL Income
Fund XIII, Fund XIV, Fund XV, Fund XVI,
Ltd. Ltd. Ltd. Ltd.
----------- ----------- ----------- -----------
<S> <C>
Dollar amount offered $40,000,000 $45,000,000 $40,000,000 $45,000,000
=========== =========== =========== ===========
Dollar amount raised 100.0% 100.0% 100.0% 100.0%
----------- ----------- ----------- -----------
Less offering expenses:
Selling commissions
and discounts (8.5) (8.5) (8.5) (8.5)
Organizational expenses (3.0) (3.0) (3.0) (3.0)
Marketing support and
due diligence expense
reimbursement fees
(includes amounts
reallowed to
unaffiliated
entities) (0.5) (0.5) (0.5) (0.5)
----------- ----------- ----------- -----------
(12.0) (12.0) (12.0) (12.0)
----------- ----------- ----------- -----------
Reserve for operations -- -- -- --
----------- ----------- ----------- -----------
Percent available for
investment 88.0% 88.0% 88.0% 88.0%
=========== =========== =========== ============
Acquisition costs:
Cash down payment 82.5% 82.5% 82.5% 82.5%
Acquisition fees paid
to affiliates 5.5 5.5 5.5 5.5
Loan costs -- -- -- --
----------- ----------- ----------- ------------
Total acquisition costs 88.0% 88.0% 88.0% 88.0%
=========== =========== =========== ============
Percent leveraged
(mortgage financing
divided by total
acquisition costs) -- -- -- --
Date offering began 3/31/93 8/27/93 2/23/94 9/02/94
Length of offering (in
months) 5 6 6 9
Months to invest 90% of
amount available for
investment measured
from date of offering 10 11 10 11
</TABLE>
Note 1: Pursuant to a Registration Statement on Form S-11 under the Securities
Act of 1933, as amended, effective March 29, 1995, CNL American
Properties Fund, Inc. ("APF") registered for sale $165,000,000 of
shares of common stock (the "Initial Offering"), including $15,000,000
available only to stockholders participating in the company's
reinvestment plan. The Initial Offering of APF commenced April 19,
1995, and upon completion of the Initial Offering on February 6, 1997,
had received subscription proceeds of $150,591,765 (15,059,177
shares), including $591,765 (59,177 shares) issued pursuant to the
reinvestment plan. Pursuant to a Registration Statement on Form S-11
under the Securities Act of 1933, as amended, effective January 31,
1997, APF registered for sale $275,000,000 of shares of common stock
(the "1997 Offering"), including $25,000,000 available only to
stockholders participating in the company's reinvestment plan. The
1997 Offering of APF commenced following the completion of the Initial
Offering on February 6, 1997, and upon completion of the 1997 Offering
on March 2, 1998, had received subscription proceeds of $251,872,648
(25,187,265 shares), including $1,872,648 (187,265 shares) issued
pursuant to the reinvestment plan. Pursuant to a Registration
Statement on Form S-11 under the Securities Act of 1933, as amended,
effective May 12, 1998, APF registered for sale $345,000,000 of shares
of common stock (the "1998 Offering"), including $20,000,000 available
only to stockholders participating in the company's reinvestment plan.
The 1998 Offering of APF commenced following the completion of the
1997 Offering on March 2, 1998. As of June 30, 1998, APF had received
subscriptions totalling $111,835,687 from the 1998 Offering, including
$1,823,518 issued pursuant to the company's reinvestment plan.
C-3
<PAGE>
<TABLE>
<CAPTION>
CNL American CNL Income CNL Income
Properties Fund, Fund XVII, Fund XVIII,
Inc. Ltd. Ltd.
(Note 1)
------------ ----------- -----------
<S> <C>
Dollar amount offered $400,000,000 $30,000,000 $35,000,000
============ =========== ===========
Dollar amount raised 100.0% 100.0% 100.0%
------------ ----------- -----------
Less offering expenses:
Selling commissions
and discounts (7.5) (8.5) (8.5)
Organizational expenses (3.0) (3.0) (3.0)
Marketing support and
due diligence expense
reimbursement fees
(includes amounts
reallowed to
unaffiliated
entities) (0.5) (0.5) (0.5)
------------ ----------- -----------
(11.0) (12.0) (12.0)
------------ ----------- -----------
Reserve for operations -- -- --
------------ ----------- ----------
Percent available for
investment 89.0% 88.0% 88.0%
============ =========== ===========
Acquisition costs:
Cash down payment 84.5% 83.5% 83.5%
Acquisition fees paid
to affiliates 4.5 4.5 4.5
Loan costs -- -- --
------------ ----------- ----------
Total acquisition costs 89.0% 88.0% 88.0%
============ =========== ===========
Percent leveraged
(mortgage financing
divided by total
acquisition costs) -- -- --
Date offering began 4/19/95 and 9/02/95 9/20/96
2/06/97
Length of offering (in
months) 22 and 13 12 17
Months to invest 90% of
amount available for
investment measured
from date of offering 23 and 16 15 17
</TABLE>
C-4
<PAGE>
TABLE II
COMPENSATION TO SPONSOR
<TABLE>
<CAPTION>
CNL Income CNL Income CNL Income CNL Income
Fund XIII, Fund XIV, Fund XV, Fund XVI,
Ltd. Ltd. Ltd. Ltd.
----------- ----------- ----------- -----------
<S> <C>
Date offering commenced 3/31/93 8/27/93 2/23/94 9/02/94
Dollar amount raised $40,000,000 $45,000,000 $40,000,000 $45,000,000
Amount paid to sponsor from =========== =========== =========== ===========
proceeds of offering:
Selling commissions and
discounts 3,400,000 3,825,000 3,400,000 3,825,000
Real estate commissions - - - -
Acquisition fees 2,200,000 2,475,000 2,200,000 2,475,000
Marketing support and
due diligence expense
reimbursement fees
(includes amounts
reallowed to
unaffiliated entities) 200,000 225,000 200,000 225,000
---------- ----------- ----------- -----------
Total amount paid to sponsor 5,800,000 6,525,000 5,800,000 6,525,000
=========== =========== =========== ===========
Dollar amount of cash generated
from operations before
deducting payments to
sponsor:
1998 (6 months) 1,782,788 1,898,767 1,755,734 1,969,826
1997 3,395,200 3,734,726 3,419,967 3,909,781
1996 3,494,528 3,841,163 3,557,073 3,911,609
1995 3,482,461 3,823,939 3,361,477 2,619,840
1994 3,232,046 2,897,432 1,154,454 212,171
1993 1,148,550 329,957 - -
Amount paid to sponsor from
operations (administrative,
accounting and
management fees):
1998 (6 months) 48,887 53,039 44,829 47,605
1997 121,643 128,536 113,372 129,357
1996 126,947 134,867 122,391 157,883
1995 103,083 114,095 122,107 138,445
1994 83,046 84,801 37,620 7,023
1993 27,003 8,220 - -
Dollar amount of property
sales and refinancing
before deducting payments
to sponsor:
Cash (Note 3) 1,769,260 4,770,015 3,312,297 1,385,384
Notes - - - -
Amount paid to sponsors
from property sales and
refinancing:
Real estate commissions - - - -
Incentive fees - - - -
Other (Note 2) - - - -
</TABLE>
Note 1: Pursuant to a Registration Statement on Form S-11 under the Securities
Act of 1933, as amended, effective March 29, 1995, CNL American
Properties Fund, Inc. ("APF") registered for sale $165,000,000 of
shares of common stock (the "Initial Offering"), including $15,000,000
available only to stockholders participating in the company's
reinvestment plan. The Initial Offering of APF commenced April 19,
1995, and upon completion of the Initial Offering on February 6, 1997,
had received subscription proceeds of $150,591,765 (15,059,177
shares), including $591,765 (59,177 shares) issued pursuant to the
reinvestment plan. Pursuant to a Registration Statement on Form S-11
under the Securities Act of 1933, as amended, effective January 31,
1997, APF registered for sale $275,000,000 of shares of common stock
(the "1997 Offering"), including $25,000,000 available only to
stockholders participating in the company's reinvestment plan. The
1997 Offering of APF commenced following the completion of the Initial
Offering on February 6, 1997, and upon completion of the 1997 Offering
on March 2, 1998, had received subscription proceeds of $251,872,648
(25,187,265 shares), including $1,872,648 (187,265 shares) issued
pursuant to the reinvestment plan. Pursuant to a Registration
Statement on Form S-11 under the Securities Act of 1933, as amended,
effective May 12, 1998, APF registered for sale $345,000,000 of shares
of common stock (the "1998 Offering"), including $20,000,000 available
only to stockholders participating in the company's reinvestment plan.
The 1998 Offering of APF commenced following the completion of the
1997 Offering on March 2, 1998. As of June 30, 1998, APF had received
subscriptions totalling $111,835,687 from the 1998 Offering, including
$1,823,518 issued pursuant to the company's reinvestment plan. The
amounts shown represent the combined results of the Initial Offering,
the 1997 Offering and the 1998 Offering as of June 30, 1998, including
shares issued pursuant to the company's reinvestment plans.
Note 2: For negotiating secured equipment leases and supervising the secured
equipment lease program, APF is entitled to receive a one-time secured
equipment lease servicing fee of two percent of the purchase price of
the equipment that is the subject of a secured equipment lease. During
the six months ended June 30, 1998 and the years ended December 31,
1997 and 1996, APF incurred $36,899, $366,865 and $70,070,
respectively, in secured equipment lease servicing fees.
Note 3: Excludes properties sold and substituted with replacement properties,
as permitted under the terms of the lease agreements.
C-5
<PAGE>
<TABLE>
<CAPTION>
CNL American CNL Income CNL Income
Properties Fund, Fund XVII, Fund XVIII,
Inc. Ltd. Ltd.
------------ ----------- -----------
(Note 1)
<S> <C>
Date offering commenced 4/19/95 and 2/06/97 9/02/95 9/20/96
Dollar amount raised $514,300,100 $30,000,000 $35,000,000
============ =========== ===========
Amount paid to sponsor from
proceeds of offering:
Selling commissions and
discounts
Real estate commissions 38,572,508 2,550,000 2,975,000
Acquisition fees - - -
Marketing support and 23,143,505 1,350,000 1,575,000
due diligence expense
reimbursement fees
(includes amounts
reallowed to
unaffiliated entities)
Total amount paid to sponsor 2,571,501 150,000 175,000
------------ ----------- -----------
64,287,514 4,050,000 4,725,000
Dollar amount of cash generated ============ =========== ===========
from operations before
deducting payments to
sponsor:
1998 (6 months)
1997
1996 17,846,454 1,315,440 1,517,300
1995 18,514,122 2,611,191 1,459,963
1994 6,096,045 1,340,159 30,126
1993 594,425 11,671 -
Amount paid to sponsor from - - -
operations (administrative, - - -
accounting and
management fees):
1998 (6 months)
1997
1996 1,245,501 41,356 58,088
1995 1,437,908 116,077 98,207
1994 613,505 107,211 2,980
1993 95,966 2,659 -
Dollar amount of property - - -
sales and refinancing - - -
before deducting payments
to sponsor:
Cash (Note 3)
Notes
Amount paid to sponsors 7,894,390 - -
from property sales and - - -
refinancing:
Real estate commissions
Incentive fees
Other (Note 2) - - -
- - -
- - -
</TABLE>
C-6
<PAGE>
TABLE III
Operating Results of Prior Programs CNL
INCOME FUND XIII, LTD.
<TABLE>
<CAPTION>
1992
(Note 1) 1993 1994 1995
------------ ------------ ------------ -------------
<S> <C>
Gross revenue $ 0 $ 966,564 $ 3,558,447 $ 3,806,944
Equity in earnings of joint ventures 0 1,305 43,386 98,520
Profit (loss) from sale of properties
(Notes 4, 5 and 6) 0 0 0 (29,560)
Interest income 0 181,568 77,379 51,410
Less: Operating expenses 0 (59,390) (183,311) (214,705)
Interest expense 0 0 0 0
Depreciation and amortization 0 (148,170) (378,269) (393,435)
------------ ------------ ------------ ------------
Net income - GAAP basis 0 941,877 3,117,632 3,319,174
============ ============ ============ ============
Taxable income
- from operations 0 978,535 2,703,252 2,920,859
============ ============ ============ ============
- from gain (loss) on sale 0 0 0 0
============ ============ ============ ============
Cash generated from operations
(Notes 2 and 3) 0 1,121,547 3,149,000 3,379,378
Cash generated from sales (Notes 4, 5 and 6) 0 0 0 286,411
Cash generated from refinancing 0 0 0 0
------------ ------------ ------------ ------------
Cash generated from operations, sales
and refinancing 0 1,121,547 3,149,000 3,665,789
Less: Cash distributions to investors
(Note 7)
- from operating cash flow 0 (528,364) (2,800,004) (3,350,014)
- from sale of properties 0 0 0 0
- from cash flow from prior period 0 0 0 0
------------ ------------ ------------ ------------
Cash generated (deficiency) after
cash distributions 0 593,183 348,996 315,775
Special items (not including sales
and refinancing):
Limited partners' capital
contributions 0 40,000,000 0 0
General partners' capital
contributions 1,000 0 0 0
Syndication costs 0 (3,932,017) (181) 0
Acquisition of land and buildings 0 (19,691,630) (5,764,308) (336,116)
Investment in direct financing leases 0 (6,760,624) (1,365,075) 0
Investment in joint ventures 0 (314,998) (545,139) (140,052)
Increase (decrease) in restricted cash 0 0 0 0
Reimbursement of organization,
syndication and acquisition costs
paid on behalf of CNL Income Fund
XIII, Ltd. by related parties 0 (799,980) (25,036) (3,074)
Increase in other assets 0 (454,909) 9,226 0
Loan to tenant 0 0 0 0
Collections on loan to tenant 0 0 0 0
Other 0 0 0 954
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions and special items 1,000 8,639,025 (7,341,517) (162,513)
============ ============ ============ ============
TAX AND DISTRIBUTION DATA PER
$1,000 INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 0 33 67 72
============ ============ ============ ============
- from recapture 0 0 0 0
============ ============ ============ ============
Capital gain (loss) (Notes 4, 5 and 6) 0 0 0 0
============ ============ ============ ============
</TABLE>
C-7
<PAGE>
<TABLE>
<CAPTION>
6 months
1996 1997 1998
------------ ------------ --------------
<S> <C>
Gross revenue $ 3,685,280 $ 3,654,128 $ 1,488,274
Equity in earnings of joint ventures 60,654 150,417 121,482
Profit (loss) from sale of properties
(Notes 4, 5 and 6) 82,855 (48,538) 0
Interest income 49,820 27,925 22,448
Less: Operating expenses (253,360) (354,206) (122,065)
Interest expense 0 0 0
Depreciation and amortization (393,434) (394,099) (196,413)
------------ ------------ ------------
Net income - GAAP basis 3,231,815 3,035,627 1,313,726
============ ============ ============
Taxable income 2,972,159 2,470,268 1,512,381
============ ============ ============
- from operations 0 (9,715) 0
============ ============ ============
- from gain (loss) on sale
3,367,581 3,273,557 1,733,901
Cash generated from operations 550,000 932,849 0
(Notes 2 and 3) 0 0 0
Cash generated from sales (Notes 4, 5 and 6) ------------ ------------ ------------
Cash generated from refinancing
3,917,581 4,206,406 1,733,901
Cash generated from operations, sales
and refinancing
Less: Cash distributions to investors (3,367,581) (3,273,557) (1,700,004)
(Note 7) 0 0 0
- from operating cash flow (32,427) (126,451) 0
- from sale of properties ------------ ------------ ------------
- from cash flow from prior period
517,573 806,398 33,897
Cash generated (deficiency) after
cash distributions
Special items (not including sales
and refinancing): 0 0 0
Limited partners' capital
contributions 0 0 0
General partners' capital 0 0 0
contributions 0 0 0
Syndication costs 0 0 0
Acquisition of land and buildings 0 (1,482,849) 0
Investment in direct financing leases (550,000) 550,000 0
Investment in joint ventures
Increase (decrease) in restricted cash
Reimbursement of organization,
syndication and acquisition costs 0 0 0
paid on behalf of CNL Income Fund 0 0 0
XIII, Ltd. by related parties 0 (196,980) 0
Increase in other assets 0 127,843 0
Loan to tenant 0 0 0
Collections on loan to tenant ------------ ------------ ------------
Other
Cash generated (deficiency) after cash
distributions and special items (32,427) (195,588) 33,897
============ ============ ============
TAX AND DISTRIBUTION DATA PER
$1,000 INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 74 61 37
============ ============ ============
- from recapture 0 0 0
============ ============ ============
Capital gain (loss) (Notes 4, 5 and 6) 0 0 0
============ ============ ============
</TABLE>
C-8
<PAGE>
TABLE III - CNL INCOME FUND XIII, LTD. (continued)
<TABLE>
<CAPTION>
1992
(Note 1) 1993 1994 1995
------------ ------------ ------------ -------------
<S> <C>
Cash distributions to investors
Source (on GAAP basis)
- from investment income 0 18 70 82
- from capital gain 0 0 0 0
- from investment income from prior
period 0 0 0 2
- from return of capital 0 0 0 0
------------ ------------ ------------ ------------
Total distributions on GAAP basis (Note 7) 0 18 70 84
============ ============ ============ ============
Source (on cash basis)
- from sales 0 0 0 0
- from refinancing 0 0 0 0
- from operations 0 18 70 84
- from cash flow from prior period 0 0 0 0
------------ ------------ ------------ ------------
Total distributions on cash basis (Note 7) 0 18 70 84
============ ============ ============ ============
Total cash distributions as a percentage
of original $1,000 investment (Note 8) 0.00% 5.33% 7.56% 8.44%
Total cumulative cash distributions per
$1,000 investment from inception 0 18 88 172
Amount (in percentage terms) remaining
invested in program properties at the end
of each year (period) presented (original
total acquisition cost of properties
retained, divided by original total
acquisition cost of all properties
in program) (Notes 4, 5 and 6) N/A 100% 100% 100%
</TABLE>
Note 1: The registration statement relating to the offering of Units by
CNL Income Fund XIII, Ltd. became effective on March 17, 1993.
Activities through April 15, 1993, were devoted to organization of
the partnership and operations had not begun.
Note 2: Cash generated from operations includes cash received from
tenants, plus distributions from joint ventures, less cash paid
for expenses, plus interest received.
Note 3: Cash generated from operations per this table agrees to cash
generated from operations per the statement of cash flows included
in the financial statements of CNL Income Fund XIII, Ltd.
Note 4: During 1995, the partnership sold one of its properties to a
tenant for its original purchase price, excluding acquisition fees
and miscellaneous acquisition expenses. The net sales proceeds
were used to acquire an additional property. As a result of this
transaction, the partnership recognized a loss for financial
reporting purposes of $29,560 primarily due to acquisition fees
and miscellaneous acquisition expenses the partnership had
allocated to the property and due to the accrued rental income
relating to future scheduled rent increases that the partnership
had recorded and reversed at the time of sale.
Note 5: In November 1996, CNL Income Fund XIII, Ltd. sold one of its
properties and received net sales proceeds of $550,000, resulting
in a gain of $82,855 for financial reporting purposes. In January
1997, the partnership reinvested the net sales proceeds in an
additional property as tenants-in-common with an affiliate of the
general partners.
Note 6: In October 1997, the partnership sold one of its properties and
received net sales proceeds of $932,849, resulting in a loss of
$48,538 for financial reporting purposes. In December 1997, the
partnership reinvested the net sales proceeds in an additional
property as tenants-in-common with affiliates of the general
partners.
Note 7: As a result of the partnership's change in investor services
agents in 1993, distributions are now declared at the end of each
quarter and paid in the following quarter. Since this table
generally presents distributions on a cash basis (rather than
amounts declared), distributions on a cash basis for 1993 only
reflect payments for three quarters. Distributions declared for
the quarters ended December 31, 1993, 1994, 1995, 1996 and 1997,
are reflected in the 1994, 1995, 1996, 1997 and 1998 columns,
respectively, for distributions on a cash basis due to the
payment of such distributions in January 1994, 1995, 1996, 1997
and 1998, respectively. As a result of 1994, 1995, 1996, 1997 and
1998 distributions being presented on a cash basis, distributions
declared and unpaid as of December 31, 1994, 1995, 1996, 1997 and
June 30, 1998, are not included in the 1994, 1995, 1996, 1997 and
1998 totals, respectively.
Note 8: Total cash distributions as a percentage of original $1,000
investment are calculated based on actual distributions declared
for the period. (See Note 7 above)
Note 9: Certain data for columns representing less than 12 months have
been annualized.
C-9
<PAGE>
<TABLE>
<CAPTION>
6 months
1996 1997 1998
------------ ------------ -------------
<S> <C>
Cash distributions to investors
Source (on GAAP basis) 78 75 33
- from investment income 2 0 0
- from capital gain
- from investment income from prior 5 10 4
period 0 0 6
- from return of capital ------------ ------------ ------------
85 85 43
Total distributions on GAAP basis (Note 7) ============ ============ ============
Source (on cash basis)
- from sales 0 0 0
- from refinancing 0 0 0
- from operations 84 82 43
- from cash flow from prior period 1 3 0
------------ ------------ ------------
Total distributions on cash basis (Note 7) 85 85 43
============ ============ ============
Total cash distributions as a percentage
of original $1,000 investment (Note 8)
Total cumulative cash distributions per 8.50% 8.50% 8.50%
$1,000 investment from inception
Amount (in percentage terms) remaining 257 342 385
invested in program properties at the end
of each year (period) presented (original
total acquisition cost of properties
retained, divided by original total
acquisition cost of all properties
in program) (Notes 4, 5 and 6)
100% 99% 100%
</TABLE>
C-10
<PAGE>
TABLE III
Operating Results of Prior Programs CNL
INCOME FUND XIV, LTD.
<TABLE>
<CAPTION>
1992
(Note 1) 1993 1994 1995
------------ ------------ ------------ ------------
<S> <C>
Gross revenue $ 0 $ 256,234 $ 3,135,716 $ 4,017,266
Equity in earnings of joint ventures 0 1,305 35,480 338,717
Profit (Loss) from sale of properties
(Notes 4, 5, 6 and 7) 0 0 0 (66,518)
Interest income 0 27,874 200,499 50,724
Less: Operating expenses 0 (14,049) (181,980) (248,840)
Interest expense 0 0 0 0
Depreciation and amortization 0 (28,918) (257,640) (340,112)
------------ ------------ ------------ ------------
Net income - GAAP basis 0 242,446 2,932,075 3,751,237
============ ============ ============ ============
Taxable income
- from operations 0 278,845 2,482,240 3,162,165
============ ============ ============ ============
- from gain (loss) on sale 0 0 0 0
============ ============ ============ ============
Cash generated from operations
(Notes 2 and 3) 0 321,737 2,812,631 3,709,844
Cash generated from sales (Notes 4, 6,
7 and 8) 0 0 0 696,012
Cash generated from refinancing 0 0 0 0
------------ ------------ ------------ ------------
Cash generated from operations, sales
and refinancing 0 321,737 2,812,631 4,405,856
Less: Cash distributions to investors
(Note 5)
- from operating cash flow 0 (9,050) (2,229,952) (3,543,751)
- from sale of properties 0 0 0 0
- from cash flow from prior period 0 0 0 0
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions 0 312,687 582,679 862,105
Special items (not including sales and
refinancing):
Limited partners' capital
contributions 0 28,785,100 16,214,900 0
General partners' capital
contributions 1,000 0 0 0
Syndication costs 0 (2,771,892) (1,618,477) 0
Acquisition of land and buildings 0 (13,758,004) (11,859,237) (964,073)
Investment in direct financing leases 0 (4,187,268) (5,561,748) (75,352)
Investment in joint ventures 0 (315,209) (1,561,988) (1,087,218)
Return of capital from joint venture 0 0 0 0
Reimbursement of organization,
syndication and acquisition costs
paid on behalf of CNL Income Fund
XIV, Ltd. by related parties 0 (706,215) (376,738) (577)
Increase in other assets 0 (444,267) 0 0
Increase in restricted cash 0 0 0 0
Other 0 0 0 5,530
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions and special items 1,000 6,914,932 (4,180,609) (1,259,585)
============ ============ ============ ============
TAX AND DISTRIBUTION DATA PER
$1,000 INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 0 16 56 70
============ ============ ============ ============
- from recapture 0 0 0 0
============ ============ ============ ============
Capital gain (loss) (Notes 4, 6, 7 and 8) 0 0 0 0
============ ============ ============ ============
</TABLE>
C-11
<PAGE>
<TABLE>
<CAPTION>
6 months
1996 1997 1998
------------ ------------ -------------
<S> <C>
Gross revenue $ 3,999,813 $ 3,918,582 $ 1,626,212
Equity in earnings of joint ventures 459,137 309,879 164,631
Profit (Loss) from sale of properties
(Notes 4, 5, 6 and 7) 0 0 112,206
Interest income 44,089 40,232 42,434
Less: Operating expenses (246,621) (262,592) (140,356)
Interest expense 0 0 0
Depreciation and amortization (340,089) (340,161) (170,106)
------------ ------------ ------------
Net income - GAAP basis 3,916,329 3,665,940 1,635,021
============ ============ ============
Taxable income
- from operations 3,236,329 3,048,675 1,742,143
============ ============ ============
- from gain (loss) on sale 0 47,256 33,783
============ ============ ============
Cash generated from operations
(Notes 2 and 3) 3,706,296 3,606,190 1,845,728
Cash generated from sales (Notes 4, 6,
7 and 8) 0 0 1,250,140
Cash generated from refinancing 0 0 0
------------ ------------ ------------
Cash generated from operations, sales
and refinancing 3,706,296 3,606,190 3,095,868
Less: Cash distributions to investors
(Note 5)
- from operating cash flow (3,706,296) (3,606,190) (1,845,728)
- from sale of properties 0 0 0
- from cash flow from prior period (6,226) (106,330) (10,532)
------------ ------------ ------------
Cash generated (deficiency) after cash
distributions (6,226) (106,330) 1,239,608
Special items (not including sales and
refinancing):
Limited partners' capital
contributions 0 0 0
General partners' capital
contributions 0 0 0
Syndication costs 0 0 0
Acquisition of land and buildings 0 0 0
Investment in direct financing leases 0 0 0
Investment in joint ventures (7,500) (121,855) (310,097)
Return of capital from joint venture 0 51,950 0
Reimbursement of organization,
syndication and acquisition costs
paid on behalf of CNL Income Fund
XIV, Ltd. by related parties 0 0 0
Increase in other assets 0 0 0
Increase in restricted cash 0 0 (193,654)
Other 0 0 0
------------ ------------ ------------
Cash generated (deficiency) after cash
distributions and special items (13,726) (176,235) 735,857
============ ============ ============
TAX AND DISTRIBUTION DATA PER
$1,000 INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 71 67 38
============ ============ ============
- from recapture 0 0 0
============ ============ ============
Capital gain (loss) (Notes 4, 6, 7 and 8) 0 1 1
============ ============ ============
</TABLE>
C-12
<PAGE>
TABLE III - CNL INCOME FUND XIV, LTD. (continued)
<TABLE>
<CAPTION>
1992
(Note 1) 1993 1994 1995
------------ ------------ ------------ -------------
<S> <C>
Cash distributions to investors
Source (on GAAP basis)
- from investment income 0 1 51 79
- from capital gain 0 0 0 0
- from return of capital 0 0 0 0
- from investment income from prior
period 0 0 0 0
------------ ------------ ------------ ------------
Total distributions on GAAP basis (Note 5) 0 1 51 79
============ ============ ============ ============
Source (on cash basis)
- from sales 0 0 0 0
- from operations 0 1 51 79
- from cash flow from prior period 0 0 0 0
------------ ------------ ------------ ------------
Total distributions on cash basis (Note 5) 0 1 51 79
============ ============ ============ ============
Total cash distributions as a percentage of
original $1,000 investment (Note 9) 0.00% 4.50% 6.50% 8.06%
Total cumulative cash distributions
per $1,000 investment from inception 0 1 52 131
Amount (in percentage terms) remaining invest-
ed in program properties at the end of each
year (period) presented (original total
acquisition cost of properties retained,
divided by original total acquisition
cost of all properties in program)
(Notes 4, 6, 7 and 8) N/A 100% 100% 100%
</TABLE>
Note 1: Pursuant to a registration statement on Form S-11 under the
Securities Act of 1933, as amended, CNL Income Fund XIV, Ltd.
("CNL XIV") and CNL Income Fund XIII, Ltd. each registered for
sale $40,000,000 units of limited partnership interests ("Units").
The offering of Units of CNL Income Fund XIII, Ltd. commenced
March 17, 1993. Pursuant to the registration statement, CNL XIV
could not commence until the offering of Units of CNL Income Fund
XIII, Ltd. was terminated. CNL Income Fund XIII, Ltd. terminated
its offering of Units on August 26, 1993, at which time the
maximum offering proceeds of $40,000,000 had been received. Upon
the termination of the offering of Units of CNL Income Fund XIII,
Ltd., CNL XIV commenced its offering of Units. Activities through
September 13, 1993, were devoted to organization of the
partnership and operations had not begun.
Note 2: Cash generated from operations includes cash received from
tenants, plus distributions from joint ventures, less cash paid
for expenses, plus interest received.
Note 3: Cash generated from operations per this table agrees to cash
generated from operations per the statement of cash flows included
in the financial statements of CNL Income Fund XIV, Ltd.
Note 4: During 1995, the partnership sold two of its properties to a
tenant for its original purchase price, excluding acquisition fees
and miscellaneous acquisition expenses. The net sales proceeds
were used to acquire two additional properties. As a result of
these transactions, the partnership recognized a loss for
financial reporting purposes of $66,518 primarily due to
acquisition fees and miscellaneous acquisition expenses the
partnership had allocated to the property and due to the accrued
rental income relating to future scheduled rent increases that the
partnership had recorded and reversed at the time of sale. In
addition, during 1996, Wood-Ridge Real Estate Joint Venture, in
which the partnership owns a 50% interest, sold its two properties
to the tenant and recognized a gain of approximately $261,100 for
financial reporting purposes. As a result, the partnership's pro
rata share of such gain of approximately $130,550 is included in
equity in earnings of unconsolidated joint ventures for 1996.
Note 5: As a result of the partnership's change in investor services
agents in 1993, distributions are now declared at the end of each
quarter and paid in the following quarter. Since this table
generally presents distributions on a cash basis (rather than
amounts declared), distributions on a cash basis for 1993 only
reflect payments for three quarters. Distributions declared for
the quarters ended December 31, 1993, 1994, 1995, 1996 and 1997,
are reflected in the 1994, 1995, 1996, 1997 and 1998 columns,
respectively, for distributions on a cash basis due to the payment
of such distributions in January 1994, 1995, 1996, 1997 and 1998,
respectively. As a result of 1994, 1995, 1996, 1997 and 1998
distributions being presented on a cash basis, distributions
declared and unpaid as of December 31, 1994, 1995, 1996, 1997 and
June 30, 1998 are not included in the 1994, 1995, 1996, 1997 and
1998 totals, respectively.
Note 6: In January 1998, the partnership sold its property in Madison,
Alabama, to a third party for $740,000 and received net sales
proceeds of $696,486. Due to the fact that during 1997 the
partnership wrote off $13,314 in accrued rental income (non-cash
accounting adjustments relating to the straight-lining of future
scheduled rent increases over the lease term in accordance with
generally accepted accounting principles), no gain or loss was
incurred for financial reporting purposes in January 1998 relating
to this sale. In April 1998, the partnership reinvested a portion
of the net sales proceeds from the sale of the property in
Madison, Alabama in Melbourne Joint Venture, with an affiliate of
the partnership which has the same general partners. The
partnership intends to use the remaining proceeds to invest in an
additional property or for other partnership purposes.
Note 7: In January 1998, the partnership sold one of its properties in
Richmond, Virginia for $512,462 and received net sales proceeds of
$512,246, resulting in a gain of $70,798 for financial reporting
purposes. The partnership intends to reinvest the net sales
proceeds from the sale of the property in Richmond, Virginia in an
additional property.
Note 8: In April 1998, the partnership reached an agreement to accept
$360,000 for the property in Riviera Beach, Florida, which was
taken through a right of way taking in December 1997. The
partnership had received preliminary sales proceeds of $318,592 as
of December 31, 1997. Upon agreement and receipt of the final
sales price of $360,000, the partnership recognized a gain of
$41,408 for financial reporting purposes. The partnership intends
to reinvest the net sales proceeds from the sale of this property
in an additional property.
Note 9: Total cash distributions as a percentage of original $1,000
investment are calculated based on actual distributions declared
for the period. (See Note 5 above)
Note 10: Certain data for columns representing less than 12 months have
been annualized.
C-13
<PAGE>
<TABLE>
<CAPTION>
6 months
1996 1997 1998
------------ ------------ ------------
<S> <C>
Cash distributions to investors
Source (on GAAP basis)
- from investment income 83 81 36
- from capital gain 0 0 0
- from return of capital 0 0 0
- from investment income from prior
period 0 2 5
------------ ------------ ------------
Total distributions on GAAP basis (Note 5) 83 83 41
============ ============ ============
Source (on cash basis)
- from sales 0 0 0
- from operations 83 81 41
- from cash flow from prior period 0 2 0
------------ ------------ ------------
Total distributions on cash basis (Note 5) 83 83 41
============ ============ ============
Total cash distributions as a percentage of
original $1,000 investment (Note 9) 8.25% 8.25% 8.25%
Total cumulative cash distributions
per $1,000 investment from inception 214 297 338
Amount (in percentage terms) remaining invest-
ed in program properties at the end of each
year (period) presented (original total
acquisition cost of properties retained,
divided by original total acquisition
cost of all properties in program)
(Notes 4, 6, 7 and 8) 100% 100% 100%
</TABLE>
C-14
<PAGE>
TABLE III
Operating Results of Prior Programs CNL
INCOME FUND XV, LTD.
<TABLE>
<CAPTION>
1993
(Note 1) 1994 1995 1996
------------ ------------ ------------ ------------
<S> <C>
Gross revenue $ 0 $ 1,143,586 $ 3,546,320 $ 3,632,699
Equity in earnings of joint ventures 0 8,372 280,606 392,862
Profit (Loss) from sale of properties
(Note 4) 0 0 (71,023) 0
Interest income 0 167,734 88,059 43,049
Less: Operating expenses 0 (62,926) (228,319) (235,319)
Interest expense 0 0 0 0
Depreciation and amortization 0 (70,848) (243,175) (248,232)
------------ ------------ ------------ ------------
Net income - GAAP basis 0 1,185,918 3,372,468 3,585,059
============ ============ ============ ============
Taxable income
- from operations 0 1,026,715 2,861,912 2,954,318
============ ============ ============ ============
- from gain on sale 0 0 0 0
============ ============ ============ ============
Cash generated from operations
(Notes 2 and 3) 0 1,116,834 3,239,370 3,434,682
Cash generated from sales (Note 4) 0 0 811,706 0
Cash generated from refinancing 0 0 0 0
------------ ------------ ------------ ------------
Cash generated from operations, sales
and refinancing 0 1,116,834 4,051,076 3,434,682
Less: Cash distributions to investors
(Notes 5, 6 and 8)
- from operating cash flow 0 (635,944) (2,650,003) (3,200,000)
- from sale of properties 0 0 0 0
- from cash flow from prior period 0 0 0 0
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions 0 480,890 1,401,073 234,682
Special items (not including sales and
refinancing):
Limited partners' capital contri-
butions 0 40,000,000 0 0
General partners' capital contri-
butions 1,000 0 0 0
Syndication costs 0 (3,892,003) 0 0
Acquisition of land and buildings 0 (22,152,379) (1,625,601) 0
Investment in direct financing
leases 0 (6,792,806) (2,412,973) 0
Investment in joint ventures 0 (1,564,762) (720,552) (129,939)
Return of capital from joint venture 0 0 0 0
Reimbursement of organization,
syndication and acquisition costs
paid on behalf of CNL Income Fund
XV, Ltd. by related parties 0 (1,098,197) (23,507) 0
Increase in other assets 0 (187,757) 0 0
Other (38) (6,118) 25,150 0
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions and special items 962 4,786,868 (3,356,410) 104,743
============ ============ ============ ============
TAX AND DISTRIBUTION DATA PER $1,000
INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 0 33 71 73
============ ============ ============ ============
- from recapture 0 0 0 0
============ ============ ============ ============
Capital gain (loss) (Note 4) 0 0 0 0
============ ============ ============ ============
</TABLE>
C-15
<PAGE>
<TABLE>
<CAPTION>
6 months
1997 1998
------------ -----------
<S> <C>
Gross revenue $ 3,622,123 $ 1,498,779
Equity in earnings of joint ventures 239,249 120,294
Profit (Loss) from sale of properties
(Note 4) 0 0
Interest income 46,642 33,275
Less: Operating expenses (224,761) (128,176)
Interest expense 0 0
Depreciation and amortization (248,348) (124,200)
------------ -----------
Net income - GAAP basis 3,434,905 1,399,972
============ ===========
Taxable income
- from operations 2,856,893 1,492,168
============ ===========
- from gain on sale 47,256 0
============ ===========
Cash generated from operations
(Notes 2 and 3) 3,306,595 1,710,905
Cash generated from sales (Note 4) 0 0
Cash generated from refinancing 0 0
------------ -----------
Cash generated from operations, sales
and refinancing 3,306,595 1,710,905
Less: Cash distributions to investors
(Notes 5, 6 and 8)
- from operating cash flow (3,280,000) (1,710,905)
- from sale of properties 0 0
- from cash flow from prior period 0 (89,095)
------------ -------------
Cash generated (deficiency) after cash
distributions 26,595 (89,095)
Special items (not including sales and
refinancing):
Limited partners' capital contri-
butions 0 0
General partners' capital contri-
butions 0 0
Syndication costs 0 0
Acquisition of land and buildings 0 0
Investment in direct financing
leases 0 0
Investment in joint ventures 0 (207,986)
Return of capital from joint venture 51,950 0
Reimbursement of organization,
syndication and acquisition costs
paid on behalf of CNL Income Fund
XV, Ltd. by related parties 0 0
Increase in other assets 0 0
Other 0 0
------------ ------------
Cash generated (deficiency) after cash
distributions and special items 78,545 (297,081)
TAX AND DISTRIBUTION DATA PER $1,000
INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 71 37
============ ============
- from recapture 0 0
============ ============
Capital gain (loss) (Note 4) 1 0
============ ============
</TABLE>
C-16
<PAGE>
TABLE III - CNL INCOME FUND XV, LTD. (continued)
<TABLE>
<CAPTION>
1993
(Note 1) 1994 1995 1996
------------ ------------ ------------ -----------
<S> <C>
Cash distributions to investors
Source (on GAAP basis)
- from investment income 0 21 66 80
- from capital gain 0 0 0 0
- from investment income from prior
period 0 0 0 0
------------ ------------ ------------ ------------
Total distributions on GAAP basis (Note 5) 0 21 66 80
============ ============ ============ ============
Source (on cash basis)
- from sales 0 0 0 0
- from refinancing 0 0 0 0
- from operations 0 21 66 80
- from investment income from prior period 0 0 0 0
------------ ------------ ------------ ------------
Total distributions on cash basis (Note 5) 0 21 66 80
============ ============ ============ ============
Total cash distributions as a percentage
of original $1,000 investment (Notes 6,
7 and 8). 0.00% 5.00% 7.25% 8.20%
Total cumulative cash distributions per
$1,000 investment from inception 0 21 87 167
Amount (in percentage terms) remaining
invested in program properties at the end
of each year (period) presented (original
total acquisition cost of properties
retained, divided by original total
acquisition cost of all properties
in program) (Note 4) N/A 100% 100% 100%
</TABLE>
Note 1 The registration statement relating to this offering of Units of
CNL Income Fund XV, Ltd. became effective February 23, 1994.
Activities through March 23, 1994, were devoted to organization of
the partnership and operations had not begun.
Note 2: Cash generated from operations includes cash received from
tenants, plus distributions from joint venture, less cash paid for
expenses, plus interest received.
Note 3: Cash generated from operations per this table agrees to cash
generated from operations per the statement of cash flows included
in the financial statements of CNL Income Fund XV, Ltd.
Note 4: During 1995, the partnership sold three of its properties to a
tenant for its original purchase price, excluding acquisition fees
and miscellaneous acquisition expenses. The majority of the net
sales proceeds were used to acquire additional properties. As a
result of these transactions, the partnership recognized a loss
for financial reporting purposes of $71,023 primarily due to
acquisition fees and miscellaneous acquisition expenses the
partnership had allocated to the three properties and due to the
accrued rental income relating to future scheduled rent increases
that the partnership had recorded and reversed at the time of
sale. In addition, during 1996, Wood-Ridge Real Estate Joint
Venture, in which the partnership owns a 50% interest, sold its
two properties to the tenant and recognized a gain of
approximately $261,100 for financial reporting purposes. As a
result, the partnership's pro rata share of such gain of
approximately $130,550 is included in equity in earnings of
unconsolidated joint ventures for 1996.
Note 5: Distributions declared for the quarters ended December 31, 1994,
1995, 1996 and 1997 are reflected in the 1995, 1996, 1997 and 1998
columns, respectively, due to the payment of such distributions in
January 1995, 1996, 1997 and 1998, respectively. As a result of
distributions being presented on a cash basis, distributions
declared and unpaid as of December 31, 1994, 1995, 1996, 1997 and
June 30, 1998 are not included in the 1994, 1995, 1996, 1997 and
1998 totals, respectively.
Note 6: On December 31, 1996, CNL Income Fund XV, Ltd. declared a special
distribution of cumulative excess operating reserves equal to .20%
of the total invested capital. Accordingly, the total yield for
1996 was 8.20%
Note 7: Total cash distributions as a percentage of original $1,000
investment are calculated based on actual distributions declared
for the period. (See Note 5 above)
Note 8: Cash distributions for 1998 include an additional amount equal to
0.50% of invested capital which was earned in 1997 or prior years,
but declared payable in the first quarter of 1998
Note 9: Certain data for columns representing less than 12 months have
been annualized.
C-17
<PAGE>
<TABLE>
<CAPTION>
6 months
1997 1998
------------ ------------
<S> <C>
Cash distributions to investors
Source (on GAAP basis)
- from investment income 82 35
- from capital gain 0 0
- from investment income from prior
period 0 10
------------ ------------
Total distributions on GAAP basis (Note 5) 82 45
============ ============
Source (on cash basis)
- from sales 0 0
- from refinancing 0 0
- from operations 82 43
- from investment income from prior period 0 2
------------ ------------
Total distributions on cash basis (Note 5)
82 45
Total cash distributions as a percentage ============ ============
of original $1,000 investment (Notes 6,
7 and 8). 8.00% 8.50%
Total cumulative cash distributions per
$1,000 investment from inception 249 294
Amount (in percentage terms) remaining
invested in program properties at the end
of each year (period) presented (original
total acquisition cost of properties
retained, divided by original total
acquisition cost of all properties
in program) (Note 4) 100% 100%
</TABLE>
C-18
<PAGE>
TABLE III
Operating Results of Prior Programs CNL
INCOME FUND XVI, LTD.
<TABLE>
<CAPTION>
1993
(Note 1) 1994 1995 1996
------------ ------------ ------------ ------------
<S> <C>
Gross revenue $ 0 $ 186,257 $ 2,702,504 $ 4,343,390
Equity in earnings from joint venture 0 0 0 19,668
Profit from sale of properties (Notes 4
and 5) 0 0 0 124,305
Interest income 0 21,478 321,137 75,160
Less: Operating expenses 0 (10,700) (274,595) (261,878)
Interest expense 0 0 0 0
Depreciation and amortization 0 (9,458) (318,205) (552,447)
------------ ------------ ------------ ------------
Net income - GAAP basis 0 187,577 2,430,841 3,748,198
============ ============ ============ ============
Taxable income
- from operations 0 189,864 2,139,382 3,239,830
============ ============ ============ ============
- from gain on sale (Notes 4 and 5) 0 0 0 0
============ ============ ============ ============
Cash generated from operations
(Notes 2 and 3) 0 205,148 2,481,395 3,753,726
Cash generated from sales (Notes 4 and 5) 0 0 0 775,000
Cash generated from refinancing 0 0 0 0
------------ ------------ ------------ ------------
Cash generated from operations, sales
and refinancing 0 205,148 2,481,395 4,528,726
Less: Cash distributions to investors
(Note 6)
- from operating cash flow 0 (2,845) (1,798,921) (3,431,251)
- from sale of properties 0 0 0 0
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions 0 202,303 682,474 1,097,475
Special items (not including sales and
refinancing):
Limited partners' capital contri-
butions 0 20,174,172 24,825,828 0
General partners' capital contri-
butions 1,000 0 0 0
Syndication costs 0 (1,929,465) (2,452,743) 0
Acquisition of land and buildings 0 (13,170,132) (16,012,458) (2,355,627)
Investment in direct financing
leases 0 (975,853) (5,595,236) (405,937)
Investment in joint ventures 0 0 0 (775,000)
Reimbursement of organization,
syndication and acquisition costs
paid on behalf of CNL Income Fund
XVI, Ltd. by related parties 0 (854,154) (405,569) (2,494)
Increase in other assets 0 (443,625) (58,720) 0
Increase (decrease) in restricted cash 0 0 0 0
Reimbursement from developer of
construction costs 0 0 0 0
Other (36) (20,714) 20,714 0
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions and special items 964 2,982,532 1,004,290 (2,441,583)
============ ============ ============ ============
TAX AND DISTRIBUTION DATA PER $1,000
INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 0 17 53 71
============ ============ ============ ============
- from recapture 0 0 0 0
============ ============ ============ ============
Capital gain (loss) (Notes 4 and 5) 0 0 0 0
============ ============ ============ ============
</TABLE>
C-19
<PAGE>
<TABLE>
<CAPTION>
6 months
1997 1998
------------ -------------
<S> <C>
Gross revenue $ 4,308,853 $ 1,987,937
Equity in earnings from joint venture 73,507 64,956
Profit from sale of properties (Notes 4
and 5) 41,148 0
Interest income 73,634 34,195
Less: Operating expenses (272,932) (132,020)
Interest expense 0 0
Depreciation and amortization (563,883) (268,997)
------------ ------------
Net income - GAAP basis 3,660,327 1,686,071
============ ============
Taxable income
- from operations 3,178,911 1,629,897
============ ============
- from gain on sale (Notes 4 and 5) 64,912 0
============ ============
Cash generated from operations
(Notes 2 and 3) 3,780,424 1,922,221
Cash generated from sales (Notes 4 and 5) 610,384 0
Cash generated from refinancing 0 0
------------ ------------
Cash generated from operations, sales
and refinancing 4,390,808 1,922,221
Less: Cash distributions to investors
(Note 6)
- from operating cash flow (3,600,000) (1,890,000)
- from sale of properties 0 0
-------------- -------------
Cash generated (deficiency) after cash
distributions 790,808 32,221
Special items (not including sales and
refinancing):
Limited partners' capital contri-
butions 0 0
General partners' capital contri-
butions 0 0
Syndication costs 0 0
Acquisition of land and buildings (23,501) 0
Investment in direct financing
leases (29,257) (31,504)
Investment in joint ventures 0 (607,896)
Reimbursement of organization,
syndication and acquisition costs
paid on behalf of CNL Income Fund
XVI, Ltd. by related parties 0 0
Increase in other assets 0 0
Increase (decrease) in restricted cash (610,384) 610,384
Reimbursement from developer of
construction costs 0 161,204
Other 0 0
-------------- -------------
Cash generated (deficiency) after cash
distributions and special items 127,666 164,409
============== =============
TAX AND DISTRIBUTION DATA PER $1,000
INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 70 36
============== ==============
- from recapture 0 0
============= ==============
Capital gain (loss) (Notes 4 and 5) 1 0
============= ==============
</TABLE>
C-20
<PAGE>
TABLE III - CNL INCOME FUND XVI, LTD. (continued)
<TABLE>
<CAPTION>
1993
(Note 1) 1994 1995 1996
------------ ------------ ------------ ------------
<S> <C>
Cash distributions to investors
Source (on GAAP basis)
- from investment income 0 1 45 76
- from capital gain 0 0 0 0
- from investment income from
prior period 0 0 0 0
------------ ------------ ------------ ------------
Total distributions on GAAP basis (Note 6) 0 1 45 76
============ ============ ============ ============
Source (on cash basis)
- from sales 0 0 0 0
- from refinancing 0 0 0 0
- from operations 0 1 45 76
------------ ------------ ------------ ------------
Total distributions on cash basis (Note 6) 0 1 45 76
============ ============ ============ ============
Total cash distributions as a percentage
of original $1,000 investment (Notes 7
and 8) 0.00% 4.50% 6.00% 7.88%
Total cumulative cash distributions per
$1,000 investment from inception 0 1 46 122
Amount (in percentage terms) remaining
invested in program properties at the
end of each year (period) presented
(original total acquisition cost of
properties retained, divided by original
total acquisition cost of all properties
in program) (Notes 4 and 5) N/A 100% 100% 100%
</TABLE>
Note 1: Pursuant to a registration statement on Form S-11 under the
Securities Act of 1933, as amended, CNL Income Fund XVI, Ltd.
("CNL XVI") and CNL Income Fund XV, Ltd. each registered for sale
$40,000,000 units of limited partnership interests ("Units"). The
offering of Units of CNL Income Fund XV, Ltd. commenced February
23, 1994. Pursuant to the registration statement, CNL XVI could
not commence until the offering of Units of CNL Income Fund XV,
Ltd. was terminated. CNL Income Fund XV, Ltd. terminated its
offering of Units on September 1, 1994, at which time the maximum
offering proceeds of $40,000,000 had been received. Upon the
termination of the offering of Units of CNL Income Fund XV, Ltd.,
CNL XVI commenced its offering of Units. Activities through
September 22, 1994, were devoted to organization of the
partnership and operations had not begun.
Note 2: Cash generated from operations includes cash received from
tenants, less cash paid for expenses, plus interest received.
Note 3: Cash generated from operations per this table agrees to cash
generated from operations per the statement of cash flows included
in the financial statements of CNL Income Fund XVI, Ltd.
Note 4: In April 1996, CNL Income Fund XVI, Ltd. sold one of its
properties and received net sales proceeds of $775,000, resulting
in a gain of $124,305 for financial reporting purposes. In October
1996, the partnership reinvested the net sales proceeds in an
additional property as tenants-in-common with an affiliate of the
general partners.
Note 5: In March 1997, CNL Income Fund XVI, Ltd. sold one of its
properties and received net sales proceeds of $610,384, resulting
in a gain of $41,148 for financial reporting purposes. In January
1998, the partnership reinvested the net sales proceeds in an
additional property as tenants-in-common with affiliates of the
general partners.
Note 6: Distributions declared for the quarters ended December 31, 1994,
1995, 1996 and 1997 are reflected in the 1995, 1996, 1997 and 1998
columns, respectively, due to the payment of such distributions in
January 1995, 1996, 1997 and 1998, respectively. As a result of
distributions being presented on a cash basis, distributions
declared and unpaid as of December 31, 1994, 1995, 1996, 1997 and
June 30, 1998 are not included in the 1994, 1995, 1996, 1997 and
1998 totals, respectively.
Note 7: Cash distributions for 1998 include an additional amount equal to
0.20% of invested capital which was earned in 1997 but declared
payable in the first quarter of 1998.
Note 8: Total cash distributions as a percentage of original $1,000
investment are calculated based on actual distributions declared
for the period. (See Note 6 above)
Note 9: Certain data for columns representing less than 12 months have
been annualized.
C-21
<PAGE>
<TABLE>
<CAPTION>
6 months
1997 1998
------------ ------------
<S> <C>
Cash distributions to investors
Source (on GAAP basis)
- from investment income
- from capital gain 80 37
- from investment income from 0 0
prior period 0 5
------------ ------------
80 42
Total distributions on GAAP basis (Note 6) ============ ============
Source (on cash basis)
- from sales 0 0
- from refinancing 0 0
- from operations 80 42
------------ ------------
Total distributions on cash basis (Note 6) 80 42
============ ============
Total cash distributions as a percentage
of original $1,000 investment (Notes 7
and 8) 8.00% 8.20%
Total cumulative cash distributions per
$1,000 investment from inception 202 244
Amount (in percentage terms) remaining
invested in program properties at the
end of each year (period) presented
(original total acquisition cost of
properties retained, divided by original
total acquisition cost of all properties
in program) (Notes 4 and 5) 100% 100%
</TABLE>
C-22
<PAGE>
TABLE III Operating Results
of Prior Programs CNL AMERICAN
PROPERTIES FUND, INC.
<TABLE>
<CAPTION>
1994 1997
(Note 1) 1995 1996 (Note 2)
------------ ------------ ------------ ----------
<S> <C>
Gross revenue $ 0 $ 539,776 $ 4,363,456 $ 15,516,102
Interest income 0 119,355 1,843,228 3,941,831
Less: Operating expenses 0 (186,145) (908,924) (2,066,962)
Interest expense 0 0 0 0
Depreciation and amortization 0 (104,131) (521,871) (1,795,062)
Minority interest in income of
consolidated joint venture 0 (76) (29,927) (31,453)
------------ ------------ ------------ ------------
Net income - GAAP basis 0 368,779 4,745,962 15,564,456
============ ============ ============ ============
Taxable income
- from operations (Note 8) 0 379,935 4,894,262 15,727,311
============ ============ ============ ============
- from gain (loss) on sale 0 0 0 (41,115)
============ ============ ============ ============
Cash generated from operations
(Notes 4 and 5) 0 498,459 5,482,540 17,076,214
Cash generated from sales (Note 7) 0 0 0 6,289,236
Cash generated from refinancing 0 0 0 0
------------ ------------ ------------ ------------
Cash generated from operations, sales
and refinancing 0 498,459 5,482,540 23,365,450
Less: Cash distributions to investors (Note 9)
- from operating cash flow 0 (498,459) (5,439,404) (16,854,297)
- from sale of properties 0 0 0 0
- from return of capital (Note 10) 0 (136,827) 0 0
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions 0 (136,827) 43,136 6,511,153
Special items (not including sales of
real estate and refinancing):
Subscriptions received from
stockholders 0 38,454,158 100,792,991 222,482,560
Sale of common stock to CNL Fund
Advisors, Inc. 200,000 0 0 0
Contributions from minority interest 0 200,000 97,419 0
Distributions to holder of minority
interest 0 0 (39,121) (34,020)
Stock issuance costs (19) (3,680,704) (8,486,188) (19,542,862)
Acquisition of land and buildings 0 (18,835,969) (36,104,148) (143,542,667)
Investment in direct financing
leases 0 (1,364,960) (13,372,621) (39,155,974)
Proceeds from sale of equipment direct
financing leases 0 0 0 962,274
Investment in joint venture 0 0 0 0
Investment in mortgage notes
receivable 0 0 (13,547,264) (4,401,982)
Collections on mortgage notes
receivable 0 0 133,850 250,732
Investment in notes receivable 0 0 0 (12,521,401)
Collections on notes receivable 0 0 0 0
Investment in certificate of deposit 0 0 0 (2,000,000)
Proceeds of borrowing on line of
credit 0 0 3,666,896 19,721,804
Payment on line of credit 0 0 (145,080) (20,784,577)
Reimbursement of organization, acquisition,
and deferred offering and stock issuance
costs paid on behalf of CNL American
Properties Fund, Inc. by related parties (199,036) (2,500,056) (939,798) (2,857,352)
Increase in other assets 0 (628,142) (1,103,896) 0
Other 0 0 (54,333) 49,001
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions and special items 945 11,507,500 30,941,643 5,136,689
============ ============ ============ ============
TAX AND DISTRIBUTION DATA PER $1,000
INVESTED (Note 6)
Federal income tax results:
Ordinary income (loss) (Note 11)
- from operations (Note 8) 0 20 61 67
============ ============ ============ ============
- from recapture 0 0 0 0
============ ============ ============ ============
Capital gain (loss) 0 0 0 0
============ ============ ============ ============
</TABLE>
C-23
<PAGE>
<TABLE>
<CAPTION>
6 months
1998
(Note 3)
--------------
<S> <C>
Gross revenue $ 13,829,348
Interest income 3,799,730
Less: Operating expenses (1,949,398)
Interest expense 0
Depreciation and amortization (1,648,827)
Minority interest in income of
consolidated joint venture (15,380)
--------------
Net income - GAAP basis 14,015,473
==============
Taxable income
- from operations (Note 8) 13,876,482
==============
- from gain (loss) on sale (108,690)
==============
Cash generated from operations
(Notes 4 and 5) 16,600,953
Cash generated from sales (Note 7) 1,233,679
Cash generated from refinancing 0
---------------
Cash generated from operations, sales
and refinancing 17,834,632
Less: Cash distributions to investors (Note 9)
- from operating cash flow (15,992,806)
- from sale of properties 0
- from return of capital (Note 10) 0
---------------
Cash generated (deficiency) after cash
distributions 1,841,826
Special items (not including sales of
real estate and refinancing):
Subscriptions received from
stockholders 152,570,391
Sale of common stock to CNL Fund
Advisors, Inc. 0
Contributions from minority interest 0
Distributions to holder of minority
interest (16,956)
Stock issuance costs (13,840,339)
Acquisition of land and buildings (36,742,586)
Investment in direct financing
leases (71,360,700)
Proceeds from sale of equipment direct
financing leases 0
Investment in joint venture (112,847)
Investment in mortgage notes
receivable 0
Collections on mortgage notes
receivable 147,051
Investment in notes receivable (2,903,600)
Collections on notes receivable 666,633
Investment in certificate of deposit 0
Proceeds of borrowing on line of
credit 2,979,403
Payment on line of credit 0
Reimbursement of organization, acquisition,
and deferred offering and stock issuance
costs paid on behalf of CNL American
Properties Fund, Inc. by related parties (2,570,126)
Increase in other assets (1,845,005)
Other (30,842)
--------------
Cash generated (deficiency) after cash
distributions and special items 28,782,303
==============
TAX AND DISTRIBUTION DATA PER $1,000
INVESTED (Note 6)
Federal income tax results:
Ordinary income (loss) (Note 11)
- from operations (Note 8) 32
==============
- from recapture 0
==============
Capital gain (loss) 0
==============
</TABLE>
C-24
<PAGE>
TABLE III - CNL AMERICAN PROPERTIES FUND, INC. (continued)
<TABLE>
<CAPTION>
1994 1997
(Note 1) 1995 1996 (Note 2)
------------ ------------ ------------ ----------
<S> <C>
Cash distributions to investors
Source (on GAAP basis)
- from investment income 0 19 59 66
- from capital gain 0 0 0 0
- from investment income from
prior period 0 0 0 0
- from return of capital (Note 10) 0 14 8 6
------------ ------------ ------------ ------------
Total distributions on GAAP basis (Note 11) 0 33 67 72
============ ============ ============ ============
Source (on cash basis)
- from sales 0 0 0 0
- from refinancing 0 0 0 0
- from operations 0 26 67 72
- from return of capital (Note 10) 0 7 0 0
------------ ------------ ------------ ------------
Total distributions on cash basis (Note 11) 0 33 67 72
============ ============ ============ ============
Total cash distributions as a percentage
of original $1,000 investment (Note 6 and 9) 0.00% 5.34% 7.06% 7.45%
Total cumulative cash distributions per
$1,000 investment from inception 0 33 100 172
Amount (in percentage terms) remaining
invested in program properties at the end of
each year (period) presented (original total
acquisition cost of properties retained,
divided by original total acquisition cost
of all properties in program) (Note 7) N/A 100% 100% 100%
</TABLE>
Note 1: Pursuant to a Registration Statement on Form S-11 under the
Securities Act of 1933, as amended, effective March 29, 1995, CNL
American Properties Fund, Inc. ("APF") registered for sale
$165,000,000 of shares of common stock (the "Initial Offering"),
including $15,000,000 available only to stockholders participating
in the company's reinvestment plan. The Initial Offering of APF
commenced April 19, 1995, and upon completion of the Initial
Offering on February 6, 1997, had received subscription proceeds
of $150,591,765 (15,059,177 shares), including $591,765 (59,177
shares) issued pursuant to the reinvestment plan. Pursuant to a
Registration Statement on Form S-11 under the Securities Act of
1933, as amended, effective January 31, 1997, APF registered for
sale $275,000,000 of shares of common stock (the "1997 Offering"),
including $25,000,000 available only to stockholders participating
in the company's reinvestment plan. The 1997 Offering of APF
commenced following the completion of the Initial Offering on
February 6, 1997, and upon completion of the 1997 Offering on
March 2, 1998, had received subscription proceeds of $251,872,648
(25,187,265 shares), including $1,872,648 (187,265 shares) issued
pursuant to the reinvestment plan. Pursuant to a Registration
Statement on Form S-11 under the Securities Act of 1933, as
amended, effective May 12, 1998, APF registered for sale
$345,000,000 of shares of common stock (the "1998 Offering"),
including $20,000,000 available only to stockholders participating
in the company's reinvestment plan. The 1998 Offering of APF
commenced following the completion of the 1997 Offering on March
2, 1998. As of June 30, 1998, APF had received subscriptions
totalling $111,835,687 from the 1998 Offering, including
$1,823,518 issued pursuant to the company's reinvestment plan.
Activities through June 1, 1995, were devoted to organization of
APF and operations had not begun.
Note 2: The amounts shown represent the combined results of the Initial
Offering and the 1997 Offering. Note 3: The amounts shown
represent the combined results of the Initial Offering, 1997
Offering and 1998 Offering.
Note 4: Cash generated from operations includes cash received from
tenants, less cash paid for expenses, plus interest received.
Note 5: Cash generated from operations per this table agrees to cash
generated from operations per the statement of cash flows included
in the financial statements of APF.
Note 6: Total cash distributions as a percentage of original $1,000
investment are calculated based on actual distributions declared
for the period.
Note 7: In May 1997 and July 1997, APF sold four properties and one
property, respectively, to a tenant for $5,254,083 and $1,035,153,
respectively, which was equal to the carrying value of the
properties at the time of sale. In May 1998, APF sold two
properties to third parties for $1,605,154 (and received net sales
proceeds of approximately $1,233,700 after deduction of
construction costs incurred but not paid by APF as of the date of
the sale) which approximated the carrying value of the properties
at the time of sale. As a result, no gain or loss was recognized
for financial reporting purposes. The company reinvested the
proceeds from the sale of properties in additional properties.
Note 8: Taxable income presented is before the dividends paid deduction.
Note 9: For the six months ended June 30, 1998 and the years ended
December 31, 1997, 1996 and 1995, 86.37%, 93.33%, 90.25% and
59.82%, respectively, of the distributions received by
stockholders were considered to be ordinary income and 13.63%,
6.67%, 9.75% and 40.18%, respectively, were considered a return of
capital for federal income tax purposes. No amounts distributed to
stockholders for the six months ended June 30, 1998 and the years
ended December 31, 1997, 1996 and 1995 are required to be or have
been treated by the company as a return of capital for purposes of
calculating the stockholders' return on their invested capital.
C-25
<PAGE>
<TABLE>
<CAPTION>
6 months
1998
(Note 3)
-------------
<S> <C>
Cash distributions to investors
Source (on GAAP basis)
- from investment income 32
- from capital gain 0
- from investment income from
prior period 0
- from return of capital (Note 10) 5
------------
37
============
Total distributions on GAAP basis (Note 11)
Source (on cash basis)
- from sales 0
- from refinancing 0
- from operations 37
- from return of capital (Note 10) 0
------------
Total distributions on cash basis (Note 11) 37
============
Total cash distributions as a percentage
of original $1,000 investment (Note 6 and 9) 7.62%
Total cumulative cash distributions per
$1,000 investment from inception 209
Amount (in percentage terms) remaining
invested in program properties at the end of
each year (period) presented (original total
acquisition cost of properties retained,
divided by original total acquisition cost
of all properties in program) (Note 7) 100%
</TABLE>
Note 10: Cash distributions presented above as a return of capital on a
GAAP basis represent the amount of cash distributions in excess of
accumulated net income on a GAAP basis. Accumulated net income
includes deductions for depreciation and amortization expense and
income from certain non-cash items. This amount is not required to
be presented as a return of capital except for purposes of this
table, and APF has not treated this amount as a return of capital
for any other purpose.
Note 11: Tax and distribution data and total distributions on GAAP basis
were computed based on the weighted average shares outstanding
during each period presented.
C-26
<PAGE>
TABLE III
Operating Results of Prior Programs CNL
INCOME FUND XVII, LTD.
<TABLE>
<CAPTION>
1995 6 months
(Note 1) 1996 1997 1998
------------ ------------ ------------ -------------
<S> <C>
Gross revenue $ 0 $ 1,195,263 $ 2,643,871 $ 1,417,608
Equity in earnings of unconsolidated
joint ventures 0 4,834 100,918 69,785
Interest income 12,153 244,406 69,779 24,834
Less: Operating expenses (3,493) (169,536) (181,865) (93,411)
Interest expense 0 0 0 0
Depreciation and amortization (309) (179,208) (387,292) (176,959)
Minority interest in income of
consolidated joint venture 0 (41,854) (31,219)
------------ ------------ ------------ ------------
Net income - GAAP basis 8,351 1,095,759 2,203,557 1,210,638
============ ============ ============ ============
Taxable income
- from operations 12,153 1,114,964 2,058,601 1,062,296
============ ============ ============ ============
- from gain on sale 0 0 0 0
============ ============ ============ ============
Cash generated from operations
(Notes 2 and 3) 9,012 1,232,948 2,495,114 1,274,084
Cash generated from sales 0 0 0 0
Cash generated from refinancing 0 0 0 0
------------ ------------ ------------ ------------
Cash generated from operations, sales
and refinancing 9,012 1,232,948 2,495,114 1,274,084
Less: Cash distributions to investors
(Note 4)
- from operating cash flow (1,199) (703,681) (2,177,584) (1,200,000)
- from sale of properties 0 0 0 0
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions 7,813 529,267 317,530 74,084
Special items (not including sales and
refinancing):
Limited partners' capital contri-
butions 5,696,921 24,303,079 0 0
General partners' capital contri-
butions 1,000 0 0 0
Contributions from minority interest 0 140,676 278,170 0
Distribution to holder of minority
interest 0 0 (41,507) (24,426)
Syndication costs (604,348) (2,407,317) 0 0
Acquisition of land and buildings (332,928) (19,735,346) (1,740,491) 0
Investment in direct financing
leases 0 (1,784,925) (1,130,497) 0
Investment in joint ventures 0 (201,501) (1,135,681) (127,807)
Reimbursement of organization,
syndication and acquisition costs
paid on behalf of CNL Income Fund
XVII, Ltd. by related parties (347,907) (326,483) (25,444) 0
Increase in other assets (221,282) 0 0 0
Reimbursement from developer of
construction costs 0 0 0 322,897
Other (410) 410 0 (16,797)
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions and special items 4,198,859 517,860 (3,477,920) 227,951
============ ============ ============ ============
TAX AND DISTRIBUTION DATA PER $1,000
INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 36 37 69 35
============ ============ ============ ============
- from recapture 0 0 0 0
============ ============ ============ ============
Capital gain (loss) 0 0 0 0
============ ============ ============ ============
</TABLE>
C-27
<PAGE>
TABLE III - CNL INCOME FUND XVII, LTD. (continued)
<TABLE>
<CAPTION>
1995 6 months
(Note 1) 1996 1997 1998
------------ ------------ ------------ --------
<S> <C>
Cash distributions to investors
Source (on GAAP basis)
- from investment income 4 23 73 40
- from capital gain 0 0 0 0
- from investment income from
prior period 0 0 0 0
----------- ------------ ------------ ------------
Total distributions on GAAP basis (Note 4) 0 23 73 40
============ ============ ============ ============
Source (on cash basis)
- from sales 0 0 0 0
- from refinancing 0 0 0 0
- from operations 4 23 73 40
------------ ------------ ------------ -------------
Total distributions on cash basis (Note 4) 4 23 73 40
============ ============ ============ =============
Total cash distributions as a percentage
of original $1,000 investment (Note 5) 5.00% 5.50% 7.625% 8.00
Total cumulative cash distributions per
$1,000 investment from inception 4 27 100 140
Amount (in percentage terms) remaining
invested in program properties at the
end of each year (period) presented
(original total acquisition cost of
properties retained, divided by original
total acquisition cost of all properties
in program) (Note 6) N/A 98% 100% 99%
</TABLE>
Note 1: Pursuant to a registration statement on Form S-11 under the
Securities Act of 1933, as amended, effective August 11, 1995, CNL
Income Fund XVII, Ltd. ("CNL XVII") and CNL Income Fund XVIII,
Ltd. each registered for sale $30,000,000 units of limited
partnership interests ("Units"). The offering of Units of CNL
Income Fund XVII, Ltd. commenced September 2, 1995. Pursuant to
the registration statement, CNL XVIII could not commence until the
offering of Units of CNL Income Fund XVII, Ltd. was terminated.
CNL Income Fund XVII, Ltd. terminated its offering of Units on
September 19, 1996, at which time subscriptions for the maximum
offering proceeds of $30,000,000 had been received. Upon the
termination of the offering of Units of CNL Income Fund XVII,
Ltd., CNL XVIII commenced its offering of Units. Activities
through November 3, 1995, were devoted to organization of the
partnership and operations had not begun.
Note 2: Cash generated from operations includes cash received from
tenants, plus distributions from joint ventures, less cash paid
for expenses, plus interest received.
Note 3: Cash generated from operations per this table agrees to cash
generated from operations per the statement of cash flows included
in the financial statements of CNL XVII.
Note 4: Distributions declared for the quarters ended December 31, 1995,
1996 and 1997 are reflected in the 1996, 1997 and 1998
columns, respectively, due to the payment of such distributions in
January 1996, 1997 and 1998, respectively. As a result of
distributions being presented on a cash basis, distributions
declared and unpaid as of December 31, 1996, 1997 and June 30,
1998 are not included in the 1996, 1997 and 1998 totals,
respectively.
Note 5: Total cash distributions as a percentage of original $1,000
investment are calculated based on actual distributions declared
for the period. (See Note 4 above)
Note 6: During 1998, CNL Income Fund XVII, Ltd. received approximately
$322,900 from the developer of the properties in Aiken, South
Carolina and Weatherford, Texas. This represents a reimbursement
from the developer upon final reconciliation of total construction
costs, to the total construction costs funded by the partnership
in accordance with the development agreement. The partnership
intends to reinvest the funds in additional properties.
Note 7: Certain data for columns representing less than 12 months have
been annualized.
C-28
<PAGE>
TABLE III
Operating Results of Prior Programs CNL
INCOME FUND XVIII, LTD.
<TABLE>
<CAPTION>
1995 6 months
(Note 1) 1996 1997 1998
------------ ------------ ------------ --------
<S> <C>
Gross revenue $ 0 $ 1,373 $ 1,291,416 $ 1,447,579
Equity in earnings of joint venture 0 0 0 0
Interest income 0 30,241 161,826 99,885
Less: Operating expenses 0 (3,992) (156,403) (103,375)
Interest expense 0 0 0 0
Depreciation and amortization 0 (712) (142,079) (178,935)
------------ ------------ ------------ ------------
Net income - GAAP basis 0 26,910 1,154,760 1,265,154
============ ============ ============ ============
Taxable income
- from operations 0 30,223 1,318,750 1,206,888
============ ============ ============ ============
- from gain on sale 0 0 0 0
============ ============ ============ ============
Cash generated from operations
(Notes 2 and 3) 0 27,146 1,361,756 1,459,212
Cash generated from sales 0 0 0 0
Cash generated from refinancing 0 0 0 0
------------ ------------ ------------ ------------
Cash generated from operations, sales
and refinancing 0 27,146 1,361,756 1,459,212
Less: Cash distributions to investors
(Note 4)
- from operating cash flow 0 (2,138) (855,957) (1,112,150)
- from sale of properties 0 0 0 0
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions 0 25,008 505,799 347,062
Special items (not including sales and
refinancing):
Limited partners' capital contri-
butions 0 8,498,815 25,723,944 854,241
General partners' capital contri-
butions 1,000 0 0 0
Contributions from minority interest 0 0 0 0
Syndication costs 0 (845,657) (2,450,214) (161,141)
Acquisition of land and buildings 0 (1,533,446) (18,581,999) (2,219,267)
Investment in direct financing leases 0 0 (5,962,087) (877,348)
Investment in joint venture 0 0 0 0
Increase in restricted cash 0 0 0 0
Reimbursement of organization,
syndication and acquisition costs
paid on behalf of CNL Income Fund
XVIII, Ltd. by related parties 0 (497,420) (396,548) (35,055)
Increase in other assets 0 (276,848) 0 (48,378)
Other (20) (107) (66,893) (10,000)
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions and special items 980 5,370,345 (1,227,998) (2,149,886)
============ ============ ============ ============
TAX AND DISTRIBUTION DATA PER $1,000
INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 0 6 57 34
============ ============ ============ ============
- from recapture 0 0 0 0
============ ============ ============ ============
Capital gain (loss) 0 0 0 0
============ ============ ============ ============
C-29
</TABLE>
<PAGE>
TABLE III - CNL INCOME FUND XVIII, LTD. (continued)
<TABLE>
<CAPTION>
1995 6 months
(Note 1) 1996 1997 1998
------------ ------------ ------------ ---------
<S> <C>
Cash distributions to investors
Source (on GAAP basis)
- from investment income 0 0 38 32
- from capital gain 0 0 0 0
- from investment income from prior
period 0 0 0 0
------------ ------------ ------------ -----------
Total distributions on GAAP basis (Note 4) 0 0 38 32
============ ============ ============ ===========
Source (on cash basis)
- from sales 0 0 0 0
- from refinancing 0 0 0 0
- from operations 0 0 38 32
------------ ------------ ------------ -----------
Total distributions on cash basis (Note 4) 0 0 38 32
============ ============ ============ ===========
Total cash distributions as a percentage
of original $1,000 investment from
inception 0.00 % 5.00 % 5.75 % 7.25 %
Total cumulative cash distributions per
$1,000 investment (Note 5) 0 0 38 70
Amount (in percentage terms) remaining
invested in program properties at the
end of each year (period) presented
(original total acquisition cost of
properties retained, divided by original
total acquisition cost of all properties
in program) N/A 83 % 95 % 99 %
</TABLE>
Note 1: Pursuant to a registration statement on Form S-11 under the
Securities Act of 1933, as amended, effective August 11, 1995, CNL
Income Fund XVIII, Ltd ("CNL XVIII") and CNL Income Fund XVII,
Ltd. each registered for sale $30,000,000 units of limited
partnership interest ("Units"). The offering of Units of CNL
Income Fund XVII, Ltd. commenced September 2, 1995. Pursuant to
the registration statement, CNL XVIII could not commence until the
offering of Units of CNL Income Fund XVII, Ltd. was terminated.
CNL Income Fund XVII, Ltd. terminated its offering of Units on
September 19, 1996, at which time the maximum offering proceeds of
$30,000,000 had been received. Upon the termination of the
offering of Units of CNL Income Fund XVII, Ltd., CNL XVIII
commenced its offering of Units. Activities through October 11,
1996, were devoted to organization of the partnership and
operations had not begun.
Note 2: Cash generated from operations includes cash received from
tenants, less cash paid for expenses, plus interest received.
Note 3: Cash generated from operations per this table agrees to cash
generated from operations per the statement of cash flows included
in the financial statements of CNL XVIII.
Note 4: Distributions declared for the quarters ended December 1996 and
1997 are reflected in the 1997 and 1998 columns, respectively, due
to the payment of such distributions in January 1997 and 1998,
respectively. As a result of distributions being presented on a
cash basis, distributions declared and unpaid as of December 31,
1997 and June 30, 1998 are not included in the 1997 and 1998
totals, respectively.
Note 5: Total cash distributions as a percentage of original $1,000
investment are calculated based on actual distributions declared
for the period. (See Note 4 above)
Note 6: Certain data for columns representing less than 12 months have
been annualized.
C-30
<PAGE>
TABLE V
SALES OR DISPOSALS OF PROPERTIES
<TABLE>
<CAPTION>
==========================================================================================================================
Selling Price, Net of
Closing Costs and GAAP Adjustments
----------------------------------------------------
Purchase
Cash money Adjustments
received Mortgage mortgage resulting
net of balance taken from
Date Date of closing at time back by application
Property Acquired Sale costs of sale program of GAAP Total
==========================================================================================================================
<S> <C>
CNL Income Fund, Ltd.:
Burger King -
San Dimas, CA (14) 02/05/87 06/12/92 $1,169,021 0 0 0 $1,169,021
Wendy's -
Fairfield, CA (14) 07/01/87 10/03/94 1,018,490 0 0 0 1,018,490
Wendy's -
Casa Grande, AZ 12/10/86 08/19/97 795,700 0 0 0 795,700
Wendy's -
North Miami, FL (9) 02/18/86 08/21/97 473,713 0 0 0 473,713
Popeye's -
Kissimmee, FL (14) 12/31/86 04/30/98 661,300 0 0 0 661,300
CNL Income Fund II, Ltd.:
Golden Corral -
Salisbury, NC 05/29/87 07/21/93 746,800 0 0 0 746,800
Pizza Hut -
Graham, TX 08/24/87 07/28/94 261,628 0 0 0 261,628
Golden Corral -
Medina, OH (11) 11/18/87 11/30/94 825,000 0 0 0 825,000
Denny's -
Show Low, AZ (8) 05/22/87 01/31/97 620,800 0 0 0 620,800
KFC -
Eagan, MN 06/01/87 06/02/97 623,882 0 42,000 0 665,882
KFC -
Jacksonville, FL 09/01/87 09/09/97 639,363 0 0 0 639,363
Wendy's -
Farmington Hills, MI (12) 05/18/87 10/09/97 833,031 0 0 0 833,031
Wendy's -
Farmington Hills, MI (13) 05/18/87 10/09/97 1,085,259 0 0 0 1,085,259
Denny's -
Plant City, FL 11/23/87 10/24/97 910,061 0 0 0 910,061
Pizza Hut -
Mathis, TX 12/17/87 12/04/97 297,938 0 0 0 297,938
KFC -
Avon Park, FL 09/02/87 12/10/97 501,975 0 0 0 501,975
CNL Income Fund III, Ltd.:
Wendy's -
Chicago, IL (14) 06/02/88 01/10/97 496,418 0 0 0 496,418
Perkins -
Bradenton, FL 06/30/88 03/14/97 1,310,001 0 0 0 1,310,001
Pizza Hut -
Kissimmee, FL 02/23/88 04/08/97 673,159 0 0 0 673,159
</TABLE>
<TABLE>
<CAPTION>
=============================================================================================
Cost of Properties
Including Closing and
Soft Costs
------------------------------------
Excess
Total (deficiency)
acquisition of property
cost, capital operating cash
Original improvements receipts over
mortgage closing and cash
Property financing soft costs (1) Total expenditures
==============================================================================================
<S> <C>
CNL Income Fund, Ltd.:
Burger King -
San Dimas, CA (14) 0 $955,000 $ 955,000 $214,021
Wendy's -
Fairfield, CA (14) 0 861,500 861,500 156,990
Wendy's -
Casa Grande, AZ 0 667,255 667,255 128,445
Wendy's -
North Miami, FL (9) 0 385,000 385,000 88,713
Popeye's -
Kissimmee, FL (14) 0 475,360 475,360 185,940
CNL Income Fund II, Ltd.:
Golden Corral -
Salisbury, NC 0 642,800 642,800 104,000
Pizza Hut -
Graham, TX 0 205,500 205,500 56,128
Golden Corral -
Medina, OH (11) 0 743,000 743,000 82,000
Denny's -
Show Low, AZ (8) 0 484,185 484,185 136,615
KFC -
Eagan, MN 0 601,100 601,100 64,782
KFC -
Jacksonville, FL 0 405,000 405,000 234,363
Wendy's -
Farmington Hills, MI (12) 0 679,000 679,000 154,031
Wendy's -
Farmington Hills, MI (13) 0 887,000 887,000 198,259
Denny's -
Plant City, FL 0 820,717 820,717 89,344
Pizza Hut -
Mathis, TX 0 202,100 202,100 95,838
KFC -
Avon Park, FL 0 345,000 345,000 156,975
CNL Income Fund III, Ltd.:
Wendy's -
Chicago, IL (14) 0 591,362 591,362 (94,944)
Perkins -
Bradenton, FL 0 1,080,500 1,080,500 229,501
Pizza Hut -
Kissimmee, FL 0 474,755 474,755 198,404
</TABLE>
C-31
<PAGE>
TABLE V
SALES OR DISPOSALS OF PROPERTIES
<TABLE>
<CAPTION>
==========================================================================================================================
Selling Price, Net of
Closing Costs and GAAP Adjustments
----------------------------------------------------
Purchase
Cash money Adjustments
received Mortgage mortgage resulting
net of balance taken from
Date Date of closing at time back by application
Property Acquired Sale costs of sale program of GAAP Total
==========================================================================================================================
<S> <C>
Burger King -
Roswell, GA 06/08/88 06/20/97 257,981 0 685,000 0 942,981
Wendy's -
Mason City, IA 02/29/88 10/24/97 217,040 0 0 0 217,040
Taco Bell -
Fernandina Beach, FL (14) 04/09/88 01/15/98 721,655 0 0 0 721,655
Denny's -
Daytona Beach, FL (14) 07/12/88 01/23/98 1,008,976 0 0 0 1,008,976
Wendy's -
Punta Gorda, FL 02/03/88 02/20/98 665,973 0 0 0 665,973
Po' Folks -
Hagerstown, MD 06/21/88 06/10/98 788,884 0 0 0 788,884
CNL Income Fund IV, Ltd.:
Taco Bell -
York, PA 03/22/89 04/27/94 712,000 0 0 0 712,000
Burger King -
Hastings, MI 08/12/88 12/15/95 518,650 0 0 0 518,650
Wendy's -
Tampa, FL 12/30/88 09/20/96 1,049,550 0 0 0 1,049,550
Checkers -
Douglasville, GA 12/08/94 11/07/97 380,695 0 0 0 380,695
Taco Bell -
Fort Myers, FL (14) 12/22/88 03/02/98 794,690 0 0 0 794,690
Denny's -
Union Township, OH (14) 11/01/88 03/31/98 674,135 0 0 0 674,135
CNL Income Fund V, Ltd.:
Perkins -
Myrtle Beach, SC (2) 02/28/90 08/25/95 0 0 1,040,000 0 1,040,000
Ponderosa -
St. Cloud, FL (6) (14) 06/01/89 10/24/96 73,713 0 1,057,299 0 1,131,012
Franklin National Bank -
Franklin, TN 06/26/89 01/07/97 960,741 0 0 0 960,741
Shoney's -
Smyrna, TN 03/22/89 05/13/97 636,788 0 0 0 636,788
KFC -
Salem, NH 05/31/89 09/22/97 1,272,137 0 0 0 1,272,137
Perkins -
Port St. Lucie, FL 11/14/89 09/23/97 1,216,750 0 0 0 1,216,750
Hardee's -
Richmond, VA 02/17/89 11/07/97 397,785 0 0 0 397,785
Wendy's -
Tampa, FL 02/16/89 12/29/97 805,175 0 0 0 805,175
</TABLE>
TABLE V
SALES OR DISPOSALS OF PROPERTIES
<TABLE>
<CAPTION>
=============================================================================================
Cost of Properties
Including Closing and
Soft Costs
-----------------------------------
Excess
Total (deficiency)
acquisition of property
cost, capital operating cash
Original improvements receipts over
mortgage closing and cash
Property financing soft costs (1) Total expenditures
==============================================================================================
<S> <C>
Burger King -
Roswell, GA 0 775,226 775,226 167,755
Wendy's -
Mason City, IA 0 190,252 190,252 26,788
Taco Bell -
Fernandina Beach, FL (14) 0 559,570 559,570 162,085
Denny's -
Daytona Beach, FL (14) 0 918,777 918,777 90,799
Wendy's -
Punta Gorda, FL 0 684,342 684,342 (18,369)
Po' Folks -
Hagerstown, MD 0 1,188,315 1,188,315 (399,431)
CNL Income Fund IV, Ltd.:
Taco Bell -
York, PA 0 616,501 616,501 95,499
Burger King -
Hastings, MI 0 419,936 419,936 98,714
Wendy's -
Tampa, FL 0 828,350 828,350 221,200
Checkers -
Douglasville, GA 0 363,768 363,768 16,927
Taco Bell -
Fort Myers, FL (14) 0 597,998 597,998 196,692
Denny's -
Union Township, OH (14) 0 872,850 872,850 (198,715)
CNL Income Fund V, Ltd.:
Perkins -
Myrtle Beach, SC (2) 0 986,418 986,418 53,582
Ponderosa -
St. Cloud, FL (6) (14) 0 996,769 996,769 134,243
Franklin National Bank -
Franklin, TN 0 1,138,164 1,138,164 (177,423)
Shoney's -
Smyrna, TN 0 554,200 554,200 82,588
KFC -
Salem, NH 0 1,079,310 1,079,310 192,827
Perkins -
Port St. Lucie, FL 0 1,203,207 1,203,207 13,543
Hardee's -
Richmond, VA 0 695,464 695,464 (297,679)
Wendy's -
Tampa, FL 0 657,800 657,800 147,375
</TABLE>
C-32
<PAGE>
TABLE V
SALES OR DISPOSALS OF PROPERTIES
<TABLE>
<CAPTION>
==========================================================================================================================
Selling Price, Net of
Closing Costs and GAAP Adjustments
----------------------------------------------------
Purchase
Cash money Adjustments
received Mortgage mortgage resulting
net of balance taken from
Date Date of closing at time back by application
Property Acquired Sale costs of sale program of GAAP Total
===========================================================================================================================
<S> <C>
Denny's -
Port Orange, FL (14) 07/10/89 01/23/98 1,283,096 0 0 0 1,283,096
Shoney's -
Tyler, TX 03/20/89 02/17/98 844,229 0 0 0 894,229
CNL Income Fund VI, Ltd.:
Hardee's -
Batesville, AR 11/02/89 05/24/94 791,211 0 0 0 791,211
Hardee's -
Heber Springs, AR 02/13/90 05/24/94 638,270 0 0 0 638,270
Hardee's -
Little Canada, MN 11/28/89 06/29/95 899,503 0 0 0 899,503
Jack in the Box -
Dallas, TX 06/28/94 12/09/96 982,980 0 0 0 982,980
Denny's -
Show Low, AZ (8) 05/22/87 01/31/97 349,200 0 0 0 349,200
KFC -
Whitehall Township, MI 02/26/90 07/09/97 629,888 0 0 0 629,888
Perkins -
Naples, FL 12/26/89 07/09/97 1,487,725 0 0 0 1,487,725
Burger King -
Plattsmouth, NE 01/19/90 07/18/97 699,400 0 0 0 699,400
Shoney's -
Venice, FL 08/03/89 09/17/97 1,206,696 0 0 0 1,206,696
Jack in the Box -
Yuma, AZ (10) 07/14/94 10/31/97 510,653 0 0 0 510,653
Denny's -
Deland, FL 03/22/90 01/23/98 1,236,97 0 0 0 1,236,97
Wendy's -
Liverpool, NY 12/08/89 02/09/98 145,221 0 0 0 145,221
Perkin's -
Melbourne, FL 02/03/90 02/12/98 552,910 0 0 0 552,910
Hardee's
Bellevue, NE 05/03/90 06/05/98 900,000 0 0 0 900,000
CNL Income Fund VII, Ltd.:
Taco Bell -
Kearns, UT 06/14/90 05/19/92 700,000 0 0 0 700,000
Hardee's -
St. Paul, MN 08/09/90 05/24/94 869,036 0 0 0 869,036
Perkins -
Florence, SC (3) 08/28/90 08/25/95 0 0 1,160,000 0 1,160,000
</TABLE>
<TABLE>
<CAPTION>
===========================================================================================
Cost of Properties
Including Closing and
Soft Costs
-----------------------------------
Excess
Total (deficiency)
acquisition of property
cost, capital operating cash
Original improvements receipts over
mortgage closing and cash
Property financing soft costs (1) Total expenditures
============================================================================================
<S> <C>
Denny's -
Port Orange, FL (14) 0 1,021,000 1,021,000 262,096
Shoney's -
Tyler, TX 0 770,300 770,300 73,929
CNL Income Fund VI, Ltd.:
Hardee's -
Batesville, AR 0 605,500 605,500 185,711
Hardee's -
Heber Springs, AR 0 532,893 532,893 105,377
Hardee's -
Little Canada, MN 0 821,692 821,692 77,811
Jack in the Box -
Dallas, TX 0 964,437 964,437 18,543
Denny's -
Show Low, AZ (8) 0 272,354 272,354 76,846
KFC -
Whitehall Township, MI 0 725,604 725,604 (95,716)
Perkins -
Naples, FL 0 1,083,869 1,083,869 403,856
Burger King -
Plattsmouth, NE 0 561,000 561,000 138,400
Shoney's -
Venice, FL 0 1,032,435 1,032,435 174,261
Jack in the Box -
Yuma, AZ (10) 0 448,082 448,082 62,571
Denny's -
Deland, FL 0 1,000,000 1,000,000 236,971
Wendy's -
Liverpool, NY 0 341,440 341,440 (196,219)
Perkin's -
Melbourne, FL 0 692,850 692,850 (139,940)
Hardee's
Bellevue, NE 0 899,512 899,512 488
CNL Income Fund VII, Ltd.:
Taco Bell -
Kearns, UT 0 560,202 560,202 139,798
Hardee's -
St. Paul, MN 0 742,333 742,333 126,703
Perkins -
Florence, SC (3) 0 1,084,905 1,084,905 75,095
</TABLE>
C-33
<PAGE>
TABLE V
SALES OR DISPOSALS OF PROPERTIES
<TABLE>
<CAPTION>
=========================================================================================================================
Selling Price, Net of
Closing Costs and GAAP Adjustments
----------------------------------------------------
Purchase
Cash money Adjustments
received Mortgage mortgage resulting
net of balance taken from
Date Date of closing at time back by application
Property Acquired Sale costs of sale program of GAAP Total
=========================================================================================================================
<S> <C>
Church's Fried Chicken -
Jacksonville, FL (4) (14) 04/30/90 12/01/95 0 0 240,000 0 240,000
Shoney's -
Colorado Springs, CO 07/03/90 07/24/96 1,044,909 0 0 0 1,044,909
Hardee's -
Hartland, MI 07/10/90 10/23/96 617,035 0 0 0 617,035
Hardee's -
Columbus, IN 09/04/90 05/30/97 223,590 0 0 0 223,590
KFC -
Dunnellon, FL 08/02/90 10/07/97 757,800 0 0 0 757,800
Jack in the Box -
Yuma, AZ (10) 07/14/94 10/31/97 471,372 0 0 0 471,372
CNL Income Fund VIII, Ltd.:
Denny's -
Ocoee, FL 03/16/91 07/31/95 1,184,865 0 0 0 1,184,865
Church's Fried Chicken -
Jacksonville, FL (4) (14) 09/28/90 12/01/95 0 0 240,000 0 240,000
Church's Fried Chicken -
Jacksonville, FL (5) (14) 09/28/90 12/01/95 0 0 220,000 0 220,000
Ponderosa -
Orlando, FL (6) (14) 12/17/90 10/24/96 0 0 1,353,775 0 1,353,775
CNL Income Fund IX, Ltd.:
Burger King -
Woodmere, OH (15) 05/31/91 12/12/96 918,445 0 0 0 918,445
Burger King -
Alpharetta, GA 09/20/91 06/30/97 1,053,571 0 0 0 1,053,571
CNL Income Fund X, Ltd.:
Shoney's -
Denver, CO 03/04/92 08/11/95 1,050,186 0 0 0 1,050,186
Jack in the Box -
Freemont, CA 03/26/92 09/23/97 1,366,550 0 0 0 1,366,550
Jack in the Box -
Sacramento, CA 12/19/91 01/20/98 1,234,175 0 0 0 1,234,175
CNL Income Fund XI, Ltd.:
Burger King -
Philadelphia, PA 09/29/92 11/07/96 1,044,750 0 0 0 1,044,750
CNL Income Fund XII, Ltd.:
Golden Corral -
Houston, TX 12/28/92 04/10/96 1,640,000 0 0 0 1,640,000
</TABLE>
<TABLE>
<CAPTION>
===============================================================================================
Cost of Properties
Including Closing and
Soft Costs
-----------------------------------
Excess
Total (deficiency)
acquisition of property
cost, capital operating cash
Original improvements receipts over
mortgage closing and cash
Property financing soft costs (1) Total expenditures
================================================================================================
<S> <C>
Church's Fried Chicken -
Jacksonville, FL (4) (14) 0 233,728 233,720 6,272
Shoney's -
Colorado Springs, CO 0 893,739 893,739 151,170
Hardee's -
Hartland, MI 0 841,642 841,642 (224,607)
Hardee's -
Columbus, IN 0 219,676 219,676 3,914
KFC -
Dunnellon, FL 0 546,333 546,333 211,467
Jack in the Box -
Yuma, AZ (10) 0 413,614 413,614 57,758
CNL Income Fund VIII, Ltd.:
Denny's -
Ocoee, FL 0 949,199 949,199 235,666
Church's Fried Chicken -
Jacksonville, FL (4) (14) 0 238,153 238,153 1,847
Church's Fried Chicken -
Jacksonville, FL (5) (14) 0 215,845 215,845 4,155
Ponderosa -
Orlando, FL (6) (14) 0 1,179,210 1,179,210 174,565
CNL Income Fund IX, Ltd.:
Burger King -
Woodmere, OH (15) 0 918,445 918,445 0
Burger King -
Alpharetta, GA 0 713,866 713,866 339,705
CNL Income Fund X, Ltd.:
Shoney's -
Denver, CO 0 987,679 987,679 62,507
Jack in the Box -
Freemont, CA 0 1,102,766 1,102,766 263,784
Jack in the Box -
Sacramento, CA 0 969,423 969,423 264,752
CNL Income Fund XI, Ltd.:
Burger King -
Philadelphia, PA 0 818,850 818,850 225,900
CNL Income Fund XII, Ltd.:
Golden Corral -
Houston, TX 0 1,636,643 1,636,643 3,357
</TABLE>
C-34
<PAGE>
TABLE V
SALES OR DISPOSALS OF PROPERTIES
<TABLE>
<CAPTION>
========================================================================================================================
Selling Price, Net of
Closing Costs and GAAP Adjustments
----------------------------------------------------
Purchase
Cash money Adjustments
received Mortgage mortgage resulting
net of balance taken from
Date Date of closing at time back by application
Property Acquired Sale costs of sale program of GAAP Total
========================================================================================================================
<S> <C>
CNL Income Fund XIII, Ltd.:
Checkers -
Houston, TX 03/31/94 04/24/95 286,411 0 0 0 286,411
Checkers -
Richmond, VA 03/31/94 11/21/96 550,000 0 0 0 550,000
Denny's -
Orlando, FL 09/01/93 10/24/97 932,849 0 0 0 932,849
CNL Income Fund XIV, Ltd.:
Checkers -
Knoxville, TN 03/31/94 03/01/95 339,031 0 0 0 339,031
Checkers -
Dallas, TX 03/31/94 03/01/95 356,981 0 0 0 356,981
TGI Friday's -
Woodridge, NJ (7) 01/01/95 09/27/96 1,753,533 0 0 0 1,753,533
Wendy's -
Woodridge, NJ (7) 11/28/94 09/27/96 747,058 0 0 0 747,058
Hardee's -
Madison, AL 12/14/93 01/08/98 700,950 0 0 0 700,950
Checkers -
Richmond, VA (#548) 03/31/94 01/29/98 512,462 0 0 0 512,462
Checkers -
Riviera Beach, FL 03/31/94 04/14/98 360,000 0 0 0 360,000
CNL Income Fund XV, Ltd.:
Checkers -
Knoxville, TN 05/27/94 03/01/95 263,221 0 0 0 263,221
Checkers -
Leavenworth, KS 06/22/94 03/01/95 259,600 0 0 0 259,600
Checkers -
Knoxville, TN 07/08/94 03/01/95 288,885 0 0 0 288,885
TGI Friday's -
Woodridge, NJ (7) 01/01/95 09/27/96 1,753,533 0 0 0 1,753,533
Wendy's -
Woodridge, NJ (7) 11/28/94 09/27/96 747,058 0 0 0 747,058
CNL Income Fund XVI, Ltd.:
Long John Silver's -
Appleton, WI 06/24/95 04/24/96 775,000 0 0 0 775,000
Checker's -
Oviedo, FL 11/14/94 02/28/97 610,384 0 0 0 610,384
Boston Market -
Madison, TN (16) 05/05/95 05/08/98 774,851 0 0 0 774,851
</TABLE>
<TABLE>
<CAPTION>
===============================================================================================
Cost of Properties
Including Closing and
Soft Costs
-----------------------------------
Excess
Total (deficiency)
acquisition of property
cost, capital operating cash
Original improvements receipts over
mortgage closing and cash
Property financing soft costs (1) Total expenditures
================================================================================================
<S> <C>
CNL Income Fund XIII, Ltd.:
Checkers -
Houston, TX 0 286,411 286,411 0
Checkers -
Richmond, VA 0 413,288 413,288 136,712
Denny's -
Orlando, FL 0 934,120 934,120 (1,271)
CNL Income Fund XIV, Ltd.:
Checkers -
Knoxville, TN 0 339,031 339,031 0
Checkers -
Dallas, TX 0 356,981 356,981 0
TGI Friday's -
Woodridge, NJ (7) 0 1,510,245 1,510,245 243,288
Wendy's -
Woodridge, NJ (7) 0 672,746 672,746 74,312
Hardee's -
Madison, AL 0 658,977 658,977 41,973
Checkers -
Richmond, VA (#548) 0 382,435 382,435 130,027
Checkers -
Riviera Beach, FL 0 276,409 276,409 83,591
CNL Income Fund XV, Ltd.:
Checkers -
Knoxville, TN 0 263,221 263,221 0
Checkers -
Leavenworth, KS 0 259,600 259,600 0
Checkers -
Knoxville, TN 0 288,885 288,885 0
TGI Friday's -
Woodridge, NJ (7) 0 1,510,245 1,510,245 243,288
Wendy's -
Woodridge, NJ (7) 0 672,746 672,746 74,312
CNL Income Fund XVI, Ltd.:
Long John Silver's -
Appleton, WI 0 613,838 613,838 161,162
Checker's -
Oviedo, FL 0 506,311 506,311 104,073
Boston Market -
Madison, TN (16) 0 774,851 774,851 0
</TABLE>
C-35
<PAGE>
TABLE V
SALES OR DISPOSALS OF PROPERTIES
<TABLE>
<CAPTION>
======================================================================================================================
Selling Price, Net of
Closing Costs and GAAP Adjustments
----------------------------------------------------
Purchase
Cash money Adjustments
received Mortgage mortgage resulting
net of balance taken from
Date Date of closing at time back by application
Property Acquired Sale costs of sale program of GAAP Total
======================================================================================================================
<S> <C>
Boston Market -
Chattanooga, TN (17) 05/05/95 06/16/98 713,386 0 0 0 713,386
CNL Income Fund XVII, Ltd.:
Boston Market -
Troy, OH (18) 07/24/96 06/16/98 857,487 0 0 0 857,487
CNL American Properties Fund, Inc.:
TGI Friday's -
Orange, CT 10/30/95 05/08/97 1,312,799 0 0 0 1,312,799
TGI Friday's -
Hazlet, NJ 07/15/96 05/08/97 1,324,109 0 0 0 1,324,109
TGI Friday's -
Marlboro, NJ 08/01/96 05/08/97 1,372,075 0 0 0 1,372,075
TGI Friday's -
Hamden, CT 08/26/96 05/08/97 1,245,100 0 0 0 1,245,100
Boston Market -
Southlake, TX 07/02/97 07/21/97 1,035,153 0 0 0 1,035,135
Boston Market -
Franklin, TN (19) 08/18/95 04/14/98 950,361 0 0 0 950,361
Boston Market -
Grand Island, NE (20) 09/19/95 04/14/98 837,656 0 0 0 837,656
Burger King -
Indian Head Park, IL 04/03/96 05/05/98 674,320 0 0 0 674,320
Boston Market -
Dubuque, IA (21) 10/04/95 05/08/98 969,159 0 0 0 969,159
Boston Market -
Merced, CA (22) 10/06/96 05/08/98 930,834 0 0 0 930,834
</TABLE>
<TABLE>
<CAPTION>
=============================================================================================
Cost of Properties
Including Closing and
Soft Costs
-----------------------------------
Excess
Total (deficiency)
acquisition of property
cost, capital operating cash
Original improvements receipts over
mortgage closing and cash
Property financing soft costs (1) Total expenditures
==============================================================================================
<S> <C>
Boston Market -
Chattanooga, TN (17) 0 713,386 713,386 0
CNL Income Fund XVII, Ltd.:
Boston Market -
Troy, OH (18) 0 857,487 857,487 0
CNL American Properties Fund, Inc.:
TGI Friday's -
Orange, CT 0 1,310,980 1,310,980 1,819
TGI Friday's -
Hazlet, NJ 0 1,294,237 1,294,237 29,872
TGI Friday's -
Marlboro, NJ 0 1,324,288 1,324,288 47,787
TGI Friday's -
Hamden, CT 0 1,203,136 1,203,136 41,964
Boston Market -
Southlake, TX 0 1,035,135 1,035,135 0
Boston Market -
Franklin, TN (19) 0 950,361 950,361 0
Boston Market -
Grand Island, NE (20) 0 837,656 837,656 0
Burger King -
Indian Head Park, IL 0 670,867 670,867 3,453
Boston Market -
Dubuque, IA (21) 0 969,159 969,159 0
Boston Market -
Merced, CA (22) 0 930,834 930,834 0
</TABLE>
(1) Amounts shown do not include pro rata share of original offering costs or
acquisition fees.
(2) Amount shown is face value and does not represent discounted current value.
The mortgage note bears interest at a rate of 10.25% per annum and provides
for a balloon payment of $1,006,004 in July 2000.
(3) Amount shown is face value and does not represent discounted current value
The mortgage note bears interest at a rate of 10.25% per annum and provides
for a balloon payment of $1,106,657 in July 2000.
(4) Amounts shown are face value and do not represent discounted current value.
Each mortgage note bears interest at a rate of 10.00% per annum and
provides for a balloon payment of $218,252 in December 2005.
(5) Amount shown is face value and does not represent discounted current value.
The mortgage note bears interest at a rate of 10.00% per annum and provides
for a balloon payment of $200,324 in December 2005.
(6) Amounts shown are face value and do not represent discounted current value.
Each mortgage note bears interest at a rate of 10.75% per annum and
provides for 12 monthly payments of interest only and thereafter, 168 equal
monthly payments of principal and interest.
(7) CNL Income Fund XIV, Ltd. and CNL Income Fund XV, Ltd. each owned a 50
percent interest in Wood-Ridge Real Estate Joint Venture, which owned two
properties. The amounts presented for CNL Income Fund XIV, Ltd. and CNL
Income Fund XV, Ltd. represent each partnership's 50 percent interest in
the properties owned by Wood-Ridge Real Estate Joint Venture.
C-36
<PAGE>
(8) CNL Income Fund II, Ltd. owns a 64 percent interest and CNL Income Fund VI,
Ltd. owns a 36 percent interest in this joint venture. The amounts
presented for CNL Income Fund II, Ltd. and CNL Income Fund VI, Ltd.
represent each partnership's percent interest in the property owned by Show
Low Joint Venture.
(9) CNL Income Fund, Ltd. owns a 50 percent interest in this joint venture. The
amounts presented represent the partnerships percent interest in the
property owned by Seventh Avenue Joint Venture. A third party owns the
remaining 50 percent interest in this joint venture.
(10) CNL Income Fund VI, Ltd. and CNL Income Fund VII, Ltd. own a 52 percent and
48 percent interest, respectively, in the property in Yuma, Arizona. The
amounts presented for CNL Income Fund VI, Ltd. and CNL Income Fund VII,
Ltd. represent each partnership's respective interest in the property.
(11) Cash received net of closing costs includes $198,000 received as a lease
termination fee.
(12) Cash received net of closing costs includes $93,885 received as a lease
termination fee.
(13) Cash received net of closing costs includes $120,115 received as a lease
termination fee.
(14) Closing costs deducted from net sales proceeds do not include deferred,
subordinated real estate disposition fees payable to CNL Fund Advisors or
its affiliates.
(15) The Burger King property in Woodmere, Ohio was exchanged on December 12,
1996 for a Burger King property in Carrboro, NC at the option of the tenant
as permitted under the terms of the lease agreement. Due to the exchange,
the Burger King property in Carrboro, NC is being leased under the same
lease as the Burger King property in Woodmere, OH.
(16) The Boston Market property in Madison, TN was exchanged on May 8, 1998 for
a Boston Market property in Lawrence, KS at the option of the tenant as
permitted under the terms of the lease agreement. Due to the exchange, the
Boston Market property in Lawrence, KS is being leased under the same lease
as the Boston Market property in Madison, TN.
(17) The Boston Market property in Chattanooga, TN was exchanged on June 16,
1998 for a Boston Market property in Indianapolis, IN at the option of the
tenant as permitted under the terms of the lease agreement. Due to the
exchange, the Boston Market property in Indianapolis, IN is being leased
under the same lease as the Boston Market property in Chattanooga, TN.
(18) The Boston Market property in Troy, OH was exchanged on June 16, 1998 for a
Boston Market property in Inglewood, CA at the option of the tenant as
permitted under the terms of the lease agreement. Due to the exchange, the
Boston Market property in Inglewood, CA is being leased under the same
lease as the Boston Market property in Troy, OH.
(19) The Boston Market property in Franklin, TN was exchanged on April 14, 1998
for a Boston Market property in Glendale, AZ at the option of the tenant as
permitted under the terms of the lease agreement. Due to the exchange, the
Boston Market property in Glendale, AZ is being leased under the same terms
as the Boston Market property in Franklin, TN.
(20) The Boston Market property in Grand Island, NE was exchanged on April 14,
1998 for a Boston Market property in Warwick, RI at the option of the
tenant as permitted under the terms of the lease agreement. Due to the
exchange, the Boston Market property in Warwick, RI is being leased under
the same terms as the Boston Market property in Grand Island, NE.
(21) The Boston Market property in Dubuque, IA was exchanged on May 8, 1998 for
a Boston Market property in Columbus, OH at the option of the tenant as
permitted under the terms of the lease agreement. Due to the exchange, the
Boston Market property in Columbus, OH is being leased under the same terms
as the Boston Market property in Dubuque, IA.
(22) Cash received net of closing costs includes $362,949 in construction costs
incurred but not paid by CNL American Properties Fund, Inc. as of the
closing date, which were deducted from the actual net sales proceeds
received by CNL American Properties Fund, Inc.
C-37
EXHIBIT D
SUBSCRIPTION AGREEMENT
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
- --------------------------------------------------------------------------------
Up to 16,500,000 Shares -- $10.00 per Share
Minimum Purchase -- 250 Shares ($2,500)
100 Shares ($1,000) for IRAs, Keogh, and Qualified Plans
(Minimum purchase may be higher in certain states)
================================================================================
PLEASE READ CAREFULLY this Subscription Agreement and the Notices (on the back
of the Agreement) before completing this document. TO SUBSCRIBE FOR SHARES,
complete and sign, where appropriate, and deliver the Subscription Agreement,
along with your check, to your Registered Representative. YOUR CHECK SHOULD BE
MADE PAYABLE TO:
SOUTHTRUST ASSET MANAGEMENT COMPANY OF FLORIDA, N.A.
ALL ITEMS ON THE SUBSCRIPTION AGREEMENT MUST BE COMPLETED IN ORDER FOR YOUR
SUBSCRIPTION TO BE PROCESSED.
================================================================================
Overnight Packages: Regular Mail Packages:
Attn: Investor Services Attn: Investor Services
400 E. South Street Post Office Box 1033
Orlando, Florida 32801 Orlando, Florida 32802-1033
For Telephone Inquiries:
CNL SECURITIES CORP.
(407) 650-1000 OR (800) 522-3863
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
- --------------------------------------------------------------------------------
1. --------------- INVESTMENT --------------------------------------------------
This subscription is in the amount of $___________ for the purchase of
___________ Shares ($10.00 per Share). The minimum initial subscription is 250
Shares ($2,500); 100 Shares ($1,000) for IRA, Keogh and qualified plan accounts
(except in states with higher minimum purchase requirements).
|_| ADDITIONAL PURCHASE |_| REINVESTMENT PLAN - Investor elects to participate
in Plan (See prospectus for details.)
2. --------------- SUBSCRIBER INFORMATION --------------------------------------
Name (1st)_______________________ |_| M |_| F Date of Birth (MM/DD/YY)__________
Name (2nd)_______________________ |_| M |_| F Date of Birth (MM/DD/YY)__________
Address_________________________________________________________________________
City___________________________________ State___________ Zip Code_______________
Custodian Account No._____________________ Daytime Phone # ( )_______________
|_| U.S. Citizen |_| Resident Alien |_| Foreign Resident Country___________
|_| Check if Subscriber is a U.S. citizen residing outside the U.S.
Income Tax Filing State_________________________________________________________
ALL SUBSCRIBERS: State of Residence of Subscriber/Plan Beneficiary
(required)_____________________________________________________
Taxpayer Identification Number: For most individual taxpayers, it is their
Social Security number. Note: If the purchase is in more than one name, the
number should be that of the first person listed. For IRAs, Keoghs and qualified
plans, enter both the Social Security number and the custodian taxpayer
identification number.
Taxpayer ID#________ - _________ Social Security #_______ -_______ - ________
3. --------------- INVESTOR MAILING ADDRESS ------------------------------------
For the Subscriber of an IRA, Keogh, or qualified plan to receive informational
mailings, please complete if different from address in Section 2.
Name____________________________________________________________________________
Address_________________________________________________________________________
City____________________________ State_____________ Zip Code__________________
Daytime Phone #____________________________________
4. ---------------- DIRECT DEPOSIT ADDRESS -------------------------------------
Investors requesting direct deposit of distribution checks to another financial
institution or mutual fund, please complete below. In no event will the Company
or Affiliates be responsible for any adverse consequences of direct deposit.
Company_________________________________________________________________________
Address_________________________________________________________________________
City_________________________________ State_______________ Zip Code___________
Account No._________________________________ Phone #___________________________
5. --------------- FORM OF OWNERSHIP -------------------------------------------
(Select only one)
|_|INDIVIDUAL-one signature required (1)
|_|HUSBAND AND WIFE, AS COMMUNITY PROPERTY- two signatures required (15)
|_|TENANTS IN COMMON-two signatures required (9)
|_|TENANTS BY THE ENTIRETY-two signatures required (31)
|_|S-CORPORATION (22)
|_|C-CORPORATION (5)
|_|IRA-custodian signature required (23)
|_|SEP-custodian signature required (38)
|_|TAXABLE TRUST (7)
|_|TAX-EXEMPT TRUST (20)
|_|JOINT TENANTS WITH RIGHT OF SURVIVORSHIP-all parties must sign (8)
|_|A MARRIED PERSON/SEPARATE PROPERTY-one signature required (34)
|_|KEOGH (H.R.10)-trustee signature required (24)
|_|CUSTODIAN-custodian signature required (33)
|_|PARTNERSHIP (3)
|_|NON-PROFIT ORGANIZATION (12)
|_|PENSION PLAN-trustee signature(s) required (19)
|_|PROFIT SHARING PLAN-trustee signature(s) required (27)
|_|CUSTODIAN UGMA-STATE of _________ -custodian signature required (16)
|_|CUSTODIAN UTMA-STATE of _________ -custodian signature required (42)
|_|ESTATE-Personal Representative signature required (13)
|_|REVOCABLE GRANTOR TRUST-grantor signature required (25)
|_|IRREVOCABLE TRUST-trustee signature required (21)
|_| SUBSCRIBER elects to have the Shares covered by this subscription placed
in a new sponsored IRA account offered by Franklin Bank as custodian. IRA
documents will be sent to subscriber upon receipt of subscription
documents. There is no annual fee involved for CNL American Realty Fund,
Inc. investments.
<PAGE>
6. -------------- SUBSCRIBER SIGNATURES ----------------------------------------
If the Subscriber is executing the Subscriber Signature Page, the Subscriber
understands that, BY EXECUTING THIS AGREEMENT A SUBSCRIBER DOES NOT WAIVE ANY
RIGHTS HE MAY HAVE UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES EXCHANGE
ACT OF 1934 OR UNDER ANY STATE SECURITIES LAW:
X
----------------------------------------------- -------------------
Signature of 1st Subscriber Date
X
---------------------------------------------- -------------------
Signature of 2nd Subscriber Date
7. -------------- BROKER/DEALER INFORMATION ------------------------------------
Broker/Dealer NASD Firm Name____________________________________________________
Registered Representative_______________________________________________________
Branch Mail Address_____________________________________________________________
City_________________________________ State _____________ Zip Code_____________
|_| Please check if new address
Phone #______________________ Fax #______________________ |_| Sold CNL before
Shipping Address________________________________________________________________
City___________________________ State____________________ Zip Code______________
|_| Telephonic Subscriptions (check here): If the Registered Representative
and Branch Manager are executing the signature page on behalf of the
Subscriber, both must sign below. Registered Representatives and Branch
Managers may not sign on behalf of residents of Florida, Iowa, Maine,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New
Mexico, North Carolina, Ohio, Oregon, South Dakota, Tennessee, or
Washington. [NOTE: Not to be executed until Subscriber(s) has (have)
acknowledged receipt of final prospectus.] Telephonic subscriptions may
not be completed for IRA accounts.
|_| Registered Investment Advisor (RIA) (check here): This investment is
made through the RIA in its capacity as a RIA and not in its capacity as
a Registered Representative, if applicable. If an owner or principal or
any member of the RIA firm is a NASD licensed Registered Representative
affiliated with a Broker/Dealer, the transaction should be conducted
through that Broker/Dealer, not through the RIA.
PLEASE READ CAREFULLY THE REVERSE SIDE OF THIS SIGNATURE PAGE AND SUBSCRIPTION
AGREEMENT BEFORE COMPLETING
X
----------------------------- ------------------ --------------------------
Principal, Branch Manager or Date Print or Type Name of
Other Authorized Signature Person Signing
X
----------------------------- ------------------ --------------------------
Registered Representative/ Date Print or Type Name of
Investment Advisor Signature Person Signing
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
<S> <C>
Make check payable to : SOUTHTRUST ASSET MANAGEMENT COMPANY OF FLORIDA, N.A.,
ESCROW AGENT
Please remit check and For overnight delivery, please send to:
subscription document to: For Office Use Only
CNL SECURITIES CORP. CNL SECURITIES CORP. Sub.#______________
Attn: Investor Services Attn: Investor Services Admit Date_________
P. O. Box 1033 400 E. South Street
Orlando, FL 32802-1033 Orlando, FL 32801 Amount_____________
(800) 522-3863 (407) 650- 1000
(800) 522-3863 Region_____________
RSVP#______________
</TABLE>
- --------------------------------------------------------------------------------
<PAGE>
NOTICE TO ALL INVESTORS:
(a) The purchase of Shares by an IRA, Keogh, or other tax-qualified plan does
not, by itself, create the plan.
(b) The Company, in its sole and absolute discretion, may accept or reject the
Subscriber's subscription which if rejected will be promptly returned to the
Subscriber, without interest. Non-U.S. stockholders (as defined in the
Prospectus) will be admitted as stockholders with the approval of the Advisor.
(c) THE SALE OF SHARES SUBSCRIBED FOR HEREUNDER MAY NOT BE COMPLETED UNTIL AT
LEAST FIVE BUSINESS DAYS AFTER THE DATE THE SUBSCRIBER RECEIVES A FINAL
PROSPECTUS. EXCEPT AS PROVIDED IN THIS NOTICE, THE NOTICE BELOW, AND IN THE
PROSPECTUS, THE SUBSCRIBER WILL NOT BE ENTITLED TO REVOKE OR WITHDRAW HIS
SUBSCRIPTION.
NOTICE TO CALIFORNIA RESIDENTS: IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER
OF THIS SECURITY, OR ANY INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION
THEREFORE, WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS
OF THE STATE OF CALIFORNIA, EXCEPT AS PERMITTED IN THE COMMISSIONER'S RULES.
California investors who do not execute the Subscription Agreement will receive
a confirmation of investment accompanied by a second copy of the final
Prospectus, and will have the opportunity to rescind the investment within ten
(10) days from the date of confirmation.
NOTICE TO NORTH CAROLINA RESIDENTS: By signing this Subscription Agreement,
North Carolina investors acknowledge receipt of the Prospectus and represent
that they meet the suitability standards for North Carolina investors listed in
the Prospectus.
BROKER/DEALER AND FINANCIAL ADVISOR:
By signing this subscription agreement, the signers certify that they recognize
and have complied with their obligations under the NASD's Conduct Rules, and
hereby further certify as follows: (i) a copy of the Prospectus, including the
Subscription Agreement attached thereto as Exhibit D, as amended and/or
supplemented to date, has been delivered to the Subscriber; (ii) they have
discussed such investor's prospective purchase of Shares with such investor and
have advised such investor of all pertinent facts with regard to the liquidity,
valuation, and marketability of the Shares; and (iii) they have reasonable
grounds to believe that the purchase of Shares is a suitable investment for such
investor, that such investor meets the suitability standards applicable to such
investor set forth in the Prospectus and related supplements, if any, that such
investor is legally capable of purchasing such Shares and will not be in
violation of any laws for having engaged in such purchase, and that such
investor is in a financial position to enable such investor to realize the
benefits of such an investment and to suffer any loss that may occur with
respect thereto and will maintain documentation on which the determination was
based for a period of not less than six years; (iv) under penalties of perjury,
(a) the information provided in this Subscription Agreement to the best of our
knowledge and belief is true, correct, and complete, including, but not limited
to, the number shown above as the Subscriber's taxpayer identification number;
(b) to the best of our knowledge and belief, the Subscriber is not subject to
backup withholding either because the Subscriber has not been notified that the
Subscriber is subject to backup withholding as result of failure to report all
interest or dividends or the Internal Revenue Service has notified the
subscriber that the Subscriber is no longer subject to backup withholding under
Section 3406(a)(1)(C) of the Internal Revenue Code of 1986, as amended; and (c)
to the best of our knowledge and belief, the Subscriber is not a nonresident
alien, foreign corporation, foreign trust, or foreign estate for U.S. tax
purposes, and we hereby agree to notify the Company if it comes to the attention
of either of us that the Subscriber becomes such a person within sixty (60) days
of any event giving rise to the Subscriber becoming such a person.
<PAGE>
Franklin Bank, N.A.
- --------------------------------------------------------------------------------
FRANKLIN BANK, N.A., INDIVIDUAL RETIREMENT ACCOUNT APPLICATION
ACCOUNTHOLDER INFORMATION: NAME ________________________________________________
DISCLAIMER:
Franklin Bank, N.A. is a national bank, not associated with CNL Group,
Inc. or any CNL entity. Franklin Bank, N.A. is a custodian for IRAs and will act
in a custodial capacity for all beneficial owners of IRAs. CNL has no
affiliation with Franklin Bank, N.A.
It is not reasonable to project the growth of your IRA investments
include assets other than bank time deposits or savings accounts. Therefore,
your final account balance will depend upon many factors - the amount of your
contributions, the amount of time the funds are invested, the earnings and/or
losses from the investments, expenses incurred such as brokerage commissions and
trustee's fees and the overall performance of your investments.
We expressly state that the growth in the value of your IRA cannot be guaranteed
or projected.
SIGNATURES IMPORTANT: Please read before signing.
I understand the eligibility requirements for the type of
IRA deposit I am making and I state that I do qualify to
make the deposit. I understand that the terms and conditions
which apply to the Individual Retirement Account are
contained in this Application and Form 5305A (which will be
provided within 10 days of our receipt of this application).
I agree to be bound by those terms and conditions. I
understand that I will not be required to pay an annual fee
as long as all investments in this IRA are sponsored by a
CNL entity. Within seven (7) days from the date I establish
the Individual Retirement Account I may revoke it without
penalty by mailing or delivering a written notice to the
Custodian.
I assume complete responsibility for:
1. Determining that I am eligible for an IRA each year I
make a contribution.
2. Insuring that all contributions I make are within the
limits set forth by the tax laws.
3. The tax consequences of any contribution (including
rollover contributions) and distributions.
Signature _______________________________________________
Accountholder
__________________________________ ____________________
Authorized Signature Trustee Date
DESIGNATION OF
BENEFICIARY(IES): I designate the individual(s) named below as my
primary and contingent Beneficiary(ies) of the IRA.
I revoke all prior IRA Beneficiary designations, if
any, made by me. I understand that I may change or
add Beneficiaries at any time by completing and
delivering the proper form to the Custodian. (If
you wish to name more than one Beneficiary, attach
a list of each Beneficiary's name, social security
number, relationship to you and percentage share in
this IRA.) If any primary or contingent Beneficiary
dies before me, his or her interest and the
interest of his or her heirs shall terminate
completely, and the percentage share of any
remaining Beneficiary(ies) shall be increased on a
pro rata basis.
<TABLE>
<CAPTION>
<S> <C>
Primary The following individual(s) shall be my Primary Beneficiary(ies):
Beneficiary(ies)
Name________________________________________________________ Social Security #___________________
Address_____________________________________________________ Date of Birth__________ Share______
____________________________________________________________ Relationship________________________
Contingent If none of the Primary Beneficiaries survive me, the following
Beneficiary(ies) individual(s) shall be my Beneficiary(ies):
Name________________________________________________________ Social Security #___________________
Address_____________________________________________________ Date of Birth__________ Share______
____________________________________________________________ Relationship________________________
</TABLE>
Spousal Consent
I am the spouse of IRA accountholder named above. I agree to
my spouse's naming of a primary Beneficiary other than
myself. I acknowledge that I have received a fair and
reasonable disclosure of my spouse's property and financial
obligation. I also acknowledge that I shall have no claim
whatsoever against the Custodian for any payments to my
spouse's Beneficiary(ies).
--------------------------------- ------------------------
Spouse's Signature Date
- --------------------------------------------------------------------------------
Custodial Services P.O. Box 7090 Troy, MI 48007-7090
1-800-344-0667
<PAGE>
INVESTMENT OPTIONS:
|_| I would like to receive information regarding mutual fund investments.
|_| I would like to receive information regarding money market accounts.
Note: Franklin Bank, N.A. may consider other investment options for your IRA.
Please provide the following information on your options.
Fund Name_______________________________________________________________________
Sponsor Name____________________________________________________________________
Address_________________________________________________________________________
Account No.______________________________ Telephone #_________________________
Registered Representative information:
Registered Representative's Name________________________________________________
Company_________________________________________________________________________
Address_________________________________________________________________________
Telephone #_____________________________________________________________________
<PAGE>
EXHIBIT E
STATEMENT OF ESTIMATED
TAXABLE OPERATING RESULTS
BEFORE DIVIDENDS PAID DEDUCTION
<PAGE>
CNL HOSPITALITY PROPERTIES, INC.
STATEMENT OF ESTIMATED TAXABLE OPERATING RESULTS
BEFORE DIVIDENDS PAID DEDUCTION
PROPERTIES ACQUIRED FROM INCEPTION
THROUGH SEPTEMBER 1, 1998
For the Year Ended December 31, 1997 (Unaudited)
The following schedule presents unaudited estimated taxable operating
results before dividends paid deduction of each Property acquired by the Company
from inception through September 1, 1998. The statement presents unaudited
estimated taxable operating results for each Property that was operational as if
the Property had been acquired and operational on January 1, 1997 through
December 31, 1997. The schedule should be read in light of the accompanying
footnotes.
These estimates do not purport to present actual or expected operations
of the Company for any period in the future. These estimates were prepared on
the basis described in the accompanying notes which should be read in
conjunction herewith.
<TABLE>
<CAPTION>
Residence Inn by Marriott Residence Inn by Marriott
Buckhead (Lenox Park) (6) Gwinnett Place (6) Total
------------------------- ------------------------- -----------
<S> <C>
Estimated Taxable Operating
Results Before Dividends
Paid Deduction:
Rental Income (1) $1,651,798 $1,208,983 $2,860,781
Asset Management Fees (2) (94,388) (69,085) (163,473)
Interest Expense (3) (440,000) (316,800) (756,800)
General and Administrative
Expenses (4) (105,715) (77,375) (183,090)
---------- ---------- ----------
Estimated Cash Available from
Operations 1,011,695 745,723 1,757,418
Depreciation Expense (5) (625,330) (510,408) (1,135,738)
---------- ---------- ----------
Estimated Taxable Operating
Results Before Dividends
Paid Deduction $ 386,365 $ 235,315 $ 621,680
========== ========== ==========
</TABLE>
E-1
<PAGE>
- ----------------------
FOOTNOTES:
(1) Rental income does not include percentage rents which will become due
if specified levels of gross receipts are achieved.
(2) The Properties will be managed pursuant to an advisory agreement
between the Company and CNL Real Estate Advisors, Inc. (the "Advisor"),
pursuant to which the Advisor will receive monthly asset management
fees in an amount equal to one-twelfth of .60% of the Company's Real
Estate Asset Value as of the end of the preceding month as defined in
such agreement. See "Management Compensation."
(3) Estimated at 8.8% per annum based on the bank's base rate as of July
31, 1998, plus 30 basis points.
(4) Estimated at 6.4% of gross rental income, based on the previous
experience of an Affiliate of the Advisor with another public REIT.
Amount does not include soliciting dealer servicing fee due to the fact
that such fee will not be incurred until December 31 of the year
following the year in which the offering terminates.
(5) The estimated federal tax basis of the depreciable portion of each
Property and the number of years the assets have been depreciated on
the straight-line method is as follows:
Furniture and
Buildings Fixtures
(39 years) (5 years)
---------- ------------
Buckhead (Lenox Park) Property $12,977,000 $1,463,000
Gwinnett Place Property 9,647,000 1,315,000
(6) The lessee of the Buckhead (Lenox Park) and the Gwinnett Place
Properties is the same unaffiliated lessee.
E-2
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 35. Financial Statements and Exhibits.
Financial Statements:
The following financial statements are included in the
Prospectus.
(1) Report of Independent Accountants for CNL American
Realty Fund, Inc.
(2) Balance Sheets at December 31, 1997 and 1996
(3) Statements of Earnings for the year ended December
31, 1997 and the period June 12, 1996 (date of
inception) through December 31, 1996
(4) Statements of Stockholders' Equity for the year ended
December 31, 1997 and the period June 12, 1996 (date
of inception) through December 31, 1996
(5) Statements of Cash Flows for the year ended December
31, 1997 and the period June 12, 1996 (date of
inception) through December 31, 1996
(6) Notes to Financial Statements for the year ended
December 31, 1997 and the period June 12, 1996 (date
of inception) through December 31, 1996
(7) Condensed Balance Sheets as of June 30, 1998 and
December 31, 1997
(8) Condensed Statements of Earnings for the six months
ended June 30, 1998 and 1997
(9) Condensed Statements of Stockholders' Equity for the
six months ended June 30, 1998 and the year ended
December
31, 1997
(10) Condensed Statements of Cash Flows for the six months
ended June 30, 1998 and 1997
(11) Notes to Condensed Financial Statements for the six
months ended June 30, 1998 and 1997
All Schedules have been omitted as the required information is
inapplicable or is presented in the financial statements or related notes.
(b) Exhibits:
II-2
<PAGE>
*1.1 Form of Managing Dealer Agreement
*1.2 Form of Participating Broker Agreement
*3.1 CNL American Realty Fund, Inc. Articles of
Incorporation
*3.2 CNL American Realty Fund, Inc. Amended and Restated
Articles of Incorporation
- --------------------
* Previously filed.
II-3
<PAGE>
*3.3 CNL American Realty Fund, Inc. Bylaws
*3.4 Articles of Amendment to the Amended and estated
Articles of Incorporation of CNL American Realty
Fund, Inc. dated June 3, 1998.
*4.1 CNL American Realty Fund, Inc. Articles of
Incorporation (Previously filed as Exhibit 3.1 and
incorporated herein by reference.)
*4.2 CNL American Realty Fund, Inc. Amended and Restated
Restated Articles of Incorporation (Previously filed
as Exhibit 3.2 and incorporated herein by reference.)
*4.3 CNL American Realty Fund, Inc. Bylaws (Previously
filed as Exhibit 3.3 and incorporated herein by
reference.)
4.4 Form of Reinvestment Plan (Included in the Prospectus
as Exhibit A and incorporated herein by reference.)
4.5 Articles of Amendment to the Amended and Restated
Articles of Incorporation of CNL American Realty
Fund, Inc. dated June 3, 1998. (Previously filed as
Exhibit 3.4 and incorporated herein by reference.)
*5 Opinion of Shaw Pittman Potts & Trowbridge as to the
legality of the securities being registered by CNL
American Realty Fund, Inc.
*8 Opinion of Shaw Pittman Potts & Trowbridge regarding
certain material tax issues relating to CNL American
Realty Fund, Inc.
*10.1 Form of Escrow Agreement between CNL American Realty
Fund, Inc. and SouthTrust Asset Management Company of
Florida, N.A.
*10.2 Form of Advisory Agreement
*10.3 Form of Joint Venture Agreement
*10.4 Form of Indemnification and Put Agreement
*10.5 Form of Unconditional Guaranty of Payment and
Performance
*10.6 Form of Purchase Agreement
*10.7 Form of Lease Agreement including Rent Addendum,
Construction Addendum and Memorandum of Lease
10.8 Form of Reinvestment Plan (Included in the Prospectus
as Exhibit A and incorporated herein by reference.)
II-4
<PAGE>
10.9 Form Indemnification Agreement dated as of July 9,
1997, between CNL American Realty Fund, Inc. and each
of James M. Seneff, Jr., Robert A. Bourne, G. Richard
Hostetter, J. Joseph Kruse, Richard C. Huseman,
Charles A. Muller, John T. Walker, Jeanne A. Wall and
Lynn E. Rose (Filed herewith.)
- -------------------
* Previously filed.
10.10 Agreement of Limited Partnership of CNL Hospitality
Partners, LP (Filed herewith.)
10.11 Hotel Purchase and Sale Contract between CNL Real
Estate Advisors, Inc. and Gwinnett Residence
Associates, LLC, relating to the Residence Inn -
Gwinnett Place (Filed herewith.)
10.12 Assignment and Assumption Agreement between CNL Real
Estate Advisors, Inc. and CNL Hospitality Partners,
LP, relating to the Residence Inn - Gwinnett Place
(Filed herewith.)
10.13 Hotel Purchase and Sale Contract between CNL Real
Estate Advisors, Inc. and Buckhead Residence
Associates, LLC, relating to the Residence Inn -
Buckhead (Lenox Park) (Filed herewith.)
10.14 Assignment and Assumption Agreement between CNL Real
Estate Advisors, Inc. and CNL Hospitality Partners,
LP, relating to the Residence Inn - Buckhead (Lenox
Park) (Filed herewith.)
10.15 Lease Agreement between CNL Hospitality Partners,
L.P. and STC Leasing Associates, LLC, dated August 1,
1998, relating to the Residence Inn - Gwinnett Place
(Filed herewith.)
10.16 Lease Agreement between CNL Hospitality Partners,
L.P. and STC Leasing Associates, LLC, dated August 1,
1998, relating to the Residence Inn - Buckhead (Lenox
Park) (Filed herewith.)
10.17 Master Revolving Line of Credit Loan Agreement with
CNL Hospitality Properties, Inc. and Colonial Bank,
dated July 31, 1998 (Filed herewith.)
*23.1 Consent of Coopers & Lybrand L.L.P., Certified
Public Accountants, dated June 26, 1997
*23.2 Consent of Shaw, Pittman, Potts & Trowbridge
(Contained in its opinion filed herewith as Exhibit 5
and incorporated herein by reference.)
II-5
<PAGE>
*23.3 Consent of Coopers & Lybrand L.L.P., Certified Public
Accountants, dated June 22, 1998
23.4 Consent of PricewaterhouseCoopers LLP, Certified
Public Accountants, dated September 21, 1998 (Filed
herewith.)
23.5 Consent of Arthur Andersen LLP, Certified Public
Accountants, dated September 21, 1998 (Filed
herewith.)
*27.1 Financial Data Schedule
*99.1 Consents of Certain Persons Named as Directors
- -------------------
* Previously filed.
II-6
<PAGE>
TABLE VI
ACQUISITION OF PROPERTIES BY PROGRAMS
Table VI presents information concerning the acquisition of
real properties by the public real estate limited partnerships and the unlisted
public REIT sponsored by Affiliates of the Company through June 30, 1998. The
information includes the gross leasable space or number of units and total
square feet of units, dates of purchase, locations, cash down payment and
contract purchase price plus acquisition fee. This information is intended to
assist the prospective investor in evaluating the terms involved in acquisitions
by such prior programs.
TABLE VI
ACQUISITIONS OF PROPERTIES BY PROGRAMS
<TABLE>
<CAPTION>
CNL Income CNL Income CNL Income CNL Income
Fund, Fund II, Fund III, Fund IV,
Ltd. Ltd. Ltd. Ltd.
---------- ---------- ---------- ----------
(Note 2) (Note 3) (Note 4) (Note 5)
<S> <C>
AL,AZ,CO,FL, AZ,CA,CO,FL, AL,DC,FL,GA,
GA,IL,IN,KS, GA,IA,IL,IN, IL,IN,KS,MA,
AL,AZ,CA,FL, LA,MI,MN,MO, KS,KY,MD,MI, MD,MI,MS,NC,
GA,LA,MD,OK, NC,NM,OH,TN, MN,MO,NC,NE, OH,PA,TN,TX,
Locations PA,TX,VA,WA TX,WA,WY OK,TX VA
Type of property Restaurants Restaurants Restaurants Restaurants
Gross leasable space
(sq. ft.) or number
of units and 22 units 49 units 37 units 45 units
total square feet
of units 80,314 s/f 185,717 s/f 158,819 s/f 159,196 s/f
Dates of purchase 6/17/86 - 2/11/87- 10/04/87- 6/24/88-
12/31/97 1/13/98 5/1/98 12/31/96
Cash down payment (Note 1) $13,435,137 $26,654,961 $22,413,070 $27,611,441
Contract purchase price
plus acquisition fee $13,361,435 $26,501,721 $22,296,185 $27,506,106
Other cash expenditures
expensed - - - -
Other cash expenditures
capitalized 73,702 153,240 116,885 105,335
----------- ----------- ----------- -----------
Total acquisition cost
(Note 1) $13,435,137 $26,654,961 $22,413,070 $27,611,441
=========== =========== =========== ===========
</TABLE>
Note 1: This amount was derived from capital contributions or proceeds from
partners or stockholders, respectively, and net sales proceeds
reinvested in other properties.
Note 2: The partnership owns a 50% interest in three separate joint ventures
which each own a restaurant property. In addition, the partnership owns
a 12.17% interest in one restaurant property held as tenants-in-common
with affiliates.
Note 3: The partnership owns a 49%, 50% and 64% interest in three separate
joint ventures. Each joint venture owns one restaurant property. In
addition, the partnership owns a 33.87%, a 57.77%, a 47%, a 37.01%, a
39.42% and a 13.38% interest in six restaurant properties held
separately as tenants-in-common with affiliates.
Note 4: The partnership owns a 73.4%, 69.07% and 46.89% interest in three
separate joint ventures. Each joint venture owns one restaurant
property. In addition, the partnership owns a 32.77%, a 9.84% and a
25.84% interest in three restaurant properties held separately as
tenants-in-common with affiliates.
Note 5: The partnership owns a 51%, 26.6%, 57%, 96.1% and 68.87% interest in
five separate joint ventures. Each joint venture owns one restaurant
property. In addition, the partnership owns a 53.68% interest in one
restaurant property held as tenants-in-common with affiliates.
<PAGE>
TABLE VI - ACQUISITIONS OF PROPERTIES BY PROGRAMS (continued)
<TABLE>
<CAPTION>
CNL Income CNL Income CNL Income CNL Income
Fund V, Fund VI, Fund VII, Fund VIII,
Ltd. Ltd. Ltd. Ltd.
---------- ---------- ---------- ----------
(Note 6) (Note 7) (Note 8) (Note 9)
<S> <C>
AR,AZ,FL,GA,
IL,IN,KS,MA,
AZ,FL,GA,IL, MI,MN,NC,NE, AZ,CO,FL,GA,
IN,MI,NH,NY, NM,NY,OH,OK, IN,LA,MI,MN, AZ,FL,IN,LA,
OH,SC,TN,TX, PA,TN,TX,VA, NC,OH,SC,TN, MI,MN,NC,NY,
Locations UT,WA WA,WY TX,UT,WA OH,TN,TX,VA
Type of property Restaurants Restaurants Restaurants Restaurants
Gross leasable space
(sq. ft.) or number
of units and 35 units 55 units 49 units 42 units
total square feet
of units 143,344 s/f 222,003 s/f 184,412 s/f 179,885 s/f
Dates of purchase 2/06/89- 7/13/89- 3/30/90- 9/13/90-
5/1/98 6/16/98 12/31/97 5/31/96
Cash down payment (Note 1) $26,329,791 $39,944,526 $30,416,598 $31,985,071
Contract purchase price
plus acquisition fee $25,946,991 $39,413,526 $29,745,103 $31,450,507
Other cash expenditures
expensed - - - -
Other cash expenditures
capitalized 382,800 531,000 671,495 534,564
----------- ----------- ----------- -----------
Total acquisition cost
(Note 1) $26,329,791 $39,944,526 $30,416,598 $31,985,071
=========== =========== =========== ===========
</TABLE>
Note 6: The partnership owns a 43%, 49%, 66.5% and 53.11% interest in four
separate joint ventures. Each joint venture owns one restaurant
property. In addition, the partnership owns a 42.23% and a 27.78%
interest in two restaurant properties held separately as
tenants-in-common with affiliates.
Note 7: The partnership owns a 3.9%, 14.5%, 36%, 66.14%, and a 50% interest
in five separate joint ventures. Each joint venture owns one restaurant
property. In addition, the partnership owns a 51.67%, a 17.93%, a
23.04%, a 34.74%, a 46.2% and a 85.07% interest in six restaurant
properties held separately as tenants-in-common with affiliates.
Note 8: The partnership owns a 51%, 83.3%, 4.79%, 18%, and 79% interest in
five separate joint ventures. Four of the joint ventures each own one
restaurant property and the other joint venture owns six restaurant
properties. In addition, the partnership owns a 48.33%, a 53% and a
35.64% interest in three restaurant properties held separately as
tenants-in-common with affiliates.
Note 9: The partnership owns a 85.5%, 87.68%, 36.8% and a 12% interest in
four separate joint ventures. Three of the joint ventures each own one
restaurant property and the other joint venture owns six restaurant
properties.
<PAGE>
TABLE VI - ACQUISITIONS OF PROPERTIES BY PROGRAMS (continued)
<TABLE>
<CAPTION>
CNL Income CNL Income CNL Income CNL Income
Fund IX, Fund X, Fund XI, Fund XII,
Ltd. Ltd. Ltd. Ltd.
---------- ---------- ----------- ----------
(Note 10) (Note 11) (Note 12) (Note 13)
<S> <C>
AL,AZ,CA,CO,
AL,CO,FL,GA, AL,CA,CO,FL, CT,FL,KS,LA,
IL,IN,LA,MI, ID,IL,LA,MI, MA,MI,MS,NC, AL,AZ,CA,FL,
MN,MS,NC,NH, MO,MT,NC,NH, NH,NM,OH,OK, GA,LA,MO,MS,
NY,OH,SC,TN, NM,NY,OH,PA, PA,SC,TX,VA, NC,NM,OH,SC,
Locations TX SC,TN,TX WA TN,TX,WA
Type of property Restaurants Restaurants Restaurants Restaurants
Gross leasable space
(sq. ft.) or number
of units and 43 units 51 units 40 units 49 units
total square feet
of units 185,636 s/f 214,433 s/f 176,062 s/f 206,865 s/f
Dates of purchase 5/31/91- 10/01/91- 5/18/92- 11/20/92-
7/16/97 12/31/97 1/28/97 5/31/96
Cash down payment (Note 1) $32,812,908 $37,444,525 $36,245,591 $40,840,795
Contract purchase price
plus acquisition fee $32,068,289 $36,735,362 $35,644,633 $40,339,796
Other cash expenditures
expensed - - - -
Other cash expenditures
capitalized 744,619 709,163 600,958 500,999
----------- ----------- ----------- -----------
Total acquisition cost
(Note 1) $32,812,908 $37,444,525 $36,245,591 $40,840,795
=========== =========== =========== ===========
</TABLE>
Note 10: The partnership owns a 50%, 45.2% and 27.3% interest in three
separate joint ventures. One of the joint ventures owns one
restaurant property and the other two joint ventures own six
restaurant properties each. In addition, the partnership owns a
67.23% interest in one restaurant property held as
tenants-in-common with an affiliate.
Note 11: The partnership owns a 50%, 88.3%, 40.95% and 10.5% interest
in four separate joint ventures. Three of the joint ventures own
one restaurant property each and the other joint venture owns six
restaurant properties. In addition, the partnership owns a 13.37%
and a 6.69% interest in two restaurant properties held separately
as tenants-in-common with affiliates.
Note 12: The partnership owns a 62.2%, 77.33%, 85% and 76.6% interest
in four separate joint ventures. Each joint venture owns one
restaurant property. In addition, the partnership owns a 72.5%
interest in one restaurant property held as tenants-in-common with
an affiliate.
Note 13: The partnership owns a 31.13%, 59.05%, 18.61% and 88% interest
in four separate joint ventures. Each joint venture owns one
restaurant property.
<PAGE>
TABLE VI - ACQUISITIONS OF PROPERTIES BY PROGRAMS (continued)
<TABLE>
<CAPTION>
CNL Income CNL Income CNL Income CNL Income
Fund XIII, Fund XIV, Fund XV, Fund XVI,
Ltd. Ltd. Ltd. Ltd.
---------- ---------- ---------- ----------
(Note 14) (Note 15) (Note 16) (Note 17)
<S> <C>
AL,AR,AZ,CA, AL,AZ,CO,FL, AL,CA,FL,GA, AZ,CA,CO,DC,
CO,FL,GA,IN, GA,KS,LA,MN, KS,KY,MN,MO, FL,GA,ID,IN,
KS,LA,MD,NC, MO,MS,NC,NJ, MS,NC,NJ,NM, KS,MN,MO,NC,
OH,PA,SC,TN, NV,OH,SC,TN, OH,OK,PA,SC, NM,NV,OH,TN,
Locations TX,VA TX,VA TN,TX,VA TX,UT,WI
Type of property Restaurants Restaurants Restaurants Restaurants
Gross leasable space
(sq. ft.) or number
of units and 50 units 64 units 55 units 47 units
total square feet
of units 167,286 s/f 190,448 s/f 172,379 s/f 180,110 s/f
Dates of purchase 5/18/93- 9/27/93- 4/28/94- 10/21/94-
12/31/97 4/30/98 6/16/98 6/16/98
Cash down payment (Note 1) $36,388,084 $42,748,602 $38,446,910 $42,394,592
Contract purchase price
plus acquisition fee $36,019,958 $42,321,171 $38,054,069 $42,004,434
Other cash expenditures
expensed - - - -
Other cash expenditures
capitalized 368,126 427,431 392,841 390,158
----------- ----------- ----------- -----------
Total acquisition cost
(Note 1) $36,388,084 $42,748,602 $38,446,910 $42,394,592
=========== =========== =========== ===========
</TABLE>
Note 14: The partnership owns a 50% and a 28% interest in two separate
joint ventures. Each joint venture owns one restaurant property.
In addition, the Partnership owns a 66.13%, a 63.03% and a 47.83%
interest in three restaurant properties held separately as
tenants-in-common with affiliates.
Note 15: The partnership owns a 50% interest in three separate joint
ventures and a 72% and a 39.94% interest in two additional joint
ventures. Three of the joint ventures each own one restaurant
property and the other joint venture owns six restaurant
properties.
Note 16: The partnership owns a 50% interest in a joint venture which
owns six restaurant properties. In addition, the partnership owns
a 15.02% and a 14.93% interest in two restaurant properties held
as tenants-in-common with affiliates.
Note 17: The partnership owns a 80.27% and a 40.42% interest in two
restaurant properties held as tenants-in-common with affiliates.
<PAGE>
TABLE VI - ACQUISITIONS OF PROPERTIES BY PROGRAMS (continued)
<TABLE>
<CAPTION>
CNL American CNL Income CNL Income
Properties Fund, Fund XVII, Fund XVIII,
Inc. Ltd. Ltd.
---------------- ---------- -----------
(Note 18) (Note 19)
<S> <C>
AL,AZ,CA,CO,
CT,DE,FL,GA,
IA,ID,IL,IN,
KS,KY,MD,MI,
MN,MO,NC,NE,
NJ,NM,NV,NY,
OH,OK,OR,PA, AZ,CA,FL,GA,
RI,SC,TN,TX, CA,FL,GA,IL, IL,KY,MD,MN,
UT,VA,WA,WI, IN,MI,NC,NV, NC,NV,NY,OH,
Locations WV OH,SC,TN,TX TN,TX
Type of property Restaurants Restaurants Restaurants
Gross leasable space
(sq. ft.) or number
of units and 320 units 29 units 23 units
total square feet
of units 1,622,754 s/f 119,664 s/f 123,355 s/f
Dates of purchase 6/30/95 - 12/20/95 - 12/27/96 -
6/17/98 6/16/98 06/16/98
Cash down payment (Note 1) $357,943,014 $25,525,954 $29,477,274
Contract purchase price
plus acquisition fee $356,906,132 $25,490,918 $29,369,572
Other cash expenditures
expensed - - -
Other cash expenditures
capitalized 1,036,882 35,036 107,702
------------ ----------- -----------
Total acquisition cost
(Note 1) $357,943,014 $25,525,954 $29,477,274
============ =========== ===========
</TABLE>
Note 18: CNL American Properties Fund, Inc. owns an 85.47% and a 13.11%
interest in two separate joint ventures. Each joint venture owns
one restaurant property.
Note 19: The partnership owns an 80%, a 21% and a 60.06% interest in three
separate joint ventures. Each joint venture owns one restaurant
property. In addition, the partnership owns a 19.73%, 27.5% and
36.97% interest in three restaurant properties held separately as
tenants-in-common with affiliates.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-11 and has duly caused this
Post-Effective Amendment No. 5 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Orlando,
State of Florida, on the 18th day of September, 1998.
CNL HOSPITALITY PROPERTIES, INC.
(Registrant)
By: /s/ James M. Seneff, Jr.
James M. Seneff, Jr.
Chairman of the Board and
Chief Executive Officer
<PAGE>
Pursuant to the requirements of the Securities Act of 1933,
this Post-Effective Amendment No. 5 to the Registration Statement has been
signed below by the following persons in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C>
/s/James M. Seneff, Jr. Chairman of the Board and September 18, 1998
JAMES M. SENEFF, JR. Chief Executive Officer
(Principal Executive Officer)
/s/Robert A. Bourne Director and President September 18, 1998
ROBERT A. BOURNE (Principal Financial and
Accounting Officer)
/s/G. Richard Hostetter Independent Director September 18, 1998
G. RICHARD HOSTETTER
/s/J. Joseph Kruse Independent Director September 18, 1998
J. JOSEPH KRUSE
/s/Richard C. Huseman Independent Director September 18, 1998
RICHARD C. HUSEMAN
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibits
*1.1 Form of Managing Dealer Agreement
*1.2 Form of Participating Broker Agreement
*3.1 CNL American Realty Fund, Inc. Articles of Incorporation
*3.2 CNL American Realty Fund, Inc. Amended and Restated Articles
Articles of Incorporation
*3.3 CNL American Realty Fund, Inc. Bylaws
*3.4 Articles of Amendment to the Amended and Restated Articles of
Incorporation of CNL American Realty Fund, Inc. dated June 3,
1998.
*4.1 CNL American Realty Fund, Inc. Articles of Incorporation
(Previously filed as Exhibit 3.1 and incorporated herein by
reference.)
*4.2 CNL American Realty Fund, Inc. Amended and Restated Articles
Articles of Incorporation (Previously filed as Exhibit 3.2 and
incorporated herein by reference.)
*4.3 CNL American Realty Fund, Inc. Bylaws (Previously filed as
Exhibit 3.3 and incorporated herein by reference.)
4.4 Form of Reinvestment Plan (Included in the Prospectus as
Exhibit A and incorporated herein by reference.)
4.5 Articles of Amendment to the Amended and Restated Articles of
Incorporation of CNL American Realty Fund, Inc. dated June 3,
1998. (Previously filed as Exhibit 3.4 and incorporated herein
by reference.)
*5 Opinion of Shaw Pittman Potts & Trowbridge as to the legality
of the securities being registered by CNL American Realty
Fund, Inc.
*8 Opinion of Shaw Pittman Potts & Trowbridge regarding certain
material tax issues relating to CNL American Realty Fund, Inc.
*10.1 Form of Escrow Agreement between CNL American Realty Fund,
Inc. and SouthTrust Asset Management Company of Florida, N.A.
i
<PAGE>
*10.2 Form of Advisory Agreement
*10.3 Form of Joint Venture Agreement
*10.4 Form of Indemnification and Put Agreement
*10.5 Form of Unconditional Guaranty of Payment and Performance
- -------------------
* Previously filed.
ii
<PAGE>
*10.6 Form of Purchase Agreement
*10.7 Form of Lease Agreement including Rent Addendum, Construction
Addendum and Memorandum of Lease
10.8 Form of Reinvestment Plan (Included in the Prospectus as
Exhibit A and incorporated herein by reference.)
10.9 Form Indemnification Agreement dated as of July 9, 1997,
between CNL American Realty Fund, Inc. and each of James M.
Seneff, Jr., Robert A. Bourne, G. Richard Hostetter, J. Joseph
Kruse, Richard C. Huseman, Charles A. Muller, John T. Walker,
Jeanne A. Wall and Lynn E. Rose (Filed herewith.)
10.10 Agreement of Limited Partnership of CNL Hospitality Partners,
LP (Filed herewith.)
10.11 Hotel Purchase and Sale Contract between CNL Real Estate
Advisors, Inc. and Gwinnett Residence Associates, LLC,
relating to the Residence Inn - Gwinnett Place (Filed
herewith.)
10.12 Assignment and Assumption Agreement between CNL Real Estate
Advisors, Inc. and CNL Hospitality Partners, LP, relating to
the Residence Inn - Gwinnett Place (Filed herewith.)
10.13 Hotel Purchase and Sale Contract between CNL Real Estate
Advisors, Inc. and Buckhead Residence Associates, LLC,
relating to the Residence Inn - Buckhead (Lenox Park) (Filed
herewith.)
10.14 Assignment and Assumption Agreement between CNL Real Estate
Advisors, Inc. and CNL Hospitality Partners, LP, relating to
the Residence Inn - Buckhead (Lenox Park) (Filed herewith.)
10.15 Lease Agreement between CNL Hospitality Partners, L.P. and STC
Leasing Associates, LLC, dated August 1, 1998, relating to the
Residence Inn - Gwinnett Place (Filed herewith.)
10.16 Lease Agreement between CNL Hospitality Partners, L.P. and STC
Leasing Associates, LLC, dated August 1, 1998, relating to the
Residence Inn - Buckhead (Lenox Park) (Filed herewith.)
10.17 Master Revolving Line of Credit Loan Agreement with CNL
Hospitality Properties, Inc. and Colonial Bank, dated July 31,
1998 (Filed herewith.)
iii
<PAGE>
*23.1 Consent of Coopers & Lybrand L.L.P., Certified Public
Accountants, dated June 26, 1997
*23.2 Consent of Shaw, Pittman, Potts & Trowbridge (Contained in its
opinion filed herewith as Exhibit 5 and incorporated herein by
reference.)
*23.3 Consent of Coopers & Lybrand L.L.P., Certified Public
Accountants, dated June 22, 1998
- -------------------
* Previously filed.
iv
<PAGE>
23.4 Consent of PricewaterhouseCoopers LLP, Certified Public
Accountants, dated September 21, 1998 (Filed herewith.)
23.5 Consent of Arthur Andersen LLP, Certified Public Accountants,
dated September 21, 1998 (Filed herewith.)
*27.1 Financial Data Schedule
*99.1 Consents of Certain Persons Named as Directors
- -------------------
* Previously filed.
v
<PAGE>
EXHIBIT 10.9
Form of Indemnification Agreement
<PAGE>
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made and entered into
as of the ____ day of ______________, by and among CNL American Realty Fund,
Inc., a Maryland corporation (the "Company") and __________________________, a
director and/or officer of the Company (the "Indemnitee").
W I T N E S S E T H:
WHEREAS, the interpretation of ambiguous statutes, regulations,
articles of incorporation and bylaws regarding indemnification of directors and
officers may be too uncertain to provide such directors and officers with
adequate notice of the legal, financial and other risks to which they may be
exposed by virtue of their service as such; and
WHEREAS, damages sought against directors and officers in shareholder
or similar litigation by class action plaintiffs may be substantial, and the
costs of defending such actions and of judgments in favor of plaintiffs or of
settlement therewith may be prohibitive for individual directors and officers,
without regard to the merits of a particular action and without regard to the
culpability of, or the receipt of improper personal benefit by, any named
director or officer to the detriment of the corporation; and
WHEREAS, the issues in controversy in such litigation usually relate to
the knowledge, motives and intent of the director or officer, who may be the
only person with firsthand knowledge of essential facts or exculpating
circumstances who is qualified to testify in his defense regarding matters of
such a subjective nature, and the long period of time which may elapse before
final disposition of such litigation may impose undue hardship and burden on a
director or officer or his estate in launching and maintaining a proper and
adequate defense of himself or his estate against claims for damages; and
WHEREAS, the Company is organized under the Maryland General
Corporation Law (the "MGCL") and Section 2-418 of the MGCL empowers corporations
to indemnify and advance expenses of litigation to a person serving as a
director, officer, employee or agent of a corporation and to persons serving at
the request of the corporation, while a director of a corporation, as a
director, officer, partner, trustee, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust, other enterprise or
employee benefit plan, and further provides that the indemnification and
advancement of expenses set forth in said section, subject to certain
limitations are not "exclusive of any other rights, by indemnification or
otherwise, to which a director may be entitled under the charter, the bylaws, a
resolution of stockholders or directors, an agreement or otherwise, both as to
action in an official capacity and as to action in another capacity while
holding such office"; and
WHEREAS, the Articles of Incorporation of the Company, as they may be
amended or amended and restated from time to time (the "Articles of
Incorporation"), provide that the Company shall indemnify and hold harmless
directors, advisors, or affiliates, as such terms are defined in the Articles of
Incorporation; and
<PAGE>
WHEREAS, the Board of Directors of the Company (the "Board") has
concluded that it is reasonable and prudent for the Company contractually to
obligate itself to indemnify in a reasonable and adequate manner the Indemnitee
and to assume for itself maximum liability for expenses and damages in
connection with claims lodged against him for his decisions and actions as a
director and/or officer of the Company; and
NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and sufficiency of which is acknowledged
by each of the parties hereto, the parties agree as follows:
I
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings set forth below:
A. "Board" shall mean the Board of Directors of the Company.
B. "Change in Control" shall mean a change in the ownership or power to
direct the Voting Securities of the Company or the acquisition by a person not
affiliated with the Company of the ability to direct the management of the
Company.
C. "Corporate Status" shall mean the status of a person who is or was a
director or officer of the Company, or a member of any committee of the Board,
and the status of a person who, while a director or officer of the Company, is
or was serving at the request of the Company as a director, officer, partner
(including service as a general partner of any limited partnership), trustee,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, other incorporated or unincorporated entity or enterprise
or employee benefit plan.
D. "Disinterested Director" shall mean a director of the Company who
neither is nor was a party to the Proceeding in respect of which indemnification
is being sought by the Indemnitee.
E. "Expenses" shall mean without limitation expenses of Proceedings
including all attorneys' fees, retainers, court costs, transcript costs, fees of
experts, investigation fees and expenses, accounting and witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating or being or preparing to be a witness in a
Proceeding.
F. "Good Faith Act or Omission" shall mean an act or omission of the
Indemnitee reasonably believed by the Indemnitee to be in or not opposed to the
best interests of the Company and other than (i)one involving negligence or
misconduct, or, if the Indemnitee is an independent director, one involving
gross negligence or willful misconduct; (ii) one that was material to the loss
or liability and that was committed in bad faith or that was the result of
active or deliberate dishonesty; (iii) one from which the Indemnitee actually
received an improper personal benefit in money, property or services; or (iv) in
the case of a criminal Proceeding, one as to which the Indemnitee had cause to
believe his conduct was unlawful.
<PAGE>
G. "Liabilities" shall mean liabilities of any type whatsoever,
including, without limitation, any judgments, fines, excise taxes and penalties
under the Employee Retirement Income Security Act of 1974, as amended, penalties
and amounts paid in settlement (including all interest, assessments and other
charges paid or payable in connection with or in respect of such judgments,
fines, penalties or amounts paid in settlement) in connection with the
investigation, defense, settlement or appeal of any Proceeding or any claim,
issue or matter therein.
H. "Proceeding" shall mean any threatened, pending or completed action,
suit, arbitration, alternate dispute resolution mechanism, investigation,
administrative hearing or any other actual, threatened or completed proceeding
whether civil, criminal, administrative or investigative, or any appeal
therefrom.
I. "Voting Securities" shall mean any securities of the Company that
are entitled to vote generally in the election of directors.
II
TERMINATION OF AGREEMENT
This Agreement shall continue until, and terminate upon the late to
occur of (i) the death of the Indemnitee; or (ii) the final termination of all
Proceedings (including possible Proceedings) in respect of which the Indemnitee
is granted rights of indemnification or advancement of Expenses hereunder and of
any proceeding commenced by the Indemnitee regarding the interpretation or
enforcement of this Agreement.
III
SERVICE BY INDEMNITEE, NOTICE OF
PROCEEDINGS, DEFENSE OF CLAIMS
A. Notice of Proceedings. The Indemnitee agrees to notify the Company
promptly in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification or advancement of Expenses
covered hereunder, but the Indemnitee's omission to so notify the Company shall
not relieve the Company from any liability which it may have to the Indemnitee
under this Agreement.
B. Defense of Claims. The Company will be entitled to participate, at
its own expense, in any Proceeding of which it has notice. The Company jointly
with any other indemnifying party similarly notified of any Proceeding will be
entitled to assume the defense of the Indemnitee therein, with counsel
reasonably satisfactory to the Indemnitee; provided, however, that the Company
shall not be entitled to assume the defense of the Indemnitee in any Proceeding
if there has been a Change in Control or if the Indemnitee has reasonably
concluded that there may be a conflict of interest between the Company and the
Indemnitee with respect to such Proceeding. The Company will not be liable to
the Indemnitee under this Agreement for any Expenses incurred by the Indemnitee
in connection with the defense of any Proceeding, other than reasonable costs of
investigation or as otherwise provided below, after notice from the Company
<PAGE>
to the Indemnitee of its election to assume the defense of the Indemnitee
therein. The Indemnitee shall have the right to employ his own counsel in any
such Proceeding, but the fees and expenses of such counsel incurred after notice
from the Company of its assumption of the defense thereof shall be at the
expense of the Indemnitee unless (i) the employment of counsel by the Indemnitee
has been authorized by the Company; (ii) the Indemnitee shall have reasonably
concluded that counsel employed by the Company may not adequately represent the
Indemnitee and shall have so informed the Company; or (iii) the Company shall
not in fact have employed counsel to assume the defense of the Indemnitee in
such Proceeding or such counsel shall not, in fact, have assumed such defense or
such counsel shall not be acting, in connection therewith, with reasonable
diligence; and in each such case the fees and expenses of the Indemnitee's
counsel shall be advanced by the Company in accordance with this Agreement.
C. Settlement of Claims. The Company shall not settle any Proceeding
inany manner which would impose any liability, penalty or limitation on the
Indemnitee without the written consent of the Indemnitee; provided, however,
that the Indemnitee will not unreasonably withhold or delay consent to any
proposed settlement. The Company shall not be liable to indemnify the Indemnitee
under this Agreement or otherwise for any amounts paid in settlement of any
Proceeding effected by the Indemnitee without the Company's written consent,
which consent shall not be unreasonably withheld or delayed.
IV
INDEMNIFICATION
A. In General. Upon the terms and subject to the conditions set forth
in this Agreement, the Company shall hold harmless and indemnify the Indemnitee
against any and all Liabilities actually incurred by or for him in connection
with any Proceeding (whether the Indemnitee is or becomes a party, a witness or
otherwise is a participant in any role) to the fullest extent required or
permitted by the Articles of Incorporation and by applicable law in effect on
the date hereof and to such greater extent as applicable law may hereafter from
time to time permit. For all matters for which the Indemnitee is entitled to
indemnification under this Article IV, the Indemnitee shall be entitled to
advancement of Expenses in accordance with Article V hereof.
B. Proceeding Other Than a Proceeding by or in the Right of the
Company. If the Indemnitee was or is a party or is threatened to be made a party
to any Proceeding (whether the Indemnitee is or becomes a party, a witness or
otherwise is a participant in any role) (other than a Proceeding by or in the
right of the Company) by reason of his Corporate Status, or by reason of alleged
action or inaction by him in any such capacity, the Company shall, subject to
the limitations set forth in Section IV.F. below, hold harmless and indemnify
him against any and all Expenses and Liabilities actually and reasonably
incurred by or for the Indemnitee in connection with the Proceeding if the
act(s) or comission(s) of the Indemnitee giving rise thereto were Good Faith
Act(s) or Omission(s).
C. Proceedings by or in the Right of the Company. If the Indemnitee was
or is a party or is threatened to be made a party to any Proceeding (whether the
Indemnitee is or becomes a party, a witness or otherwise is a participant in any
role) by or in the right of the Company to procure a judgment in its favor by
reason of his Corporate Status, or by reason of any action or
<PAGE>
inaction by him in any such capacity, the Company shall, subject to the
limitations set forth in Section IV.F. below, hold harmless and indemnify him
against any and all Expenses actually incurred by or for him in connection with
the investigation, defense, settlement or appeal of such Proceeding if the
act(s) or omission(s) of the Indemnitee giving rise to the Proceeding were Good
Faith Act(s) or Omission(s); except that no indemnification under this Section
IV.C. shall be made in respect of any claim, issue or matter as to which the
Indemnitee shall have been finally adjudged to be liable to the Company, unless
a court of appropriate jurisdiction (including, but not limited to, the court in
which such Proceeding was brought) shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, regardless of whether the Indemnitee's act(s) or omission(s) were
found to be a Good Faith Act(s) or Omission(s), the Indemnitee is fairly and
reasonably entitled to indemnification for such Expenses which such court shall
deem proper.
D. Indemnification of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that the
Indemnitee is, by reason of the Indemnitee's Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, the Indemnitee shall
be indemnified by the Company to the maximum extent consistent with applicable
law, against all Expenses and Liabilities actually incurred by or for him in
connection therewith. If the Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding, the Company shall
hold harmless and indemnify the Indemnitee to the maximum extent consistent with
applicable law, against all Expenses and Liabilities actually and reasonably
incurred by or for him in connection with each successfully resolved claim,
issue or matter in such Proceeding. Resolution of a claim, issue or matter by
dismissal, with or without prejudice, except as provided in subsection F hereof,
shall be deemed a successful result as to such claim, issue or matter, so long
as there has been no finding (either adjudicated or pursuant to Article VI
hereof) that the act(s) or omission(s) of the Indemnitee giving rise thereto
were not a Good Faith Act(s) or Omission(s).
E. Indemnification for Expenses of Witness. Notwithstanding any other
provision of this Agreement, to the extent that the Indemnitee, by reason of the
Indemnitee's Corporate Status, has prepared to serve or has served as a witness
in any Proceeding, or has participated in discovery proceedings or other
trialpreparation, the Indemnitee shall be held harmless and indemnified against
all Expenses actually and reasonably incurred by or for him in connection
therewith.
F. Specific Limitations on Indemnification. In addition to the other
limitations set forth in this Article IV, and notwithstanding anything in this
Agreement to the contrary, the Company shall not be obligated under this
Agreement to make any payment to the Indemnitee for indemnification with respect
to any Proceeding:
1. To the extent that payment is actually made to the
Indemnitee under any insurance policy or is made on behalf of the Indemnitee by
or on behalf of the Company otherwise than pursuant to this Agreement.
2. If a court in such Proceeding has entered a judgment or
other adjudication which is final and has become nonappealable and establishes
that a claim of the Indemnitee for such indemnification arose from: (i) a breach
by the Indemnitee of the Indemnitee's duty of loyalty to the Company or its
shareholders; (ii) acts or omissions of the Indemnitee that are not Good
<PAGE>
Faith Acts or Omissions or which are the result of active and deliberate
dishonesty; (iii) acts or omissions of the Indemnitee which the Indemnitee had
reasonable cause to believe were unlawful; or (iv) a transaction in which the
Indemnitee actually received an improper personal benefit in money, property or
service.
3. If there has been no Change in Control, for Liabilities in
connection with Proceedings settled without the consent of the Company which
consent, however, shall not be unreasonably withheld
4. For any loss or liability arising from an alleged violation
of federal or state securities laws unless one or more of the following
conditions are met: (i) there has been a successful adjudication on the merits
of each count involving alleged securities law violations as to the Indemnitee,
(ii) such claims have been dismissed with prejudice on the merits by a court of
competent jurisdiction as to the Indemnitee; or (iii) a court of competent
jurisdiction approves a settlement of the claims against the Indemnitee and
finds that indemnification of the settlement and the related costs should be
made, and the court considering the request for indemnification has been advised
of the position of the Securities and Exchange Commission and of the published
position of any state securities regulatory authority in which securities of the
Company were offered or sold as to indemnification for violations of securities
laws.
V
ADVANCEMENT OF EXPENSES
Notwithstanding any provision to the contrary in Article VI hereof, the
Company shall advance to the Indemnitee all Expenses which, by reason of the
Indemnitee's Corporate Status, were incurred by or for him in connection with
any Proceeding for which the Indemnitee is entitled to indemnification pursuant
to Article IV hereof, in advance of the final disposition of such Proceeding,
provided that all of the following are satisfied: (i) the Indemnitee was made a
party to the proceeding by reason of his service as a director or officer of the
Company, (ii) the Indemnitee provides the Company with written affirmation of
his good faith belief that he has met the standard of conduct necessary for
indemnification by the Company pursuant to Article IV hereof, (iii) the
Indemnitee provides the Company with a written agreement (the "Undertaking") to
repay the amount paid or reimbursed by the Company, together with the applicable
legal rate of interest thereon, if it is ultimately determined that the
Indemnitee did not comply with the requisite standard of conduct, and (iv) the
legal proceeding was initiated by a third party who is not a stockholder of the
Company or, if by a stockholder of the Company acting in his or her capacity as
such, a court of competent jurisdiction approves such advancement. The
Indemnitee shall be required to execute and submit the Undertaking to repay
Expenses advanced in the form of Exhibit A attached hereto or in such form as
may be required under applicable law as in effect at the time of execution
thereof. The Undertaking shall reasonably evidence the Expenses incurred by or
for the Indemnitee and shall contain the written affirmation by the Indemnitee,
described above, of his good faith belief that the standard of conduct necessary
for indemnification has been met. The Company shall advance such expenses within
five (5) business days after the receipt by the Company of the Undertaking. The
Indemnitee hereby agrees to repay any Expenses advanced hereunder if it shall
ultimately be determined that the Indemnitee is not entitled to be indemnified
against such Expenses. Any advances and the undertaking to repay pursuant to
this Article V shall be unsecured.
<PAGE>
VI
PROCEDURE FOR PAYMENT OF LIABILITIES;
DETERMINATION OF RIGHT TO INDEMNIFICATION
A. Procedure for Payment. To obtain indemnification for Liabilities
under this Agreement, the Indemnitee shall submit to the Company a written
request for payment, including with such request such documentation as is
reasonably available to the Indemnitee and reasonably necessary to determine
whether, and to what extent, the Indemnitee is entitled to indemnification and
payment hereunder. The Secretary of the Company, or such other person as shall
be designated by the Board of Directors, promptly upon receipt of a request for
indemnification shall advise the Board of Directors, in writing, of such
request. Any indemnification payment due hereunder shall be paid by the Company
no later than five (5) business days following the determination, pursuant to
this Article VI, that such indemnification payment is proper hereunder.
B. No Determination Necessary when the Indemnitee was Successful. To
the extent the Indemnitee has been successful, on the merits or otherwise,
indefense of any Proceeding referred to in Sections IV.B. or IV.C. above or in
the defense of any claim, issue or matter described therein, the Company shall
indemnify the Indemnitee against Expenses actually and reasonably incurred by or
for him in connection with the investigation, defense or appeal of such
Proceeding.
C. Determination of Good Faith Act or Omission. In the event that
Section VI.B. is inapplicable, the Company also shall hold harmless and
indemnify the Indemnitee unless the Company shall prove by clear and convincing
evidence to a forum listed in Section VI.D. below that the act(s) or omission(s)
of the Indemnitee giving rise to the Proceeding were not Good Faith Act(s) or
Omission(s).
D. Forum for Determination. The Indemnitee shall be entitled to select
from among the following the forums, in which the validity of the Company's
claim under Section VI.C., above, that the Indemnitee is not entitled to
indemnification will be heard:
1. A quorum of the Board consisting of Disinterested
Directors;
2. The shareholders of the Company;
3. Legal counsel selected by the Indemnitee, subject to the
approval of the Board, which approval shall not be unreasonably delayed or
denied, which counsel shall make such determination in a written opinion; or
4. A panel of three arbitrators, one of whom is selected by
the Company, another of whom is selected by the Indemnitee and the last of whom
is selected jointly by the first two arbitrators so selected. As soon as
practicable, and in no event later than thirty (30) days after written notice of
the Indemnitee's choice of forum pursuant to this Section VI.D., the Company
shall, at its own expense, submit to the selected forum in such manner as the
Indemnitee or the Indemnitee's counsel may reasonably request, its claim that
the Indemnitee is not entitled to indemnification, and the Company shall act in
the utmost good faith to assure the Indemnitee a complete opportunity to defend
against such claim. The fees and expenses of the selected forum in connection
with making the determination contemplated hereunder shall be paid by the
Company. If the Company shall fail to submit the matter to the selected forum
within thirty (30)
<PAGE>
days after the Indemnitee's written notice or if the forum so empowered to make
the determination shall have failed to make the requested determination within
thirty (30) days after the matter has been submitted to it by the Company, the
requisite determination that the Indemnitee has the right to ndemnification
shall be deemed to have been made.
E. Right to Appeal. Notwithstanding a determination by any forum listed
in Section VI.D. above that the Indemnitee is not entitled to indemnification
with respect to a specific Proceeding, the Indemnitee shall have the right to
apply to the court in which that Proceeding is or was pending, or to any other
court of competent jurisdiction, for the purpose of enforcing the Indemnitee's
right to indemnification pursuant to this Agreement. Such enforcement action
shall consider the Indemnitee's entitlement to indemnification de novo, and the
Indemnitee shall not be prejudiced by reason of a prior determination that the
Indemnitee is not entitled to indemnification. The Company shall be precluded
from asserting that the procedures and presumptions of this Agreement are not
valid, binding and enforceable. The Company further agrees to stipulate in any
such judicial proceeding that the Company is bound by all the provisions of this
Agreement and is precluded from making any assertion to the contrary.
F. Right to Seek Judicial Determination. Notwithstanding any other
provision of this Agreement to the contrary, at any time after sixty (60) days
after a request for indemnification has been made to the Company (or upon
earlier receipt of written notice that a request for indemnification has been
rejected) and before the third (3rd) anniversary of the making of such
indemnification request, the Indemnitee may petition a court of competent
jurisdiction, whether or not the court has jurisdiction over, or is the forum in
which is pending, the Proceeding, to determine whether the Indemnitee is
entitled to indemnification hereunder, and such court thereupon shall have the
exclusive authority to make such determination, unless and until such court
dismisses or otherwise terminates the Indemnitee's action without having made
such determination. The court, as petitioned, shall make an independent
determination of whether the Indemnitee is entitled to indemnification
hereunder, without regard to any prior determination in any other forum as
provided hereby.
G. Expenses under this Agreement. Notwithstanding any other provision
in this Agreement to the contrary, the Company shall indemnify the Indemnitee
against all Expenses incurred by the Indemnitee in connection with any hearing
or proceeding under this Section VI involving the Indemnitee and against all
Expenses incurred by the Indemnitee in connection with any other action between
the Company and the Indemnitee involving the interpretation or enforcement of
the rights of the Indemnitee under this Agreement, even if it is finally
determined that the Indemnitee is not entitled to indemnification in whole or in
part hereunder.
VII
PRESUMPTIONS AND EFFECT
OF CERTAIN PROCEEDINGS
A. Burden of Proof. In making a determination with respect to
entitlement to indemnification hereunder, the person, persons, entity or
entities making such determination shall presume that the Indemnitee is entitled
to indemnification under this Agreement and the Company shall have the burden of
proof to overcome that presumption.
<PAGE>
B. Effect of Other Proceedings. The termination of any Proceeding or of
any claim, issue or matter therein, by judgment, order or settlement shall not
create a presumption that the act(s) or omission(s) giving rise to the
Proceeding were not Good Faith Act(s) or Omission(s). The termination of any
Proceeding by conviction, or upon a plea of nolo contendere, or its equivalent,
or an entry of an order of probation prior to judgment, shall create a
rebuttable presumption that the act(s) or omission(s) of the Indemnitee giving
rise to the Proceeding were not Good Faith Act(s) or Omission(s).
C. Reliance as Safe Harbor. For purposes of any determination of
whether any act or omission of the Indemnitee was a Good Faith Act or Omission,
each act of the Indemnitee shall be deemed to be a Good Faith Act or Omission if
the Indemnitee's action is based on the records or books of accounts of the
Company, including financial statements, or on information supplied to the
Indemnitee by the officers of the Company in the course of their duties, or on
the advice of legal counsel for the Company or on information or records given
or reports made to the Company by an independent certified public accountant or
by an appraiser or other expert selected with reasonable care by the Company.
The provisions of this Section VII.C. shall not be deemed to be exclusive or to
limit in any way the other circumstances in which the Indemnitee may be deemed
to have met the applicable standard of conduct set forth in this Agreement or
under applicable law.
D. Actions of Others. The knowledge and/or actions, or failure to act,
of any director, officer, agent or employee of the Company shall not be imputed
to the Indemnitee for purposes of determining the right to indemnification under
this Agreement.
VIII
INSURANCE
In the event that the Company maintains officers' and directors' or
similar liability insurance to protect itself and any director or officer of the
Company against any expense, liability or loss, such insurance shall cover the
Indemnitee to at least the same degree as each other director and/or officer of
the Company.
IX
OBLIGATIONS OF THE COMPANY
UPON A CHANGE IN CONTROL
In the event of a Change in Control, upon written request of the
Indemnitee the Company shall establish a trust for the benefit of the Indemnitee
hereunder (a "Trust") and from time to time, upon written request from the
Indemnitee, shall fund the Trust in an amount sufficient to satisfy all amounts
actually paid hereunder as indemnification for Liabilities or Expenses
(including those paid in advance) or which the Indemnitee reasonably determines
and demonstrates, from time to time, may be payable by the Company hereunder.
The amount or amounts to be deposited in the Trust shall be determined by legal
counsel selected by the Indemnitee and approved by the Company, which approval
shall not be unreasonably withheld. The terms of the Trust shall provide that
(i) the Trust shall not be dissolved or the principal thereof invaded without
the written consent of the Indemnitee; (ii) the trustee of the Trust (the
<PAGE>
"Trustee") shall be selected by the Indemnitee; (iii) the Trustee shall make
advances to the Indemnitee for Expenses within ten (10) business days following
receipt of a written request therefor (and the Indemnitee hereby agrees to
reimburse the Trust under the circumstances under which the Indemnitee would be
required to reimburse the Company under Article V hereof; (iv) the Company shall
continue to fund the Trust from time to time in accordance with its funding
obligations hereunder; (v) the Trustee promptly shall pay to the Indemnitee all
amounts as to which indemnification is due under this Agreement; (vi) unless the
Indemnitee agrees otherwise in writing, the Trust for the Indemnitee shall be
kept separate from any other trust established for any other person to whom
indemnification might be due by the Company; and (vii) all unexpended funds in
the Trust shall revert to the Company upon final, nonappealable determination by
a court of competent jurisdiction that the Indemnitee has been indemnified to
the full extent required under this Agreement.
X
NON-EXCLUSIVITY,
SUBROGATION AND MISCELLANEOUS
A. Non-Exclusivity. The rights of the Indemnitee hereunder shall not be
deemed exclusive of any other rights to which the Indemnitee may at any time be
entitled under any provision of law, the Articles of Incorporation, the Bylaws
of the Company, as the same may be in effect from time to time, any agreement, a
vote of shareholders of the Company or a resolution of directors of the Company
or otherwise, and to the extent that during the term of this Agreement the
rights of the then-existing directors and officers of the Company are more
favorable to such directors or officers than the rights currently provided to
the Indemnitee under this Agreement, the Indemnitee shall be entitled to the
full benefits of such more favorable rights. No amendment, alteration,
rescission or replacement of this Agreement or any provision hereof which would
in any way limit the benefits and protections afforded to an Indemnitee hereby
shall be effective as to such Indemnitee with respect to any action or inaction
by such Indemnitee in the Indemnitee's Corporate Status prior to such amendment,
alteration, rescission or replacement.
B. Subrogation. In the event of any payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall execute all documents required and take
all action necessary to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to enforce such
rights.
C. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given (i) if
delivered by hand, by courier or by telegram and receipted for by the party to
whom said notice or other communication shall have been directed at the time
indicated on such receipt; (ii) if by facsimile at the time shown on the
confirmation of such facsimile transmission; or (iii) if by U.S. certified or
registered mail, with postage prepaid, on the third business day after the date
on which it is so mailed:
<PAGE>
If to the Indemnitee, as shown with the Indemnitee's signature below.
If to the Company to:
CNL American Realty Fund, Inc.
400 East South Street
Orlando, FL 32801
Attention: President
Facsimile No. (___) ___-____
or to such other address as may have been furnished to the Indemnitee by the
Company or to the Company by the Indemnitee, as the case may be.
D. Governing Law. The parties agree that this Agreement shall be
governed by, and construed and enforced in accordance with, the substantive laws
of the State of Maryland, without application of the conflict of laws principles
thereof.
E. Binding Effect. Except as otherwise provided in this Agreement, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their heirs, executors, administrators, successors, legal representatives
and permitted assigns. The Company shall require any successor or assignee
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of its respective assets or business, by written
agreement in form and substance reasonably satisfactory to the Indemnitee,
expressly to assume and agree to be bound by and to perform this Agreement in
the same manner and to the same extent as the Company would be required to
perform absent such succession or assignment.
F. Waiver. No termination, cancellation, modification, amendment,
deletion, addition or other change in this Agreement, or any provision hereof,
or waiver of any right or remedy herein, shall be effective for any purpose
unless specifically set forth in a writing signed by the party or parties to be
bound thereby. The waiver of any right or remedy with respect to any occurrence
on one occasion shall not be deemed a waiver of such right or remedy with
respect to such occurrence on any other occasion.
G. Entire Agreement. This Agreement, constitutes the entire agreement
and understanding among the parties hereto in reference to the subject matter
hereof; provided, however, that the parties acknowledge and agree that the
Amended and Restated Articles of Incorporation of the Company contain provisions
on the subject matter hereof and that this Agreement is not intended to, and
does not, limit the rights or obligations of the parties hereto pursuant to such
instruments.
H. Titles. The titles to the articles and sections of this Agreement
are inserted for convenience of reference only and should not be deemed a part
hereof or affect the construction or interpretation of any provisions hereof.
I. Invalidity of Provisions. Every provision of this Agreement is
severable, and the invalidity or unenforceability of any term or provision shall
not effect the validity or enforceability of the remainder of this Agreement.
<PAGE>
J. Pronouns and Plurals. Whenever the context may require, any pronoun
used in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns, pronouns and verbs shall include
the plural and vice versa.
K. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together constitute one agreement binding on all the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CNL AMERICAN REALTY FUND, INC.
By: ___________________________
Name: _________________________
Title: ________________________
__________________, as INDEMNITEE
Name: _________________________
Title: ________________________
Address: ______________________
Facsimile No.: _________________
<PAGE>
EXHIBIT A
FORM OF UNDERTAKING TO REPAY EXPENSES ADVANCED
The Board of Directors of CNL American Realty Fund, Inc.
Re: Undertaking to Repay Expenses Advanced
Ladies and Gentlemen:
This undertaking is being provided pursuant to that certain
Indemnification Agreement dated the ____ day of ______________, by and among CNL
American Realty Fund, Inc. and the undersigned Indemnitee (the "Indemnification
Agreement"), pursuant to which I am entitled to advancement of expenses in
connection with [Description of Proceeding] (the "Proceeding"). Terms used
herein and not otherwise defined shall have the meanings specified in the
Indemnification Agreement.
I am subject to the Proceeding by reason of my Corporate Status or by
reason of alleged actions or omissions by me in such capacity. During the period
of time to which the Proceeding relates I was _____________________ [name of
office(s) held] of CNL American Realty Fund, Inc. Pursuant to Section IV of the
Indemnification Agreement, the Company is obligated to reimburse me for Expenses
that are actually and reasonably incurred by or for me in connection with the
Proceeding, provided that I execute and submit to the Company an Undertaking in
which I (i) undertake to repay any Expenses paid by the Company on my behalf,
together with the applicable legal rate of interest thereon, if it shall be
ultimately determined that I am not entitled to be indemnified thereby against
such Expenses; (ii) affirm my good faith belief that I have met the standard of
conduct necessary for indemnification; and (iii) reasonably evidence the
Expenses incurred by or for me.
[Description of expenses incurred by or for Indemnitee]
This letter shall constitute my undertaking to repay to the Company any
Expenses paid by it on my behalf, together with the applicable legal rate of
interest thereon, in connection with the Proceeding if it is ultimately
determined that I am not entitled to be indemnified with respect to such
Expenses as set forth above. I hereby affirm my good faith belief that I have
met the standard of conduct necessary for indemnification and that I am entitled
to such indemnification.
--------------------------
Signature
--------------------------
Print Name
--------------------------
Date
<PAGE>
EXHIBIT 10.10
Agreement of Limited Partnership
of CNL Hospitality Partners, LP
<PAGE>
______________________
AGREEMENT OF LIMITED PARTNERSHIP OF
CNL HOSPITALITY PARTNERS, LP
______________________
Dated as of June ___,1998
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE 1 - DEFINED TERMS 1
ARTICLE 2 - ORGANIZATIONAL MATTERS 6
Section 2.1 - Formation of Partnership 6
Section 2.2 - Principal Office and Registered Agent 6
Section 2.3 - Principal Office and Agent 6
Section 2.4 - Power of Attorney 7
Section 2.5 - Term 8
ARTICLE 3 - PURPOSE 8
Section 3.1 -Purpose and Business 8
Section 3.2 - Powers 8
ARTICLE 4 - CAPITAL CONTRIBUTIONS 8
Section 4.1 - Capital Contributions of the Partners 8
Section 4.2 - Issuances of Additional Partnership Interests 9
Section 4.3 - No Preemptive Rights 9
Section 4.4 - No Interest on Capital 9
ARTICLE 5 - DISTRIBUTIONS 10
Section 5.1 - Requirement and Characterization of Distributions 10
Section 5.2 - Distributions in Kind 10
Section 5.3 - Amounts Withheld 10
Section 5.4 - Distributions Upon Liquidation 10
ARTICLE 6 - ALLOCATIONS 10
Section 6.1 - Allocations for Capital Account Purposes 10
ARTICLE 7 - MANAGEMENT AND OPERATIONS OF BUSINESS 11
Section 7.1 - Management 11
Section 7.2 - Certificate of Limited Partnership 14
Section 7.3 - Restrictions on General Partner's Authority 14
Section 7.4 - Title to Partnership Assets 14
Section 7.5 - Reliance by Third Parties 14
ARTICLE 8 - RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS 15
Section 8.1 - Limitation of Liability 15
Section 8.2 - Management of Business 15
ARTICLE 9 - BOOKS, RECORDS, ACCOUNTING AND REPORTS 15
Section 9.1 - Records and Accounting 15
Section 9.2 - Fiscal Year 15
ARTICLE 10 - TAX MATTERS 16
Section 10.1 - Preparation of Tax Returns 16
Section 10.2 - Tax Elections 16
Section 10.3 - Tax Matters Partner 16
Section 10.4 - Organizational Expenses 17
Section 10.5 - Withholding 17
<PAGE>
PAGE
ARTICLE 11 - TRANSFERS AND WITHDRAWALS 18
Section 11.1 - Transfer 18
Section 11.2 - Transfer of General Partner's Partnership
Interest 18
Section 11.3 - Transfer of Limited Partners' Partnership
Interests 18
Section 11.4 - Acquisition of Partnership Interest by
Partnership 18
ARTICLE 12 - DISSOLUTION, LIQUIDATION AND TERMINATION 18
Section 12.1 - Dissolution 18
Section 12.2 - Winding Up 19
Section 12.3 - Compliance with Timing Requirements of
Regulations 20
Section 12.4 - Deemed Distribution and Recontribution 20
Section 12.5 - Rights of Limited Partners 20
Section 12.6 - Notice of Dissolution 20
Section 12.7 - Termination of Partnership and Cancellation
of Certificate of Limited
Partnership 21
Section 12.8 - Reasonable Time for Winding-Up 21
Section 12.9 - Waiver of Partition 21
Section 12.10 - Liability of the Liquidator 21
ARTICLE 13 - AMENDMENT OF PARTNERSHIP AGREEMENT;
MEETINGS 21
Section 13.1 - Amendments 21
Section 13.2 - Meetings of the Partners 22
ARTICLE 14 - GENERAL PROVISIONS 23
Section 14.1 - Addresses and Notice 23
Section 14.2 - Titles and Captions 23
Section 14.3 - Pronouns and Plurals 23
Section 14.4 - Further Action 23
Section 14.5 - Binding Effect 23
Section 14.6 - Creditors 23
Section 14.7 - Waiver 24
Section 14.8 - Counterparts 24
Section 14.9 - Applicable Law 24
Section 14.10 - Invalidity of Provisions 24
Section 14.11 - Entire Agreement 24
Section 14.12 - No Rights as Shareholders 25
Exhibit A - Partners, Contributions and Partnership Interests
Exhibit B - Capital Account Maintenance
Exhibit C - Special Allocation Rules
Exhibit D - Value of Contributed Property
<PAGE>
AGREEMENT OF LIMITED PARTNERSHIP OF
CNL HOSPITALITY PARTNERS, LP
THIS AGREEMENT OF LIMITED PARTNERSHIP, dated as of June ___, 1998, is
entered into by and between CNL Hospitality GP Corp., a Delaware corporation, as
the general partner of the Partnership (the "General Partner") and CNL
Hospitality LP Corp., a Delaware corporation, as the limited partner of the
Partnership (the "Limited Partner").
WITNESSETH:
WHEREAS, the General Partner caused the Partnership to file a
Certificate of Limited Partnership on June ___, 1998, thereby causing the
Partnership to be formed; and
WHEREAS, the General Partner and the Limited Partner desire to enter
into this Agreement to set forth the rights and obligations of the parties
hereto.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1
DEFINED TERMS
The following definitions shall be for all purposes, unless otherwise
clearly indicated to the contrary, applied to the terms used in this Agreement.
"Act" means the Delaware Revised Uniform Limited Partnership Act, as
amended, or any successor statute.
"Additional Limited Partner" means a Person admitted to the Partnership
as a Limited Partner pursuant to Section 4.2 hereof and who is shown as such on
the books and records of the Partnership.
"Adjusted Capital Account" means the Capital Account maintained for
each Partner as of the end of each Partnership Year (i) increased by any amounts
which such Partner is obligated to restore pursuant to any provision of this
Agreement, or is treated as being obligated to restore pursuant to Regulations
Section 1.704-1(b)(2)(ii)(c), or is deemed to be obligated to restore pursuant
to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and
1.704-2(i)(5), and (ii) decreased by the items described in Regulations Sections
1.704-1(b)(2)(ii)(d)(4), 1.704- 1(b)(2)(ii)(d)(5), and 1.704-1(b)(2)(ii)(d)(6).
The foregoing definition of Adjusted Capital Account is intended to comply with
the provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and shall be
interpreted consistently therewith.
"Adjusted Capital Account Deficit" means, with respect to any Partner,
the deficit balance, if any, in such Partner's Adjusted Capital Account as of
the end of the relevant Partnership Year.
<PAGE>
"Adjusted Property" means any property the Carrying Value of which has
been adjusted pursuant to Exhibit B hereof.
"Affiliate" means, with respect to any Person, (i) any Person directly
or indirectly controlling, controlled by or under common control with such
Person, (ii) any Person owning or controlling ten percent (10%) or more of the
outstanding voting interests of such Person, (iii) any Person of which such
Person owns or controls ten percent (10%) or more of the voting interests, or
(iv) any officer, director, general partner or trustee of such Person or of any
Person referred to in clauses (i), (ii), and (iii) above. For the purposes of
this definition, "control," when used with respect to any Person, means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement" means this Agreement of Limited Partnership, as it may be
amended, supplemented or restated from time to time.
"Book-Tax Disparities" means, with respect to any item of Contributed
Property or Adjusted Property, as of the date of any determination, the
difference between the Carrying Value of such Contributed Property or Adjusted
Property and the adjusted basis thereof for federal income tax purposes as of
such date. A Partner's share of the Partnership's Book-Tax Disparities in all of
its Contributed Property and Adjusted Property will be reflected by the
difference between such Partner's Capital Account balance as maintained pursuant
to Exhibit B and the hypothetical balance of such Partner's Capital Account
computed as if it had been maintained strictly in accordance with federal income
tax accounting principles.
"Business Day" means any day except a Saturday, Sunday or other day on
which banking institutions in the State of New York are authorized or required
by law or executive order to close.
"Capital Account" means the Capital Account maintained for a Partner
pursuant to Exhibit B.
"Capital Contribution" means, with respect to any Partner, any cash,
cash equivalents or the Net Asset Value of Contributed Property which such
Partner contributes or is deemed to contribute to the Partnership pursuant to
Section 4.1 or 4.2.
"Carrying Value" means (i) with respect to a Contributed Property or
Adjusted Property, the Gross Asset Value of such property, reduced (but not
below zero) by all Depreciation with respect to such Property charged to the
Partners' Capital Accounts following the contribution of or adjustment with
respect to such Property, and (ii) with respect to any other Partnership
property, the adjusted basis of such property for federal income tax purposes,
all as of the time of determination. The Carrying Value of any property shall be
adjusted from time to time in accordance with Exhibit B, and to reflect changes,
additions or other adjustments to the Carrying Value for improvements,
dispositions and acquisitions of Partnership properties, as deemed appropriate
by the General Partner.
-2-
<PAGE>
"Certificate" means the Certificate of Limited Partnership relating to
the Partnership filed with the Secretary of State of Delaware, as amended from
time to time in accordance with the terms hereof and the Act.
"Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time, as interpreted by the applicable regulations
thereunder. Any reference herein to a specific section or sections of the Code
shall be deemed to include a reference to any corresponding provision of future
law.
"Contributed Property" means each property or other asset, in such form
as may be permitted by the Act, but excluding cash contributed or deemed
contributed to the Partnership. Once the Carrying Value of a Contributed
Property is adjusted pursuant to Section 1.D of Exhibit B, such property shall
no longer constitute a Contributed Property for purposes of Exhibit B, but shall
be deemed an Adjusted Property for such purposes.
"Depreciation" means, for each Partnership Year, an amount equal to the
federal income tax depreciation, amortization, or other cost recovery deduction
allowable with respect to an asset for such year, except that if the Carrying
Value of an asset differs from its adjusted basis for federal income tax
purposes at the beginning of such year or other period, Depreciation shall be an
amount which bears the same ratio to such beginning Carrying Value as the
federal income tax depreciation, amortization, or other cost recovery deduction
for such year bears to such beginning adjusted tax basis; provided, however,
that if the federal income tax depreciation, amortization, or other cost
recovery deduction for such year is zero, Depreciation shall be determined with
reference to such beginning Carrying Value using any reasonable method selected
by the General Partner.
"General Partner" means CNL Hospitality GP Corp., or its successors as
general partner of the Partnership.
"General Partner Interest" means the Partnership Interest held by the
General Partner . A General Partner Interest may be expressed as a number of
Partnership Units. Any Partnership Units or Partnership Interests obtained by
the General Partner in connection with the issuance of additional Partnership
Interests or Partnership Units pursuant to Section 4.2 or otherwise, shall be
owned by the General Partner as part of its General Partner Interest.
"General Partner Shareholder" has the meaning set forth in Section 3.1
hereof.
"Gross Asset Value" of any Contributed Property means the value of such
property as set forth in Exhibit D, or if no value is set forth in Exhibit D,
the fair market value of such property or other consideration at the time of
contribution as determined by the General Partner using such reasonable method
of valuation as it may adopt. The General Partner shall, in its sole and
absolute discretion, use such method as it deems reasonable and appropriate to
allocate the aggregate of the Gross Asset Values of Contributed Properties
contributed in a single or integrated transaction among the separate properties
on a basis proportional to their respective fair market values.
-3-
<PAGE>
"Incapacity" or "Incapacitated" means, (i) as to any individual
Partner, death, total physical disability or entry of an order by a court of
competent jurisdiction adjudicating him incompetent to manage his Person or his
estate; (ii) as to any corporation which is a Partner, the filing of a
certificate of dissolution, or its equivalent, for the corporation or the
revocation of its charter; (iii) as to any partnership which is a Partner, the
dissolution and commencement of winding up of the partnership; (iv) as to any
estate which is a Partner, the distribution by the fiduciary of the estate's
entire interest in the Partnership; (v) as to any trustee of a trust which is a
Partner, the termination of the trust (but not the substitution of a new
trustee); or (vi) as to any Partner, the bankruptcy of such Partner. For
purposes of this definition, bankruptcy of a Partner shall be deemed to have
occurred when (a) the Partner commences a voluntary proceeding seeking
liquidation, reorganization or other relief under any bankruptcy, insolvency or
other similar law now or hereafter in effect, (b) the Partner is adjudged as
bankrupt or insolvent, or a final and nonappealable order for relief under any
bankruptcy, insolvency or similar law now or hereafter in effect has been
entered against the Partner, (c) the Partner executes and delivers a general
assignment for the benefit of the Partner's creditors, (d) the Partner files an
answer or other pleading admitting or failing to contest the material
allegations of a petition filed against the Partner in any proceeding of the
nature described in clause (b) above, (e) the Partner seeks, consents to or
acquiesces in the appointment of a trustee, receiver or liquidator for the
Partner or for all or any substantial part of the Partner's properties, (f) any
proceeding seeking liquidation, reorganization or other relief of or against
such Partner under any bankruptcy, insolvency or other similar law now or
hereafter in effect has not been dismissed within one hundred twenty (120) days
after the commencement thereof, (g) the appointment without the Partner's or
acquiescence of a trustee, receiver or liquidator has not been vacated or stayed
within ninety (90) days of such appointment, or (h) an appointment referred to
in clause (g) which has been stayed is not vacated within ninety (90) days after
the expiration of any such stay.
"IRS" means the Internal Revenue Service, which administers the
internal revenue laws of the United States.
"Lien" means any lien, security interest, mortgage, deed of trust,
charge, claim, encumbrance, pledge, option, right of first offer or first
refusal and any other right or interest of any kind or nature, actual or
contingent, or other similar encumbrance of any nature whatsoever.
"Limited Partner" means any Person named as a Limited Partner in
Exhibit A, as such Exhibit may be amended from time to time, or any Additional
Limited Partner, in such Person's capacity as a Limited Partner in the
Partnership.
"Limited Partner Interest" means a Partnership Interest of a Limited
Partner in the Partnership representing a fractional part of the Partnership
Interests of all Partners and includes any and all benefits to which the holder
of such a Partnership Interest may be entitled as provided in this Agreement,
together with all obligations of such Person to comply with the terms and
provisions of this Agreement. A Limited Partner Interest may be expressed as a
number of Partnership Units.
"Liquidating Event(s)" has the meaning set forth in Section 12.1.
"Liquidator" has the meaning set forth in Section 12.2.
-4-
<PAGE>
"Net Asset Value" means (i) in the case of any Contributed Property set
forth in Exhibit D and as of the time of its contribution to the Partnership,
the Net Asset Value of such property as set forth in Exhibit D, (ii) in the case
of any Contributed Property not set forth in Exhibit D and as of the time of its
contribution to the Partnership, the Gross Asset Value of such property, reduced
by any liabilities either assumed by the Partnership upon such contribution or
to which such property is subject when contributed, and (iii) in the case of any
property distributed to a Partner by the Partnership, the Partnership's Carrying
Value of such property at the time such property is distributed, reduced by any
indebtedness either assumed by such Partner upon such distribution or to which
such property is subject at the time of distribution, as determined under
Section 752 of the Code and the Regulations thereunder.
"Net Income" means, for any taxable period, the excess, if any, of the
Partnership's items of income and gain for such taxable period over the
Partnership's items of loss and deduction for such taxable period. The items
included in the calculation of Net Income shall be determined in accordance with
Section 1.B of Exhibit B. Once an item of income, gain, loss or deduction that
has been included in the initial computation of Net Income is subjected to the
special allocation rules in Exhibit C, Net Income or the resulting Net Loss,
whichever the case may be, shall be recomputed without regard to such item.
"Net Loss" means, for any taxable period, the excess, if any, of the
Partnership's items of loss and deduction for such taxable period over the
Partnership's items of income and gain for such taxable period. The items
included in the calculation of Net Loss shall be determined in accordance with
Section 1.B of Exhibit B. Once an item of income, gain, loss or deduction that
has been included in the initial computation of Net Loss is subjected to the
special allocation rules in Exhibit C, Net Loss or the resulting Net Income,
whichever the case may be, shall be recomputed without regard to such item.
"Nonrecourse Built-in Gain" means, with respect to any Contributed
Properties or Adjusted Properties that are subject to a mortgage or negative
pledge securing a Nonrecourse Liability, the amount of any taxable gain that
would be allocated to the Partners pursuant to Section 2.B of Exhibit C if such
properties were disposed of in a taxable transaction in full satisfaction of
such liabilities and for no other consideration.
"Nonrecourse Deductions" has the meaning set forth in Regulations
Section 1.704-2(b)(1), and the amount of Nonrecourse Deductions for a
Partnership Year shall be determined in accordance with the rules of Regulations
Section 1.704-2(c).
"Nonrecourse Liability" has the meaning set forth in Regulations
Section 1.752-1(a)(2).
"Partner" means a General Partner or a Limited Partner, and "Partners"
means the General Partner and the Limited Partners.
"Partner Minimum Gain" means an amount, with respect to each Partner
Nonrecourse Debt, equal to the Partnership Minimum Gain that would result if
such Partner Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Regulations Section 1.704-2(i)(3).
-5-
<PAGE>
"Partner Nonrecourse Debt" has the meaning set forth in Regulations
Section 1.704- 2(b)(4).
"Partner Nonrecourse Deductions" has the meaning set forth in
Regulations Section 1.704- 2(i)(2), and the amount of Partner Nonrecourse
Deductions with respect to a Partner Nonrecourse Debt for a Partnership Year
shall be determined in accordance with the rules of Regulations Section
1.704-2(i)(2).
"Partnership" means the limited partnership formed under the Act and
pursuant to this Agreement and any successor thereto.
"Partnership Interest" means an ownership interest in the Partnership
representing a Capital Contribution by either a Limited Partner or the General
Partner and includes any and all benefits to which the holder of such a
Partnership Interest may be entitled as provided in this Agreement, together
with all obligations of such Person to comply with the terms and provisions of
this Agreement. A Partnership Interest may be expressed as a number of
Partnership Units.
"Partnership Minimum Gain" has the meaning set forth in Regulations
Section 1.704- 2(b)(2), and the amount of Partnership Minimum Gain, as well as
any net increase or decrease in Partnership Minimum Gain, for a Partnership Year
shall be determined in accordance with the rules of Regulations Section
1.704-2(d).
"Partnership Unit" means a fractional, undivided share of the
Partnership Interests of all Partners issued pursuant to Section 4.1 or 4.2. As
of the Effective Date, there shall be considered to be 100 Partnership Units
outstanding, with each Partnership Unit representing a 1% Percentage Interest in
the Partnership.
"Partnership Year" means the fiscal year of the Partnership, which
shall be the calendar year.
"Percentage Interest" means, as to a Partner, its interest in the
Partnership as determined by dividing the Partnership Units owned by such
Partner by the total number of Partnership Units then outstanding and as
specified in Exhibit A, as such Exhibit may be amended from time to time. In the
event any underwriters' over-allotment option granted in the Underwriting
Agreement shall be exercised in part or full, the issuance of additional
Partnership Units to the General Partner corresponding to the number of REIT
Shares issued by the General Partner in connection with such exercise and the
resulting reduction in the Percentage Interest of each Limited Partner other
than the General Partner shall reflected in Exhibit A.
"Person" means an individual or a corporation, partnership, trust,
unincorporated organization, association or other entity.
"Recapture Income" means any gain recognized by the Partnership
(computed without regard to any adjustment required by Section 734 or 743 of the
Code) upon the disposition of any property or asset of the Partnership, which
gain is characterized as ordinary income because it represents the recapture of
deductions previously taken with respect to such property or asset.
-6-
<PAGE>
"Regulations" means the income tax regulations promulgated under the
Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Regulatory Allocations" has the meaning set forth in Section 1.G of
Exhibit C.
"REIT" means a real estate investment trust under Sections 856 through
860 of the Code.
"Residual Gain" or "Residual Loss" means any item of gain or loss, as
the case may be, of the Partnership recognized for federal income tax purposes
resulting from a sale, exchange or other disposition of Contributed Property or
Adjusted Property, to the extent such item of gain or loss is not allocable
pursuant to Section 2.B.1(a) or 2.B.2(a) of Exhibit C to eliminate Book- Tax
Disparities.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, or other entity of which a majority of (i) the voting power of the
voting equity securities or (ii) the outstanding equity interests is owned,
directly or indirectly, by such Person.
"Terminating Capital Transaction" means any sale or other disposition
of all or substantially all of the assets of the Partnership or a related series
of transactions that, taken together, result in the sale or other disposition of
all or substantially all of the assets of the Partnership.
"Transaction" has the meaning set forth in Section 11.2.B.
"Unrealized Gain" attributable to any item of Partnership property
means, as of any date of determination, the excess, if any, of (i) the fair
market value of such property (as determined under Exhibit B) as of such date,
over (ii) the Carrying Value of such property (prior to any adjustment to be
made pursuant to Exhibit B) as of such date.
"Unrealized Loss" attributable to any item of Partnership property
means, as of any date of determination, the excess, if any, of (i) the Carrying
Value of such property (prior to any adjustment to be made pursuant to Exhibit
B) as of such date, over (ii) the fair market value of such property (as
determined under Exhibit B) as of such date.
ARTICLE 2
ORGANIZATIONAL MATTERS
Section 2.1 Formation of Partnership
The Partnership is a limited partnership organized pursuant to the
provisions of the Act and upon the terms and conditions set forth in this
Agreement. Except as expressly provided herein to the contrary, the rights and
obligations of the Partners and the administration and termination of the
Partnership shall be governed by the Act. The Partnership Interest of each
Partner shall be personal property for all purposes.
-7-
<PAGE>
Section 2.2 Name
The name of the Partnership shall be CNL Hospitality Partners, LP. The
Partnership's business may be conducted under any other name or names deemed
advisable by the General Partner, including the name of the General Partner or
any Affiliate thereof. The words "Limited Partnership," "L.P.," "Ltd." or
similar words or letters shall be included in the Partnership's name where
necessary for the purposes of complying with the laws of any jurisdiction that
so requires. The General Partner in its sole and absolute discretion may change
the name of the Partnership at any time and from time to time and shall notify
the Limited Partners of such change in the next regular communication to the
Limited Partners.
Section 2.3 Principal Office and Registered Agent
The address of the principal office of the Partnership shall be located
at 400 East South Street, Orlando, FL 32801, and the registered agent for
service of process on the Partnership in the State of Delaware shall be The
Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
Wilmington, DE 19801, or such other place as the General Partner may from time
to time designate by notice to the Limited Partners. The Partnership may
maintain offices at such other place or places within or outside the State of
Florida as the General Partner deems advisable.
Section 2.4 Power of Attorney
A. Each Limited Partner hereby constitutes and appoints the General
Partner, any Liquidator, and authorized officers and attorneys-in-fact of each,
and each of those acting singly, in each case with full power of substitution,
as its true and lawful agent and attorney-in-fact, with full power and authority
in its name, place and stead to:
(1) execute, swear to, acknowledge, deliver, file and record in
the appropriate public offices (a) all certificates, documents
and other instruments (including, without limitation, this
Agreement and the Certificate and all amendments or
restatements thereof) that the General Partner or the
Liquidator deems appropriate or necessary to qualify or
continue the existence or qualification of the Partnership as
a limited partnership in the State of Delaware and in all
other jurisdictions in which the Partnership may conduct
business or own property; (b) all instruments that the General
Partner or the Liquidator deems appropriate or necessary to
reflect any amendment, change, modification or restatement of
this Agreement in accordance with the terms; (c) all
conveyances and other instruments or documents that the
General Partner deems appropriate or necessary to reflect the
dissolution and liquidation of the Partnership pursuant to the
terms of this Agreement, including, without limitation, a
certificate of cancellation; (d) all instruments relating to
the admission, withdrawal, removal or substitution of any
Partner pursuant to, or other events described in, Article 12
hereof or the Capital Contribution of any Partner; and (e) all
certificates, documents and other instruments relating to the
determination of the rights, preferences and privileges of
Partnership Interests; and
-8-
<PAGE>
(2) execute, swear to, seal, acknowledge and file all ballots,
consents, approvals, waivers, certificates and other
instruments appropriate or necessary, in the sole and absolute
discretion of the General Partner or any Liquidator, to make,
evidence, give, confirm or ratify any vote, consent, approval,
agreement or other action which is made or given by the
Partners hereunder or is consistent with the terms of this
Agreement or appropriate or necessary, in the sole discretion
of the General Partner or any Liquidator, to effectuate the
terms or intent of this Agreement.
Nothing contained herein shall be construed as authorizing the General
Partner or any Liquidator to amend this Agreement except in accordance with
Article 13 hereof or as may be otherwise expressly provided for in this
Agreement.
B. The foregoing power of attorney is hereby declared to be irrevocable
and a power coupled with an interest, in recognition of the fact that each of
the Partners will be relying upon the power of the General Partner and any
Liquidator to act as contemplated by this Agreement in any filing or other
action by it on behalf of the Partnership, and it shall survive and not be
affected by the subsequent Incapacity of any Limited Partner and the transfer of
all or any portion of such Limited Partner's Partnership Units and shall extend
to such Limited Partner's heirs, successors, assigns and personal
representatives. Each such Limited Partner hereby agrees to be bound by any
representation made by the General Partner or any Liquidator, acting in good
faith pursuant to such power of attorney, and each such Limited Partner hereby
waives any and all defenses which may be available to contest, negate or
disaffirm the action of the General Partner or any Liquidator, taken in good
faith under such power of attorney. Each Limited Partner shall execute and
deliver to the General Partner or the Liquidator, within fifteen (15) days after
receipt of the General Partner's or Liquidator's request therefor, such further
designations, powers of attorney and other instruments as the General Partner or
the Liquidator, as the case may be, deems necessary to effectuate this Agreement
and the purposes of the Partnership.
Section 2.5 Term
The term of the Partnership commenced on June ___, 1998, the date the
Certificate was filed with the Secretary of State of Delaware in accordance with
the Act, and shall continue until December 31, 2050, unless the Partnership is
dissolved sooner pursuant to the provisions of Article 12 or as otherwise
provided by law.
ARTICLE 3
PURPOSE
Section 3.1 Purpose and Business
The purpose and nature of the business to be conducted by the
Partnership is to (i) conduct any business that may be lawfully conducted by a
limited partnership organized pursuant to the Act, including, without
limitation, to acquire, hold, own, develop, construct, improve, maintain,
operate, sell, lease, transfer, encumber, convey, exchange, and otherwise
dispose of or deal with real and personal property of all kinds; (ii) enter into
any partnership, joint venture or other similar arrangement to engage in any of
the foregoing or the ownership of interests in any entity engaged in any of the
foregoing, and to exercise all of the powers of an owner in any such
-9-
<PAGE>
entity; and (iii) do anything necessary, appropriate, proper, advisable,
desirable, convenient or incidental to the foregoing; provided, however, that
such business shall be limited to and conducted in such a manner as to permit
the sole shareholder of the General Partner (the "General Partner Shareholder")
at all times to qualify as a REIT, unless the General Partner Shareholder
voluntarily terminates its REIT status pursuant to its articles of
incorporation. In connection with the foregoing, and without limiting the right
of the General Partner Shareholder in its sole discretion to cease qualifying as
a REIT, the Partners acknowledge that the current status of the General Partner
Shareholder as a REIT inures to the benefit of all the Partners and not solely
the General Partner or the General Partner Shareholder.
Section 3.2 Powers
Subject to all of the terms, covenants, conditions and limitations
contained in this Agreement and any other agreement entered into by the
Partnership, the Partnership shall have full power and authority to do any and
all acts and things necessary, appropriate, proper, advisable, desirable,
incidental to or convenient for the furtherance and accomplishment of the
purposes and business described herein and for the protection and benefit of the
Partnership, including, without limitation, full power and authority, directly
or through its ownership interest in other entities, to enter into, perform and
carry out contracts of any kind, borrow money and issue evidences of
indebtedness, whether or not secured by mortgage, deed of trust, pledge or other
lien, acquire and develop real property, and lease, sell, transfer or otherwise
dispose of real property; provided, however, that the Partnership shall not
take, or refrain from taking, any action which, in the judgment of General
Partner, in its sole and absolute discretion, (i) could adversely affect the
ability of the General Partner Shareholder to achieve or maintain qualification
as a REIT, (ii) could subject the General Partner or the General Partner
Shareholder to any additional taxes under Section 857 or Section 4981 of the
Code, or (iii) could violate any law or regulation of any governmental body or
agency having jurisdiction over the General Partner or its securities, unless
such action (or inaction) shall have been specifically consented to by the
General Partner in writing.
ARTICLE 4
CAPITAL CONTRIBUTIONS
Section 4.1 Capital Contributions of the Partners
A. On the Effective Date, the Partners shall make the Capital
Contributions set forth in Exhibit A to this Agreement. To the extent the
Partnership acquires any property by the merger of any other Person into the
Partnership, Persons who receive Partnership Interests in exchange for their
interests in the Person merging into the Partnership shall become Partners and
shall be deemed to have made Capital Contributions as provided in the applicable
merger agreement and as set forth in Exhibit A as amended to reflect such deemed
Capital Contributions. The Partners shall own Partnership Units in the amounts
set forth for each Partner in Exhibit A and shall have a Percentage Interest in
the Partnership as set forth in Exhibit A, which Percentage Interest shall be
adjusted in Exhibit A from time to time by the General Partner to the extent
necessary to reflect accurately exchanges, Capital Contributions, the issuance
of additional
-10-
<PAGE>
Partnership Units (pursuant to any merger or otherwise), or similar events
having an effect on a Partner's Percentage Interest. Except as provided in
Sections 4.2, the Partners shall have no obligation to make any additional
Capital Contributions or loans to the Partnership.
B. The ownership of Partnership Units may be evidenced by such form of
certificate as the General Partner may from time to time prescribe. Upon
surrender to the General Partner of a certificate evidencing the ownership of
Partnership Units, accompanied by proper evidence of authority to transfer, the
General Partner shall cancel the old certificate, issue a new certificate to the
Person entitled thereto and record the transaction upon its books. The General
Partner may issue a new certificate or certificates in place of any certificate
or certificates previously issued, which previously-issued certificate or
certificates are alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the owner claiming the certificate or
certificates to be lost, stolen or destroyed. When issuing such new certificate
or certificates, the General Partner may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or its legal representative, to give the
Partnership a bond in such sum as the General Partner may direct as indemnity
against any claim that may be made against the Partnership with respect to the
certificate or certificates alleged to have been lost, stolen or destroyed.
Section 4.2 Issuances of Additional Partnership Interests
The General Partner is hereby authorized to cause the Partnership from
time to time to issue to Partners (including the General Partner) or other
persons (including, without limitation, in connection with the contribution of
property to the Partnership) additional Partnership Units or other Partnership
Interests in one or more classes, or one or more series of any of such classes,
with such designations, preferences and relative, participating, optional or
other special rights, powers and duties, including rights, powers and duties
senior to Limited Partnership Interests, all as shall be determined by the
General Partner in its sole and absolute discretion subject to Delaware law,
including, without limitation, (i) the allocations of items of Partnership
income, gain, loss, deduction and credit to each such class or series of
Partnership Interests; (ii) the right of each such class or series of
Partnership Interests to share in Partnership distributions; and (iii) the
rights of each such class or series of Partnership Interests upon dissolution
and liquidation of the Partnership; provided that no such additional Partnership
Units or other Partnership Interests shall be issued to the General Partner
unless either (a)(1) the additional Partnership Interests are issued in
connection with the grant, award, or issuance of shares of the General Partner,
which shares have designations, preferences and other rights such that the
economic interests attributable to such shares are substantially similar to the
designations, preferences and other rights of the additional Partnership
Interests issued to the General Partner in accordance with this Section 4.2, and
(2) the General Partner shall make a Capital Contribution to the Partnership in
an amount equal to the proceeds, if any, raised in connection with the issuance
of such shares of the General Partner, or (b) the additional Partnership
Interests are issued to all Partners in proportion to their respective
Percentage Interests.
-11-
<PAGE>
Section 4.3 No Preemptive Rights
No Person shall have any preemptive, preferential or other similar
right with respect to (i) additional Capital Contributions or loans to the
Partnership; or (ii) issuance or sale of any Partnership Units or other
Partnership Interests.
Section 4.4 No Interest on Capital
No Partner shall be entitled to interest on its Capital Contribution or
its Capital Account.
ARTICLE 5
DISTRIBUTIONS
Section 5.1 Requirement and Characterization of Distributions
The General Partner shall make such distributions pro rata to the
Partners in proportion to their respective Partnership Interests in such amounts
and at such intervals as it determines in its discretion.
Section 5.2 Distributions In Kind
Pursuant to Section 17-605 of the Act, the General Partner has the
authority to make in-kind distributions of assets to the Partners. Any such
distributions in kind shall be distributed among the Partners in the same manner
as set forth in Section 5.1 with respect to Available Cash (provided that
distributions in kind made after commencement of the liquidation of the
Partnership shall be distributed to the Partners in accordance with Section
12.2). The General Partner shall determine the fair market value of any assets
distributed in kind using such reasonable method of valuation as it may adopt.
Section 5.3 Amounts Withheld
All amounts withheld pursuant to the Code or any provisions of any
state or local tax law and Section 10.5 hereof with respect to any allocation,
payment or distribution to a Partner shall be treated as amounts distributed to
such Partner pursuant to Section 5.1 for all purposes under this Agreement.
Section 5.4 Distributions Upon Liquidation
Proceeds from a Terminating Capital Transaction and any other cash
received or reductions in reserves made after commencement of the liquidation of
the Partnership, shall be distributed to the Partners in accordance with Section
12.2.
-12-
<PAGE>
ARTICLE 6
ALLOCATIONS
Section 6.1 Allocations for Capital Account Purposes
For purposes of maintaining the Capital Accounts and in determining the
rights of the Partners among themselves, the Partnership's items of income,
gain, loss and deduction (computed in accordance with Exhibit B hereof) shall be
allocated among the Partners in each taxable year (or portion thereof) as
provided herein below.
A. Net Income. After giving effect to the special allocations set forth
in Section 1 of Exhibit C, Net Income shall be allocated (i) first, to the
General Partner to the extent that Net Losses previously allocated to the
General Partner pursuant to the last sentence of Section 6.1.B exceed Net Income
previously allocated to the General Partner pursuant to this clause (i) of
Section 6.1.A, and (ii) thereafter, Net Income shall be allocated to the
Partners in accordance with their respective Percentage Interests.
B. Net Loss. After giving effect to the special allocations set forth
in Section 1 of Exhibit C, Net Loss shall be allocated to the Partners in
accordance with their respective Percentage Interests; provided that Net Loss
shall not be allocated to any Limited Partner pursuant to this Section 6.1.B to
the extent that such allocation would cause such Limited Partner to have an
Adjusted Capital Account Deficit at the end of such taxable year (or increase
any existing Adjusted Capital Account Deficit). All Net Loss in excess of the
limitations set forth in this Section 6.1.B shall be allocated to the General
Partner.
C. Allocation of Nonrecourse Debt. For purposes of Regulations Section
1.752-3(a), the Partners agree that Nonrecourse Liabilities of the Partnership
in excess of the sum of (i) the amount of Partnership Minimum Gain and (ii) the
total amount of Nonrecourse Built-In Gain shall be allocated among the Partners
in accordance with their respective Percentage Interests.
D. Recapture Income. If any portion of gain from the sale of property
is treated as Recapture Income, such Recapture Income shall be allocated among
the Partners in accordance with the provisions of Regulations Sections
1.1245-1(e) and 1.1250-1(f).
E. Allocations to Reflect Issuance of Additional Partnership Interests.
In the event that the Partnership issues additional Partnership Interests to the
General Partner or any Additional Limited Partner under Section 4.2 hereof, the
General Partner shall make such revisions to Sections 6.1.A and B above as it
determines are necessary to reflect the issuance of such additional Partnership
Interests.
-13-
<PAGE>
ARTICLE 7
MANAGEMENT AND OPERATIONS OF BUSINESS
Section 7.1 Management
A. Except as otherwise expressly provided in this Agreement, all
management powers over the business and affairs the Partnership are and shall be
exclusively vested in the General Partner, and no Limited Partner shall have any
right to participate in or exercise control or management power over the
business and affairs of the Partnership. The General Partner may not be removed
by the Limited Partners with or without cause. In addition to the powers now or
hereafter granted a general partner of a limited partnership under applicable
law or which are granted to the General Partner under any other provision of
this Agreement, the General Partner, subject to Section 7.3 hereof, shall have
full power and authority to do all things deemed necessary or desirable by it to
conduct the business of the Partnership, to exercise all powers set forth in
Section 3.2 hereof and to effectuate the purposes set forth in Section 3.1
hereof, including, without limitation:
(1) the making of any expenditures, the lending or borrowing of
money (including, without limitation, making prepayments on
loans and borrowing money to permit the Partnership to make
distributions to its Partners in such amounts as will permit
the General Partner Shareholder (so long as the General
Partner Shareholder elects to qualify as a REIT) to avoid the
payment of any federal income tax (including, for this
purpose, any excise tax pursuant to Section 4981 of the Code)
and to make distributions to its shareholders sufficient to
permit the General Partner Shareholder to maintain REIT
status), the assumption or guarantee of, or other contracting
for, indebtedness and other liabilities, the issuance of
evidences of indebtedness (including the securing of same by
deed to secure debt, mortgage, deed of trust or other lien or
encumbrance on the Partnership's assets) and the incurring of
any obligations it deems necessary for the conduct of the
activities of the Partnership;
(2) the making of tax, regulatory and other filings, or rendering
of periodic or other reports to governmental or other agencies
having jurisdiction over the business or assets of the
Partnership;
(3) the acquisition, disposition, mortgage, pledge, encumbrance,
hypothecation or exchange of any assets of the Partnership
(including the exercise or grant of any conversion, option,
privilege, or subscription right or other right available in
connection with any assets at any time held by the
Partnership) or the merger or other combination of the
Partnership with or into another entity (all of the foregoing
subject to any prior approval only to the extent required by
Section 7.3 hereof);
(4) the use of the assets of the Partnership (including, without
limitation, cash on hand) for any purpose consistent with the
terms of this Agreement and on any terms it sees fit,
including, without limitation, the financing of the conduct of
the operations of the General Partner, the Partnership or any
of the Partnership's
-14-
<PAGE>
Subsidiaries, the lending of funds to other Persons
(including, without limitation, the Partnership's
Subsidiaries) and the repayment of obligations of the
Partnership and its Subsidiaries and any other Person in which
it has an equity investment and the making of capital
contributions to its Subsidiaries;
(5) the management, operation, leasing, landscaping, repair,
alteration, demolition or improvement of any real property or
improvements owned by the Partnership or any Subsidiary of the
Partnership;
(6) the negotiation, execution, and performance of any contracts,
conveyances or other instruments that the General Partner
considers useful or necessary to the conduct of the
Partnership's operations or the implementation of the General
Partner's powers under this Agreement, including contracting
with contractors, developers, consultants, accountants, legal
counsel, other professional advisors and other agents and the
payment of their expenses and compensation out of the
Partnership's assets;
(7) the distribution of Partnership cash or other Partnership
assets in accordance with this Agreement;
(8) holding, managing, investing and reinvesting cash and other
assets of the Partnership;
(9) the collection and receipt of revenues and income of the
Partnership;
(10) the establishment of one or more divisions of the Partnership,
the selection and dismissal of employees of the Partnership,
any division of the Partnership, or the General Partner
(including, without limitation, employees having titles such
as "president," "vice president," "secretary" and "treasurer"
of the Partnership, any division of the Partnership, or the
General Partner), and of agents, outside attorneys,
accountants, consultants and contractors of the General
Partner, the Partnership or any division of the Partnership,
and the determination of their compensation and other terms of
employment or hiring;
(11) the maintenance of such insurance for the benefit of the
Partnership and the Partners as it deems necessary or
appropriate;
(12) the formation of, or acquisition of a debt or equity ownership
interest in, and the contribution of property to, any further
limited or general partnerships, joint ventures, corporations,
trusts or other entities that it deems desirable (including,
without limitation, the acquisition of interests in, and the
contributions of property to, its Subsidiaries and any other
Person in which it has an investment from time to time);
(13) the control of any matters affecting the rights and
obligations of the Partnership, including the settlement,
compromise, submission to arbitration or any other form of
dispute resolution, or abandonment of any claim, cause of
action, liability, debt
-15-
<PAGE>
or damages due or owing to or from the Partnership, the
commencement or defense of suits, legal proceedings,
administrative proceedings, arbitrations or other forms of
dispute resolution, and the representation of the Partnership
in all suits or legal proceedings, administrative proceedings,
arbitrations or other forms of dispute resolution, the
incurring of legal expense, and the indemnification of any
Person against liabilities and contingencies to the extent
permitted by law;
(14) the undertaking of any action in connection with the
Partnership's direct or indirect investment in its
Subsidiaries or any other Person (including, without
limitation, the contribution or loan of funds by the
Partnership to such Persons);
(15) the determination of the fair market value of any Partnership
property distributed in kind using such reasonable method of
valuation as it may adopt;
(16) the exercise, directly or indirectly through any
attorney-in-fact acting under a general or limited power of
attorney, of any right, including the right to vote,
appurtenant to any asset or investment held by the
Partnership;
(17) the exercise of any of the powers of the General Partner
enumerated in this Agreement on behalf of or in connection
with any Subsidiary of the Partnership or any other Person in
which the Partnership has a direct or indirect interest, or
jointly with any such Subsidiary or other Person;
(18) the exercise of any of the powers of the General Partner
enumerated in this Agreement on behalf of any Person in which
the Partnership does not have an interest pursuant to
contractual or other arrangements with such Person; and
(19) the making, execution and delivery of any and all deeds,
leases, notes, deeds to secure debt, mortgages, deeds of
trust, security agreements, conveyances, contracts,
guarantees, warranties, indemnities, waivers, releases or
legal instruments or agreements in writing necessary or
appropriate in the judgment of the General Partner for the
accomplishment of any of the powers of the General Partner
enumerated in this Agreement.
B. Each of the Limited Partners agrees that the General Partner is
authorized to execute, deliver and perform the above-mentioned agreements and
transactions on behalf of the Partnership without any further act, approval or
vote of the Partners, notwithstanding any other provision of this Agreement
(except as provided in Section 7.3), the Act or any applicable law, rule or
regulation, to the fullest extent permitted under the Act or other applicable
law. The execution, delivery or performance by the General Partner or the
Partnership of any agreement authorized or permitted under this Agreement shall
not constitute a breach by the General Partner of any duty that the General
Partner may owe the Partnership or the Limited Partners or any other Persons
under this Agreement or of any duty stated or implied by law or equity.
C. At all times from and after the date hereof, the General Partner at
the expense of the Partnership, may or may not cause the Partnership to obtain
and maintain casualty, liability and other insurance on the properties of the
Partnership.
-16-
<PAGE>
D. At all times from and after the date hereof, the General Partner may
cause the Partnership to establish and maintain at any and all times working
capital accounts and other cash or similar balances in such amounts as the
General Partner, in its sole and absolute discretion, deems appropriate and
reasonable from time to time.
E. In exercising its authority under this Agreement, the General
Partner may, but shall be under no obligation to, take into account the tax
consequences to any Partner of any action taken by it. The General Partner and
the Partnership shall not have liability to a Limited Partner under any
circumstances as a result of an income tax liability incurred by such Limited
Partner as a result of an action (or inaction) by the General Partner pursuant
to its authority under this Agreement.
Section 7.2 Certificate of Limited Partnership
The General Partner has previously filed the Certificate with the
Secretary of State of Delaware as required by the Act. The General Partner shall
use all reasonable efforts to cause to be filed such other certificates or
documents as may be reasonable and necessary or appropriate for the formation,
continuation, qualification and operation of a limited partnership (or a
partnership in which the limited partners have limited liability) in the State
of Delaware and each other jurisdiction in which the Partnership may elect to do
business or own property. To the extent that such action is determined by the
General Partner to be reasonable and necessary or appropriate, the General
Partner shall file amendments to and restatements of the Certificate and do all
the things to maintain the Partnership as a limited partnership (or a
partnership in which the limited partners have limited liability) under the laws
of the State of Delaware and each other jurisdiction in which the Partnership
may elect to do business or own property. The General Partner shall not be
required before or after filing, to deliver or mail a copy of the Certificate or
any amendment thereto to any Limited Partner.
Section 7.3 Restrictions on General Partner's Authority
A. The General Partner may not take any action in contravention of an
express prohibition or limitation of this Agreement without the written consent
of all of the Partners (or such lower percentage of the Partners as may be
specifically provided for under a provision of this Agreement or the Act).
B. Except as provided in Article 12 hereof, the General Partner may not
sell, exchange, transfer or otherwise dispose of all or substantially all of the
Partnership's assets in a single transaction or a series of related transactions
(including by way of merger, consolidation or other combination with any other
Person) without the consent of holders of a majority of the outstanding
Partnership Units (including Partnership Units held by the General Partner).
Section 7.4 Title to Partnership Assets
Title to Partnership assets, whether real, personal or mixed and
whether tangible or intangible, shall be deemed to be owned by the Partnership
as an entity, and no Partner, individually or collectively, shall have any
ownership interest in such Partnership assets or any portion thereof. Title to
any or all of the Partnership assets may be held in the name of the
-17-
<PAGE>
Partnership, the General Partner or one or more nominees, as the General Partner
may determine, including Affiliates of the General Partner. The General Partner
hereby declares and warrants that any Partnership assets for which legal title
is held in the name of the General Partner or any nominee or Affiliate of the
General Partner shall be held by the General Partner for the use and benefit of
the Partnership in accordance with the provisions of this Agreement; provided,
however, that the General Partner shall use its best efforts to cause beneficial
and record title to such assets to be vested in the Partnership as soon as
reasonably practicable. All Partnership assets shall be recorded as the property
of the Partnership in its books and records, irrespective of the name in which
legal title to such Partnership assets is held.
Section 7.5 Reliance by Third Parties
Notwithstanding anything to the contrary in this Agreement, any Person
dealing with the Partnership shall be entitled to assume that the General
Partner has full power and authority, without consent or approval of any other
Partner or Person, to encumber, sell or otherwise use in any manner any and all
assets of the Partnership and to enter into any contracts on behalf of the
Partnership, and take any and all actions on behalf of the Partnership and such
Person shall be entitled to deal with the General Partner as if the General
Partner were the Partnership's sole party in interest, both legally and
beneficially. Each Limited Partner hereby waives any and all defenses or other
remedies which may be available against such Person to contest, negate or
disaffirm any action of the General Partner in connection with any such dealing.
In no event shall any Person dealing with the General Partner or its
representatives be obligated to ascertain that the terms of this Agreement have
been complied with or to inquire into the necessity or expedience of any act or
action of the General Partner or its representatives. Each and every
certificate, document or other instrument executed on behalf of the Partnership
by the General Partner or its representatives shall be conclusive evidence in
favor of any and every Person relying thereon or claiming thereunder that (i) at
the time of the execution and delivery of such certificate, document or
instrument, this Agreement was in full force and effect, (ii) the Person
executing and delivering such certificate, document or instrument was duly
authorized and empowered to do so for and on behalf of the Partnership and (iii)
such certificate, document or instrument was duly executed and delivered in
accordance with the terms and provisions of this Agreement and is binding upon
the Partnership.
ARTICLE 8
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
Section 8.1 Limitation of Liability
The Limited Partners shall have no liability under this Agreement
except as expressly provided in this Agreement or under the Act.
Section 8.2 Management of Business
No Limited Partner (other than the General Partner, any of its
Affiliates or any officer, director, employee, partner, agent or trustee of the
General Partner, the Partnership or any of their Affiliates, in their capacity
as such) shall take part in the operation, management or control (within the
meaning of the Act) of the Partnership's business, transact any business in the
-18-
<PAGE>
Partnership's name or have the power to sign documents for or otherwise bind the
Partnership. The transaction of any such business by the General Partner, any of
its Affiliates or any officer, director, employee, partner, agent or trustee of
the General Partner, the Partnership or any of their Affiliates, in their
capacity as such, shall not affect, impair or eliminate the limitations on the
liability of the Limited Partners under this Agreement.
ARTICLE 9
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1 Records and Accounting
The General Partner shall keep or cause to be kept at the principal
office of the Partnership those records and documents required to be maintained
by the Act and other books and records deemed by the General Partner to be
appropriate with respect to the Partnership's business. Any records maintained
by or on behalf of the Partnership in the regular course of its business may be
kept on, or be in the form of, punch cards, magnetic tape, photographs, micro
graphics or any other information storage device, provided that the records so
maintained are convertible into clearly legible written form within a reasonable
period of time. The books of the Partnership shall be maintained, for financial
and tax purposes, on an accrual basis in accordance with generally accepted
accounting principles, or other such basis as the General Partner determines to
be necessary or appropriate.
Section 9.2 Fiscal Year
The fiscal year of the Partnership shall be the calendar year.
ARTICLE 10
TAX MATTERS
Section 10.1 Preparation of Tax Returns
The General Partner shall arrange for the preparation and timely filing
of all returns of Partnership income, gains, deductions, losses and other items
required of the Partnership for federal, state and local income tax purposes,
and the delivery to the Limited Partners of all tax information reasonably
required by the Limited Partners for federal, state and local income tax
reporting purposes.
Section 10.2 Tax Elections
Except as otherwise provided herein, the General Partner shall, in its
sole and absolute discretion, determine whether to make any available election
or choose any available reporting method pursuant to the Code or state or local
tax law. The General Partner shall have the right to seek to revoke any such
election (including, without limitation, the election under Section 754 of the
Code) or change any reporting method in its sole and absolute discretion.
-19-
<PAGE>
Section 10.3 Tax Matters Partner
A. The General Partner shall be the "tax matters partner" of the
Partnership for federal income tax purposes. Pursuant to Section 6223(c)(3) of
the Code, upon receipt of notice from the IRS of the beginning of an
administrative proceeding with respect to the Partnership, the tax matters
partner shall furnish the IRS with the name, address and profits interest of
each of the Limited Partners, provided that such information is provided to the
Partnership by the Limited Partners.
B. The tax matters partner is authorized, but not required:
(1) to enter into any settlement with the IRS with respect to
any administrative or judicial proceedings for the adjustment of
Partnership items required to be taken into account by a Partner for
income tax purposes (such administrative proceedings being referred to
as a "tax audit" and such judicial proceedings being referred to as
"judicial review"), and in the settlement agreement the tax matters
partner may expressly state that such agreement shall bind all
Partners, except that such settlement agreement shall not bind any
Partner (i) who (within the time prescribed pursuant to the Code and
Regulations) files a statement with the IRS providing that the tax
matters partner shall not have the authority to enter into a settlement
agreement on behalf of such Partner or (ii) who is a "notice partner"
(as defined in Section 6231 of the Code) or a member of a "notice
group" (as defined in Section 6223(b)(2) of the Code);
(2) in the event that a notice of a final administrative
adjustment at the Partnership level of any item required to be taken
into account by a Partner for tax purposes (a "final adjustment") is
mailed to the tax matters partner, to seek judicial review of such
final adjustment, including the filing of a petition for readjustment
with the Tax Court or the United States Claims Court, or the filing of
a complaint for refund with the District Court of the United States for
the district in which the Partnership's principal place of business is
located;
(3) to intervene in any action brought by any other Partner
for judicial review of a final adjustment;
(4) to file a request for an administrative adjustment with
the IRS at any time and, if any part of such request is not allowed by
the IRS, to file an appropriate pleading (petition or complaint) for
judicial review with respect to such request;
(5) to enter into an agreement with the IRS to extend the
period for assessing any tax which is attributable to any item required
to be taken into account by a Partner for tax purposes, or an item
affected by such item; and
(6) to take any other action on behalf of the Partners of the
Partnership in connection with any tax audit or judicial review
proceeding to the extent permitted by applicable law or regulations.
-20-
<PAGE>
The taking of any action and the incurring of any expense by the tax
matters partner in connection with any such proceeding, except to the extent
required by law, is a matter in the sole and absolute discretion of the tax
matters partner and the provisions relating to indemnification of Indemnitees
set forth in Section 7.7 of this Agreement shall be fully applicable to the tax
matters partner in its capacity as such.
C. The tax matters partner shall receive no compensation for its
services. All third party costs and expenses incurred by the tax matters partner
in performing its duties as such (including legal and accounting fees) shall be
borne by the Partnership. Nothing herein shall be construed to restrict the
Partnership from engaging an accounting firm to assist the tax matters partner
in discharging its duties hereunder.
Section 10.4 Organizational Expenses
The Partnership shall elect to deduct expenses, if any, incurred by it
in organizing the Partnership ratably over a sixty (60)-month period as provided
in Section 709 of the Code.
Section 10.5 Withholding
Each Limited Partner hereby authorizes the Partnership to withhold from
or pay on behalf of or with respect to such Limited Partner any amount of
federal, state, local, or foreign taxes that the General Partner determines that
the Partnership is required to withhold or pay with respect to any amount
distributable or allocable to such Limited Partner pursuant to this Agreement,
including, without limitation, any taxes required to be withheld or paid by the
Partnership pursuant to Sections 1441, 1442, 1445, or 1446 of the Code. Any
amount paid on behalf of or with respect to a Limited Partner shall constitute a
loan by the Partnership to such Limited Partner, which loan shall be repaid by
such Limited Partner within fifteen (15) days after notice from the General
Partner that such payment must be made unless (i) the Partnership withholds such
payment from a distribution which would otherwise be made to the Limited
Partner, or (ii) the General Partner determines, in its sole and absolute
discretion, that such payment may be satisfied out of the available funds of the
Partnership which would, but for such payment, be distributed to the Limited
Partner. Any amounts withheld pursuant to the foregoing clauses (i) or (ii)
shall be treated as having been distributed to such Limited Partner. Each
Limited Partner hereby unconditionally and irrevocably grants to the Partnership
a security interest in such Limited Partner's Partnership Interest to secure
such Limited Partner's obligation to pay to the Partnership any amounts required
to be paid pursuant to this Section 10.5. In the event that a Limited Partner
fails to pay any amounts owed to the Partnership pursuant to this Section 10.5
when due, the General Partner may, in its sole and absolute discretion, elect to
make the payment to the Partnership on behalf of such defaulting Limited
Partner, and in such event shall be deemed to have loaned such amount to such
defaulting Limited Partner and, until repayment of such loan, shall succeed to
all rights and remedies of the Partnership as against such defaulting Limited
Partner (including, without limitation, the right to receive distributions). Any
amounts payable by a Limited Partner hereunder shall bear interest at the base
rate on corporate loans at large United States money center commercial banks, as
published from time to time in the Wall Street Journal, plus four percentage
points (but not higher than the maximum lawful
-21-
<PAGE>
rate) from the date such amount is due (i.e., fifteen (15) days after demand)
until such amount is paid in full. Each Limited Partner shall take such actions
as the Partnership or the General Partner shall request in order to perfect or
enforce the security interest created hereunder.
ARTICLE 11
TRANSFERS AND WITHDRAWALS
Section 11.1 Transfer
The term "transfer," when used in this Article 11 with respect to a
Partnership Unit, shall be deemed to refer to a transaction by which the General
Partner purports to assign all or any part of its General Partner Interest to
another Person or by which a Limited Partner purports to assign all or any part
of its Limited Partner Interest to another Person, and includes a sale,
assignment, gift, pledge, encumbrance, hypothecation, mortgage, exchange or any
other disposition by law or otherwise.
Section 11.2 Transfer of General Partner's Partnership Interest
The General Partner may not transfer any of its General Partner
Interest or withdraw as General Partner, except in connection with the
dissolution and liquidation of the General Partner.
Section 11.3 Transfer of Limited Partners' Partnership Interests
No Limited Partner may transfer any of its Partnership Interest.
Section 11.4 Acquisition of Partnership Interest by Partnership
The Partnership may acquire, by purchase, redemption or otherwise, any
Partnership Interest or other interest of a Partner in the Partnership. Any
Partnership Interest or other interest so acquired by the Partnership shall be
deemed canceled. In the event that a Partnership Interest is acquired by the
Partnership pursuant to this Section 11.4, the Partnership Interest of each
other existing Partner shall be increased, as of the date of acquisition of such
Partnership Interest by the Partnership, such that the Partnership Interest of
each Partner shall be equal to the sum of (a) each Partner's existing
Partnership Interest, plus (b) the product obtained by multiplying (i) each
Partner's existing Partnership Interest by (ii) a fraction, the numerator of
which is equal to the Partnership Interest acquired by the Partnership and the
denominator of which is equal to the result obtained by subtracting (A) one
minus (B) the Partnership Interest acquired by the Partnership.
ARTICLE 12
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 12.1 Dissolution
Except as set forth in this Article 12, no Partner shall have the right
to dissolve the Partnership. The Partnership shall not be dissolved by the
admission of Additional Limited Partners or by the admission of a successor
General Partner in accordance with the terms of this
-22-
<PAGE>
Agreement. Upon the withdrawal of the General Partner, any successor General
Partner shall continue the business of the Partnership. The Partnership shall
dissolve, and its affairs shall be wound up, upon the first to occur of any of
the following ("Liquidating Events"):
A. the expiration of its term as provided in Section 2.5;
B. an event of withdrawal of the General Partner, as defined in
the Act (other than an event of bankruptcy), unless, within ninety (90) days
after such event of withdrawal all the remaining Partners agree in writing to
continue the business of the Partnership and to the appointment, effective as of
the date of withdrawal, of a successor General Partner;
C. an election to dissolve the Partnership made by the General
Partner, in its sole and absolute discretion;
D. entry of a decree of judicial dissolution of the Partnership
pursuant to the provisions of the Act;
E. the sale of all or substantially all of the assets and
properties of the Partnership; or
F. a final and non-appealable judgment is entered by a court
of competent jurisdiction ruling that the General Partner is bankruptcy or
insolvent, or a final and non-appealable order for relief is entered by a court
with appropriate jurisdiction against the General Partner, in each case under
any federal or state bankruptcy or insolvency laws as now or hereafter in
effect, unless prior to the entry of such order or judgment all of the remaining
Partners agree in writing to continue the business of the Partnership and to the
appointment, effective as of the date prior to the date of such order or
judgment, of a substituted General Partner.
Section 12.2 Winding Up
A. Upon the occurrence of a Liquidating Event, the Partnership shall
continue solely for the purposes of winding up its affairs in an orderly manner,
liquidating its assets, and satisfying the claims of its creditors and Partners.
No Partner shall take any action that is inconsistent with, or not necessary to
or appropriate for, the winding up of the Partnership's business and affairs.
The General Partner, or, in the event there is no remaining General Partner, any
Person elected by a majority in interest of the Limited Partners (the General
Partner or such other Person being referred to herein as the "Liquidator") shall
be responsible for overseeing the winding up and dissolution of the Partnership
and shall take full account of the Partnership's liabilities and property and
the Partnership property shall be liquidated as promptly as is consistent with
obtaining the fair value thereof, and the proceeds therefrom (which may, to the
extent determined by the General Partner, include shares of stock in the General
Partner) shall be applied and distributed in the following order:
(1) First, to the payment and discharge of all of the
Partnership's debts and liabilities to creditors other than
the Partners;
-23-
<PAGE>
(2) Second, to the payment and discharge of all of the
Partnership's debts and liabilities to the Partners; and
(3) The balance, if any, to the General Partner and Limited
Partners in accordance with their Capital Accounts, after
giving effect to all contributions, distributions, and
allocations for all periods.
The General Partner shall not receive any additional compensation for any
services performed pursuant to this Article 12.
B. Notwithstanding the provisions of Section 12.2.A which require
liquidation of the assets of the Partnership, but subject to the order of
priorities set forth therein, if prior to or upon dissolution of the Partnership
the Liquidator determines that an immediate sale of part or all of the
Partnership's assets would be impractical or would cause undue loss to the
Partners, the Liquidator may, in its sole and absolute discretion, defer for a
reasonable time the liquidation of any assets except those necessary to satisfy
liabilities of the Partnership (including to those Partners as creditors) and/or
distribute to the Partners, in lieu of cash, as tenants in common and in
accordance with the provisions of Section 12.2.A, undivided interests in such
Partnership assets as the Liquidator deems not suitable for liquidation. Any
such distributions in kind shall be made only if, in the good faith judgment of
the Liquidator, such distributions in kind are in the best interest of the
Partners, and shall be subject to such conditions relating to the disposition
and management of such properties as the Liquidator deems reasonable and
equitable and to any agreements governing the operation of such properties at
such time. The Liquidator shall determine the fair market value of any property
distributed in kind using such reasonable method of valuation as it may adopt.
C. In the discretion of the Liquidator, a pro rata portion of the
distributions that would otherwise be made to the General Partner and Limited
Partners pursuant to this Article 12 may be:
1. distributed to a trust established for the benefit of the
General Partner and Limited Partners for the purpose of liquidating
Partnership assets, collecting amounts owed to the Partnership, and
paying any contingent or unforeseen liabilities or obligations of the
Partnership or of the General Partner arising out of or in connection
with the Partnership. The assets of any such trust shall be distributed
to the General Partner and Limited Partners from time to time, in the
reasonable discretion of Liquidator, in the same proportions as the
amount distributed to such trust by the Partnership would otherwise
have been distributed to the General Partner and Limited Partners
pursuant to this Agreement; or
2. withheld or escrowed to provide a reasonable reserve for
Partnership liabilities (contingent or otherwise) and to reflect the
unrealized portion of any installment obligations owed to the
Partnership, provided that such withheld or escrowed amounts shall be
distributed to the General Partner and Limited Partners in the manner
and order of priority set forth in Section 12.2.A as soon as
practicable.
-24-
<PAGE>
Section 12.3 Compliance with Timing Requirements of Regulations
In the event the Partnership is "liquidated" within the meaning of
Regulations Section 1.704-1(b)(2)(ii)(g), distributions shall be made pursuant
to this Article 12 to the General Partner and Limited Partners who have positive
Capital Accounts in compliance with Regulations Section 1.704-1(b)(2)(ii)(b)(2).
If any Partner has a deficit balance in its Capital Account (after giving effect
to all contributions, distributions and allocations for all taxable years,
including the year during which such liquidation occurs), such Partner shall
have no obligation to make any contribution to the capital of the Partnership
with respect to such deficit, and such deficit shall not be considered a debt
owed to the Partnership or to any other Person for any purpose whatsoever.
Section 12.4 Deemed Contribution and Distribution
Notwithstanding any other provision of this Article 12, in the event
the Partnership is considered liquidated within the meaning of Regulations
Section 1.704-1(b)(2)(ii)(g) but no Liquidating Event has occurred, the
Partnership's property shall not be liquidated, the Partnership's liabilities
shall not be paid or discharged, and the Partnership's affairs shall not be
wound up. Instead, for federal income tax purposes and purposes of maintaining
Capital Accounts pursuant to Exhibit B hereto, the Partnership shall be deemed
to have contributed all of its assets and liabilities to a new partnership in
exchange for an interest in the new partnership. Immediately thereafter, the
Partnership shall be deemed to have liquidated by distributing interests in the
new partnership to the Partners (including the transferee of a Partnership
Interest).
Section 12.5 Rights of Limited Partners
Except as otherwise provided in this Agreement, each Limited Partner
shall look solely to the assets of the Partnership for the return of its Capital
Contributions and shall have no right or power to demand or receive property
other than cash from the Partnership. Except as otherwise provided in this
Agreement, no Limited Partner shall have priority over any other Partner as to
the return of its Capital Contributions, distributions, or allocations.
Section 12.6 Notice of Dissolution
In the event a Liquidating Event occurs or an event occurs that would,
absent an election or objection by one or more Partners pursuant to Section
12.1, result in a dissolution of the Partnership, the General Partner shall,
within thirty (30) days thereafter, provide written notice thereof to each of
the Partners.
Section 12.7 Termination of Partnership and Cancellation of Certificate of
Limited Partnership
Upon the completion of the liquidation of the Partnership cash and
property as provided in Section 12.2, the Partnership shall be terminated, a
certificate of cancellation shall be filed, and all qualifications of the
Partnership as a foreign limited partnership in jurisdictions other than the
State of Delaware shall be canceled and such other actions as may be necessary
to terminate the Partnership shall be taken.
-25-
<PAGE>
Section 12.8 Reasonable Time for Winding-Up
A reasonable time shall be allowed for the orderly winding-up of the
business and affairs of the Partnership and the liquidation of its assets
pursuant to Section 12.2, in order to minimize any losses otherwise attendant
upon such winding-up, and the provisions of this Agreement shall remain in
effect among the Partners during the period of liquidation.
Section 12.9 Waiver of Partition
Each Partner hereby waives any right to partition of the Partnership
property.
Section 12.10 Liability of the Liquidator
The Liquidator shall be indemnified and held harmless by the
Partnership from and against any and all claims, demands, liabilities, costs,
damages and causes of action of any nature whatsoever arising out of or
incidental to the Liquidator's taking of any action authorized under or within
the scope of this Agreement; provided, however, that the Liquidator shall not be
entitled to indemnification, and shall not be held harmless, where the claim,
demand, liability, cost, damage or cause of action at issue arises out of:
(i) a matter entirely unrelated to the Liquidator's action or
conduct pursuant to the provisions of this Agreement; or
(ii) the proven willful misconduct or gross negligence of the
Liquidator.
ARTICLE 13
AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS
Section 13.1 Amendments
A. Amendments to this Agreement may be proposed by the General Partner
or by any Limited Partners holding twenty-five percent (25%) or more of the
Percentage Interests. Following such proposal, the General Partner shall submit
any proposed amendment to the Limited Partners using such methods as the General
Partner reasonably determines to be appropriate. A proposed amendment shall be
adopted and be effective as an amendment thereto if it is approved by the
General Partner and it receives the consent of holders of a majority of the
Percentage Interests of the Limited Partners.
B. Notwithstanding Section 13.1.A, the General Partner shall have the
power, without the consent of the Limited Partners, to amend this Agreement as
may be required to facilitate or implement any of the following purposes:
(1) to add to the obligations of the General Partner or surrender
any right or power granted to the General Partner or any
Affiliate of the General Partner for the benefit of the
Limited Partners;
-26-
<PAGE>
(2) to reflect the admission, substitution, termination, or
withdrawal of partners in accordance with this Agreement;
(3) to set forth the designations, rights, powers, duties, and
preferences of the holders of any additional Partnership
Interests issued pursuant to Section 4.2.A hereof;
(4) to reflect a change that does not adversely affect any of the
Limited Partners in any material respect, or to cure any
ambiguity, correct or supplement any provision in this
Agreement not inconsistent with law or with other provisions,
or make other changes with respect to matters arising under
this Agreement that will not be inconsistent with law or with
the provisions of this Agreement; and
(5) to satisfy any requirements, conditions, or guidelines
contained in any order, directive, opinion, ruling or
regulation of a federal or state agency or contained in
federal or state law.
The General Partner shall provide notice to the Limited Partners when any action
under this Section 13.1.B is taken.
C. Notwithstanding Sections 13.1.A and 13.1.B, this Agreement shall not
be amended without the consent of each Partner adversely affected if such
amendment would (i) convert a Limited Partner's interest in the Partnership into
a general partner interest, (ii) modify the limited liability of a Limited
Partner in a manner adverse to such Limited Partner, (iii) alter rights of the
Partner to receive distributions pursuant to Article 5, or the allocations
specified in Article 6 (except as permitted pursuant to Section 4.2 and Section
13.1.B(3)) in a manner adverse to such Partner, (iv) cause the termination of
the Partnership prior to the time set forth in Sections 2.5 or 12.1, or (vi)
amend this Section 13.1.C. Further, no amendment may alter the restrictions on
the General Partner's authority set forth in Section 7.3 without the consent
specified in that section.
Section 13.2 Meetings of the Partners
A. Meetings of the Partners may be called by the General Partner and
shall be called upon the receipt by the General Partner of a written request by
Limited Partners holding twenty-five percent (25%) or more of the Percentage
Interests. The call shall state the nature of the business to be transacted.
Partners may vote in person or by proxy at such meeting. Except as otherwise
expressly provided in this Agreement, the consent of holders of a majority of
the outstanding Partnership Units (including Partnership Units held by the
General Partner) shall control.
B. Any action required or permitted to be taken at a meeting of the
Partners may be taken without a meeting if a written consent setting forth the
action so taken is signed by the holders of a majority of the outstanding
Partnership Units (or such other percentage as is expressly required by this
Agreement). Such consent may be in one instrument or in several instruments, and
shall have the same force and effect as a vote of the holders of a majority of
-27-
<PAGE>
the outstanding Partnership Units (or such other percentage as is expressly
required by this Agreement). Such consent shall be filed with the General
Partner. An action so taken shall be deemed to have been taken at a meeting held
on the effective date so certified.
C. Each Limited Partner may authorize any Person or Persons to act for
it by proxy on all matters in which a Limited Partner is entitled to
participate, including waiving notice of any meeting, or voting or participating
at a meeting. Every proxy must be signed by the Limited Partner or its
attorney-in-fact. No proxy shall be valid after the expiration of eleven (11)
months from the date thereof unless otherwise provided in the proxy. Every proxy
shall be revocable at the pleasure of the Limited Partner executing it, such
revocation to be effective upon the Partnership's receipt of or written notice
such revocation from the Limited Partner executing such proxy.
D. Each meeting of Partners shall be conducted by the General Partner
or such other Person as the General Partner may appoint pursuant to such rules
for the conduct of the meeting as the General Partner or such other Person deems
appropriate in its sole discretion. Without limitation, meetings of Partners may
be conducted in the same manner as meetings of the shareholders of the General
Partner and may be held at the same time as, and as part of, meetings of the
shareholders of the General Partner.
ARTICLE 14
GENERAL PROVISIONS
Section 14.1 Addresses and Notice
All notices, requests, demands and other communications hereunder to a
Partner shall be in writing and shall be deemed to have been duly given if
delivered by hand or if sent by certified mail, return receipt requested,
properly addressed and postage prepaid, or transmitted by commercial overnight
courier to the Partner at the address set forth in Exhibit A or at such other
address as the Partner shall notify the General Partner in writing. Such
communications shall be deemed sufficiently given, served, sent or received for
all purposes at such time as delivered to the addressee (with the return receipt
or delivery receipt being deemed conclusive evidence of such delivery) or at
such time as delivery is refused by the addressee upon presentation.
Section 14.2 Titles and Captions
All article or section titles or captions in this Agreement are for
convenience only. They shall not be deemed part of this Agreement and in no way
define, limit, extend or describe the scope or intent of any provisions hereof.
Except as specifically provided otherwise, (i) references to "Articles" and
"Sections" are to Articles and Sections of this Agreement, and (ii) references
to "Exhibits" are to the Exhibits attached to this Agreement. Each Exhibit
attached hereto and referred to herein is hereby incorporated by reference.
-28-
<PAGE>
Section 14.3 Pronouns and Plurals
Whenever the context may require, any pronoun used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns, pronouns and verbs shall include the plural and vice
versa.
Section 14.4 Further Action
The parties shall execute and deliver all documents, provide all
information and take or refrain from taking action as may be necessary or
appropriate to achieve the purposes of this Agreement.
Section 14.5 Binding Effect
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their heirs, executors, administrators, successors, legal
representatives and permitted assigns.
Section 14.6 Creditors
None of the provisions of this Agreement shall be for the benefit of,
or shall be enforceable by, any creditor of the Partnership.
Section 14.7 Waiver
No failure by any party to insist upon the strict performances of any
covenant, duty, agreement or condition of this Agreement or to exercise any
right or remedy consequent upon a breach thereof shall constitute waiver of any
such breach or any other covenant, duty, agreement or condition.
Section 14.8 Counterparts
This Agreement may be executed in counterparts, all of which together
shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart. Each party shall become bound by this Agreement immediately
upon affixing its signature hereto.
Section 14.9 Applicable Law
This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Delaware, without regard to the principles
of conflicts of law.
Section 14.10 Invalidity of Provisions
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
-29-
<PAGE>
Section 14.11 Entire Agreement
This Agreement contains the entire understanding and agreement among
the Partners with respect to the subject matter hereof and any other prior
written or oral understandings or agreements among them with respect thereto.
Section 14.12 No Rights as Shareholders
Nothing contained in this Agreement shall be construed as conferring
upon the holders of the Partnership Units any rights whatsoever as shareholders
of the General Partner, including without limitation any right to receive
dividends or other distributions made to shareholders of the General Partner or
to vote or to consent or to receive notice as shareholders in respect of any
meeting of shareholders for the election of directors of the General Partner or
any other matter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the date first written above.
GENERAL PARTNER:
CNL Hospitality GP Corp.
By: /s/ Robert A. Bourne
Name: Robert A. Bourne
Its: President
LIMITED PARTNER:
CNL Hospitality LP Corp.
By: /s/ Robert A. Bourne
Name: Robert A. Bourne
Its: President
-30-
<PAGE>
EXHIBIT A
PARTNERS, CONTRIBUTIONS AND
PARTNERSHIP INTERESTS
<TABLE>
<CAPTION>
Net Asset Value of Percentage Partnership
Name and Address of Partner Contribution Contributed Property Interest Units
- --------------------------- ------------ -------------------- ------------- ------------
<S> <C>
General Partner:
CNL Hospitality GP Corp. $20 20% 20
400 East South Street
Orlando, FL 32801
Limited Partner:
CNL Hospitality LP Corp. $80 80% 80
400 East South Street
Orlando, FL 32801
</TABLE>
-31-
<PAGE>
EXHIBIT B
CAPITAL ACCOUNT MAINTENANCE
1. Capital Accounts of the Partners
A. The Partnership shall maintain for each Partner a separate Capital
Account in accordance with the rules of Regulations Section 1.704-1(b)(2)(iv).
Such Capital Account shall be increased by (i) the amount of all Capital
Contributions and any other deemed contributions made by such Partner to the
Partnership pursuant to this Agreement and (ii) all items of Partnership income
and gain (including income and gain exempt from tax) computed in accordance with
Section 1.B hereof and allocated to such Partner pursuant to Section 6.1.A of
the Agreement and Exhibit C hereof, and decreased by (x) the amount of cash or
Net Asset Value of all actual and deemed distributions of cash or property made
to such Partner pursuant to this Agreement and (y) all items of Partnership
deduction and loss computed in accordance with Section 1.B hereof and allocated
to such Partner pursuant to Section 6.1.B of the Agreement and Exhibit C hereof.
B. For purposes of computing the amount of any item of income, gain,
deduction or loss to be reflected in the Partners' Capital Accounts, unless
otherwise specified in this Agreement, the determination, recognition and
classification of any such item shall be the same as its determination,
recognition and classification for federal income tax purposes determined in
accordance with Section 703(a) of the Code (for this purpose all items of
income, gain, loss or deduction required to be stated separately pursuant to
Section 703(a)(1) of the Code shall be included in taxable income or loss), with
the following adjustments:
(1) Except as otherwise provided in Regulations Section
1.704-1(b)(2)(iv)(m), the computation of all items of income,
gain, loss and deduction shall be made without regard to any
election under Section 754 of the Code which may be made by
the Partnership, provided that the amounts of any adjustments
to the adjusted bases of the assets of the Partnership made
pursuant to Section 734 of the Code as a result of the
distribution of property by the Partnership to a Partner (to
the extent that such adjustments have not previously been
reflected in the Partners' Capital Accounts) shall be
reflected in the Capital Accounts of the Partners in the
manner and subject to the limitations prescribed in
Regulations Section 1.704- 1(b)(2)(iv)(m).
(2) The computation of all items of income, gain, loss and
deduction shall be made without regard to the fact that items
described in Sections 705(a)(1)(B) or 705(a)(2)(B) of the Code
are not includable in gross income or are neither currently
deductible nor capitalized for federal income tax purposes.
(3) Any income, gain or loss attributable to the taxable
disposition of any Partnership property shall be determined as
if the adjusted basis of such property as of such date of
disposition were equal in amount to the Partnership's Carrying
Value with respect to such property as of such date.
-32-
<PAGE>
(4) In lieu of the depreciation, amortization and other cost
recovery deductions taken into account in computing such
taxable income or loss, there shall be taken into account
Depreciation for such fiscal year.
(5) In the event the Carrying Value of any Partnership Asset is
adjusted pursuant to Section 1.D hereof, the amount of any
such adjustment shall be taken into account as gain or loss
from the disposition of such asset.
(6) Any items specially allocated under Section 2 of Exhibit C
hereof shall not be taken into account.
C. A transferee (including an Assignee) of a Partnership Unit
shall succeed to a pro rata portion of the Capital Account of the transferor.
D. (1) Consistent with the provisions of Regulations Section
1.704-1(b)(2)(iv)(f), and as provided in Section 1.D(2), the
Carrying Values of all Partnership assets shall be adjusted
upward or downward to reflect any Unrealized Gain or
Unrealized Loss attributable to such Partnership property, as
of the times of the adjustments provided in Section 1.D(2)
hereof, as if such Unrealized Gain or Unrealized Loss had been
recognized on an actual sale of each such property and
allocated pursuant to Section 6.1 of the Agreement.
(2) Such adjustments shall be made as of the following times: (a)
immediately prior to the acquisition of an additional interest
in the Partnership by any new or existing Partner in exchange
for more than a de minimis Capital Contribution; (b)
immediately prior to the distribution by the Partnership to a
Partner of more than a de minimis amount of property as
consideration for an interest in the Partnership; and (c)
immediately prior to the liquidation of the Partnership within
the meaning of Regulations Section 1.704-1(b)(2)(ii)(g);
provided, however, that adjustments pursuant to clauses (a)
and (b) above shall be made only if the General Partner
determines that such adjustments are necessary or appropriate
to reflect the relative economic interests of the Partners in
the Partnership.
(3) In accordance with Regulations Section 1.704-1(b)(2)(iv)(e),
the Carrying Value of Partnership assets distributed in kind
shall be adjusted upward or downward to reflect any Unrealized
Gain or Unrealized Loss attributable to such Partnership
property, as of the time any such asset is distributed, as if
such Unrealized Gain or Unrealized Loss had been recognized on
an actual sale of such Partnership property and allocated
pursuant to Section 6.1 of the Agreement.
(4) In determining Unrealized Gain or Unrealized Loss for purposes
of this Exhibit B, the aggregate cash amount and fair market
value of all Partnership assets (including cash or cash
equivalents) shall be determined by the General Partner using
such reasonable method of valuation as it may adopt, or in the
case of a liquidating distribution pursuant to Article 13 of
the Agreement, shall be determined and allocated by the
Liquidator using such reasonable methods of valuation as it
may adopt. The General Partner, or the Liquidator, as the case
may
-33-
<PAGE>
be, shall allocate such aggregate fair market value among the
assets of the Partnership (in such manner as it determines in
its sole and absolute discretion to arrive at a fair market
value for individual properties).
E. The provisions of this Agreement (including this Exhibit B and the
other Exhibits to this Agreement) relating to the maintenance of Capital
Accounts are intended to comply with Regulations Section 1.704-1(b), and shall
be interpreted and applied in a manner consistent with such Regulations. In the
event the General Partner shall determine that it is prudent to modify the
manner in which the Capital Accounts, or any debits or credits thereto
(including, without limitation, debits or credits relating to liabilities which
are secured by contributed or distributed property or which are assumed by the
Partnership, the General Partner, or the Limited Partners) are computed in order
to comply with such Regulations, the General Partner may make such modification
without regard to Article 13 of the Agreement, provided that it is not likely to
have a material effect on the amounts distributable to any Person pursuant to
Article 12 of the Agreement upon the dissolution of the Partnership. The General
Partner also shall (i) make any adjustments that are necessary or appropriate to
maintain equality between the Capital Accounts of the Partners and the amount of
Partnership capital reflected on the Partnership's balance sheet, as computed
for book purposes, in accordance with Regulations Section 1.704-1(b)(2)(iv)(q),
and (ii) make any appropriate modifications in the event unanticipated events
might otherwise cause this Agreement not to comply with Regulations Section
1.704-1(b).
-34-
<PAGE>
EXHIBIT C
SPECIAL ALLOCATION RULES
1. Special Allocation Rules
Notwithstanding any other provision of the Agreement or this Exhibit C,
the following special allocations shall be made in the following order:
A. Minimum Gain Chargeback. Notwithstanding the provisions of Section
6.1 of the Agreement or any other provisions of this Exhibit C, if there is a
net decrease in the Partnership Minimum Gain during any Partnership Year (except
as a result of certain conversions and refinancings of Partnership indebtedness,
certain Capital Contributions, or certain revaluations of the Partnership
property as further described in Regulations Sections 1.704-2(d)(4),
1.704-2(f)(2) or 1.704-2(f)(3)), each Partner shall be specially allocated items
of Partnership income and gain for such year (and, if necessary, subsequent
years) in an amount equal to such Partner's share of the net decrease in
Partnership Minimum Gain, as determined under Regulations Section 1.704- 2(g).
Allocations pursuant to the previous sentence shall be made in proportion to the
respective amounts required to be allocated to each Partner pursuant thereto.
The items to be so allocated shall be determined in accordance with Regulations
Sections 1.704-2(f)(6) and 1.704-2(j)(2). This Section 1.A is intended to comply
with the minimum gain chargeback requirements in Regulations Section 1.704-2(f)
and for purposes of this Section 1.A only, each Partner's Adjusted Capital
Account Deficit shall be determined prior to any other allocations pursuant to
Section 6.1 of this Agreement with respect to such Partnership Year and without
regard to any decrease in Partner Minimum Gain during such Partnership Year.
B. Partner Minimum Gain Chargeback. Notwithstanding any other provision
of Section 6.1 of the Agreement or any other provisions of this Exhibit C
(except Section 1.A hereof), if there is a net decrease in Partner Minimum Gain
attributable to a Partner Nonrecourse Debt during any Partnership Year (except
as a result of certain conversions and refinancings of Partnership indebtedness,
certain Capital Contributions, or certain revaluations of the Partnership
property as further described in Regulations Sections 1.704-2(i)(3) and
1.704-2(i)(4)), each Partner who has a share of the Partner Minimum Gain
attributable to such Partner Nonrecourse Debt, determined in accordance with
Regulations Section 1.704-2(i)(5), shall be specially allocated items of
Partnership income and gain for such year (and, if necessary, subsequent years)
in an amount equal to such Partner's share of the net decrease in Partner
Minimum Gain attributable to such Partner Nonrecourse Debt, determined in
accordance with Regulations Section 1.704-2(i)(5). Allocations pursuant to the
previous sentence shall be made in proportion to the respective amounts required
to be allocated to each General Partner and Limited Partner pursuant thereto.
The items to be so allocated shall be determined in accordance with Regulations
Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section 1.B is intended to comply
with the minimum gain chargeback requirement in such Sections of the Regulations
and shall be interpreted consistently therewith. Solely for purposes of this
Section 1.B, each Partner's Adjusted Capital Account Deficit shall be determined
prior to any other allocations pursuant to Section 6.1 of the Agreement or this
Exhibit with respect to such Partnership Year, other than allocations pursuant
to Section 1.A hereof.
-35-
<PAGE>
C. Qualified Income Offset. In the event any Partner unexpectedly
receives any adjustments, allocations or distributions described in Regulations
Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) or 1.704-1(b) (2) (ii)
(d)(6), and after giving effect to the allocations required under Sections
1.A and 1.B hereof, such Partner has an Adjusted Capital Account Deficit, items
of Partnership income and gain (consisting of a pro rata portion of each item of
Partnership income, including gross income and gain for the Partnership Year)
shall be specifically allocated to such Partner in an amount and manner
sufficient to eliminate, to the extent required by the Regulations, its Adjusted
Capital Account Deficit created by such adjustments, allocations or
distributions as quickly as possible. This Section 1.C is intended to constitute
a "qualified income offset" under Regulations Section 1.704-1(b)(2)(ii)(d) and
shall be interpreted consistently therewith.
D. Nonrecourse Deductions. Nonrecourse Deductions for any Partnership
Year shall be allocated to the Partners in accordance with their respective
Percentage Interests. If the General Partner determines in its good faith
discretion that the Partnership's Nonrecourse Deductions must be allocated in a
different ratio to satisfy the safe harbor requirements of the Regulations
promulgated under Section 704(b) of the Code, the General Partner is authorized,
upon notice to the Limited Partners, to revise the prescribed ratio for such
Partnership Year to the numerically closest ratio which would satisfy such
requirements.
E. Partner Nonrecourse Deductions. Any Partner Nonrecourse Deductions
for any Partnership Year shall be specially allocated to the Partner who bears
the economic risk of loss with respect to the Partner Nonrecourse Debt to which
such Partner Nonrecourse Deductions are attributable in accordance with
Regulations Sections 1.704-2(b)(4) and 1.704-2(i).
F. Code Section 754 Adjustments. To the extent an adjustment to the
adjusted tax basis of any Partnership asset pursuant to Section 734(b) or 734(b)
of the Code is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m),
to be taken into account in determining Capital Accounts, the amount of such
adjustment to the Capital Accounts shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the adjustment
decreases such basis), and such item of gain or loss shall be specially
allocated to the Partners in a manner consistent with the manner in which their
Capital Accounts are required to be adjusted pursuant to such Section of the
Regulations.
G. Curative Allocations. The allocations set forth in Section 1.C of
this Exhibit C (the "Regulatory Allocations") are intended to comply with
certain requirements of the Regulations promulgated under Section 704 of the
Code. The Regulatory Allocations shall be taken into account in allocating Net
Income, Net Loss and other items of income, gain, loss and deduction to each
Partner so that, to the extent possible, and to the extent permitted by the
Regulations, the cumulative allocations of Net Income, Net Loss and other items
and the Regulatory Allocations to each Partner shall be equal to the net amount
that would have been allocated to each Partner if the Regulatory Allocations had
not been made.
-36-
<PAGE>
2. Allocations for Tax Purposes
A. Except as otherwise provided in this Section 2, for federal income
tax purposes, each item of income, gain, loss and deduction shall be allocated
among the Partners in the same manner as its correlative item of "book" income,
gain, loss or deduction is allocated pursuant to Section 6.1 of the Agreement
and Section 1 of this Exhibit C.
B. Notwithstanding any other provision in this Agreement, in an attempt
to eliminate Book-Tax Disparities attributable to a Contributed Property or
Adjusted Property, items of income, gain, loss, and deduction shall be allocated
for federal income tax purposes among the Partners as follows:
(1)(a) In the case of a Contributed Property, such items
attributable thereto shall be allocated among the
Partners consistent with the principles of Section
704(c) of the Code to take into account the variation
between the Gross Asset Value of such property and
its adjusted basis at the time of contribution; and
(b) any item of Residual Gain or Residual Loss
attributable to a Contributed Property shall be
allocated among the Partners in the same manner as
its correlative item of "book" gain or loss is
allocated pursuant to Section 6.1 of the Agreement
and Section 1 of this Exhibit C.
(2)(a) In the case of an Adjusted Property, such items shall:
(1) first, be allocated among the Partners in a manner
consistent with the principles of Section 704(c) of
the Code to take into account the Unrealized Gain or
Unrealized Loss attributable to such property and the
allocations thereof pursuant to Exhibit B, and
(2) second, in the event such property was originally a
Contributed Property, be allocated among the Partners
in a manner consistent with Section 2.B(1) of this
Exhibit C; and
(b) any item of Residual Gain or Residual Loss attributable to an
Adjusted Property shall be allocated among the Partners in the
same manner its correlative item of "book" gain or loss is
allocated pursuant to Section 6.1 of the Agreement and Section
1 of this Exhibit C.
(3) all other items of income, gain, loss and deduction shall be
allocated among the Partners the same manner as their
correlative item of "book" gain or loss is allocated pursuant
to Section 6.1 of the Agreement and Section 1 of the Exhibit
C.
-37-
<PAGE>
C. For purposes of Sections 2.B(1) (a) and 2.B(2) (a) of this Exhibit
C, the General Partner shall elect in its sole and absolute discretion the
method to be used under Regulations Section 1.704-3 to eliminate Book-Tax
Disparities attributable to a Contributed Property or Adjusted Property.
EXHIBIT D
VALUE OF CONTRIBUTED PROPERTY
Underlying Property Gross Asset Value Net Asset
- ------------------- ----------------- ---------
Value
- -----
-38-
<PAGE>
EXHIBIT 10.11
Hotel Purchase and Sale Contract between
CNL Real Estate Advisors, Inc. and
Gwinnett Residence Associates, LLC relating
to the Residence Inn - Gwinnett Place
<PAGE>
COMPLETED FACILITY
SALE/LEASEBACK
HOTEL PURCHASE AND SALE CONTRACT
by and between
CNL REAL ESTATE ADVISORS, INC.,
a Florida corporation, or assigns,
as BUYER
and
GWINNETT RESIDENCE ASSOCIATES, LLC,
a Georgia limited liability company
as SELLER
Premises: Gwinnett Residence Inn
(Tenant: )
<PAGE>
TABLE OF CONTENTS
Page
Definitions.................................................... 1
Purchase and Sale of Premises.................................. 4
Purchase Price for Premises.................................... 4
Closing Date................................................... 6
Seller's Deliveries............................................ 6
Conditions to Buyer's Obligation to Close...................... 8
Conditions to Seller's Obligation to Close..................... 11
Deliveries at Closing.......................................... 12
Closing and Other Costs, Adjustments and Prorations............ 13
Inspections.................................................... 15
Title to Premises; State of Title to be Conveyed............... 15
Escrow Agent................................................... 15
Seller's Covenants, Representations and Warranties............. 17
Covenants of Seller Pending Closing............................ 18
Eminent Domain................................................. 19
Casualty....................................................... 19
Remedies Upon Default.......................................... 20
Notices........................................................ 20
Brokerage Commissions.......................................... 21
Seller's Indemnification....................................... 22
Hotel Operation Earn-Out....................................... 22
Miscellaneous Provisions....................................... 23
<PAGE>
HOTEL PURCHASE AND SALE CONTRACT
THIS HOTEL PURCHASE AND SALE CONTRACT (this "Agreement") made and
entered into as of the Effective Date set forth herein, by and between GWINNETT
RESIDENCE ASSOCIATES, LLC, a Georgia limited liability company, having a mailing
address of c/o Stormont Trice Corporation, 3350 Cumberland Circle, Suite 1800,
Atlanta, Georgia 30339 ("Seller"), and CNL REAL ESTATE ADVISORS, INC., a Florida
corporation, or its assigns, having a mailing address at 400 East South Street,
Suite 500, Orlando, Florida 32801 ("Buyer");
W I T N E S S E T H:
WHEREAS, Seller is the fee simple owner of and is willing to sell a
parcel of real property located in the City of Atlanta, unincorporated Gwinnett
County, Georgia, and Buyer is willing to purchase such real property from
Seller, upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Definitions. In addition to other words and terms defined elsewhere
in this Agreement, as used herein the following words and terms shall have the
following meanings, respectively, unless the context hereof otherwise clearly
requires:
a. "Closing" shall mean the consummation of the purchase and
sale of the Premises in accordance with the terms of this Agreement.
b. "Contracts" shall mean all service, sign, maintenance,
management, operation, equipment and other personal property or service
contracts, agreements or leases relating to the operation of the Premises and
all space leases, if any, encumbering the Premises or any part thereof.
c. "Earnest Money Deposit" shall mean the Initial Earnest
Money Deposit and the Second Earnest Money Deposit, as well as all interest
earned thereon in the interest-bearing money market account in which Escrow
Agent is required to place the Earnest Money Deposit.
d. "Effective Date" of this Agreement shall mean that date
upon which the last of the Buyer, Seller and Escrow Agent has executed this
Agreement.
e. "Escrow Agent" shall mean First American Title Insurance
Company, whose address is set forth in Section below.
<PAGE>
f. "Extension Earnest Money Deposit" shall mean the $25,000.00
deposit to be given by Buyer to Escrow Agent pursuant to Section of this
Agreement, which shall be added to and form a part of the Earnest Money Deposit,
as well as all interest earned thereon in the interest-bearing money market
account in which Escrow Agent is required to place the Extension Earnest Money
Deposit.
g. "Guarantor" shall mean, collectively, Stormont Trice
Management Corporation, Stormont Trice Corporation, and Stormont Trice
Development Corporation, each of which entities is a Georgia corporation and
each of which entities shall join in the Lease, for the purpose of guaranteeing
certain obligations under the Lease. The approval of Guarantor by Buyer shall be
subject to Buyer's (or CNL American Realty Fund, Inc.'s) credit underwriting
guidelines published from time to time, and the initial capitalization of
Guarantor.
h. "Hazardous Materials" shall mean all toxic or hazardous
materials, chemicals, wastes, pollutants or similar substances, including,
without limitation, Petroleum (as hereinafter defined), asbestos insulation
and/or urea formaldehyde insulation, which are regulated, governed, restricted
or prohibited by any federal, state or local law, decision, statute, rule,
regulation or ordinance currently in existence or hereafter enacted or rendered
(hereinafter collectively referred to as the "Hazardous Materials Laws")
including, but not limited to, those materials or substances defined as
"hazardous substances," "hazardous materials," "toxic substances" or
"pollutants" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601, et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq., the Clean Air Act, 42
U.S.C. Section 7401 et seq., the Clean Water Act, 33 U.S.C. Section 1251 et
seq., and any applicable statutes, ordinances or regulations under the laws of
the State in which the Premises are located, and any rules and regulations
promulgated thereunder, all as presently or hereafter amended. "Petroleum" for
purposes of this Agreement shall include, without limitation, oil or petroleum
of any kind and in any form including but not limited to oil, petroleum, fuel
oil, oil sludge, oil refuse, oil mixed with other waste, crude oil, gasoline,
diesel fuel and kerosene.
i. "Improvements" shall mean the building consisting of a 132
suite hotel known as the Gwinnett Residence Inn and other related improvements
to be conveyed by Seller to Buyer and leased by Tenant pursuant to the terms of
this Agreement, and all appurtenances thereto, including but not limited to all
pavement, accessways, curb cuts, parking, kitchen and support facilities,
meeting and conference rooms, swimming pool facilities, recreational amenities,
office facilities, drainage systems and facilities, landscaping, air ventilation
and filtering systems and facilities and utility facilities and connections for
sanitary sewer, potable water, irrigation, electricity, telephone, cable
television and natural gas, if applicable or required by the Lease, to the
extent the same form a part of the Premises.
j. "Initial Earnest Money Deposit" shall mean the deposit of
$25,000.00 to be given by Buyer to Escrow Agent pursuant to Section of this
Agreement, as well as all interest earned thereon in the interest-bearing money
market account in which Escrow Agent is required to place the Initial Earnest
Money Deposit.
2
<PAGE>
k. "Inspection Period" shall mean that period of time starting
on the Effective Date of this Agreement and terminating forty-five (45) days
following the later of i) the date upon which Buyer has received copies of the
documents and materials regarding the Premises which Seller is required to
furnish to Buyer pursuant to Section , and of this Agreement (the receipt of
which shall be acknowledged by Buyer in writing promptly upon receipt by Buyer
of all such documents and materials), or ii) the date that Seller satisfies all
of the contingencies and conditions set forth in Section 7 of this Agreement.
l. "Lease" shall mean that certain Lease Agreement to be
entered into at Closing between Buyer, as lessor, Tenant, as lessee, and
Guarantor, pursuant to which Tenant shall lease the Premises and Improvements
from Buyer, an initial draft of which is attached hereto as Exhibit D.
m. "Permits" shall mean all of the governmental permits,
including licenses and authorizations, required for the construction, ownership
and operation of the Improvements, including without limitation certificates of
occupancy, building permits, signage permits, site use approvals, zoning
certificates, environmental and land use permits and any and all necessary
approvals from state or local authorities.
n. "Permitted Exceptions" shall mean those items described on
Exhibit B attached hereto, which are agreed upon by the Seller and Buyer within
thirty (30) days after the Effective Date of this Agreement and other matters to
which Buyer has consented during the Inspection Period.
o. "Personal Property" shall mean all of the furniture,
fixtures, equipment, machinery, furnishings, carpets, drapes, service and
maintenance equipment, tools, signs, landscaping equipment, telephone and other
communications equipment, pool equipment, television and antenna equipment,
television and video equipment, intercom equipment and systems, and any other
personal property utilized in connection with the operation of the Premises,
including, but not limited to, those items more particularly described on
Exhibit B-1, attached hereto and made a part hereof. The Personal Property shall
not include leased items or items owned by third parties which are subject to a
written contract or agreement or which are owned by guests. Further, the
Personal Property shall not include the Tenant's Personal Property, as hereafter
defined.
p. "Plans" shall mean the final "as-built" plans and
specifications for the Improvements, which are to be furnished by Seller to
Buyer pursuant to Section of this Agreement.
q. "Premises" shall mean that certain parcel of real property
containing an area of approximately 5.863 acres and being more particularly
described on Exhibit A attached hereto, together with all of the Improvements,
tenements, hereditaments and appurtenances belonging or in any way appertaining
to such real property, and all of Seller's rights, title and interest in and to
(i) any and all property lying in the bed of any street, road or avenue, open or
proposed, in front of or adjoining such real property to the center line
thereof, (ii) any strips and gores of land adjacent to, abutting or used in
connection with such real property, and (iii) any easements and rights, if any,
inuring to the benefit of such real property or to Seller in connection
therewith.
3
<PAGE>
r. "Property" shall mean collectively the Premises, the
Improvements and the Personal Property.
s. "Purchase Price" shall mean $11,400,000.00.
t. "Second Earnest Money Deposit" shall mean the deposit of
$89,000.00 to be given by Buyer to Escrow Agent pursuant to Section of this
Agreement, as well as all interest earned thereon in the interest bearing money
market account in which the Escrow Agent is required to place the Second Earnest
Money Deposit.
u. "Tenant" shall mean Seller, in its capacity as lessee under
the Lease, or a newly-created entity affiliated with Seller or Stormont Trice
Corporation, which Seller may cause to enter into the Lease, as assignee or
designee of Seller for such purpose, at Seller's option, but subject to the
prior written approval of Buyer, which approval shall not be unreasonably
withheld but may be based upon a review by Buyer or its attorneys of such
entities organization documents including partnership agreements, bylaws,
articles of incorporation, as appropriate and other reasonable criteria.
v. "Tenant's Personal Property" shall mean all of the
inventory of food and beverages (opened and unopened excluding alcoholic
beverages) as well as all operating supplies such as guest supplies, linens,
uniform, towels, paper goods, soaps, cleaning supplies, uniforms, food,
beverages, consumables, guest supplies, china, glassware, silverware, vehicles,
vehicle supplies, gasoline, fuel oil, working capital, bank account balances,
software and other miscellaneous supplies and consumables utilized in connection
with the operation of the Premises, including, but not limited to those items
more particularly described on Exhibit B-2, attached hereto and made a part
hereof.
w. "Title Company" shall mean First American Title Insurance
Company, which shall issue the owner's policy of title insurance required
hereunder by and through such agent as it shall select.
2. Purchase and Sale of Premises. Subject to the terms, provisions and
conditions set forth herein, Seller hereby agrees to sell the Property to Buyer,
and Buyer hereby agrees to purchase the Property from Seller.
3. Purchase Price for Premises. The Purchase Price for the Property
shall be payable in the following manner:
a. Initial Earnest Money Deposit. Not later than five (5) days
following the date on which Buyer shall receive a counterpart of this Agreement
fully executed by Buyer, Seller and Escrow Agent, Buyer shall deposit with
Escrow Agent the Initial Earnest Money Deposit hereunder, to be held and
disbursed in accordance with the terms of this Agreement.
4
<PAGE>
b. Second Earnest Money Deposit. In the event this Agreement
has not been previously terminated on or before the last day of the Inspection
Period, then within two (2) business days after the expiration of the Inspection
Period, Buyer shall deposit with Escrow Agent the Second Earnest Money Deposit
hereunder, to be held and disbursed in accordance with the terms of this
Agreement.
c. Earnest Money Deposit. After clearance of funds, Escrow
Agent shall hold the Earnest Money Deposit in an interest bearing money market
account at a federally insured financial institution reasonably acceptable to
Seller, Buyer and Escrow Agent, and interest earned thereon shall be reported
under the United States Taxpayer Identification Number
of CNL American Realty Fund, Inc., a Maryland corporation, being a
proposed assignee of Buyer as contemplated in Section hereof. All interest
earned on the Earnest Money Deposit, or any portion thereof, shall be deemed to
constitute a portion of the Earnest Money Deposit and shall be disbursed in
accordance with the terms of this Agreement. The Earnest Money Deposit shall be
credited to the cash due from Buyer at Closing and shall be paid over to Seller
at Closing.
Buyer shall have the right, at its option during the term of this
Agreement, to substitute one or more letters of credit for all or any portion of
the Earnest Money Deposit. The letter(s) of credit shall be drawn on Colonial
Bank, N.A., or any other financial institution reasonably acceptable to Seller
and shall name Escrow Agent as beneficiary. The letter(s) of credit shall not
impose any conditions to the drawing thereof other than a certificate from the
Escrow Agent that Escrow Agent is entitled to draw upon the letter of credit
pursuant to the terms of this Agreement. If any letter(s) of credit do not have
an expiration date of at least thirty (30) days after the Closing Date, then
Buyer shall renew or extend such letter(s) of credit at least fifteen (15) days
prior to the expiration thereof. If Buyer fails to deliver proper renewals or
extension documentation prior to the deadline for same, then Escrow Agent shall
draw upon the letter(s) of credit which have not been timely renewed or extended
and hold the proceeds thereof as the Earnest Money Deposit under this Agreement.
The letter(s) of credit shall be held and disbursed in the same fashion as the
Earnest Money Deposit under this Agreement. Except when the proceeds of any
letter of credit shall be promptly deposited into the registry of the court
pursuant to the terms of this Agreement, the letter(s) of credit shall not be
drawn upon by Escrow Agent until the Escrow Agent is otherwise authorized to
deliver the Earnest Money Deposit to Seller pursuant to this Agreement (i.e.,
the letter(s) of credit may not be drawn upon until after the expiration of any
applicable notice provisions set forth in Section of this Agreement); provided,
however, that notwithstanding any notice requirements in this Agreement, Escrow
Agent shall be entitled to draw upon any expiring letter(s) of credit which are
not timely renewed or extended pursuant to the terms of this Section, in which
event Escrow Agent will hold and disburse the proceeds thereof in the manner set
forth in this Agreement. At Closing, the letter(s) of credit shall be returned
to Buyer and not credited against the Purchase Price otherwise due from Buyer at
Closing.
d. Balance of Purchase Price. The balance of the Purchase
Price, less any apportionments set forth in Section hereof shall be paid in full
by Buyer at the Closing by wire transfer of immediately available federal funds,
as Seller shall direct.
5
<PAGE>
4. Closing Date.
a. The Closing shall take place on a date (the "Closing Date")
which is on, or at Buyer's option, before thirty (30) days following the
expiration of the Inspection Period. If Buyer desires to close prior to the
thirtieth (30th) day following the expiration of Inspection Period then Buyer
may do so provided that Buyer provide Seller with at least five (5) business
days prior written notice (the "Closing Notice") of the Closing Date (with a
copy to Escrow Agent), and the Closing shall occur at the offices of the Title
Company or Seller's Counsel at such time and at such location as is mutually
acceptable to Buyer and Seller. TIME IS OF THE ESSENCE HEREUNDER.
b. Notwithstanding the foregoing, Buyer shall be entitled to
extend the Closing Date above for an additional period of thirty (30) days by
(i) delivering to Seller (with a copy to Escrow Agent) on or before the then
scheduled Closing Date a written notice of Buyer's intent to so extend the
Closing Date, and (ii) simultaneously delivering to the Escrow Agent the
Extension Earnest Money Deposit hereunder. Thereafter if Buyer desires to close
prior to the thirtieth (30th) day of such extension then Buyer may do so by
providing to Seller the Closing Notice.
5. Seller's Deliveries.
a. Within ten (10) days after the Effective Date of this
Agreement:
i. Seller shall deliver to Buyer (at no cost to
Buyer) copies of any and all tests, surveys, examinations, plans, appraisals,
permits, licenses, environmental studies or reports and other studies or
investigations regarding the Premises which the Seller may have in its
possession or control, specifically including, without limitation, the
following:
(1) All existing environmental reports,
studies or surveys of the Premises which are in the possession, custody or
control of Seller, Seller's legal counsel (provided that such documents required
from Seller's legal counsel are non-privileged) or Seller's employees. Seller
shall in good faith also attempt to obtain and deliver any other reports,
studies, or surveys of the Premises which are in the possession, custody or
control of Seller's contractors, agents or consultants. Seller shall in good
faith also request a letter or certificate from the issuer of each report as may
be requested by Buyer, certifying the same to Buyer and CNL American Realty
Fund, Inc. or otherwise stating that Buyer and CNL American Realty Fund, Inc.
are entitled to rely on the same; provided that such certificates shall be at no
cost to Seller.
(2) If Tenant is a different entity than
Seller, a current operating statement (if applicable), profit and loss statement
(if applicable), balance sheet and other financial information for Tenant
reasonably requested by Buyer, certified as true, correct and complete by
Tenant, reflecting Tenant's ability to pay rent and perform its other Lease
obligations. Further, the financial information of Guarantor shall also be
expressly subject to review by Buyer for the purposes of satisfying Buyer's (or
CNL American Realty Fund, Inc.'s credit underwriting guidelines, as published
from time to time.
6
<PAGE>
(3) A current letter or certificate from an
appropriate municipal, county or other governmental representative confirming
the zoning classification for the Premises and, if possible, identifying the
permitted uses under such classification.
(4) Final "as-built" Plans for the
Improvements;
(5) All Permits, including without
limitation, a certificate of occupancy for the use and occupancy of the Premises
by Tenant and a current, valid liquor license.
(6) All warranties and guaranties pertaining
to the Improvements, specifically including the manufacturer's roof membrane
warranty issued with respect to the building comprising the Improvements.
ii. Seller shall deliver to Buyer (at no cost to
Buyer) true and correct copies of all Contracts and any operation, management
and/or franchise agreements in connection with the operation of the Premises or
any part thereof, including without limitation, a copy of that certain Franchise
Agreement by and between Seller and Marriott International, Inc. for the
operation of a Residence Inn by Marriott franchised hotel at the Premises (the
"Franchise Agreement").
iii. Seller shall provide to Buyer a copy of the most
recent tax bill (and paid receipt therefor) with respect to ad valorem real
property taxes and assessments levied or assessed with respect to the Premises.
iv. Seller shall conduct an inventory of the Personal
Property and Tenant's Personal Property and provide Buyer with notice of the
date and time for the conducting of such inventory. Buyer shall be entitled to
have a representative present to monitor and participate in such inventory.
Thereafter Seller shall provide to Buyer the written results of such inventory
identifying the type, quantity and Seller's purchase price and/or cost basis for
each item of Personal Property and Tenant's Personal Property.
v. Seller shall provide to Buyer copies of all of
Seller's insurance policies currently in effect with respect to the Premises
together with copies of all claim's logs, loss runs, claim's notices and similar
documents which catalog and chronicle the status of all claims or potential
claims threatened or made against Seller, its manager or the Premises.
vi. Seller shall deliver to Buyer true, correct and
complete copies of all operating and income statements and reports effecting or
relating to the operation of the Premises.
Such documents and information shall be utilized solely for the purpose
of evaluating Buyer's proposed acquisition of the Property. By accepting
delivery of such documents and information, Buyer shall have acknowledged that
Seller has made, and is making, no representation or warranty, express or
implied, as to the accuracy of completeness of such documents and information
which were prepared by third parties other than that Seller represents and
warrants that it is not aware of any inaccuracy, omission or misstatement with
respect to the same except as specifically disclosed by Seller in writing to
Buyer, and Seller shall incur no
7
<PAGE>
liability to Buyer or any other third party by reason of furnishing or making
such document and information available to Buyer consistent with the foregoing
understanding. Buyer agrees that it will make its own independent investigations
and studies with respect to the Property and all aspects thereof, and will rely
thereon and on the advice of its consultants concerning its proposed acquisition
of the Property. Seller agrees to reasonably cooperate with Buyer in Buyer's
investigations and studies with respect to the Property; provided, however,
Seller shall not be obligated to expend funds to third parties (other than its
legal counsel) in doing so, unless expressly provided otherwise in this
Agreement. In the event the Closing does not occur, Buyer shall return all such
documents and information provided by Seller. Buyer's obligation to return such
documents and information provided by Seller shall survive the termination or
cancellation of this Agreement.
6. Conditions to Buyer's Obligation to Close. Buyer's obligation to
purchase the Property on the Closing Date is subject to the satisfaction of the
following contingencies and conditions in the manner and within the time limits
herein specified:
a. Within twenty (20) days after the Effective Date of this
Agreement: Seller shall have obtained and delivered a copy to Buyer, the written
consent of Marriott International, Inc. in a form reasonably satisfactory to
Buyer, to the purchase, sale and lease transactions contemplated by this
Agreement.
b. Within forty-five (45) days after the Effective Date of
this Agreement:
i. Buyer shall obtain a current appraisal of the
Premises prepared by an MAI appraiser acceptable to Buyer, complying with all
applicable statutory requirements, specifically including the Appraisal
Standards for Federally-Regulated Transactions, as required by the Federal
Financial Institutions Reform Recovery and Enforcement Act of 1989 ("FIRREA")
and related or subsequent regulations.
ii. Buyer shall obtain a current Environmental
Assessment of the Premises, prepared by a licensed environmental engineer
acceptable to Buyer, certified to Buyer and CNL American Realty Fund, Inc. and
stating whether there is any evidence of Hazardous Materials contamination on or
affecting the Premises. Said Environmental Assessment shall meet then current
protocols established by the American Society for Testing and Materials under
Designation E-1527 (Standard Practices for Environmental Site
Assessments/Transaction Screen Process).
iii. Buyer shall, at its option, obtain an "as-built"
survey for the Premises with the seal and signature of a registered engineer or
surveyor, which survey shall (a) include the metes and bounds description of all
parcels comprising the Premises, (b) indicate that all parcels comprising the
Premises are contiguous, (c) be certified to Buyer and the Title Company, (d)
show the location and dimension together with recording information of all
easements which encumber or are appurtenant to the Premises, and whether the
same are encroached upon by the Improvements or shall interfere with the use of,
or access to, the Premises and the Improvements thereon, or cross the property
of others in the absence of properly recorded easements therefor, (e) show the
location and dimension of the Improvements (including
8
<PAGE>
the location and number of any parking spaces), (f) indicate whether there
exists any violation of height and building restrictions and setback and parking
requirements and (g) shall be accompanied by a certificate from the Surveyor in
the form attached as Exhibit C.
iv. Buyer shall obtain a UCC-11 search for Seller and
each Guarantor.
c. Within the Inspection Period:
i. The terms of this Agreement and Buyer's
obligations hereunder shall have been approved by the Board of Directors of CNL
American Realty Fund, Inc., a Maryland corporation.
ii. Buyer shall have approved the zoning of the
Premises and its compliance with applicable zoning and subdivision laws,
including without limitation the documents which Seller is required to furnish
Buyer pursuant to Section 5.a.1.(3) above.
iii. Buyer and Tenant shall have mutually agreed upon
all of the terms and conditions of the Lease to be entered into at Closing. In
connection therewith, Buyer and Tenant shall, during the first thirty (30) days
of the Inspection Period, negotiate the terms and provisions of the Lease on the
basis of (but shall in no way be bound by) the form of Lease attached hereto as
Exhibit D, and shall act in a commercially reasonable manner in such
negotiations.
iv. Buyer shall have obtained, reviewed and approved
a Commitment from the Title Company for an owner's title insurance policy (ALTA
form) with respect to the Premises, naming Buyer as the Proposed Insured in the
amount of the Purchase Price (the "Title Commitment"), together with the
following:
(1) All exceptions and appurtenances to
title referred to in the Title Commitment;
(2) All proposed exceptions and
appurtenances to title which are intended to be of record as of the Closing
Date;
(3) A 50-year chain of title report
evidencing the record ownership of the Premises during the preceding 50 years,
accompanied by copies of the deeds and other instruments evidencing such record
ownership.
v. Buyer shall have approved any financial
information on the Tenant which Seller is required to furnish to Buyer pursuant
to Section above.
vi. Buyer and Tenant (if different than Seller) shall
have approved the Plans which Seller is required to furnish to Buyer pursuant to
Section 5.a.i above.
9
<PAGE>
vii. Buyer shall have received a certificate from an
inspecting architect acceptable to Buyer substantially in the form attached
hereto as Exhibit E (or otherwise reasonably acceptable to Buyer), and a
certificate from an inspecting civil engineer acceptable to Buyer substantially
in the form attached hereto as Exhibit F (or otherwise reasonably acceptable to
Buyer). Seller shall pay all costs in connection with obtaining the aforesaid
certificates.
viii. Buyer shall have approved the Permits,
warranties, guaranties, Contracts, and agreements, copies of which Seller is
required to furnish to Buyer pursuant to Section 5.a.i.(5), 5.a.i.(6) and 5.a.ii
above, the originals of which shall be delivered to Buyer at the Closing.
ix. Buyer shall have received evidence that legally
sufficient parking is available on the Premises without the benefit of any
parking easements created on adjacent property to comply with applicable zoning
requirements and that all utilities are available to and in service at the
Improvements.
x. Buyer shall have otherwise determined, in its sole
and absolute discretion, that the Property is satisfactory to Buyer.
In the event that Buyer does not terminate this Agreement prior to the
expiration of the Inspection period, Buyer shall, within two (2) business days
after the expiration of the Inspection Period, deliver the Second Earnest Money
Deposit to the Escrow Agent to be held and disbursed by Escrow Agent together
with the Initial Deposit.
d. On or before the Closing Date:
i. Tenant shall have approved and accepted the
completed Improvements and all utility services thereto and agreed to execute
and deliver the Lease and accept possession of the Premises in their existing
condition at Closing, any other conditions precedent to the Tenant's execution
of the Lease and obligation to begin paying rent pursuant to the Lease shall
have been satisfied, Tenant shall in fact be paying rent, and there shall exist
no event which, with the giving of notice or the passage of time or both, would
constitute an Event of Default under the Lease.
ii. The representations and warranties of Seller set
forth in Section 13 hereof shall be true, correct and complete in all material
respects on and as of the Closing Date.
iii. Tenant shall not, at any time during the term of
this Agreement, file or have filed against it a petition seeking relief under
the bankruptcy or other similar laws of the United States or any state thereof.
iv. There have been no material adverse changes to
the environmental condition of the Premises from that set forth in the
Environmental Assessment obtained by Buyer during the Inspection Period.
10
<PAGE>
v. Buyer shall have received the Title Commitment
"marked-up" and effectively dated as of the Closing, deleting all requirements
thereunder so as to obligate the Title Company unconditionally to issue to Buyer
an original owner's policy of title insurance in the amount of the Purchase
Price subject only to the Permitted Exceptions.
vi. Title Company shall deliver to Buyer a "closing
protection" or "insured closing" letter, evidencing the authority of any agent
of Title Company which conducts the Closing and issues the Buyer's owner's
policy of title insurance for or on behalf of Title Company.
vii. Buyer shall have received an updated appraisal
of the Premises meeting the requirements of Section 6.b.i above and reflecting
that the value of the Premises is equal to or greater than the Purchase Price;
provided, however, that any such updated appraisal shall only be required if
there has been a condemnation or casualty which has been repaired or restored
pursuant to Sections 15 or 16, respectively, of this Agreement prior to Closing.
If the foregoing contingencies are not satisfied or waived in writing
by Buyer within the respective time periods set forth above, then in addition to
any rights afforded by Section 4 and Section 17 of this Agreement, Buyer shall
be entitled to terminate this Agreement by delivering written notice thereof to
Seller and Escrow Agent in accordance with and subject to the provisions of
Section 12.b below, whereupon the Earnest Money Deposit shall be returned to
Buyer and this Agreement shall terminate and become null and void and all
parties hereto shall be relieved of all obligations hereunder except as
expressly provided in this Agreement.
7. Conditions to Seller's Obligation to Close. Seller's obligation to
sell the Property on the Closing Date shall be subject to the satisfaction of
the following contingencies and conditions in the manner and within the time
limits herein specified:
a. Within ten (10) days after the Effective Date of this
Agreement, Seller shall have obtained from all of its members written
consent to the purchase, sale and lease transactions contemplated by
this Agreement;
b. Within twenty (20) days after the Effective Date of this
Agreement, Seller shall have obtained from Marriott International,
Inc., written consent to the purchase, sale and lease transactions
contemplated by this Agreement, which consent shall provide for the
recognition and continuation of the Franchise Agreement after Closing;
and
c. Within thirty (30) days after the Effective Date of this
Agreement Seller shall have obtained written consent from Berkeley
Federal Bank & Trust, FSB, and Heller Financial, Inc., to the purchase,
sale and lease transactions contemplated by this Agreement.
If and when each of the foregoing contingencies and conditions are
satisfied, Seller shall provide Buyer with written notice of the same together
with a copy of any and all such documents evidencing the consent or approval so
obtained by Seller. In the event that Seller does not satisfy the contingency
and condition set forth in Section 7.c. above within the prescribed period of
time, Seller shall be entitled to a twenty (20) day extension of said time
period in order
11
<PAGE>
to satisfy said contingency and condition. Seller shall be entitled to such an
extension upon Seller's written notice to Buyer prior to the expiration of the
original thirty (30) day time period. If each of the foregoing contingencies and
conditions are not satisfied or waived in writing by Seller within the
respective time periods set forth above, as the same may be extended as
specifically set forth herein, Seller shall be entitled to terminate this
Agreement by delivering written notice thereof to Buyer and Escrow Agent in
accordance with and subject to the provisions of Section 12.b below, whereupon
the Earnest Money Deposit shall be returned to Buyer, Seller shall pay to Buyer
a termination fee equal to the amount of Buyer's out-of-pocket costs and
expenses including attorneys fees and costs incurred hereunder from and after
the Effective Date of this Agreement (the "Termination Fee") and this Agreement
shall thereafter terminate and become null and void and the parties hereto shall
be relieved of all obligations hereunder, except as expressly provided in this
Agreement.
8. Deliveries at Closing. At Closing the parties shall deliver to each
other the documents and items indicated below:
a. Seller shall deliver to Buyer:
i. An appropriate "Seller's Affidavit" or other
acceptable evidence attesting to the absence of liens, lien rights, rights of
parties in possession (other than Tenant) and other encumbrances arising under
Seller (other than the Permitted Exceptions) naming both Buyer and Title Company
as benefitted parties, so as to enable Title Company to delete the "standard"
exceptions for such matters from Buyer's owner's policy of title insurance and
otherwise insure any "gap" period occurring between the Closing and the
recordation of the closing documents.
ii. A duly executed Limited Warranty Deed with
respect to the Premises, subject to no exceptions other than the Permitted
Exceptions, in substantially the form attached as Exhibit G.
iii. A duly executed Limited Assignment of Licenses,
Permits, Plans, Contracts and Warranties with respect to the Premises in the
form attached as Exhibit H, together with all of the documents assigned thereby.
iv. A duly executed Limited Warranty Bill of Sale
(the "Bill of Sale") transferring all of Seller's rights, title and interest in
the Personal Property including Seller's right, title and interest in any
telephone numbers, P.O. Boxes and numbers associated therewith so as to assure a
continuity in operation and communication in the form attached as Exhibit "I".
v. Duly executed counterparts of the closing
statement.
vi. Duly executed counterpart of the Lease.
vii. An opinion from Seller's counsel, in form and
substance reasonably acceptable to Buyer and Buyer's legal counsel, relating to
due organization and good standing of Seller, the due authorization, execution
and delivery of the closing documents by Seller and
12
<PAGE>
the enforceability of the Lease against Tenant. Buyer and Seller will finalize
the form and content of the opinion from Seller's counsel within the first
thirty (30) days of the Inspection Period.
viii. An appropriate FIRPTA Affidavit or Certificate
by Seller, evidencing that Seller is not a foreign person or entity under
Section 1445(f)(3) of the Internal Revenue Code, as amended.
ix. All certificates of insurance, insuring Buyer as
the owner of the Premises, which are required by the Lease to be furnished by
the Tenant to the landlord.
x. Such other closing documents as are reasonably or
legally necessary and proper in order to consummate the transaction contemplated
by this Agreement.
b. Buyer shall deliver to Seller:
i. The Purchase Price, less all the deductions,
prorations, and credits provided for herein.
ii. Duly executed counterparts of the closing
statement.
iii. Duly executed counterpart of the Assignment.
iv. Duly executed counterpart of the Lease.
9. Closing and Other Costs, Adjustments and Prorations. The Closing
costs shall be allocated and other closing adjustments and prorations made
between Seller and Buyer as follows:
a. The Buyer shall be charged with the following items, all of
which shall be added to the Purchase Price payable to Seller at the Closing for
purposes of determining Lessor's Investment and the annual rent due under the
Lease as noted above: (i) all recording charges including recording the deed;
(ii) the cost of the survey and any updated survey required hereunder; (iii) the
cost of the owner's policy of title insurance (ALTA Form, including any
additional premiums to delete the "standard" exceptions for parties in
possession, matters of survey and construction lien claims, and to issue such
Endorsements as Buyer may request, provided the same are permitted by law and
customary in similar transactions); (iv) all costs and fees charged by the
Escrow Agent or the Title Company; (v) environmental assessment and update chain
of title report and appraisal required hereunder; and (vi) legal fees and
expenses of Buyer and Seller (which legal fees of Seller shall not exceed
$25,000.00).
b. The Seller shall be charged with the following items at
Closing: the usual and customary costs and expenses set forth in a settlement
statement with respect to the conveyance of a commercial property (excluding
only those expenses specifically described above as the responsibility of Buyer)
and including without limitation (i) costs of removing any lien or assessment of
a liquidated sum required to be discharged hereunder or other encumbrance which
Seller has agreed to discharge hereunder in order to convey title to the
Premises, the Personal Property as herein provided, including, without
limitation, any prepayment penalties or fees
13
<PAGE>
incurred in connection therewith, and (ii) all real estate conveyance taxes and
other transfer taxes, if any, imposed by state or local authorities (including
those transfer taxes customarily paid by a grantor); (iii) the cost of the
architect's and engineer's certificates; (iv) cost penalty or fee in connection
with obtaining the approval by the franchisor of the transfer of the Franchise
Agreement or title to the Premises and (v) the brokerage commission due to the
Broker (as hereafter defined).
c. As the Lease is to be entered into between Buyer and Tenant
effective as of the Closing Date, it shall not be necessary for rent or any
other charges payable under the Lease to be prorated at Closing, and all rent
and other charges payable by Tenant under the Lease shall be the property of
Buyer.
d. Taxes, assessments, utility charges and other charges and
assessments shall be not prorated as of Closing, as Seller shall be responsible
for such matters relating to the period prior to Closing, and Tenant shall be
responsible for such matters from and after Closing. Certified, confirmed and
ratified special assessments liens as of the Closing Date are to be paid by
Seller. Seller shall also pay and be responsible for any "rollback" taxes or
retroactively assessed taxes which arise out of or relate to any prior use of
the Premises or any improper or inadequate assessment of the Premises for the
period prior to the Closing, which obligation shall expressly survive the
Closing.
e. Accounts payable and accounts receivable shall be the
responsibility and property of Seller for all such accounts relating to the
period prior to Closing, and of Tenant for all such accounts relating to the
period from and after the Closing.
f. Seller shall be responsible for payment of all wages and
salaries payable to, and all vacation pay, pension and welfare benefits and
other fringe benefits accrued with respect to all individuals employed by Seller
at the Premises relating to the period prior to Closing and Tenant shall be
responsible for payment of all wages and benefits relating to the period at,
upon and after Closing. At no time hereunder, upon Closing or under the Lease
shall any of the employees at the Premises be deemed the employees of Buyer or
deemed to be transferred to Buyer and Seller shall be responsible to the extent
necessary or required, for causing all employees at the Premises to be
terminated as of Closing and rehired by Tenant as of the Closing, and, if
required, Seller will comply with the notice requirements under the Worker
Adjustment Retraining and Notification Act ("WARN Act"), the Consolidated
Omnibus Budget Reconciliation Act ("COBRA") or any similar state or local
legislation with respect to such employee matters. It is expressly understood
and agreed that Buyer is not responsible or liable, directly or indirectly, for
payment of any benefits, severance liability, compensation, pay or other
obligations, of whatever nature, due or alleged to be due to any employee of the
Premises or of Seller attributable to any time period up to, upon and after
Closing. There shall be no union agreements, pension plans, health plans,
benefit plans, deferred compensation plans, bonus plans or vacation plans or
similar agreements that shall survive Closing which shall be binding upon Buyer
or enforceable against the Premises. In connection with the foregoing matters,
Seller shall indemnify, save, insure and hold harmless Buyer from and against
any and all liability, loss, damage, cost and expense, including, without
limitation reasonable attorney's fees and costs, in connection with or arising
out of any claims by or related to the employees at the Premises which indemnity
and hold harmless agreement shall survive the Closing.
14
<PAGE>
10. Inspections. Buyer through its agents, employees and independent
contractors shall have the right from time to time during the Inspection Period
and continuing through the Closing Date, upon prior notice to Seller, to enter
the Premises for the purpose of inspecting the same and performing environmental
and other tests thereon. Buyer shall indemnify and hold harmless Seller and its
contractors, agents, employees and affiliates from and against any claims,
losses, damages and costs arising out of any inspection of and testing at the
Premises by Buyer, its agents and representatives which indemnity and hold
harmless agreement shall survive the Closing, rescission, expiration,
cancellation or termination of this Agreement. Buyer shall not, and shall not
permit its agents or representatives to, disrupt Seller's activities at the
Premises.
11. Title to Premises; State of Title to be Conveyed. At the Closing,
Seller shall convey fee simple title to the Premises to Buyer, free from all
liens, encumbrances, restrictions, rights-of-way and other matters, excepting
only the Permitted Exceptions and any other matters consented to in writing by
Buyer pursuant to Sections 6.c.iv and 14.a hereof.
12. Escrow Agent. By its execution hereof, Escrow Agent shall accept
the escrow contemplated herein. The Earnest Money Deposit shall be held by the
Escrow Agent, in trust, on the terms hereinafter set forth.
a. After clearance of funds, the Earnest Money Deposit shall
be held by Escrow Agent in an account meeting the requirements of Section 3.c
above, and shall not be commingled with any funds of the Escrow Agent or others.
Escrow Agent shall promptly advise Seller and Buyer that the Earnest Money
Deposit is made and the account number under which it has been deposited
following clearance of funds.
b. The Escrow Agent shall deliver the Earnest Money Deposit to
Seller or to Buyer, as the case may be, under the following conditions:
i. To Buyer upon receipt of notice of termination of
this Agreement by Buyer and/or Seller at any time prior to the expiration of the
Inspection Period.
ii. To Seller at Closing.
iii. To Seller upon receipt of written demand
therefor ("Seller's Demand for Deposit") stating that Buyer has defaulted in the
performance of Buyer's obligation to close under this Agreement and the facts
and circumstances underlying such default, provided, however, that the Escrow
Agent shall not honor such demand until more than ten (10) days after the Escrow
Agent shall have sent a copy of such demand to Buyer in accordance with the
provisions of Section 12.c of this Agreement nor thereafter, if the Escrow Agent
shall have received a "Notice of Objection" (as hereinafter defined) from Buyer
within such ten (10) day period.
iv. To Buyer upon receipt of written demand therefor
("Buyer's Demand for Deposit") stating that this Agreement has been terminated
in accordance with the provisions hereof for any reason other than as provided
in Section 12.b.i above, or that Seller has defaulted in the performance of any
of Seller's obligations under this Agreement and the facts and circumstances
underlying the same; provided, however, that the Escrow Agent shall not honor
such demand until more than ten (10) days after the Escrow Agent shall have sent
a copy of such
15
<PAGE>
demand to Seller in accordance with the provisions of Section 12.c of this
Agreement nor thereafter, if the Escrow Agent shall have received a Notice of
Objection from Seller within such ten (10) day period.
c. Within two (2) business days of the receipt by the Escrow
Agent of a Seller's Demand for Deposit or a Buyer's Demand for Deposit the
Escrow Agent shall send a copy thereof to the other party in the manner provided
in Section 16 of this Agreement. The other party shall have the right to object
to the delivery of the Deposit by sending written notice (the "Notice of
Objection") of such objection to the Escrow Agent in the manner provided in
Section 16 of this Agreement, which Notice of Objection shall be deemed null and
void and ineffective if such Notice of Objection is not received by the Escrow
Agent within the time periods prescribed in Section 12.b of this Agreement. Such
notice shall set forth the basis for objecting to the delivery of the Deposit.
Upon receipt of a Notice of Objection, the Escrow Agent shall promptly send a
copy thereof to the party who sent the written demand.
d. In the event the Escrow Agent shall have received the
Notice of Objection within the time periods prescribed in Section 12.b of this
Agreement, the Escrow Agent shall continue to hold the Earnest Money Deposit
until (i) the Escrow Agent receives written notice from Seller and Buyer
directing the disbursement of the Earnest Money Deposit, in which case the
Escrow Agent shall then disburse the Earnest Money Deposit in accordance with
such joint direction, or (ii) litigation shall occur between Seller and Buyer,
in which event the Escrow Agent shall draw upon the letter(s) of credit and
deliver the Earnest Money Deposit to the clerk of the court in which said
litigation is pending, or (iii) the Escrow Agent takes such affirmative steps as
the Escrow Agent may, at the Escrow Agent's option, elect in order to terminate
the Escrow Agent's duties including, but not limited to, drawing upon the
letter(s) of credit and depositing the Earnest Money Deposit in the appropriate
court for the County in which the Premises is located, and bringing an action
for interpleader, the costs thereof to be deducted from the amount so deposited
into the registry of the court; provided, however, that upon disbursement of the
deposited amount pursuant to court order or otherwise, the prevailing party
shall be entitled to collect from the losing party the amount of such costs and
expenses so deducted by the Escrow Agent.
e. The duties of the Escrow Agent are only as herein
specifically provided, and Escrow Agent shall incur no liability whatever except
for willful misconduct or gross negligence as long as the Escrow Agent has acted
in good faith. The Seller and Buyer each release the Escrow Agent from any act
done or omitted to be done by the Escrow Agent in good faith in the performance
of its duties hereunder.
f. Upon making delivery of the Earnest Money Deposit in the
manner herein provided, the Escrow Agent shall have no further liability
hereunder.
g. The Escrow Agent shall either execute this Agreement or
indicate in writing that it has accepted the role of Escrow Agent pursuant to
this Agreement which in either case will confirm that the Escrow Agent is
holding and will hold the Earnest Money Deposit in escrow, pursuant to the
provisions of this Agreement.
16
<PAGE>
13. Seller's Covenants, Representations and Warranties. In order to
induce Buyer to enter into this Agreement and purchase the Property, Seller
makes the following covenants, agreements, representations and warranties, all
of which shall survive the Closing and the purchase and sale of the Property for
a period of one year after the Closing Date.
a. Subject to the provisions of Section 7, Seller has obtained
all necessary authorizations and consents to enable it to execute and deliver
this Agreement and to consummate the transaction contemplated hereby.
b. Seller holds fee simple title to the Premises, free of all
liens, assessments and encumbrances except for the Permitted Exceptions, and
liens and encumbrances, if any, which will be paid and discharged at or prior to
the Closing. Seller has no knowledge of any condition or state of facts which
would preclude, limit or restrict the business operations contemplated, pursuant
to the terms of the Lease, to be conducted by Tenant at the Premises.
c. Except for construction warranties with respect to the
Improvements, there are no service or maintenance contracts affecting the
Property to which Buyer will be bound upon Closing.
d. To the best of Seller's knowledge, the Premises and the
proposed use thereof by Tenant and the condition thereof do not violate any
applicable deed restrictions, zoning or subdivision regulations, urban
redevelopment plans, local, state or federal environmental law or regulation or
any building code or fire code applicable to the Premises, and are not
designated by any governmental agency to be in a flood plain area.
e. As of the Closing Date (i) there shall exist no event
which, with the giving of notice or the passage of time or both, would
constitute an Event of Default under the Lease; (ii) Tenant shall not have any
defense, set-off or counterclaim in respect of its obligations under the Lease
arising as a result of Seller's actions or activities, or those of Seller's
employees, agents or contractors; and (iii) all leasing commissions and fees
with respect to the Lease, if any, have been paid in full by Seller or Tenant.
f. There is no pending or, to Seller's knowledge, threatened
litigation or other proceeding affecting the title to or the use or operation of
the Property.
g. Seller is not a "foreign person" within the meaning of
Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller
shall certify its taxpayer identification number at Closing.
h. To the best of Seller's knowledge, there are no federal,
state, county or municipal plans to restrict or change access from any highway
or road to the Premises.
i. The Premises are a separate parcel for real estate tax
assessment purposes.
j. All of the financial data regarding the construction,
ownership and operation of the Property that Seller has provided to Buyer is
true, complete and correct.
17
<PAGE>
k. To the best of Seller's knowledge, the Improvements have
been constructed in accordance with (i) the Plans and (ii) applicable building
codes, laws and regulations in a good, substantial and workmanlike manner.
l. To the best of Seller's knowledge, no Hazardous Materials
are, will be, have been, stored, treated, disposed of or incorporated into, on
or around the Premises in violation of any applicable statutes, ordinances or
regulations; the Premises are in material compliance with all applicable
environmental, health and safety requirements; any business currently or, to the
best of Seller's knowledge, heretofore operated on the Premises has disposed of
its waste in accordance with all applicable statutes, ordinances and
regulations; and Seller has no notice of any pending or, to the best of Seller's
knowledge, threatened action or proceeding arising out of the condition of the
Premises or any alleged violation of environmental, health or safety statutes,
ordinances or regulations.
m. As of the date hereof and the Closing Date there is, to the
best of Seller's knowledge and shall exist no event which is or would, with the
giving of notice or passage of time or both, constitute an event of default
under the Franchise Agreement.
n. Seller specifically acknowledges and understands that where
Seller actually knows of any fact(s) materially, adversely affecting the value
of the Property, whether said fact(s) is/are readily observable or not, Seller
hereby assumes and accepts a duty to disclose said fact(s) to Buyer. Seller
warrants that, other than as may be disclosed in the foregoing representations
and warranties, and except with respect to general market conditions applicable
to the Property to which Seller makes no representation and warranty, Seller has
no knowledge of any other fact(s) materially adversely affecting the value of
the Property whether or not said fact(s) is/are readily observable.
All of the representations, warranties and agreements of Seller set
forth herein and elsewhere in this Agreement shall be true upon the execution of
this Agreement and shall be reaffirmed and repeated in writing at and as of the
Closing Date, but not subsequent to the Closing Date, and shall survive the
Closing Date for a period of one year.
14. Covenants of Seller Pending Closing. Between the date hereof and
the Closing Date:
a. Seller shall not enter into any contracts for services or
otherwise that may be binding upon the Property or upon the Buyer subsequent to
Closing, nor grant any easements or licenses affecting the Premises, nor take
any legal action in connection with the Property which will affect Buyer's title
to the Property, nor enter into any leases of space in the Premises, without the
express prior written consent of Buyer. Buyer's consent may be withheld at
Buyer's sole option; however, Buyer's response to any of the foregoing shall not
be unreasonably delayed and, if denied, shall be accompanied by a reasonably
detailed explanation of the reason for such denial.
18
<PAGE>
b. Seller shall within two (2) business days following receipt
thereof (or the day of receipt if received the day prior to the Closing Date)
provide Buyer with copies of any letters or notices received by Seller relating
to or in any manner affecting the Property in a material, adverse manner.
c. Seller shall, at no expense to Seller, reasonably cooperate
with Buyer in connection with Buyer's obtaining any insurance which may be
required to be maintained by Buyer with respect to the Premises following the
Closing.
d. Seller will continue operating the hotel operation at the
Premises in as good or better manner as it has been operating since opening.
Seller will maintain adequate levels of Personalty items necessary to operate
the hotel. Seller will comply with all laws and contracts affecting the Premises
and will maintain all Permits, Contracts and the Franchise Agreement in good
standing. Seller will maintain and repair the Premises and Improvements in the
ordinary course of business. Seller agrees to promptly notify Buyer in writing
of any material change in the condition of the Premises, Improvements or the
operation of the hotel.
15. Eminent Domain. If prior to the date of the Closing, Seller
acquires knowledge of any pending or threatened action, suit or proceeding to
condemn or take all or any part of the Premises under the power of eminent
domain, then Seller shall immediately give notice thereof to Buyer. If such
condemnation gives Tenant, or will upon execution of the Lease, give Tenant the
option to terminate the Lease and if Tenant exercises such option or refuses to
modify the form of the Lease to specifically acknowledge and accept such
condemnation, this Agreement shall be null and void, whereupon the full amount
of the Earnest Money Deposit shall be paid by Escrow Agent to Buyer, and all
parties shall thereupon be relieved of all further liability hereunder except as
expressly provided in this Agreement. If such condemnation does not give Tenant
the option to terminate the Lease, or if it gives Tenant the option to terminate
the Lease and Tenant waives such option in writing, and if Seller or Seller's
lender, if any, agrees to make the proceeds of any condemnation award available
for reconstruction of the Improvements, then Seller will promptly commence the
reconstruction and the parties shall proceed with the Closing in accordance
with, and subject to, the terms hereof. All excess proceeds of such condemnation
shall be delivered to Buyer at closing or credited against the Purchase Price.
16. Casualty. If prior to the date of the Closing the Premises, or any
portion thereof, shall be damaged or destroyed by reason of fire, storm,
accident or other casualty, then Seller shall immediately give notice thereof to
Buyer. If such casualty will upon execution of the Lease, give Tenant the option
to terminate the Lease and if Tenant exercises such option or refuses to modify
the form of the Lease to specifically acknowledge and accept such casualty, this
Agreement shall be null and void, whereupon the full amount of the Earnest Money
Deposit shall be paid by Escrow Agent to Buyer, and all parties shall thereupon
be relieved of all further liability hereunder. If such casualty does not give
Tenant the option to terminate the Lease, or if it gives Tenant the option to
terminate the Lease and Tenant waives such option in writing, and if Seller or
Seller's lender, if any, agrees to make the proceeds of insurance available for
reconstruction of the Improvements, then the parties shall proceed with the
Closing in accordance with, and subject to the terms hereof. In such event, all
such proceeds of any insurance will be applied toward reconstruction subject to
the rights of Tenant in such proceeds under the Lease and the rights of Seller's
lender, if any, to receive and disburse the proceeds of any insurance.
19
<PAGE>
In the event Buyer, at its option, elects to close this transaction prior to the
completion of restoration, then the proceeds of any insurance will be assigned
to Buyer and Seller will credit Buyer at Closing with an amount equal to the
deductible under the applicable insurance policy and any amounts reasonably
determined by Buyer to constitute the difference between (i) the amount of the
insurance proceeds (and deductible) and (ii) the cost of reconstruction.
17. Remedies Upon Default.
a. In the event Buyer breaches or defaults under any of the
terms of this Agreement prior to or on the Closing Date, the sole and exclusive
remedy of Seller shall be to receive from Escrow Agent the full amount of the
Earnest Money Deposit, and Buyer shall have no right therein. Buyer and Seller
acknowledge and agree that (i) the aggregate amount of the Initial Earnest Money
Deposit, the Second Earnest Money Deposit and the Extension Earnest Money
Deposit (but only if and to the extent the same has been delivered by Buyer to
Escrow Agent) is a reasonable estimate of and bears a reasonable relationship to
the damages that would be suffered and costs incurred by Seller as a result of
having withdrawn the Premises from sale and the failure of Closing to occur due
to a default of Buyer under this Agreement; (ii) the actual damages suffered and
costs incurred by Seller as a result of such withdrawal and failure to close due
to a default of Buyer under this Agreement would be extremely difficult and
impractical to determine; (iii) Buyer seeks to limit its liability under this
Agreement to the amount of the Initial Earnest Money Deposit, the Second Earnest
Money Deposit and the Extension Earnest Money Deposit (but only if and to the
extent the same has been delivered by Buyer to Escrow Agent), and any interest
earned thereon if the transaction contemplated by this Agreement does not close
due to a default of Buyer under this Agreement; and (iv) such amount shall be
and constitute valid liquidated damages.
b. In the event Seller defaults under any of the terms of this
Agreement on or prior to the Closing Date (including, without limitation, by
failing or refusing to deliver any items required to be delivered pursuant to
Section 5 or Section 6 of this Agreement), Buyer as its sole and exclusive
remedies (except as specified below) shall be entitled to (i) receive a refund
of the Earnest Money Deposit and terminate this Agreement, or (ii) compel
specific performance of this Agreement, or (iii) if specific performance is not
possible or if Buyer elects not to pursue specific performance, recover damages
incurred as a result of such default, which shall include damages resulting from
a breach of any warranty or representation of Seller as of the Closing even if
the same is not discovered until after the Closing, to the extent the same
survive the Closing. If Buyer desires to elect the remedy described in the
foregoing clause (i), Buyer shall give Seller written notice of any alleged
default and Seller shall have a period of fifteen (15) days, but not later than
the Closing Date, to cure such default.
18. Notices. All notices, elections, requests and other communication
hereunder shall be in writing and shall be deemed given (i) when personally
delivered, or (ii) two (2) business days after being deposited in the United
States mail, postage prepaid, certified or registered, or (iii) the next
business day after being deposited with a recognized overnight mail or courier
delivery service, or (iv) when transmitted by facsimile or telecopy
transmission, with receipt acknowledge upon transmission; addressed as follows
(or to such other person or at such other address, of which any party hereto
shall have given written notice as provided herein):
20
<PAGE>
If to Seller: Gwinnett Residence Associates, LLC
c/o Stormont Trice Corporation
3350 Cumberland Circle, Suite 1800
Atlanta, Georgia 30339
Attn: Mr. James M. Stormont, Jr.
Phone: (770) 850-3302
Fax: (770) 850-3322
with a copy to: Robert G. Pennington, Esquire
King & Spalding
191 Peachtree St. N.E.
Atlanta, Georgia
Phone: (404) 572-3369
Fax: (404) 572-5148
If to Buyer: CNL Real Estate Advisors, Inc.
400 East South Street
Suite 500
Orlando, Florida 32801
Attention: Mr. Charles A. Muller
Phone: (407) 422-1574
Fax: (407) 428-9370
with a copy to: Richard J. Fildes, Esquire or
William T. Dymond, Esquire
Lowndes, Drosdick, Doster, Kantor &
Reed, P.A.
215 North Eola Drive
Post Office Box 2809
Orlando, Florida 32802
Phone: (407) 843-4600
Fax: (407) 423-4495
If to Escrow Agent: First American Title Insurance Company
National Division
5775D Glenridge Drive
Suite 400
Atlanta, Georgia 30328
Attention: Dick Holloway
Phone: (800) 328-2642
Fax: (404) 303-1235
19. Brokerage Commissions. Seller and Buyer each warrant to the other
party that no finders or brokers have been involved with the introduction of
Buyer and Tenant and/or the execution and delivery of the Lease and the leasing
of the Premises pursuant thereto. Seller and Buyer each warrant to the other
party that no finders or brokers have been involved with the introduction of
Seller and Buyer and/or the purchase and sale of the Premises except for Hodges
21
<PAGE>
Ward Elliott, Inc. (the "Broker") to whom Seller has agreed, by separate
agreement, to pay a commission if and only if the transaction contemplated by
the Agreement closes. Seller acknowledges and warrants that Buyer shall have no
obligation or liability for any commission or fee to Broker hereunder or under
the Lease. In the event of a breach of the foregoing warranties, the breaching
party agrees to save, defend, indemnify and hold harmless the non-breaching
party from and against any claims, losses, damages, liabilities and expenses,
including but not limited to attorneys' fees. The obligations of this Section
shall survive the Closing or earlier termination of this Agreement.
20. Seller's Indemnification. Seller acknowledges and agrees that Buyer
does not intend to become an operator of the Premises or the hotel business
conducted thereon following the Closing and accordingly agrees to, along with
Stormont Trice Management Corporation, indemnify, save, insure and hold harmless
Buyer from and against any and all loss, cost, damage, injury or other liability
including, without limitation, reasonable attorneys' fees and costs, arising out
of or in any way connected with Seller's ownership and operation of the Premises
including the operation of a Residence Inn by Marriott Suite Hotel whether
arising before or after the Closing, but excluding specifically the intentional
or willful acts of Buyer, its agents, officers, employees and contractors, if
any, in the direct operation of the Premises. The obligation of Seller and
Stormont Trice Management Corporation hereunder shall survive the Closing.
21. Hotel Operation Earn-Out. Seller and Buyer agree that Seller,
through the efforts of Tenant and/or Stormont Trice Management Corporation,
shall have an opportunity following the Closing hereunder to earn additional
sale proceeds (the "Earn-Out") in an amount not to exceed in the aggregate ONE
MILLION AND NO/100 DOLLARS ($1,000,000.00) (the "Maximum Earn-Out") on the terms
and subject to the conditions set forth hereinbelow. The Seller's right to
receive Earn-Out shall be based upon and calculated in accordance with the
following:
a. On the date which is twelve (12) months from and after the
Closing hereunder and each six (6) month period thereafter through and including
the six (6) month period ending with the thirty-sixth (36th) month following the
Closing hereunder, Seller shall cause the Tenant to provide to Buyer a certified
operating statement for the preceding twelve (12) month period which reflects
the earnings before interest, taxes, depreciation and amortization for the
Premises during such period (the "EBITDA"). The EBITDA shall be calculated in
accordance with the Uniform System of Accounts for Hotels, as published from
time to time by the International Association of Hotel Accountants and adopted
by the American Hotel-Motel Association currently in its 9th edition, and shall
specifically contemplate as expenses, management fees, franchise fees and other
fees and costs and shall be consistent with the operating statements for the
Premises. The parties agree, however, that for purposes of this calculation the
management fees which are subordinated to the rental payments under the Lease,
shall be added back in to EBITDA. The EBITDA shall be combined with the net
operating income for the Buckhead Residence Inn calculated in the same manner
and for the same time period (the "Buckhead EBITDA") which Buckhead Residence
Inn is to be simultaneously purchased by Buyer pursuant to that certain Hotel
Purchase and Sale Contract by and between Buckhead Residence Associate, LLC and
Buyer of event date herewith (the "Buckhead Contract"). The combined EBITDA and
Buckhead EBITDA shall be called the "Gross EBITDA" hereunder. The parties shall
then apply a factor of 7.44 times Gross EBITDA to determine the level of
22
<PAGE>
investment/purchase price that is supported by the existing EBITDA assuming a
10.75% lease rate with a 1.25 lease coverage ratio (e.g. Gross EBITDA x 7.44 =
Investment/Purchase Price). To the extent that the resulting level of
investment/purchase price supported by the EBITDA as determined above exceeds
the combined amount which Buyer has paid as the purchase price for the Premises
and the Buckhead Residence Inn (the "Actual Investment") then Buyer will advance
Earn-Out equal to said amount up to the Maximum Earn-Out. For purposes hereof
the Actual Investment shall be the sum of the purchase price paid for the
Premises and the Buckhead Residence Inn together with all closing costs and
expenses paid by Buyer hereunder or under the Buckhead Contract including those
costs and expenses set forth in Section 9 hereunder.
b. Buyer and Seller agree that Seller shall be responsible for
and shall pay when due any and all costs and expenses in connection with the
payment of Earn-Out including, without limitation, real estate conveyance and
other transfer taxes, the cost of endorsing Buyer's title policy to increase the
amount of insurance thereunder and any brokerage commissions or fees.
c. From and after each payment of Earn-Out as contemplated
hereunder the "Base Lease Rate" as more particularly defined in the Lease shall
be recalculated based upon the new investment level of Buyer in the Premises.
The new investment level shall include the portion of the Earn-Out paid to date
which is attributable to the Premises. The parties agree that the portion of
Earn-Out attributable to the Premises shall be based upon the same percentage
that the percentage of the original investment level of Buyer in the Premises
(i.e., purchase price plus all costs and expenses incurred in Closing) bears to
the Actual Investment. The Lease shall specifically contemplate the obligations
of Tenant to prepare and provide certified operating statements including the
calculation of EBITDA hereunder as well as the obligation to increase the Base
Lease Rate and rental payments as contemplated above.
d. Nothing herein shall obligate the Buyer to pay Earn-Out
except specifically in accordance with the provisions hereof. Under no
circumstances shall Buyer have an obligation to pay Earn-Out hereunder for any
period after the thirty-six (36) month period following the date of Closing or
in excess of the maximum Earn-Out in the aggregate.
The provisions of this Section 21 shall survive the Closing hereunder.
22. Miscellaneous Provisions.
a. Assignment; Binding Effect. Buyer may assign all of its
rights and obligations hereunder without the written consent of Seller to (i)
CNL American Realty Fund, Inc., a Maryland corporation, or its affiliate, or any
other entity which is owned, controlled, managed or advised by Buyer or any
affiliate of Buyer, or (ii) with the prior written consent of Seller to any
other third party which has the financial wherewithal in the reasonable business
judgement of Seller to perform the obligations of Buyer hereunder; provided,
however, that any assignee of Buyer assumes all of the obligations of Buyer
hereunder. In the event of any permitted assignment hereunder Buyer shall
thereupon be relieved of all further liability under this Agreement; except that
the Earnest Money Deposit shall not be released or otherwise adversely affected
as a result of any such assignment. Seller shall not have the right to assign
its rights and obligations hereunder, except to the extent expressly permitted
in Section 1.t above,
23
<PAGE>
in which event Seller shall deliver written notice thereof to Buyer and shall
nonetheless remain liable for any breach of the representations and warranties
and performance of the covenants set forth herein. Subject to the foregoing,
this Agreement shall be binding upon and shall inure to the benefit of Seller
and Buyer and their respective successors and assigns.
b. Captions. The several headings and captions of the Sections
and subsections used herein are for convenience of reference only and shall in
no way be deemed to limit, define or restrict the substantive provisions of this
Agreement.
c. Entire Agreement. This Agreement constitutes the entire
agreement of Buyer and Seller with respect to the purchase and sale of the
Premises, and supersedes any prior or contemporaneous agreement with respect
thereto. No amendment or modification of this Agreement shall be binding upon
the parties unless made in writing and signed by both Seller and Buyer.
d. Time of Essence. Time is of the essence with respect to the
performance of all of the terms, conditions and covenants of this Agreement.
e. Governing Law. This Agreement and the rights of the parties
hereunder shall be governed by and construed in accordance with the laws and
customs of the State of Georgia.
f. Termination. This Agreement shall be void and of no force
and effect unless signed by Seller and Escrow Agent and delivered to Buyer no
later than five (5) business days following the date of Buyer's execution of
this Agreement.
g. Counterparts. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts
each of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
h. Attorneys' Fees. In the event any party to this Agreement
should bring suit against the other party in respect to any matters provided for
herein, the prevailing party shall be entitled to recover from the
non-prevailing party its costs of court, legal expenses and reasonable
attorneys' fees based upon standard hourly rates for services rendered. As used
herein, the "prevailing party" shall include, without limitation, any party who
dismisses an action for recovery hereunder in exchange for payment of the sums
allegedly due, performance of covenants allegedly breached or consideration
substantially equal to the relief sought in the action.
i. Certain References. As used in this Agreement, the words
"hereof," "herein," "hereunder" and words of similar import shall mean and refer
to this entire Agreement and not to any particular article, section or paragraph
of this Agreement, unless the context clearly indicates otherwise.
24
<PAGE>
j. Time Periods. Unless otherwise expressly provided herein,
all periods for performance, approval, delivery or review and the like shall be
determined on a "calendar" day basis. If any day for performance, approval,
delivery or review shall fall on a Saturday, Sunday or legal holiday, the time
therefor shall be extended to the next business day.
k. Authority. Subject to the provisions of Section 6.c.i and
7.a, each person executing this Agreement, by his or her execution hereof,
represents and warrants that they are fully authorized to do so, and that no
further action or consent on the part of the party for whom they are acting is
required to the effectiveness and enforceability of this Agreement against such
party following such execution.
l. Severability. If any provision of this Agreement should be
held to be invalid or unenforceable, the validity and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
m. Waiver. One or more waivers of any covenant, term or
condition of this Agreement by either party shall not be construed as a waiver
of any subsequent breach of the same covenant, term or condition. The consent or
approval by either party to or of any act by the other party requiring such
consent or approval shall not be deemed to waiver or render unnecessary consent
to or approval of any subsequent similar act.
n. Relationship of the Parties. Nothing herein contained shall
be deemed or construed by the parties hereto, nor by any third party, as
creating the relationship of principal and agent or of partnership or of joint
venture between the parties hereto, it being understood and agreed that no
provision contained herein, nor any acts of the parties hereto shall be deemed
to create the relationship between the parties hereto other than the
relationship of seller and buyer.
IN WITNESS WHEREOF, the parties hereto have executed this Real Estate
Purchase and Sale Contract on the date first above written.
BUYER:
CNL REAL ESTATE ADVISORS, INC.,
a Florida corporation
By: /s/ Robert A. Bourne
Title: President
Date: April 20, 1998
25
<PAGE>
SELLER:
GWINNETT RESIDENCE ASSOCIATES,
LLC, a Georgia limited liability company
By: Stormont Trice Development Corporation
a Georgia corporation
Title: Managing Member
By: /s/ James M. Stormont, Jr.
Title: Chief Financial Officer
Date: April 17 , 1998
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE
COMPANY
By: /s/ Steven A. Nelson
Title: Office Manager
Date: April 17 , 1998
26
<PAGE>
JOINDER
The undersigned hereby joins in the execution of this Agreement for the
sole purpose of agreeing to the provisions of Paragraph 20 hereunder.
STORMONT TRICE MANAGEMENT
CORPORATION, a Georgia corporation
By: /s/ Donald R. Trice
Title: Chairman
Date: April 17, 1998
27
<PAGE>
FIRST AMENDMENT TO HOTEL PURCHASE AND SALE CONTRACT
THIS FIRST AMENDMENT TO HOTEL PURCHASE AND SALE CONTRACT (this
"Amendment") is made and entered into this 31st day of July, 1998, by and
between GWINNETT RESIDENCE ASSOCIATES, L.L.C., a Georgia limited liability
company, having a mailing address of c/o Stormont Trice Corporation, One
Riverside, Suite 300, 4401 Northside Parkway, Atlanta, Georgia 30327 ("Seller"),
and CNL REAL ESTATE ADVISORS, INC., a Florida corporation, having a mailing
address of 400 East South Street, Suite 500, Orlando, Florida 32801 ("Buyer");
W I T N E S S E T H:
WHEREAS, Seller and Buyer are parties to that certain Hotel Purchase
and Sale Agreement, dated as of April 24, 1998, regarding the purchase and sale
of certain improved real property known as the Gwinnett Residence Inn by
Marriott (the "Agreement"); and
WHEREAS, Seller and Buyer are desirous of modifying and amending
certain terms and provisions of the Agreement, as more particularly set forth
herein.
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, all of which each party hereto respectively agrees constitutes
sufficient consideration received at or before the execution and delivery
hereof, Seller and Buyer, intending to be legally bound, do hereby covenant and
agree as follows:
1. Definitions. Except as otherwise defined herein, all terms utilized
herein with an initial capital letter shall have the meaning ascribed to such
terms in the Agreement. Section 1 is hereby modified and amended by adding the
following definition as subparagraph "s" thereof, and relettering the subsequent
subparagraphs in Section 1:
"s. "Retained Funds" shall mean the sum of Five
Hundred Ninety Eight Thousand Five Hundred and No/100 Dollars
($598,500.00)."
2. Payment of Purchase Price. Section 3.d of the Agreement shall be and
is hereby modified and amended in its entirety to read as follows:
"d. Balance of Purchase Price. At the Closing, the
balance of the Purchase Price, less the Retained Funds and any
apportionments set forth in Section 7.a hereof shall be paid
in full by Buyer by wire transfer of immediately available
funds, as Seller shall direct. The Retained Funds shall be
retained by Buyer and shall be held and disbursed as provided
herein. The Retained Funds shall be payable to Seller by wire
transfer of immediately available federal funds within ten
(10) days after the expiration or sooner termination of the
Lease (other than any termination arising
28
<PAGE>
from the occurrence of any "Event of Default" (as such term is
defined in the Lease) by STC Leasing Associates, LLC, a
Georgia limited liability company, or its successors, legal
representatives or assigns ("Tenant") in which event the terms
of the Lease shall govern its disposition. Transfer of the
Retained Funds shall be to an account or accounts to be
designated by Seller or Seller's designee prior to such date.
The Retained Funds shall be held by Buyer as the property of
Seller; provided, however, at the Closing, Seller shall be
deemed to have delivered the Retained Funds to Buyer as
security for the faithful observance and performance by Tenant
of all of the terms, covenants and conditions under the Lease
to be observed and performed by Tenant, including, without
limitation, the surrender of possession of the Property to
Buyer as provided in the Lease and provided further Buyer
shall retain and own all interest on the Retained Funds.
Seller hereby acknowledges, ratifies and confirms (which
acknowledgment, ratification and confirmation shall be deemed
remade at the Closing) that it shall receive at Closing good
and valuable consideration (including, without limitation, the
financial benefits that will inure to Seller by virtue of
Tenant's occupancy and operation of the Property under the
Lease) in exchange for its delivery of the Retained Funds for
the benefit of Tenant as security for the observance and
performance by Tenant of its duties and obligations under the
Lease. The provisions of this Section 3.d shall survive the
Closing and shall remain in full force and effect until such
time as the Retained Funds have been remitted pursuant to the
provisions of this Section 3.d or the provisions of Section
4.13 of the Lease."
3. Governing Law. This Amendment shall be construed, interpreted and
enforced in accordance with the laws of the State of Georgia.
4. Counterparts. This Amendment may be executed in several
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
5. Ratification and Confirmation. Except as expressly modified and
amended hereby and by the amendments referenced herein, all terms, conditions
and provisions of the Agreement remain unamended and unmodified and the
Agreement, as modified and amended hereby, is hereby ratified and confirmed by
Seller and Purchaser.
29
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Amendment under seal
as of the date first above written.
SELLER:
GWINNETT RESIDENCE ASSOCIATES, L.L.C.,
a Georgia limited liability company
By: Stormont Trice Development Corporation, a
Georgia corporation, as Managing Member
By: /s/ James M. Stormont, Jr.
James M. Stormont, Jr.
Vice President
BUYER:
CNL REAL ESTATE ADVISORS, INC., a Florida
corporation
By: /s/ Charles A. Muller
Name: Charles A. Muller
Title: Executive Vice President
<PAGE>
10.12
Assignment and Assumption Agreement between
CNL Real Estate Advisors, Inc. and CNL Hospitality Partners, LP,
relating to the Residence Inn - Gwinnett Place
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of July 31,
1998 by and between CNL REAL ESTATE ADVISORS, INC., a Florida corporation
("Assignor") and CNL HOSPITALITY PARTNERS, LP, a Delaware limited partnership
("Assignee").
W I T N E S S E T H:
WHEREAS, GWINNETT RESIDENCE ASSOCIATES, LLC, a Georgia limited
liability company ("Seller") and Assignor entered into that certain Hotel
Purchase and Sale Agreement ("Contract") dated April 20, 1998, for the purchase
of certain premises located in the City of Atlanta, Gwinnett County, Georgia
("Property"); and
WHEREAS, effective as of the date hereof, Assignor wishes to assign and
Assignee wishes to assume all of the Assignor's rights and obligations under
said Contract.
NOW, THEREFORE, in consideration of the above and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Assignor hereby assigns to Assignee all of its right, title and
interest in and to the Contract.
2. Assignor hereby assigns to Assignee all of its right, title and
interest in and to any and all deposits paid by Assignor pursuant to paragraph
3. of the Contract.
3. Assignee hereby assumes, agrees to be bound by and undertakes to
perform each and every one of the terms, covenants and conditions contained in
the Contract. The Assignee further assumes all obligations and liabilities of
Assignor under the Contract in all respects as if the Assignee were the original
party to the Contract.
4. All of the terms and provisions of this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto, their heirs,
successors and assigns.
5. This Agreement sets forth the entire understanding of the parties
and it may not be changed except by a written document signed by the parties
hereto.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have caused this instrument
to be executed as of the day and year first above written.
WITNESSES: ASSIGNOR:
CNL REAL ESTATE ADVISORS, INC.
a Florida corporation
/s/ Krista J. Ayers
Witness
/s/ William T. Dymond, Jr. By: /s/ Charles A. Muller
Witness Print Name: Charles A. Muller
Title: Executive Vice President
ASSIGNEE:
CNL HOSPITALITY PARTNERS LP, a
Delaware limited partnership
/s/ Krista J. Ayers By: CNL HOSPITALITY GP CORP., a
Witness Delaware corporation
/s/ William T. Dymond, Jr. By: /s/ Charles A. Muller
Witness Print Name: Charles A. Muller
Title: Executive Vice President
The undersigned, as Seller under the Contract hereby consents to this Assignment
and Assumption Agreement.
SELLER:
GWINNETT RESIDENCE
ASSOCIATES, L.L.C., a Georgia limited
liability company
By: Stormont Trice Development
Corporation, a Georgia corporation,
Managing Member
/s/ Krista J. Ayers By: /s/ James M. Stormont, Jr.
Witness Name: James M. Stormont, Jr.
Title: Vice President
/s/ Judith Quinby
Witness
-2-
EXHIBIT 10.13
Hotel Purchase and Sale Contract between
CNL Real Estate Advisors, Inc. and
Buckhead Residence Associates, LLC, relating to the
Residence Inn - Buckhead (Lenox Park)
<PAGE>
COMPLETED FACILITY
SALE/LEASEBACK
HOTEL PURCHASE AND SALE CONTRACT
by and between
CNL REAL ESTATE ADVISORS, INC.,
a Florida corporation, or assigns,
as BUYER
and
BUCKHEAD RESIDENCE ASSOCIATES, LLC,
a Georgia limited liability company
as SELLER
Premises: Buckhead Residence Inn
(Tenant: )
<PAGE>
TABLE OF CONTENTS
Page
Definitions..................................................... 1
Purchase and Sale of Premises................................... 4
Purchase Price for Premises..................................... 4
Closing Date.................................................... 5
Seller's Deliveries............................................. 6
Conditions to Buyer's Obligation to Close....................... 8
Conditions to Seller's Obligation to Close...................... 11
Deliveries at Closing........................................... 12
Closing and Other Costs, Adjustments and Prorations............. 13
Inspections..................................................... 14
Title to Premises; State of Title to be Conveyed................ 15
Escrow Agent.................................................... 15
Seller's Covenants, Representations and Warranties.............. 16
Covenants of Seller Pending Closing............................. 18
Eminent Domain.................................................. 19
Casualty........................................................ 19
Remedies Upon Default........................................... 20
Notices......................................................... 20
Brokerage Commissions........................................... 21
Seller's Indemnification........................................ 22
Hotel Operation Earn-Out........................................ 22
Miscellaneous Provisions........................................ 23
<PAGE>
HOTEL PURCHASE AND SALE CONTRACT
THIS HOTEL PURCHASE AND SALE CONTRACT (this "Agreement") made and
entered into as of the Effective Date set forth herein, by and between BUCKHEAD
RESIDENCE ASSOCIATES, LLC, a Georgia limited liability company, having a mailing
address of c/o Stormont Trice Corporation, 3350 Cumberland Circle, Suite 1800,
Atlanta, Georgia 30339 ("Seller"), and CNL REAL ESTATE ADVISORS, INC., a Florida
corporation, or its assigns, having a mailing address at 400 East South Street,
Suite 500, Orlando, Florida 32801 ("Buyer");
W I T N E S S E T H:
WHEREAS, Seller is the fee simple owner of and is willing to sell a
parcel of real property located in the City of Atlanta, Dekalb County, Georgia,
and Buyer is willing to purchase such real property from Seller, upon the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Definitions. In addition to other words and terms defined elsewhere
in this Agreement, as used herein the following words and terms shall have the
following meanings, respectively, unless the context hereof otherwise clearly
requires:
a. "Closing" shall mean the consummation of the purchase and
sale of the Premises in accordance with the terms of this Agreement.
b. "Contracts" shall mean all service, sign, maintenance,
management, operation, equipment and other personal property or service
contracts, agreements or leases relating to the operation of the Premises and
all space leases, if any, encumbering the Premises or any part thereof.
c. "Earnest Money Deposit" shall mean the Initial Earnest
Money Deposit and the Second Earnest Money Deposit, as well as all interest
earned thereon in the interest-bearing money market account in which Escrow
Agent is required to place the Earnest Money Deposit.
d. "Effective Date" of this Agreement shall mean that date
upon which the last of the Buyer, Seller and Escrow Agent has executed this
Agreement.
e. "Escrow Agent" shall mean First American Title Insurance
Company, whose address is set forth in Section below.
f. "Extension Earnest Money Deposit" shall mean the $25,000.00
deposit to be given by Buyer to Escrow Agent pursuant to Section of this
Agreement, which shall be added to and form a part of the Earnest Money Deposit,
as well as all interest earned thereon in the interest-bearing money market
account in which Escrow Agent is required to place the Extension Earnest Money
Deposit.
<PAGE>
g. "Guarantor" shall mean, collectively, Stormont Trice
Management Corporation, Stormont Trice Corporation, and Stormont Trice
Development Corporation, each of which entities is a Georgia corporation and
each of which entities shall join in the Lease, for the purpose of guaranteeing
certain obligations under the Lease. The approval of Guarantor by Buyer shall be
subject to Buyer's (or CNL American Realty Fund, Inc.'s) credit underwriting
guidelines published from time to time, and the initial capitalization of
Guarantor.
h. "Hazardous Materials" shall mean all toxic or hazardous
materials, chemicals, wastes, pollutants or similar substances, including,
without limitation, Petroleum (as hereinafter defined), asbestos insulation
and/or urea formaldehyde insulation, which are regulated, governed, restricted
or prohibited by any federal, state or local law, decision, statute, rule,
regulation or ordinance currently in existence or hereafter enacted or rendered
(hereinafter collectively referred to as the "Hazardous Materials Laws")
including, but not limited to, those materials or substances defined as
"hazardous substances," "hazardous materials," "toxic substances" or
"pollutants" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601, et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq., the Clean Air Act, 42
U.S.C. Section 7401 et seq., the Clean Water Act, 33 U.S.C. Section 1251 et
seq., and any applicable statutes, ordinances or regulations under the laws of
the State in which the Premises are located, and any rules and regulations
promulgated thereunder, all as presently or hereafter amended. "Petroleum" for
purposes of this Agreement shall include, without limitation, oil or petroleum
of any kind and in any form including but not limited to oil, petroleum, fuel
oil, oil sludge, oil refuse, oil mixed with other waste, crude oil, gasoline,
diesel fuel and kerosene.
i. "Improvements" shall mean the building consisting of a 150
suite hotel, known as the "Buckhead Residence Inn" and other related
improvements to be conveyed by Seller to Buyer and leased by Tenant pursuant to
the terms of this Agreement, and all appurtenances thereto, including but not
limited to all pavement, accessways, curb cuts, parking, kitchen and support
facilities, meeting and conference rooms, swimming pool facilities, recreational
amenities, office facilities, drainage systems and facilities, landscaping, air
ventilation and filtering systems and facilities and utility facilities and
connections for sanitary sewer, potable water, irrigation, electricity,
telephone, cable television and natural gas, if applicable or required by the
Lease, to the extent the same form a part of the Premises.
j. "Initial Earnest Money Deposit" shall mean the deposit of
$25,000.00 to be given by Buyer to Escrow Agent pursuant to Section 3.a of this
Agreement, as well as all interest earned thereon in the interest-bearing money
market account in which Escrow Agent is required to place the Initial Earnest
Money Deposit.
k. "Inspection Period" shall mean that period of time starting
on the Effective Date of this Agreement and terminating forty-five (45) days
following the later of i) the date upon which Buyer has received copies of the
documents and materials regarding the Premises which Seller is required to
furnish to Buyer pursuant to Section 5, 6.a and 6.b of this Agreement
2
<PAGE>
(the receipt of which shall be acknowledged by Buyer in writing promptly upon
receipt by Buyer of all such documents and materials), or ii) the date that
Seller satisfies all of the contingencies and conditions set forth in Section 7
of this Agreement.
l. "Lease" shall mean that certain Lease Agreement to be
entered into at Closing between Buyer, as lessor, Tenant, as lessee, and
Guarantor, pursuant to which Tenant shall lease the Premises and Improvements
from Buyer, an initial draft of which is attached hereto as Exhibit D.
m. "Permits" shall mean all of the governmental permits,
including licenses and authorizations, required for the construction, ownership
and operation of the Improvements, including without limitation certificates of
occupancy, building permits, signage permits, site use approvals, zoning
certificates, environmental and land use permits and any and all necessary
approvals from state or local authorities.
n. "Permitted Exceptions" shall mean those items described on
Exhibit B attached hereto, which are agreed upon by the Seller and Buyer within
thirty (30) days after the Effective Date of this Agreement and other matters to
which Buyer has consented during the Inspection Period.
o. "Personal Property" shall mean all of the furniture,
fixtures, equipment, machinery, furnishings, carpets, drapes, service and
maintenance equipment, tools, signs, landscaping equipment, telephone and other
communications equipment, pool equipment, television and antenna equipment,
television and video equipment, intercom equipment and systems, and any other
personal property utilized in connection with the operation of the Premises,
including, but not limited to, those items more particularly described on
Exhibit B-1, attached hereto and made a part hereof. The Personal Property shall
not include leased items or items owned by third parties which are subject to a
written contract or agreement or which are owned by guests. Further, the
Personal Property shall not include the Tenant's Personal Property, as hereafter
defined.
p. "Plans" shall mean the final "as-built" plans and
specifications for the Improvements, which are to be furnished by Seller to
Buyer pursuant to Section 5.a.i of this Agreement.
q. "Premises" shall mean that certain parcel of real property
containing an area of approximately 2.0104 acres and being more particularly
described on Exhibit A attached hereto, together with all of the Improvements,
tenements, hereditaments and appurtenances belonging or in any way appertaining
to such real property, and all of Seller's rights, title and interest in and to
(i) any and all property lying in the bed of any street, road or avenue, open or
proposed, in front of or adjoining such real property to the center line
thereof, (ii) any strips and gores of land adjacent to, abutting or used in
connection with such real property, and (iii) any easements and rights, if any,
inuring to the benefit of such real property or to Seller in connection
therewith.
r. "Property" shall mean collectively the Premises, the
Improvements and the Personal Property.
3
<PAGE>
s. "Purchase Price" shall mean $15,600,000.00.
t. "Second Earnest Money Deposit" shall mean the deposit of
$131,000.00 to be given by Buyer to Escrow Agent pursuant to Section 3.b of this
Agreement, as well as all interest earned thereon in the interest bearing money
market account in which the Escrow Agent is required to place the Second Earnest
Money Deposit.
u. "Tenant" shall mean Seller, in its capacity as lessee under
the Lease, or a newly-created entity affiliated with Seller or Stormont Trice
Corporation, which Seller may cause to enter into the Lease, as assignee or
designee of Seller for such purpose, at Seller's option, but subject to the
prior written approval of Buyer, which approval shall not be unreasonably
withheld but may be based upon a review by Buyer or its attorneys of such
entities organization documents including partnership agreements, bylaws,
articles of incorporation, as appropriate and other reasonable criteria.
v. "Tenant's Personal Property" shall mean all of the
inventory of food and beverages (opened and unopened excluding alcoholic
beverages) as well as all operating supplies such as guest supplies, linens,
uniform, towels, paper goods, soaps, cleaning supplies, uniforms, food,
beverages, consumables, guest supplies, china, glassware, silverware, vehicles,
vehicle supplies, gasoline, fuel oil, working capital, bank account balances,
software and other miscellaneous supplies and consumables utilized in connection
with the operation of the Premises, including, but not limited to those items
more particularly described on Exhibit B-2, attached hereto and made a part
hereof.
w. "Title Company" shall mean First American Title Insurance
Company, which shall issue the owner's policy of title insurance required
hereunder by and through such agent as it shall select.
2. Purchase and Sale of Premises. Subject to the terms, provisions and
conditions set forth herein, Seller hereby agrees to sell the Property to Buyer,
and Buyer hereby agrees to purchase the Property from Seller.
3. Purchase Price for Premises. The Purchase Price for the Property
shall be payable in the following manner:
a. Initial Earnest Money Deposit. Not later than five (5) days
following the date on which Buyer shall receive a counterpart of this Agreement
fully executed by Buyer, Seller and Escrow Agent, Buyer shall deposit with
Escrow Agent the Initial Earnest Money Deposit hereunder, to be held and
disbursed in accordance with the terms of this Agreement.
b. Second Earnest Money Deposit. In the event this Agreement
has not been previously terminated on or before the last day of the Inspection
Period, then within two (2) business days after the expiration of the Inspection
Period, Buyer shall deposit with Escrow Agent the Second Earnest Money Deposit
hereunder, to be held and disbursed in accordance with the terms of this
Agreement.
4
<PAGE>
c. Earnest Money Deposit. After clearance of funds, Escrow
Agent shall hold the Earnest Money Deposit in an interest bearing money market
account at a federally insured financial institution reasonably acceptable to
Seller, Buyer and Escrow Agent, and interest earned thereon shall be reported
under the United States Taxpayer Identification Number of CNL American Realty
Fund, Inc., a Maryland corporation, being a proposed assignee of Buyer as
contemplated in Section 22.a hereof. All interest earned on the Earnest Money
Deposit, or any portion thereof, shall be deemed to constitute a portion of the
Earnest Money Deposit and shall be disbursed in accordance with the terms of
this Agreement. The Earnest Money Deposit shall be credited to the cash due from
Buyer at Closing and shall be paid over to Seller at Closing.
Buyer shall have the right, at its option during the term of this
Agreement, to substitute one or more letters of credit for all or any portion of
the Earnest Money Deposit. The letter(s) of credit shall be drawn on Colonial
Bank, N.A., or any other financial institution reasonably acceptable to Seller
and shall name Escrow Agent as beneficiary. The letter(s) of credit shall not
impose any conditions to the drawing thereof other than a certificate from the
Escrow Agent that Escrow Agent is entitled to draw upon the letter of credit
pursuant to the terms of this Agreement. If any letter(s) of credit do not have
an expiration date of at least thirty (30) days after the Closing Date, then
Buyer shall renew or extend such letter(s) of credit at least fifteen (15) days
prior to the expiration thereof. If Buyer fails to deliver proper renewals or
extension documentation prior to the deadline for same, then Escrow Agent shall
draw upon the letter(s) of credit which have not been timely renewed or extended
and hold the proceeds thereof as the Earnest Money Deposit under this Agreement.
The letter(s) of credit shall be held and disbursed in the same fashion as the
Earnest Money Deposit under this Agreement. Except when the proceeds of any
letter of credit shall be promptly deposited into the registry of the court
pursuant to the terms of this Agreement, the letter(s) of credit shall not be
drawn upon by Escrow Agent until the Escrow Agent is otherwise authorized to
deliver the Earnest Money Deposit to Seller pursuant to this Agreement (i.e.,
the letter(s) of credit may not be drawn upon until after the expiration of any
applicable notice provisions set forth in Section 12 of this Agreement);
provided, however, that notwithstanding any notice requirements in this
Agreement, Escrow Agent shall be entitled to draw upon any expiring letter(s) of
credit which are not timely renewed or extended pursuant to the terms of this
Section, in which event Escrow Agent will hold and disburse the proceeds thereof
in the manner set forth in this Agreement. At Closing, the letter(s) of credit
shall be returned to Buyer and not credited against the Purchase Price otherwise
due from Buyer at Closing.
d. Balance of Purchase Price. The balance of the Purchase
Price, less any apportionments set forth in Section 7.a hereof shall be paid in
full by Buyer at the Closing by wire transfer of immediately available federal
funds, as Seller shall direct.
4. Closing Date.
a. The Closing shall take place on a date (the "Closing Date")
which is on, or at Buyer's option, before thirty (30) days following the
expiration of the Inspection Period. If Buyer desires to close prior to the
thirtieth (30th) day following the expiration of Inspection Period then Buyer
may do so provided that Buyer provide Seller with at least five (5) business
days prior written notice (the "Closing Notice") of the Closing Date (with a
copy to Escrow
5
<PAGE>
Agent), and the Closing shall occur at the offices of the Title Company or
Seller's Counsel at such time and at such location as is mutually acceptable to
Buyer and Seller. TIME IS OF THE ESSENCE HEREUNDER.
b. Notwithstanding the foregoing, Buyer shall be entitled to
extend the Closing Date above for an additional period of thirty (30) days by
(i) delivering to Seller (with a copy to Escrow Agent) on or before the then
scheduled Closing Date a written notice of Buyer's intent to so extend the
Closing Date, and (ii) simultaneously delivering to the Escrow Agent the
Extension Earnest Money Deposit hereunder. Thereafter if Buyer desires to close
prior to the thirtieth (30th) day of such extension then Buyer may do so by
providing to Seller the Closing Notice.
5. Seller's Deliveries.
a. Within ten (10) days after the Effective Date of this
Agreement:
i. Seller shall deliver to Buyer (at no cost to
Buyer) copies of any and all tests, surveys, examinations, plans, appraisals,
permits, licenses, environmental studies or reports and other studies or
investigations regarding the Premises which the Seller may have in its
possession or control, specifically including, without limitation, the
following:
(1) All existing environmental reports,
studies or surveys of the Premises which are in the possession, custody or
control of Seller, Seller's legal counsel (provided that such documents required
from Seller's legal counsel are non-privileged) or Seller's employees. Seller
shall in good faith also attempt to obtain and deliver any other reports,
studies, or surveys of the Premises which are in the possession, custody or
control of Seller's contractors, agents or consultants. Seller shall in good
faith also request a letter or certificate from the issuer of each report as may
be requested by Buyer, certifying the same to Buyer and CNL American Realty
Fund, Inc. or otherwise stating that Buyer and CNL American Realty Fund, Inc.
are entitled to rely on the same; provided that such certificates shall be at no
cost to Seller.
(2) If Tenant is a different entity than
Seller, a current operating statement (if applicable), profit and loss statement
(if applicable), balance sheet and other financial information for Tenant
reasonably requested by Buyer, certified as true, correct and complete by
Tenant, reflecting Tenant's ability to pay rent and perform its other Lease
obligations. Further, the financial information of Guarantor shall also be
expressly subject to review by Buyer for the purposes of satisfying Buyer's (or
CNL American Realty Fund, Inc.'s credit underwriting guidelines, as published
from time to time.
(3) A current letter or certificate from an
appropriate municipal, county or other governmental representative confirming
the zoning classification for the Premises and, if possible, identifying the
permitted uses under such classification.
(4) Final "as-built" Plans for the
Improvements;
6
<PAGE>
(5) All Permits, including without
limitation, a certificate of occupancy for the use and occupancy of the Premises
by Tenant and a current, valid liquor license.
(6) All warranties and guaranties pertaining
to the Improvements, specifically including the manufacturer's roof membrane
warranty issued with respect to the building comprising the Improvements.
ii. Seller shall deliver to Buyer (at no cost to
Buyer) true and correct copies of all Contracts and any operation, management
and/or franchise agreements in connection with the operation of the Premises or
any part thereof, including without limitation, a copy of that certain Franchise
Agreement by and between Seller and Marriott International, Inc. for the
operation of a Residence Inn by Marriott franchised hotel at the Premises (the
"Franchise Agreement").
iii. Seller shall provide to Buyer a copy of the most
recent tax bill (and paid receipt therefor) with respect to ad valorem real
property taxes and assessments levied or assessed with respect to the Premises.
iv. Seller shall conduct an inventory of the Personal
Property and Tenant's Personal Property and provide Buyer with notice of the
date and time for the conducting of such inventory. Buyer shall be entitled to
have a representative present to monitor and participate in such inventory.
Thereafter Seller shall provide to Buyer the written results of such inventory
identifying the type, quantity and Seller's purchase price and/or cost basis for
each item of Personal Property and Tenant's Personal Property.
v. Seller shall provide to Buyer copies of all of
Seller's insurance policies currently in effect with respect to the Premises
together with copies of all claim's logs, loss runs, claim's notices and similar
documents which catalog and chronicle the status of all claims or potential
claims threatened or made against Seller, its manager or the Premises.
vi. Seller shall deliver to Buyer true, correct and
complete copies of all operating and income statements and reports effecting or
relating to the operation of the Premises.
Such documents and information shall be utilized solely for the purpose
of evaluating Buyer's proposed acquisition of the Property. By accepting
delivery of such documents and information, Buyer shall have acknowledged that
Seller has made, and is making, no representation or warranty, express or
implied, as to the accuracy of completeness of such documents and information
which were prepared by third parties other than that Seller represents and
warrants that it is not aware of any inaccuracy, omission or misstatement with
respect to the same except as specifically disclosed by Seller in writing to
Buyer, and Seller shall incur no liability to Buyer or any other third party by
reason of furnishing or making such document and information available to Buyer
consistent with the foregoing understanding. Buyer agrees that it will make its
own independent investigations and studies with respect to the Property and all
aspects thereof, and will rely thereon and on the advice of its consultants
concerning its proposed acquisition of the Property. Seller agrees to reasonably
cooperate with Buyer in Buyer's investigations and studies with respect to the
Property; provided, however, Seller shall not be
7
<PAGE>
obligated to expend funds to third parties (other than its legal counsel) in
doing so, unless expressly provided otherwise in this Agreement. In the event
the Closing does not occur, Buyer shall return all such documents and
information provided by Seller. Buyer's obligation to return such documents and
information provided by Seller shall survive the termination or cancellation of
this Agreement.
6. Conditions to Buyer's Obligation to Close. Buyer's obligation to
purchase the Property on the Closing Date is subject to the satisfaction of the
following contingencies and conditions in the manner and within the time limits
herein specified:
a. Within twenty (20) days after the Effective Date of this
Agreement: Seller shall have obtained and delivered a copy to Buyer, the written
consent of Marriott International, Inc. in a form reasonably satisfactory to
Buyer, to the purchase, sale and lease transactions contemplated by this
Agreement.
b. Within forty-five (45) days after the Effective Date of
this Agreement:
i. Buyer shall obtain a current appraisal of the
Premises prepared by an MAI appraiser acceptable to Buyer, complying with all
applicable statutory requirements, specifically including the Appraisal
Standards for Federally-Regulated Transactions, as required by the Federal
Financial Institutions Reform Recovery and Enforcement Act of 1989 ("FIRREA")
and related or subsequent regulations.
ii. Buyer shall obtain a current Environmental
Assessment of the Premises, prepared by a licensed environmental engineer
acceptable to Buyer, certified to Buyer and CNL American Realty Fund, Inc. and
stating whether there is any evidence of Hazardous Materials contamination on or
affecting the Premises. Said Environmental Assessment shall meet then current
protocols established by the American Society for Testing and Materials under
Designation E-1527 (Standard Practices for Environmental Site
Assessments/Transaction Screen Process).
iii. Buyer shall, at its option, obtain an "as-built"
survey for the Premises with the seal and signature of a registered engineer or
surveyor, which survey shall (a) include the metes and bounds description of all
parcels comprising the Premises, (b) indicate that all parcels comprising the
Premises are contiguous, (c) be certified to Buyer and the Title Company, (d)
show the location and dimension together with recording information of all
easements which encumber or are appurtenant to the Premises, and whether the
same are encroached upon by the Improvements or shall interfere with the use of,
or access to, the Premises and the Improvements thereon, or cross the property
of others in the absence of properly recorded easements therefor, (e) show the
location and dimension of the Improvements (including the location and number of
any parking spaces), (f) indicate whether there exists any violation of height
and building restrictions and setback and parking requirements and (g) shall be
accompanied by a certificate from the Surveyor in the form attached as Exhibit
C.
iv. Buyer shall obtain a UCC-11 search for Seller and
each Guarantor.
8
<PAGE>
c. Within the Inspection Period:
i. The terms of this Agreement and Buyer's
obligations hereunder shall have been approved by the Board of Directors of CNL
American Realty Fund, Inc., a Maryland corporation.
ii. Buyer shall have approved the zoning of the
Premises and its compliance with applicable zoning and subdivision laws,
including without limitation the documents which Seller is required to furnish
Buyer pursuant to Section 5.a.i.(3) above.
iii. Buyer and Tenant shall have mutually agreed upon
all of the terms and conditions of the Lease to be entered into at Closing. In
connection therewith, Buyer and Tenant shall, during the first thirty (30) days
of the Inspection Period, negotiate the terms and provisions of the Lease on the
basis of (but shall in no way be bound by) the form of Lease attached hereto as
Exhibit D, and shall act in a commercially reasonable manner in such
negotiations.
iv. Buyer shall have obtained, reviewed and approved
a Commitment from the Title Company for an owner's title insurance policy (ALTA
form) with respect to the Premises, naming Buyer as the Proposed Insured in the
amount of the Purchase Price (the "Title Commitment"), together with the
following:
(1) All exceptions and appurtenances to
title referred to in the Title Commitment;
(2) All proposed exceptions and
appurtenances to title which are intended to be of record as of the Closing
Date;
(3) A 50-year chain of title report
evidencing the record ownership of the Premises during the preceding 50 years,
accompanied by copies of the deeds and other instruments evidencing such record
ownership.
v. Buyer shall have approved any financial
information on the Tenant which Seller is required to furnish to Buyer pursuant
to Section 5.a.i.(2) above.
vi. Buyer and Tenant (if different than Seller) shall
have approved the Plans which Seller is required to furnish to Buyer pursuant to
Section 5.a.i above.
vii. Buyer shall have received a certificate from an
inspecting architect acceptable to Buyer substantially in the form attached
hereto as Exhibit E (or otherwise reasonably acceptable to Buyer), and a
certificate from an inspecting civil engineer acceptable to Buyer substantially
in the form attached hereto as Exhibit F (or otherwise reasonably acceptable to
Buyer). Seller shall pay all costs in connection with obtaining the aforesaid
certificates.
9
<PAGE>
viii. Buyer shall have approved the Permits,
warranties, guaranties, Contracts, and agreements, copies of which Seller is
required to furnish to Buyer pursuant to Section 5.a.i.(5), 5.a.i.(6) and 5.a.ii
above, the originals of which shall be delivered to Buyer at the Closing.
ix. Buyer shall have received evidence that legally
sufficient parking is available on the Premises without the benefit of any
parking easements created on adjacent property to comply with applicable zoning
requirements and that all utilities are available to and in service at the
Improvements.
x. Buyer shall have otherwise determined, in its sole
and absolute discretion, that the Property is satisfactory to Buyer.
In the event that Buyer does not terminate this Agreement prior to the
expiration of the Inspection period, Buyer shall, within two (2) business days
after the expiration of the Inspection Period, deliver the Second Earnest Money
Deposit to the Escrow Agent to be held and disbursed by Escrow Agent together
with the Initial Deposit.
d. On or before the Closing Date:
i. Tenant shall have approved and accepted the
completed Improvements and all utility services thereto and agreed to execute
and deliver the Lease and accept possession of the Premises in their existing
condition at Closing, any other conditions precedent to the Tenant's execution
of the Lease and obligation to begin paying rent pursuant to the Lease shall
have been satisfied, Tenant shall in fact be paying rent, and there shall exist
no event which, with the giving of notice or the passage of time or both, would
constitute an Event of Default under the Lease.
ii. The representations and warranties of Seller set
forth in Section 13 hereof shall be true, correct and complete in all material
respects on and as of the Closing Date.
iii. Tenant shall not, at any time during the term of
this Agreement, file or have filed against it a petition seeking relief under
the bankruptcy or other similar laws of the United States or any state thereof.
iv. There have been no material adverse changes to
the environmental condition of the Premises from that set forth in the
Environmental Assessment obtained by Buyer during the Inspection Period.
v. Buyer shall have received the Title Commitment
"marked-up" and effectively dated as of the Closing, deleting all requirements
thereunder so as to obligate the Title Company unconditionally to issue to Buyer
an original owner's policy of title insurance in the amount of the Purchase
Price subject only to the Permitted Exceptions.
10
<PAGE>
vi. Title Company shall deliver to Buyer a "closing
protection" or "insured closing" letter, evidencing the authority of any agent
of Title Company which conducts the Closing and issues the Buyer's owner's
policy of title insurance for or on behalf of Title Company.
vii. Buyer shall have received an updated appraisal
of the Premises meeting the requirements of Section 6.b.i above and reflecting
that the value of the Premises is equal to or greater than the Purchase Price;
provided, however, that any such updated appraisal shall only be required if
there has been a condemnation or casualty which has been repaired or restored
pursuant to Sections 15 or 16, respectively, of this Agreement prior to Closing.
If the foregoing contingencies are not satisfied or waived in writing
by Buyer within the respective time periods set forth above, then in addition to
any rights afforded by Section 4 and Section 17 of this Agreement, Buyer shall
be entitled to terminate this Agreement by delivering written notice thereof to
Seller and Escrow Agent in accordance with and subject to the provisions of
Section 12.b below, whereupon the Earnest Money Deposit shall be returned to
Buyer and this Agreement shall terminate and become null and void and all
parties hereto shall be relieved of all obligations hereunder except as
expressly provided in this Agreement.
7. Conditions to Seller's Obligation to Close. Seller's obligation to
sell the Property on the Closing Date shall be subject to the satisfaction of
the following contingencies and conditions in the manner and within the time
limits herein specified:
a. Within ten (10) days after the Effective Date of this
Agreement, Seller shall have obtained from all of its members written
consent to the purchase, sale and lease transactions contemplated by
this Agreement;
b. Within twenty (20) days after the Effective Date of this
Agreement, Seller shall have obtained from Marriott International,
Inc., written consent to the purchase, sale and lease transactions
contemplated by this Agreement, which consent shall provide for the
recognition and continuation of the Franchise Agreement after Closing;
and
c. Within thirty (30) days after the Effective Date of this
Agreement Seller shall have obtained written consent from Berkeley
Federal Bank & Trust, FSB, and Heller Financial, Inc., to the purchase,
sale and lease transactions contemplated by this Agreement.
If and when each of the foregoing contingencies and conditions are
satisfied, Seller shall provide Buyer with written notice of the same together
with a copy of any and all such documents evidencing the consent or approval so
obtained by Seller. In the event that Seller does not satisfy the contingency
and condition set forth in Section 7.c. above within the prescribed period of
time, Seller shall be entitled to a twenty (20) day extension of said time
period in order to satisfy said contingency and condition. Seller shall be
entitled to such an extension upon Seller's written notice to Buyer prior to the
expiration of the original thirty (30) day time period. If each of the foregoing
contingencies and conditions are not satisfied or waived in writing by Seller
within the respective time periods set forth above, as the same may be extended
as specifically set forth herein, Seller shall be entitled to terminate this
Agreement by delivering
11
<PAGE>
written notice thereof to Buyer and Escrow Agent in accordance with and subject
to the provisions of Section 12.b below, whereupon the Earnest Money Deposit
shall be returned to Buyer, Seller shall pay to Buyer a termination fee equal to
the amount of Buyer's out-of-pocket costs and expenses including attorneys fees
and costs incurred hereunder from and after the Effective Date of this Agreement
(the "Termination Fee") and this Agreement shall thereafter terminate and become
null and void and the parties hereto shall be relieved of all obligations
hereunder, except as expressly provided in this Agreement.
8. Deliveries at Closing. At Closing the parties shall deliver to each
other the documents and items indicated below:
a. Seller shall deliver to Buyer:
i. An appropriate "Seller's Affidavit" or other
acceptable evidence attesting to the absence of liens, lien rights, rights of
parties in possession (other than Tenant) and other encumbrances arising under
Seller (other than the Permitted Exceptions) naming both Buyer and Title Company
as benefitted parties, so as to enable Title Company to delete the "standard"
exceptions for such matters from Buyer's owner's policy of title insurance and
otherwise insure any "gap" period occurring between the Closing and the
recordation of the closing documents.
ii. A duly executed Limited Warranty Deed with
respect to the Premises, subject to no exceptions other than the Permitted
Exceptions, in substantially the form attached as Exhibit G.
iii. A duly executed Limited Assignment of Licenses,
Permits, Plans, Contracts and Warranties with respect to the Premises in the
form attached as Exhibit H, together with all of the documents assigned thereby.
iv. A duly executed Limited Warranty Bill of Sale
(the "Bill of Sale") transferring all of Seller's rights, title and interest in
the Personal Property including Seller's right, title and interest in any
telephone numbers, P.O. Boxes and numbers associated therewith so as to assure a
continuity in operation and communication in the form attached as Exhibit "I".
v. Duly executed counterparts of the closing
statement.
vi. Duly executed counterpart of the Lease.
vii. An opinion from Seller's counsel, in form and
substance reasonably acceptable to Buyer and Buyer's legal counsel, relating to
due organization and good standing of Seller, the due authorization, execution
and delivery of the closing documents by Seller and the enforceability of the
Lease against Tenant. Buyer and Seller will finalize the form and content of the
opinion from Seller's counsel within the first thirty (30) days of the
Inspection Period.
viii. An appropriate FIRPTA Affidavit or Certificate
by Seller, evidencing that Seller is not a foreign person or entity under
Section 1445(f)(3) of the Internal Revenue Code, as amended.
12
<PAGE>
ix. All certificates of insurance, insuring Buyer as
the owner of the Premises, which are required by the Lease to be furnished by
the Tenant to the landlord.
x. Such other closing documents as are reasonably or
legally necessary and proper in order to consummate the transaction contemplated
by this Agreement.
b. Buyer shall deliver to Seller:
i. The Purchase Price, less all the deductions,
prorations, and credits provided for herein.
ii. Duly executed counterparts of the closing
statement.
iii. Duly executed counterpart of the Assignment.
iv. Duly executed counterpart of the Lease.
9. Closing and Other Costs, Adjustments and Prorations. The Closing
costs shall be allocated and other closing adjustments and prorations made
between Seller and Buyer as follows:
a. The Buyer shall be charged with the following items, all of
which shall be added to the Purchase Price payable to Seller at the Closing for
purposes of determining Lessor's Investment and the annual rent due under the
Lease as noted above: (i) all recording charges including recording the deed;
(ii) the cost of the survey and any updated survey required hereunder; (iii) the
cost of the owner's policy of title insurance (ALTA Form, including any
additional premiums to delete the "standard" exceptions for parties in
possession, matters of survey and construction lien claims, and to issue such
Endorsements as Buyer may request, provided the same are permitted by law and
customary in similar transactions); (iv) all costs and fees charged by the
Escrow Agent or the Title Company; (v) environmental assessment and update chain
of title report and appraisal required hereunder; and (vi) legal fees and
expenses of Buyer and Seller (which legal fees of Seller shall not exceed
$25,000.00).
b. The Seller shall be charged with the following items at
Closing: the usual and customary costs and expenses set forth in a settlement
statement with respect to the conveyance of a commercial property (excluding
only those expenses specifically described above as the responsibility of Buyer)
and including without limitation (i) costs of removing any lien or assessment of
a liquidated sum required to be discharged hereunder or other encumbrance which
Seller has agreed to discharge hereunder in order to convey title to the
Premises, the Personal Property as herein provided, including, without
limitation, any prepayment penalties or fees incurred in connection therewith,
and (ii) all real estate conveyance taxes and other transfer taxes, if any,
imposed by state or local authorities (including those transfer taxes
customarily paid by a grantor); (iii) the cost of the architect's and engineer's
certificates; (iv) cost penalty or fee in connection with obtaining the approval
by the franchisor of the transfer of the Franchise Agreement or title to the
Premises and (v) the brokerage commission due to the Broker (as hereafter
defined).
13
<PAGE>
c. As the Lease is to be entered into between Buyer and Tenant
effective as of the Closing Date, it shall not be necessary for rent or any
other charges payable under the Lease to be prorated at Closing, and all rent
and other charges payable by Tenant under the Lease shall be the property of
Buyer.
d. Taxes, assessments, utility charges and other charges and
assessments shall be not prorated as of Closing, as Seller shall be responsible
for such matters relating to the period prior to Closing, and Tenant shall be
responsible for such matters from and after Closing. Certified, confirmed and
ratified special assessments liens as of the Closing Date are to be paid by
Seller. Seller shall also pay and be responsible for any "rollback" taxes or
retroactively assessed taxes which arise out of or relate to any prior use of
the Premises or any improper or inadequate assessment of the Premises for the
period prior to the Closing, which obligation shall expressly survive the
Closing.
e. Accounts payable and accounts receivable shall be the
responsibility and property of Seller for all such accounts relating to the
period prior to Closing, and of Tenant for all such accounts relating to the
period from and after the Closing.
f. Seller shall be responsible for payment of all wages and
salaries payable to, and all vacation pay, pension and welfare benefits and
other fringe benefits accrued with respect to all individuals employed by Seller
at the Premises relating to the period prior to Closing and Tenant shall be
responsible for payment of all wages and benefits relating to the period at,
upon and after Closing. At no time hereunder, upon Closing or under the Lease
shall any of the employees at the Premises be deemed the employees of Buyer or
deemed to be transferred to Buyer and Seller shall be responsible to the extent
necessary or required, for causing all employees at the Premises to be
terminated as of Closing and rehired by Tenant as of the Closing, and, if
required, Seller will comply with the notice requirements under the Worker
Adjustment Retraining and Notification Act ("WARN Act"), the Consolidated
Omnibus Budget Reconciliation Act ("COBRA") or any similar state or local
legislation with respect to such employee matters. It is expressly understood
and agreed that Buyer is not responsible or liable, directly or indirectly, for
payment of any benefits, severance liability, compensation, pay or other
obligations, of whatever nature, due or alleged to be due to any employee of the
Premises or of Seller attributable to any time period up to, upon and after
Closing. There shall be no union agreements, pension plans, health plans,
benefit plans, deferred compensation plans, bonus plans or vacation plans or
similar agreements that shall survive Closing which shall be binding upon Buyer
or enforceable against the Premises. In connection with the foregoing matters,
Seller shall indemnify, save, insure and hold harmless Buyer from and against
any and all liability, loss, damage, cost and expense, including, without
limitation reasonable attorney's fees and costs, in connection with or arising
out of any claims by or related to the employees at the Premises which indemnity
and hold harmless agreement shall survive the Closing.
10. Inspections. Buyer through its agents, employees and independent
contractors shall have the right from time to time during the Inspection Period
and continuing through the Closing Date, upon prior notice to Seller, to enter
the Premises for the purpose of inspecting the same and performing environmental
and other tests thereon. Buyer shall indemnify and hold harmless Seller and its
contractors, agents, employees and affiliates from and against any claims,
losses, damages and costs arising out of any inspection of and testing at the
Premises by Buyer, its
14
<PAGE>
agents and representatives which indemnity and hold harmless agreement shall
survive the Closing, rescission, expiration, cancellation or termination of this
Agreement. Buyer shall not, and shall not permit its agents or representatives
to, disrupt Seller's activities at the Premises.
11. Title to Premises; State of Title to be Conveyed. At the Closing,
Seller shall convey fee simple title to the Premises to Buyer, free from all
liens, encumbrances, restrictions, rights-of-way and other matters, excepting
only the Permitted Exceptions and any other matters consented to in writing by
Buyer pursuant to Sections 6.c.iv and 14.a hereof.
12. Escrow Agent. By its execution hereof, Escrow Agent shall accept
the escrow contemplated herein. The Earnest Money Deposit shall be held by the
Escrow Agent, in trust, on the terms hereinafter set forth.
a. After clearance of funds, the Earnest Money Deposit shall
be held by Escrow Agent in an account meeting the requirements of Section above,
and shall not be commingled with any funds of the Escrow Agent or others. Escrow
Agent shall promptly advise Seller and Buyer that the Earnest Money Deposit is
made and the account number under which it has been deposited following
clearance of funds.
b. The Escrow Agent shall deliver the Earnest Money Deposit to
Seller or to Buyer, as the case may be, under the following conditions:
i. To Buyer upon receipt of notice of termination of
this Agreement by Buyer and/or Seller at any time prior to the expiration of the
Inspection Period.
ii. To Seller at Closing.
iii. To Seller upon receipt of written demand
therefor ("Seller's Demand for Deposit") stating that Buyer has defaulted in the
performance of Buyer's obligation to close under this Agreement and the facts
and circumstances underlying such default, provided, however, that the Escrow
Agent shall not honor such demand until more than ten (10) days after the Escrow
Agent shall have sent a copy of such demand to Buyer in accordance with the
provisions of Section 12.c of this Agreement nor thereafter, if the Escrow Agent
shall have received a "Notice of Objection" (as hereinafter defined) from Buyer
within such ten (10) day period.
iv. To Buyer upon receipt of written demand therefor
("Buyer's Demand for Deposit") stating that this Agreement has been terminated
in accordance with the provisions hereof for any reason other than as provided
in Section 12.b.i above, or that Seller has defaulted in the performance of any
of Seller's obligations under this Agreement and the facts and circumstances
underlying the same; provided, however, that the Escrow Agent shall not honor
such demand until more than ten (10) days after the Escrow Agent shall have sent
a copy of such demand to Seller in accordance with the provisions of Section
12.c of this Agreement nor thereafter, if the Escrow Agent shall have received a
Notice of Objection from Seller within such ten (10) day period.
15
<PAGE>
c. Within two (2) business days of the receipt by the Escrow
Agent of a Seller's Demand for Deposit or a Buyer's Demand for Deposit the
Escrow Agent shall send a copy thereof to the other party in the manner provided
in Section 16 of this Agreement. The other party shall have the right to object
to the delivery of the Deposit by sending written notice (the "Notice of
Objection") of such objection to the Escrow Agent in the manner provided in
Section of this Agreement, which Notice of Objection shall be deemed null and
void and ineffective if such Notice of Objection is not received by the Escrow
Agent within the time periods prescribed in Section 12.b of this Agreement. Such
notice shall set forth the basis for objecting to the delivery of the Deposit.
Upon receipt of a Notice of Objection, the Escrow Agent shall promptly send a
copy thereof to the party who sent the written demand.
d. In the event the Escrow Agent shall have received the
Notice of Objection within the time periods prescribed in Section 12.b of this
Agreement, the Escrow Agent shall continue to hold the Earnest Money Deposit
until (i) the Escrow Agent receives written notice from Seller and Buyer
directing the disbursement of the Earnest Money Deposit, in which case the
Escrow Agent shall then disburse the Earnest Money Deposit in accordance with
such joint direction, or (ii) litigation shall occur between Seller and Buyer,
in which event the Escrow Agent shall draw upon the letter(s) of credit and
deliver the Earnest Money Deposit to the clerk of the court in which said
litigation is pending, or (iii) the Escrow Agent takes such affirmative steps as
the Escrow Agent may, at the Escrow Agent's option, elect in order to terminate
the Escrow Agent's duties including, but not limited to, drawing upon the
letter(s) of credit and depositing the Earnest Money Deposit in the appropriate
court for the County in which the Premises is located, and bringing an action
for interpleader, the costs thereof to be deducted from the amount so deposited
into the registry of the court; provided, however, that upon disbursement of the
deposited amount pursuant to court order or otherwise, the prevailing party
shall be entitled to collect from the losing party the amount of such costs and
expenses so deducted by the Escrow Agent.
e. The duties of the Escrow Agent are only as herein
specifically provided, and Escrow Agent shall incur no liability whatever except
for willful misconduct or gross negligence as long as the Escrow Agent has acted
in good faith. The Seller and Buyer each release the Escrow Agent from any act
done or omitted to be done by the Escrow Agent in good faith in the performance
of its duties hereunder.
f. Upon making delivery of the Earnest Money Deposit in the
manner herein provided, the Escrow Agent shall have no further liability
hereunder.
g. The Escrow Agent shall either execute this Agreement or
indicate in writing that it has accepted the role of Escrow Agent pursuant to
this Agreement which in either case will confirm that the Escrow Agent is
holding and will hold the Earnest Money Deposit in escrow, pursuant to the
provisions of this Agreement.
13. Seller's Covenants, Representations and Warranties. In order to
induce Buyer to enter into this Agreement and purchase the Property, Seller
makes the following covenants, agreements, representations and warranties, all
of which shall survive the Closing and the purchase and sale of the Property for
a period of one year after the Closing Date.
16
<PAGE>
a. Subject to the provisions of Section 7, Seller has obtained
all necessary authorizations and consents to enable it to execute and deliver
this Agreement and to consummate the transaction contemplated hereby.
b. Seller holds fee simple title to the Premises, free of all
liens, assessments and encumbrances except for the Permitted Exceptions, and
liens and encumbrances, if any, which will be paid and discharged at or prior to
the Closing. Seller has no knowledge of any condition or state of facts which
would preclude, limit or restrict the business operations contemplated, pursuant
to the terms of the Lease, to be conducted by Tenant at the Premises.
c. Except for construction warranties with respect to the
Improvements, there are no service or maintenance contracts affecting the
Property to which Buyer will be bound upon Closing.
d. To the best of Seller's knowledge, the Premises and the
proposed use thereof by Tenant and the condition thereof do not violate any
applicable deed restrictions, zoning or subdivision regulations, urban
redevelopment plans, local, state or federal environmental law or regulation or
any building code or fire code applicable to the Premises, and are not
designated by any governmental agency to be in a flood plain area.
e. As of the Closing Date (i) there shall exist no event
which, with the giving of notice or the passage of time or both, would
constitute an Event of Default under the Lease; (ii) Tenant shall not have any
defense, set-off or counterclaim in respect of its obligations under the Lease
arising as a result of Seller's actions or activities, or those of Seller's
employees, agents or contractors; and (iii) all leasing commissions and fees
with respect to the Lease, if any, have been paid in full by Seller or Tenant.
f. There is no pending or, to Seller's knowledge, threatened
litigation or other proceeding affecting the title to or the use or operation of
the Property.
g. Seller is not a "foreign person" within the meaning of
Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller
shall certify its taxpayer identification number at Closing.
h. To the best of Seller's knowledge, there are no federal,
state, county or municipal plans to restrict or change access from any highway
or road to the Premises.
i. The Premises are a separate parcel for real estate tax
assessment purposes.
j. All of the financial data regarding the construction,
ownership and operation of the Property that Seller has provided to Buyer is
true, complete and correct.
k. To the best of Seller's knowledge, the Improvements have
been constructed in accordance with (i) the Plans and (ii) applicable building
codes, laws and regulations in a good, substantial and workmanlike manner.
17
<PAGE>
l. To the best of Seller's knowledge, no Hazardous Materials
are, will be, have been, stored, treated, disposed of or incorporated into, on
or around the Premises in violation of any applicable statutes, ordinances or
regulations; the Premises are in material compliance with all applicable
environmental, health and safety requirements; any business currently or, to the
best of Seller's knowledge, heretofore operated on the Premises has disposed of
its waste in accordance with all applicable statutes, ordinances and
regulations; and Seller has no notice of any pending or, to the best of Seller's
knowledge, threatened action or proceeding arising out of the condition of the
Premises or any alleged violation of environmental, health or safety statutes,
ordinances or regulations.
m. As of the date hereof and the Closing Date there is, to the
best of Seller's knowledge and shall exist no event which is or would, with the
giving of notice or passage of time or both, constitute an event of default
under the Franchise Agreement.
n. Seller specifically acknowledges and understands that where
Seller actually knows of any fact(s) materially, adversely affecting the value
of the Property, whether said fact(s) is/are readily observable or not, Seller
hereby assumes and accepts a duty to disclose said fact(s) to Buyer. Seller
warrants that, other than as may be disclosed in the foregoing representations
and warranties, and except with respect to general market conditions applicable
to the Property to which Seller makes no representation and warranty, Seller has
no knowledge of any other fact(s) materially adversely affecting the value of
the Property whether or not said fact(s) is/are readily observable.
All of the representations, warranties and agreements of Seller set
forth herein and elsewhere in this Agreement shall be true upon the execution of
this Agreement and shall be reaffirmed and repeated in writing at and as of the
Closing Date, but not subsequent to the Closing Date, and shall survive the
Closing Date for a period of one year.
14. Covenants of Seller Pending Closing. Between the date hereof and
the Closing Date:
a. Seller shall not enter into any contracts for services or
otherwise that may be binding upon the Property or upon the Buyer subsequent to
Closing, nor grant any easements or licenses affecting the Premises, nor take
any legal action in connection with the Property which will affect Buyer's title
to the Property, nor enter into any leases of space in the Premises, without the
express prior written consent of Buyer. Buyer's consent may be withheld at
Buyer's sole option; however, Buyer's response to any of the foregoing shall not
be unreasonably delayed and, if denied, shall be accompanied by a reasonably
detailed explanation of the reason for such denial.
b. Seller shall within two (2) business days following receipt
thereof (or the day of receipt if received the day prior to the Closing Date)
provide Buyer with copies of any letters or notices received by Seller relating
to or in any manner affecting the Property in a material, adverse manner.
18
<PAGE>
c. Seller shall, at no expense to Seller, reasonably cooperate
with Buyer in connection with Buyer's obtaining any insurance which may be
required to be maintained by Buyer with respect to the Premises following the
Closing.
d. Seller will continue operating the hotel operation at the
Premises in as good or better manner as it has been operating since opening.
Seller will maintain adequate levels of Personalty items necessary to operate
the hotel. Seller will comply with all laws and contracts affecting the Premises
and will maintain all Permits, Contracts and the Franchise Agreement in good
standing. Seller will maintain and repair the Premises and Improvements in the
ordinary course of business. Seller agrees to promptly notify Buyer in writing
of any material change in the condition of the Premises, Improvements or the
operation of the hotel.
15. Eminent Domain. If prior to the date of the Closing, Seller
acquires knowledge of any pending or threatened action, suit or proceeding to
condemn or take all or any part of the Premises under the power of eminent
domain, then Seller shall immediately give notice thereof to Buyer. If such
condemnation gives Tenant, or will upon execution of the Lease, give Tenant the
option to terminate the Lease and if Tenant exercises such option or refuses to
modify the form of the Lease to specifically acknowledge and accept such
condemnation, this Agreement shall be null and void, whereupon the full amount
of the Earnest Money Deposit shall be paid by Escrow Agent to Buyer, and all
parties shall thereupon be relieved of all further liability hereunder except as
expressly provided in this Agreement. If such condemnation does not give Tenant
the option to terminate the Lease, or if it gives Tenant the option to terminate
the Lease and Tenant waives such option in writing, and if Seller or Seller's
lender, if any, agrees to make the proceeds of any condemnation award available
for reconstruction of the Improvements, then Seller will promptly commence the
reconstruction and the parties shall proceed with the Closing in accordance
with, and subject to, the terms hereof. All excess proceeds of such condemnation
shall be delivered to Buyer at closing or credited against the Purchase Price.
16. Casualty. If prior to the date of the Closing the Premises, or any
portion thereof, shall be damaged or destroyed by reason of fire, storm,
accident or other casualty, then Seller shall immediately give notice thereof to
Buyer. If such casualty will upon execution of the Lease, give Tenant the option
to terminate the Lease and if Tenant exercises such option or refuses to modify
the form of the Lease to specifically acknowledge and accept such casualty, this
Agreement shall be null and void, whereupon the full amount of the Earnest Money
Deposit shall be paid by Escrow Agent to Buyer, and all parties shall thereupon
be relieved of all further liability hereunder. If such casualty does not give
Tenant the option to terminate the Lease, or if it gives Tenant the option to
terminate the Lease and Tenant waives such option in writing, and if Seller or
Seller's lender, if any, agrees to make the proceeds of insurance available for
reconstruction of the Improvements, then the parties shall proceed with the
Closing in accordance with, and subject to the terms hereof. In such event, all
such proceeds of any insurance will be applied toward reconstruction subject to
the rights of Tenant in such proceeds under the Lease and the rights of Seller's
lender, if any, to receive and disburse the proceeds of any insurance. In the
event Buyer, at its option, elects to close this transaction prior to the
completion of restoration, then the proceeds of any insurance will be assigned
to Buyer and Seller will credit Buyer at Closing with an amount equal to the
deductible under the applicable insurance policy and any amounts reasonably
determined by Buyer to constitute the difference between (i) the amount of the
insurance proceeds (and deductible) and (ii) the cost of reconstruction.
19
<PAGE>
17. Remedies Upon Default.
a. In the event Buyer breaches or defaults under any of the
terms of this Agreement prior to or on the Closing Date, the sole and exclusive
remedy of Seller shall be to receive from Escrow Agent the full amount of the
Earnest Money Deposit, and Buyer shall have no right therein. Buyer and Seller
acknowledge and agree that (i) the aggregate amount of the Initial Earnest Money
Deposit, the Second Earnest Money Deposit and the Extension Earnest Money
Deposit (but only if and to the extent the same has been delivered by Buyer to
Escrow Agent) is a reasonable estimate of and bears a reasonable relationship to
the damages that would be suffered and costs incurred by Seller as a result of
having withdrawn the Premises from sale and the failure of Closing to occur due
to a default of Buyer under this Agreement; (ii) the actual damages suffered and
costs incurred by Seller as a result of such withdrawal and failure to close due
to a default of Buyer under this Agreement would be extremely difficult and
impractical to determine; (iii) Buyer seeks to limit its liability under this
Agreement to the amount of the Initial Earnest Money Deposit, the Second Earnest
Money Deposit and the Extension Earnest Money Deposit (but only if and to the
extent the same has been delivered by Buyer to Escrow Agent), and any interest
earned thereon if the transaction contemplated by this Agreement does not close
due to a default of Buyer under this Agreement; and (iv) such amount shall be
and constitute valid liquidated damages.
b. In the event Seller defaults under any of the terms of this
Agreement on or prior to the Closing Date (including, without limitation, by
failing or refusing to deliver any items required to be delivered pursuant to
Section 5 or Section 6 of this Agreement), Buyer as its sole and exclusive
remedies (except as specified below) shall be entitled to (i) receive a refund
of the Earnest Money Deposit and terminate this Agreement, or (ii) compel
specific performance of this Agreement, or (iii) if specific performance is not
possible or if Buyer elects not to pursue specific performance, recover damages
incurred as a result of such default, which shall include damages resulting from
a breach of any warranty or representation of Seller as of the Closing even if
the same is not discovered until after the Closing, to the extent the same
survive the Closing. If Buyer desires to elect the remedy described in the
foregoing clause (i), Buyer shall give Seller written notice of any alleged
default and Seller shall have a period of fifteen (15) days, but not later than
the Closing Date, to cure such default.
18. Notices. All notices, elections, requests and other communication
hereunder shall be in writing and shall be deemed given (i) when personally
delivered, or (ii) two (2) business days after being deposited in the United
States mail, postage prepaid, certified or registered, or (iii) the next
business day after being deposited with a recognized overnight mail or courier
delivery service, or (iv) when transmitted by facsimile or telecopy
transmission, with receipt acknowledge upon transmission; addressed as follows
(or to such other person or at such other address, of which any party hereto
shall have given written notice as provided herein):
20
<PAGE>
If to Seller: Buckhead Residence Associates, LLC
c/o Stormont Trice Corporation
3350 Cumberland Circle, Suite 1800
Atlanta, Georgia 30339
Attn: Mr. James M. Stormont, Jr.
Phone: (770) 850-3302
Fax: (770) 850-3322
with a copy to: Robert G. Pennington, Esquire
King & Spalding
191 Peachtree St. N.E.
Atlanta, Georgia
Phone: (404) 572-3369
Fax: (404) 572-5148
If to Buyer: CNL Real Estate Advisors, Inc.
400 East South Street
Suite 500
Orlando, Florida 32801
Attention: Mr. Charles A. Muller
Phone: (407) 422-1574
Fax: (407) 428-9370
with a copy to: Richard J. Fildes, Esquire or
William T. Dymond, Esquire
Lowndes, Drosdick, Doster, Kantor &
Reed, P.A.
215 North Eola Drive
Post Office Box 2809
Orlando, Florida 32802
Phone: (407) 843-4600
Fax: (407) 423-4495
If to Escrow Agent: First American Title Insurance Company
National Division
5775D Glenridge Drive
Suite 400
Atlanta, Georgia 30328
Attention: Dick Holloway
Phone: (800) 328-2642
Fax: (404) 303-1235
19. Brokerage Commissions. Seller and Buyer each warrant to the other
party that no finders or brokers have been involved with the introduction of
Buyer and Tenant and/or the execution and delivery of the Lease and the leasing
of the Premises pursuant thereto. Seller and Buyer each warrant to the other
party that no finders or brokers have been involved with the introduction of
Seller and Buyer and/or the purchase and sale of the Premises except for Hodges
21
<PAGE>
Ward Elliott, Inc. (the "Broker") to whom Seller has agreed, by separate
agreement, to pay a commission if and only if the transaction contemplated by
the Agreement closes. Seller acknowledges and warrants that Buyer shall have no
obligation or liability for any commission or fee to Broker hereunder or under
the Lease. In the event of a breach of the foregoing warranties, the breaching
party agrees to save, defend, indemnify and hold harmless the non-breaching
party from and against any claims, losses, damages, liabilities and expenses,
including but not limited to attorneys' fees. The obligations of this Section
shall survive the Closing or earlier termination of this Agreement.
20. Seller's Indemnification. Seller acknowledges and agrees that Buyer
does not intend to become an operator of the Premises or the hotel business
conducted thereon following the Closing and accordingly agrees to, along with
Stormont Trice Management Corporation, indemnify, save, insure and hold harmless
Buyer from and against any and all loss, cost, damage, injury or other liability
including, without limitation, reasonable attorneys' fees and costs, arising out
of or in any way connected with Seller's ownership and operation of the Premises
including the operation of a Residence Inn by Marriott Suite Hotel whether
arising before or after the Closing, but excluding specifically the intentional
or willful acts of Buyer, its agents, officers, employees and contractors, if
any, in the direct operation of the Premises. The obligation of Seller and
Stormont Trice Management Corporation hereunder shall survive the Closing.
21. Hotel Operation Earn-Out. Seller and Buyer agree that Seller,
through the efforts of Tenant and/or Stormont Trice Management Corporation,
shall have an opportunity following the Closing hereunder to earn additional
sale proceeds (the "Earn-Out") in an amount not to exceed in the aggregate ONE
MILLION AND NO/100 DOLLARS ($1,000,000.00) (the "Maximum Earn-Out") on the terms
and subject to the conditions set forth hereinbelow. The Seller's right to
receive Earn-Out shall be based upon and calculated in accordance with the
following:
a. On the date which is twelve (12) months from and after the
Closing hereunder and each six (6) month period thereafter through and including
the six (6) month period ending with the thirty-sixth (36th) month following the
Closing hereunder, Seller shall cause the Tenant to provide to Buyer a certified
operating statement for the preceding twelve (12) month period which reflects
the earnings before interest, taxes, depreciation and amortization for the
Premises during such period (the "EBITDA"). The EBITDA shall be calculated in
accordance with the Uniform System of Accounts for Hotels, as published from
time to time by the International Association of Hotel Accountants and adopted
by the American Hotel-Motel Association currently in its 9th edition, and shall
specifically contemplate as expenses, management fees, franchise fees and other
fees and costs and shall be consistent with the operating statements for the
Premises. The parties agree, however, that for purposes of this calculation the
management fees which are subordinated to the rental payments under the Lease,
shall be added back in to EBITDA. The EBITDA shall be combined with the net
operating income for the Gwinnett Residence Inn calculated in the same manner
and for the same time period (the "Gwinnett EBITDA") which Gwinnett Residence
Inn is to be simultaneously purchased by Buyer pursuant to that certain Hotel
Purchase and Sale Contract by and between Gwinnett Residence Associates, LLC and
Buyer of event date herewith (the "Gwinnett Contract"). The combined EBITDA and
Gwinnett EBITDA shall be called the "Gross EBITDA" hereunder. The parties shall
then apply a factor of 7.44 times Gross EBITDA to determine the level of
22
<PAGE>
investment/purchase price that is supported by the existing EBITDA assuming a
10.75% lease rate with a 1.25 lease coverage ratio (e.g. Gross EBITDA x 7.44 =
Investment/Purchase Price). To the extent that the resulting level of
investment/purchase price supported by the EBITDA as determined above exceeds
the combined amount which Buyer has paid as the purchase price for the Premises
and the Gwinnett Residence Inn (the "Actual Investment") then Buyer will advance
Earn-Out equal to said amount up to the Maximum Earn-Out. For purposes hereof
the Actual Investment shall be the sum of the purchase price paid for the
Premises and the Gwinnett Residence Inn together with all closing costs and
expenses paid by Buyer hereunder or under the Gwinnett Contract including those
costs and expenses set forth in Section 9 hereunder.
b. Buyer and Seller agree that Seller shall be responsible for
and shall pay when due any and all costs and expenses in connection with the
payment of Earn-Out including, without limitation, real estate conveyance and
other transfer taxes, the cost of endorsing Buyer's title policy to increase the
amount of insurance thereunder and any brokerage commissions or fees.
c. From and after each payment of Earn-Out as contemplated
hereunder the "Base Lease Rate" as more particularly defined in the Lease shall
be recalculated based upon the new investment level of Buyer in the Premises.
The new investment level shall include the portion of the Earn-Out paid to date
which is attributable to the Premises. The parties agree that the portion of
Earn-Out attributable to the Premises shall be based upon the same percentage
that the percentage of the original investment level of Buyer in the Premises
(i.e., purchase price plus all costs and expenses incurred in Closing) bears to
the Actual Investment. The Lease shall specifically contemplate the obligations
of Tenant to prepare and provide certified operating statements including the
calculation of EBITDA hereunder as well as the obligation to increase the Base
Lease Rate and rental payments as contemplated above.
d. Nothing herein shall obligate the Buyer to pay Earn-Out
except specifically in accordance with the provisions hereof. Under no
circumstances shall Buyer have an obligation to pay Earn-Out hereunder for any
period after the thirty-six (36) month period following the date of Closing or
in excess of the maximum Earn-Out in the aggregate.
The provisions of this Section 21 shall survive the Closing hereunder.
22. Miscellaneous Provisions.
a. Assignment; Binding Effect. Buyer may assign all of its
rights and obligations hereunder without the written consent of Seller to (i)
CNL American Realty Fund, Inc., a Maryland corporation, or its affiliate, or any
other entity which is owned, controlled, managed or advised by Buyer or any
affiliate of Buyer, or (ii) with the prior written consent of Seller to any
other third party which has the financial wherewithal in the reasonable business
judgement of Seller to perform the obligations of Buyer hereunder; provided,
however, that any assignee of Buyer assumes all of the obligations of Buyer
hereunder. In the event of any permitted assignment hereunder Buyer shall
thereupon be relieved of all further liability under this Agreement; except that
the Earnest Money Deposit shall not be released or otherwise adversely affected
as a result of any such assignment. Seller shall not have the right to assign
its rights and obligations hereunder, except to the extent expressly permitted
in Section 1.t above,
23
<PAGE>
in which event Seller shall deliver written notice thereof to Buyer and shall
nonetheless remain liable for any breach of the representations and warranties
and performance of the covenants set forth herein. Subject to the foregoing,
this Agreement shall be binding upon and shall inure to the benefit of Seller
and Buyer and their respective successors and assigns.
b. Captions. The several headings and captions of the Sections
and subsections used herein are for convenience of reference only and shall in
no way be deemed to limit, define or restrict the substantive provisions of this
Agreement.
c. Entire Agreement. This Agreement constitutes the entire
agreement of Buyer and Seller with respect to the purchase and sale of the
Premises, and supersedes any prior or contemporaneous agreement with respect
thereto. No amendment or modification of this Agreement shall be binding upon
the parties unless made in writing and signed by both Seller and Buyer.
d. Time of Essence. Time is of the essence with respect to the
performance of all of the terms, conditions and covenants of this Agreement.
e. Governing Law. This Agreement and the rights of the parties
hereunder shall be governed by and construed in accordance with the laws and
customs of the State of Georgia.
f. Termination. This Agreement shall be void and of no force
and effect unless signed by Seller and Escrow Agent and delivered to Buyer no
later than five (5) business days following the date of Buyer's execution of
this Agreement.
g. Counterparts. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts
each of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
h. Attorneys' Fees. In the event any party to this Agreement
should bring suit against the other party in respect to any matters provided for
herein, the prevailing party shall be entitled to recover from the
non-prevailing party its costs of court, legal expenses and reasonable
attorneys' fees based upon standard hourly rates for services rendered. As used
herein, the "prevailing party" shall include, without limitation, any party who
dismisses an action for recovery hereunder in exchange for payment of the sums
allegedly due, performance of covenants allegedly breached or consideration
substantially equal to the relief sought in the action.
i. Certain References. As used in this Agreement, the words
"hereof," "herein," "hereunder" and words of similar import shall mean and refer
to this entire Agreement and not to any particular article, section or paragraph
of this Agreement, unless the context clearly indicates otherwise.
24
<PAGE>
j. Time Periods. Unless otherwise expressly provided herein,
all periods for performance, approval, delivery or review and the like shall be
determined on a "calendar" day basis. If any day for performance, approval,
delivery or review shall fall on a Saturday, Sunday or legal holiday, the time
therefor shall be extended to the next business day.
k. Authority. Subject to the provisions of Section and , each
person executing this Agreement, by his or her execution hereof, represents and
warrants that they are fully authorized to do so, and that no further action or
consent on the part of the party for whom they are acting is required to the
effectiveness and enforceability of this Agreement against such party following
such execution.
l. Severability. If any provision of this Agreement should be
held to be invalid or unenforceable, the validity and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
m. Waiver. One or more waivers of any covenant, term or
condition of this Agreement by either party shall not be construed as a waiver
of any subsequent breach of the same covenant, term or condition. The consent or
approval by either party to or of any act by the other party requiring such
consent or approval shall not be deemed to waiver or render unnecessary consent
to or approval of any subsequent similar act.
n. Relationship of the Parties. Nothing herein contained shall
be deemed or construed by the parties hereto, nor by any third party, as
creating the relationship of principal and agent or of partnership or of joint
venture between the parties hereto, it being understood and agreed that no
provision contained herein, nor any acts of the parties hereto shall be deemed
to create the relationship between the parties hereto other than the
relationship of seller and buyer.
IN WITNESS WHEREOF, the parties hereto have executed this Real Estate
Purchase and Sale Contract on the date first above written.
BUYER:
CNL REAL ESTATE ADVISORS, INC.,
a Florida corporation
By: /s/ Robert A. Bourne
Title: President
Date: April 20, 1998
25
<PAGE>
SELLER:
BUCKHEAD RESIDENCE ASSOCIATES,
LLC, a Georgia limited liability
company
By: Stormont Trice Development
Corporation
a Georgia corporation
Title: Managing Member
By: /s/ James M. Stormont, Jr.
Title: Chief Financial Officer
Date: April 20, 1998
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE
COMPANY
By: Steven A. Nelson
Title: Ofice Manager
Date: April 20, 1998
26
<PAGE>
JOINDER
The undersigned hereby joins in the execution of this Agreement for the
sole purpose of agreeing to the provisions of Paragraph 20 hereunder.
STORMONT TRICE MANAGEMENT
CORPORATION, a Georgia corporation
By: /s/ Donald R. Trice
Title: Chairman
Date: April 17, 1998
27
<PAGE>
FIRST AMENDMENT TO HOTEL PURCHASE AND SALE CONTRACT
THIS FIRST AMENDMENT TO HOTEL PURCHASE AND SALE CONTRACT (this
"Amendment") is made and entered into this 31st day of July, 1998, by and
between BUCKHEAD RESIDENCE ASSOCIATES, L.L.C., a Georgia limited liability
company, having a mailing address of c/o Stormont Trice Corporation, One
Riverside, Suite 300, 4401 Northside Parkway, Atlanta, Georgia 30327 ("Seller"),
and CNL REAL ESTATE ADVISORS, INC., a Florida corporation, having a mailing
address of 400 East South Street, Suite 500, Orlando, Florida 32801 ("Buyer");
W I T N E S S E T H:
WHEREAS, Seller and Buyer are parties to that certain Hotel Purchase
and Sale Agreement, dated as of April 24, 1998, regarding the purchase and sale
of certain improved real property known as the Buckhead Residence Inn by
Marriott (the "Agreement"); and
WHEREAS, Seller and Buyer are desirous of modifying and amending
certain terms and provisions of the Agreement, as more particularly set forth
herein.
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, all of which each party hereto respectively agrees constitutes
sufficient consideration received at or before the execution and delivery
hereof, Seller and Buyer, intending to be legally bound, do hereby covenant and
agree as follows:
1. Definitions. Except as otherwise defined herein, all terms utilized
herein with an initial capital letter shall have the meaning ascribed to such
terms in the Agreement. Section 1 is hereby modified and amended by adding the
following definition as subparagraph "s" thereof, and relettering the subsequent
subparagraphs in Section 1:
"s. "Retained Funds" shall mean the sum of Eight
Hundred Nineteen Thousand and No/100 Dollars ($819,000.00)."
2. Payment of Purchase Price. Section 3.d of the Agreement shall be and
is hereby modified and amended in its entirety to read as follows:
"d. Balance of Purchase Price. At the Closing, the
balance of the Purchase Price, less the Retained Funds and any
apportionments set forth in Section 7.a hereof shall be paid
in full by Buyer by wire transfer of immediately available
funds, as Seller shall direct. The Retained Funds shall be
retained by Buyer and shall be held and disbursed as provided
herein. The Retained Funds shall be payable to Seller by wire
transfer of immediately available federal funds within ten
(10) days after the expiration or sooner termination of the
Lease (other than any termination arising from the occurrence
of any "Event of Default" (as such term is
28
<PAGE>
defined in the Lease) by STC Leasing Associates, LLC, a
Georgia limited liability company, or its successors, legal
representatives or assigns ("Tenant") in which event the terms
of the Lease shall govern its disposition. Transfer of the
Retained Funds shall be to an account or accounts to be
designated by Seller or Seller's designee prior to such date.
The Retained Funds shall be held by Buyer as the property of
Seller; provided, however, at the Closing, Seller shall be
deemed to have delivered the Retained Funds to Buyer as
security for the faithful observance and performance by Tenant
of all of the terms, covenants and conditions under the Lease
to be observed and performed by Tenant, including, without
limitation, the surrender of possession of the Property to
Buyer as provided in the Lease and provided further Buyer
shall retain and own all interest on the Retained Funds.
Seller hereby acknowledges, ratifies and confirms (which
acknowledgment, ratification and confirmation shall be deemed
remade at the Closing) that it shall receive at Closing good
and valuable consideration (including, without limitation, the
financial benefits that will inure to Seller by virtue of
Tenant's occupancy and operation of the Property under the
Lease) in exchange for its delivery of the Retained Funds for
the benefit of Tenant as security for the observance and
performance by Tenant of its duties and obligations under the
Lease. The provisions of this Section 3.d shall survive the
Closing and shall remain in full force and effect until such
time as the Retained Funds have been remitted pursuant to the
provisions of this Section 3.d or the provisions of Section
4.13 of the Lease."
3. Governing Law. This Amendment shall be construed, interpreted and
enforced in accordance with the laws of the State of Georgia.
4. Counterparts. This Amendment may be executed in several
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
5. Ratification and Confirmation. Except as expressly modified and
amended hereby and by the amendments referenced herein, all terms, conditions
and provisions of the Agreement remain unamended and unmodified and the
Agreement, as modified and amended hereby, is hereby ratified and confirmed by
Seller and Purchaser.
29
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Amendment under seal
as of the date first above written.
SELLER:
BUCKHEAD RESIDENCE ASSOCIATES, L.L.C.,
a Georgia limited liability company
By: Stormont Trice Development Corporation, a
Georgia corporation, as Managing Member
By: /s/ James M. Stormont, Jr.
James M. Stormont, Jr.
Vice President
BUYER:
CNL REAL ESTATE ADVISORS, INC., a Florida
corporation
By: /s/ Charles A. Muller
Name: Charles A. Muller
Title: Executive Vice President
30
10.14
Assignment and Assumption Agreement between
CNL Real Estate Advisors, Inc. and CNL Hospitality Partners, LP,
relating to the Residence Inn - Buckhead (Lenox Park)
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of July 31,
1998 by and between CNL REAL ESTATE ADVISORS, INC., a Florida corporation
("Assignor") and CNL HOSPITALITY PARTNERS, LP, a Delaware limited partnership
("Assignee").
W I T N E S S E T H:
WHEREAS, BUCKHEAD RESIDENCE ASSOCIATES, LLC, a Georgia limited
liability company ("Seller") and Assignor entered into that certain Hotel
Purchase and Sale Agreement ("Contract") dated April 20, 1998, for the purchase
of certain premises located in the City of Atlanta, DeKalb County, Georgia
("Property"); and
WHEREAS, effective as of the date hereof, Assignor wishes to assign and
Assignee wishes to assume all of the Assignor's rights and obligations under
said Contract.
NOW, THEREFORE, in consideration of the above and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Assignor hereby assigns to Assignee all of its right, title and
interest in and to the Contract.
2. Assignor hereby assigns to Assignee all of its right, title and
interest in and to any and all deposits paid by Assignor pursuant to paragraph
3. of the Contract.
3. Assignee hereby assumes, agrees to be bound by and undertakes to
perform each and every one of the terms, covenants and conditions contained in
the Contract. The Assignee further assumes all obligations and liabilities of
Assignor under the Contract in all respects as if the Assignee were the original
party to the Contract.
4. All of the terms and provisions of this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto, their heirs,
successors and assigns.
5. This Agreement sets forth the entire understanding of the parties
and it may not be changed except by a written document signed by the parties
hereto.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
<PAGE>
IN WITNESS WHEREOF, Assignor and Assignee have caused this instrument
to be executed as of the day and year first above written.
WITNESSES: ASSIGNOR:
CNL REAL ESTATE ADVISORS, INC.
a Florida corporation
/s/ Krista J. Ayers
Witness
/s/ Regina V. Cleveland By: /s/ Charles A. Muller
Witness Print Name: Charles A. Muller
Title: Executive Vice President
ASSIGNEE:
CNL HOSPITALITY PARTNERS LP, a
Delaware limited partnership
/s/ Krista J. Ayers By: CNL HOSPITALITY GP CORP., a
Witness Delaware corporation
/s/ Regina V. Cleveland By: /s/ Charles A. Muller
Witness Print Name: Charles A. Muller
Title: Executive Vice President
The undersigned, as Seller under the Contract hereby consents to this Assignment
and Assumption Agreement.
SELLER:
BUCKHEAD RESIDENCE
ASSOCIATES, L.L.C., a Georgia limited
liability company
By: Stormont Trice Development
Corporation, a Georgia corporation,
Managing Member
/s/ Krista J. Ayers By: /s/ James M. Stormont, Jr.
Witness Name: James M. Stormont, Jr.
Title: Vice President
/s/ William T. Dymond, Jr.
Witness
<PAGE>
EXHIBIT 10.15
Lease Agreement between CNL Hospitality Properties, L.P. and
STC Leasing Associates, LLC, dated August 1, 1998,
relating to the Residence Inn - Gwinnett Place
<PAGE>
RESIDENCE INN - GWINNETT PLACE
LEASE AGREEMENT
Between
CNL HOSPITALITY PARTNERS, L.P.
a Delaware Limited Partnership Corporation,
as Landlord,
and
STC LEASING ASSOCIATES, LLC,
a Georgia Limited Liability Company,
as Tenant,
Dated
as of
August 1, 1998
<PAGE>
LEASE AGREEMENT
TABLE OF CONTENTS
PAGE
ARTICLE I.................................................................1
AGREEMENT TO LEASE...............................................1
1.1 Demise.........................................1
1.2 Condition......................................1
1.3 Quiet Enjoyment................................2
ARTICLE II................................................................2
TERM.............................................................2
2.1 Initial Term...................................2
2.2 Commencement Date..............................2
2.3 Option to Renew................................2
ARTICLE III...............................................................3
USE AND OPERATION OF PREMISES....................................3
3.1 Permitted Use..................................3
3.2 Standard of Operation..........................3
3.3 Compliance with Laws...........................4
3.4 Hazardous Materials and Sewage Prohibited......4
3.5 Conflicting Businesses Prohibited..............5
3.6 Continuous Operations..........................6
3.7 Compliance With Restrictions, Etc..............6
3.8 Affiliate......................................6
3.9 Additional Covenants of Tenant.................7
ARTICLE IV................................................................8
RENT.............................................................8
4.1 Base Rent......................................8
4.2 Percentage Rent................................8
4.3 Payment of Percentage Rent.....................9
4.4 Additional Rentals/Earn Out...................10
4.5 Financial Statements..........................10
4.6 Records.......................................11
4.7 Audit.........................................12
4.8 Landlord Advances.............................12
4.9 Sales Tax.....................................12
4.10 Payment of Rent...............................12
4.11 Past Due Rent.................................13
4.12 No Abatement of Rent..........................13
4.13 Security for Tenant's Performance.............13
i
<PAGE>
ARTICLE V................................................................14
TAXES AND ASSESSMENTS...........................................14
5.1 Obligation to Pay Taxes.......................14
5.2 Tax and Insurance Escrow Account..............15
ARTICLE VI...............................................................15
UTILITIES.......................................................15
ARTICLE VII..............................................................16
AGREEMENTS, FEES, ETC...........................................16
ARTICLE VIII.............................................................16
INSURANCE.......................................................16
8.1 Insurance by Tenant...........................16
8.2 Carriers and Features.........................19
8.3 Failure to Procure Insurance..................19
8.4 Waiver of Subrogation.........................19
8.5 No Separate Insurance.........................20
ARTICLE IX...............................................................20
DAMAGE OR DESTRUCTION...........................................20
9.1 Restoration and Repair........................20
9.2 Insufficient Insurance Proceeds...............20
9.3 Escrow of Insurance Proceeds..................21
9.4 Abatement of Rent.............................22
ARTICLE X................................................................22
ADDITIONS, ALTERATIONS AND REMOVALS.............................22
10.1 Prohibition...................................22
10.2 Permitted Renovations.........................22
10.3 Additions, Expansions and Structural
Alterations................................24
ARTICLE XI................................................................24
MAINTENANCE AND REPAIRS..........................................24
11.1 Repairs by Tenant..............................24
11.2 Landlord's Obligation..........................24
11.3 The FF&E Reserve...............................26
ARTICLE XII...............................................................27
LANDLORD'S RIGHT TO INSPECT......................................27
ARTICLE XIII..............................................................28
ASSIGNMENT, TRANSFER AND SUBLETTING BY TENANT....................28
13.1 Transfers Prohibited Without Consent...........28
13.2 Indirect Transfer Prohibited Without Consent...28
13.3 Adequate Assurances............................28
ii
<PAGE>
ARTICLE XIV...............................................................29
LANDLORD'S INTEREST NOT SUBJECT TO LIENS.........................29
14.1 Liens, Generally...............................29
14.2 Mechanics Liens................................30
14.3 Contest of Liens...............................30
14.4 Notices of Commencement of Construction........30
ARTICLE XV................................................................31
CONDEMNATION.....................................................31
15.1 Complete Taking................................31
15.2 Partial Taking.................................31
15.3 Award..........................................31
15.4 Disputes.......................................32
ARTICLE XVI...............................................................32
SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE....................32
16.1 Subordination..................................32
16.2 Attornment.....................................33
16.3 Rights of Mortgagees and Assignees.............33
ARTICLE XVII..............................................................34
END OF TERM......................................................34
17.1 Surrender of Premises..........................34
17.2 Holding Over...................................34
ARTICLE XVIII.............................................................34
LIABILITY OF LANDLORD; INDEMNIFICATION...........................34
18.1 Liability of Landlord..........................34
18.2 Indemnification of Landlord....................34
18.3 Notice of Claim or Suit........................35
18.4 Limitation on Liability of Landlord............35
ARTICLE XIX...............................................................36
DEFAULT..........................................................36
19.1 Events of Default..............................36
19.2 Remedies on Default............................37
19.3 Landlord May Cure Tenant Defaults..............40
19.4 Landlord's Lien................................41
19.6 Rights Cumulative..............................42
ARTICLE XX................................................................42
REIT REQUIREMENTS................................................42
ARTICLE XXI...............................................................43
NOTICES..........................................................43
iii
<PAGE>
ARTICLE XXIII.............................................................44
MISCELLANEOUS....................................................44
23.1 "Net" Lease....................................44
23.2 Estoppel Certificates..........................44
23.3 Brokerage......................................44
23.4 No Partnership or Joint Venture................44
23.5 Entire Agreement...............................45
23.6 Waiver.........................................45
23.7 Time...........................................45
23.8 Costs and Attorneys' Fees......................45
23.9 Approval of Landlord...........................45
23.10 Captions and Headings..........................46
23.11 Severability...................................46
23.12 Successors and Assigns.........................46
23.13 Applicable Law.................................46
23.14 Recordation of Memorandum of Lease.............46
23.15 Waiver of Jury Trial...........................46
23.16 Guaranty.......................................46
23.17 Landlord's Option to Terminate Lease...........47
23.18 Treatment of Lease.............................48
23.19 Landlord's Option to Acquire the Tenant's
Personal Property; Transfer of Licenses......48
23.20 Tenant's Representations.......................49
23.21 No Merger of Title.............................51
23.22 Additional Obligations relating to the
Franchise Agreement..........................51
iv
<PAGE>
LEASE AGREEMENT
THIS LEASE AND AGREEMENT (the "Lease") made and entered into as of this
1st day of August, 1998 by and between CNL Hospitality Partners, L.P., a
Delaware Limited Partnership (the "Landlord") and STC Leasing Associates, LLC, a
Georgia Limited Liability Company (the "Tenant");
W I T N E S S E T H:
WHEREAS, Landlord is the record owner of fee simple title to that
certain parcel of real property located in Gwinnett County, Georgia more
particularly and legally described on Exhibit A attached hereto (the "Land"),
upon which there has been constructed and located certain improvements in the
nature of a 132 suite Residence Inn by Marriott, together with related paved
parking and appurtenant improvements known as "Residence Inn" Gwinnett Place
(together the "Improvements"); and
WHEREAS, Landlord is also the owner of the items of personal property
more particularly described on Exhibit B attached hereto (the "FF&E") and
WHEREAS, Tenant desires to lease from Landlord, and Landlord has agreed
to lease to Tenant, all of the Land and Improvements and FF&E (together the
"Premises"), upon the terms and conditions as more particularly hereinafter
provided and described;
NOW, THEREFORE, for and in consideration of the premises hereof, the
sums of money to be paid hereunder, and the mutual and reciprocal obligations
undertaken herein, the parties hereto do hereby covenant, stipulate and agree as
follows:
ARTICLE I
AGREEMENT TO LEASE
1.1 Demise. Landlord, for and in consideration of the rents herein
reserved and required to be paid by Tenant and of the covenants, promises and
agreements herein contained, does hereby demise, let and lease unto Tenant, and
Tenant, for and in consideration of the foregoing demise by Landlord and of the
covenants, promises and agreements herein contained does hereby hire, lease and
take as Tenant from Landlord the entire Premises, upon those terms and
conditions hereinafter set forth together with and subject to easements,
restrictions and reservations of record. The subject demise does not include the
Tenant's operating supplies, inventory and equipment, more particularly
described on Exhibit C attached hereto (the "Tenant's Personal Property").
1.2 Condition. Tenant acknowledges and agrees that the Premises are and
shall be leased by Landlord to Tenant and from Landlord by Tenant in its present
"as is" condition, subject to the existing state of title and all applicable
legal or governmental requirements, and Landlord makes absolutely no
representations or warranties whatsoever with respect to the Premises or the
condition thereof. Tenant acknowledges that Landlord has not investigated and
<PAGE>
does not warrant or represent to Tenant that the Premises are fit for the
purposes intended by Tenant or for any other purpose or purposes whatsoever, and
Tenant acknowledges that the Premises are to be leased to Tenant in their
existing condition, i.e., "as-is", and "where-is", without any representation or
warranty as to habitability or fitness for any particular purpose, on and as of
the Commencement Date defined in Section 2.2 below. Tenant, however, represents
and acknowledges that all permits, licenses and approvals required by any
governmental or quasi-governmental, body, department, commission, board, bureau,
instrumentality or officer, or otherwise appropriate with respect to the
construction, operation, leasing, maintenance or use of the Premises or any part
thereof, have been issued and are valid and in full force and effect and that no
provision, condition or limitation of any of the same has been breached or
violated. Tenant acknowledges that Tenant shall, except as otherwise provided
herein in Section 11.2, be solely responsible for any and all actions, repairs,
permits, approvals and costs required for the rehabilitation, renovation, use,
occupancy and operation of the Premises in accordance with applicable
governmental requirements, foreseen or unforeseen, including, without
limitation, all governmental charges and fees, if any, which may be due or
payable to applicable authorities. Tenant agrees that, by leasing the Premises,
Tenant warrants and represents that Tenant has examined and approved all things
concerning the Premises which Tenant deems material to Tenant's leasing and use
of the Premises. Tenant further acknowledges and agrees that (a) neither
Landlord nor any agent of Landlord has made any representation or warranty,
express or implied, concerning the Premises or which have induced Tenant to
execute this Lease and (b) any other representations and warranties are
expressly disclaimed by Landlord.
1.3 Quiet Enjoyment. Landlord covenants and agrees that so long as
Tenant shall timely pay all rents due to Landlord from Tenant hereunder and
keep, observe and perform all covenants, promises and agreements on Tenant's
part to be kept, observed and performed hereunder, Tenant shall and may
peacefully and quietly have, hold and occupy the Premises free of any
interference from Landlord; subject, however, and nevertheless to the terms,
provisions and conditions of this Lease.
ARTICLE II
TERM
2.1 Initial Term. The initial term of this Lease (sometimes the
"Initial Term") shall, unless sooner terminated as elsewhere provided in this
Lease, commence on the Commencement Date (as hereinafter defined) and terminate
and expire at 11:59 p.m. on August 31, 2017. For purposes of this Lease the word
"Term" shall mean and refer to the Initial Term and each five (5) year extension
of this Lease duly exercised and effective pursuant to Section 2.3 hereof.
2.2 Commencement Date. For the purposes of this Lease, the
"Commencement Date" shall be August 1, 1998.
2.3 Option to Renew. Tenant shall have and is hereby granted three (3)
options to extend this Lease for an additional five (5) years each, upon the
same terms, covenants, conditions and rental as set forth herein; provided that
Tenant is not in default hereunder at the
2
<PAGE>
commencement of the respective additional period and provided Tenant has
simultaneously extended the term of the Other Lease. Tenant may exercise each
such five (5) year option successively by giving written notice to Landlord not
less than twelve (12) months nor more than eighteen (18) months prior to the
respective expiration of the initial Term of this Lease or of the then
applicable option period. Should Tenant fail to give Landlord such timely
written notice during the required period, all remaining rights of renewal shall
automatically expire.
ARTICLE III
USE AND OPERATION OF PREMISES
3.1 Permitted Use. Tenant covenants and agrees that it shall,
throughout the Term of this Lease, continuously use and occupy the Premises
solely and exclusively as a limited service inn, for the accommodation of hotel
guests, with appropriate amenities for the same and for no other purpose without
interruption except for reasonable interruptions in respect to portions of the
Premises for reasonable periods for repairs, renovations, replacements and
rebuilding all of which shall be carried out pursuant to, and in accordance with
the applicable provisions of this Lease (the foregoing being referred to as the
"Permitted Use"). Without the prior written consent of the Landlord, no
Affiliate of Tenant may be a subtenant or concessionaire in the Premises.
3.2 Standard of Operation. Throughout the Term of this Lease, Tenant
shall continuously operate the Premises in full compliance with the terms hereof
and of that certain Franchise Agreement between Tenant and Marriott
International, Inc. dated May 23, 1996 (for so long as the same is in effect)
and thereafter pursuant to any other franchise agreement approved by Landlord
(for the purposes hereof, the aforesaid Marriott Franchise Agreement and any
subsequent franchise agreement are hereinafter together referred to as a
"Franchise Agreement"). In the absence of a Franchise Agreement, Tenant shall
continuously operate the Premises as a first-class extended stay hotel. Tenant
shall endeavor and use good faith efforts to maximize Gross Receipts and gross
operating profit for the Premises. Tenant shall further provide, or cause to be
provided, all group services, facilities and benefits generally available to
Residence Inns by Marriott operated elsewhere by Residence Inns by Marriott
System Standards or the standards of any successor franchisor or licensor, if
any. Tenant may, at its option and at its expense, engage a manager for the
Premises; provided however, that any manager and any management agreement for
the Premises shall be subject to Landlord's prior approval, shall be subordinate
to this Lease (and accordingly all management fees shall be subordinate to rent
hereunder) and shall terminate and expire, if not sooner, upon the expiration or
earlier termination of this Lease. For purposes of Landlord's approval of a
manager as required by the preceding sentence, the Landlord hereby agrees that
any manager, (a) the principals of which are, and the majority of the beneficial
interest of which are held and owned by, and the power to direct all operations
and the day-to-day management is lodged in, Richard M. Stormont, and/or Donald
R. Trice and/or James M. Stormont, Jr., and (b) which is actually and primarily
involved in the business of managing hotels and actually manages at least four
(4) hotels and 1000 rooms, shall be acceptable, provided the management
agreement with such manager shall still require the Landlord's approval. The
terms of Section 23.9 are not applicable to Landlord's approval herein.
3
<PAGE>
3.3 Compliance with Laws. Tenant shall at all times at its sole cost
and expense, keep and maintain the Premises in compliance with all applicable
laws, ordinances, statutes, rules, regulations, orders, directions and
requirements of all federal, state, county and municipal governments and of all
other governmental agencies or authorities having or claiming jurisdiction over
the Premises or the business activities conducted thereon or therein and of all
of their respective departments, bureaus, agencies or officers, and of any
insurance underwriting board or insurance inspection bureau having or claiming
such jurisdiction or any other body exercising similar functions and of all
insurance companies from time to time selected by Tenant to write policies of
insurance covering the Premises and any business or business activity conducted
thereon or therein whether the same are currently existing or promulgated
hereafter. Tenant agrees to give Landlord notice of any of the foregoing matters
affecting the Premises which is or are enacted, passed, promulgated, made,
issued or adopted a copy of which is served upon, or received by Tenant or a
copy of which is posted on or fastened or attached to the Premises, within ten
(10) days after service, receipt, posting, fastening or attaching. At the same
time, the Tenant will inform Landlord as to the work or steps which Tenant
proposes to do or take in order to comply therewith.
Notwithstanding the generality of the foregoing, Tenant shall, at its
sole expense, maintain the Premises in full compliance with all applicable
federal, state or municipal laws, ordinances, rules and regulations currently in
existence or hereafter enacted or rendered governing accessibility for the
disabled or handicapped, including, but not limited to, any applicable
provisions of The Architectural Barriers Act of 1968, The Rehabilitation Act of
1973, The Fair Housing Act of 1988, The Americans With Disabilities Act, the
accessibility code(s), if any, of the State in which the Premises is located,
and all regulations and guidelines promulgated under any all of the foregoing,
as the same may be amended from time to time (collectively the "Accessibility
Laws").
In addition, Tenant shall not suffer or permit the Premises to be used
by the public, as such without restriction or in such manner as might tend to
impair Landlord's title to, or its reversionary interest in, the Premises or in
such manner as might make possible a claim or claims of adverse usage or adverse
possession by the public, as such or of implied dedication of the Premises or
any portion thereof.
3.4 Hazardous Materials and Sewage Prohibited. Except as permitted by
applicable law, Tenant shall at all times during the Term of this Lease keep the
Premises free of Hazardous Materials (as hereinafter defined). Neither Tenant
nor any of its employees, agents, invitees, licensees, contractors, guests, or
subtenants (if permitted) shall use, generate, manufacture, refine, treat,
process, produce, store, deposit, handle, transport, release, or dispose of
Hazardous Materials in, on or about the Premises or the groundwater thereof, in
violation of any federal, state or municipal law, decision, statute, rule,
ordinance or regulation currently in existence or hereafter enacted or rendered.
Tenant shall give Landlord prompt written notice of any claim received by Tenant
from any person, entity, or governmental agency that a release or disposal of
Hazardous Materials has occurred on the Premises or the groundwater thereof. As
used herein, the Term "Hazardous Materials" shall mean and be defined as any and
all toxic or hazardous
4
<PAGE>
substances, chemicals, materials or pollutants, of any kind or nature, which are
regulated, governed, restricted or prohibited by any federal, state or local
law, decision, statute, rule, or ordinance currently in existence or hereafter
enacted or rendered, and shall include (without limitation), all oil, gasoline
and petroleum based substances.
Tenant shall not discharge or permit to be discharged into any septic
facility or sanitary sewer system serving the Premises any toxic or hazardous
sewage or waste other than that which permitted by applicable law or which is
normal domestic waste water for the type of business contemplated by this Lease
to be conducted by Tenant on, in or from the Premises. Any toxic or hazardous
sewage or waste which is produced or generated in connection with the use or
operation of the Premises shall be handled and disposed of as required by and in
compliance with all applicable local, state and federal laws, ordinances and
rules or regulations or shall be pre- treated to the level of domestic
wastewater prior to discharge into any septic facility or sanitary sewer system
serving the Premises.
3.5 Conflicting Businesses Prohibited. Landlord and Tenant hereby
recognize and acknowledge (a) that the Base Rent and the Percentage Rent payable
by Tenant to Landlord under this Lease have been established at the levels
specified in this Lease upon the premise and with the expectation that
Percentage Rent will constitute a material part of the total rents payable by
Tenant to Landlord under this Lease, (b) that the expectation of receiving
Percentage Rent constitutes a material consideration for Landlord's willingness
to execute this Lease and thereby lease and demise the Premises to Tenant, and
(c) that the operation, management, franchising or ownership by Tenant or an
Affiliate of Tenant of another business of the type specified in Section 3.1
above or any substantially similar or competing business (other than a full
service hotel as hereinafter defined (such other business or substantially
similar or competing business being referred to herein as a "Conflicting
Business") within the trade area depicted on Exhibit D attached hereto (the
"Proscribed Area") will tend to result in a decrease in the amount of Gross
Receipts which would otherwise reasonably be expected to be made upon, within
and from the Premises and thereby result in a reduction of the Percentage Rent
which would otherwise be payable by Tenant to Landlord pursuant to this Lease in
the absence of the operation of a Conflicting Business by Tenant or any
Affiliate of Tenant (as hereinafter defined) within the Proscribed Area.
Accordingly, Tenant on behalf of itself and its Affiliates, and Tenant's manager
(who has joined in the execution of this Lease solely to acknowledge the
restriction herein) agree that during the Term of this Lease neither Tenant, nor
any Affiliate of Tenant nor Tenant's manager, shall operate, manage, franchise,
own or have any other interest in a Conflicting Business within the Proscribed
Area. In the event of a breach of this covenant, in addition to any other remedy
otherwise available to Landlord, including injunctive relief, Landlord may, at
its election, require that forty percent (40%) of all Gross Receipts made from
any such Conflicting Business opened, operated, managed, leased, developed or
owned by Tenant or any affiliate or subsidiary of Tenant within the Proscribed
Area be included in the amount of Gross Receipts made from the Premises for
purposes of the determination and calculation of the Percentage Rent due from
Tenant to Landlord under this Lease (i.e., as though such Gross Receipts of the
Conflicting Business had actually been made upon, within and from the Premises).
If Landlord so elects, all provisions of Article IV of this Lease relating to
Tenant's
5
<PAGE>
maintenance and submission to Landlord of books, records and statements shall be
applicable to all books, records and statements pertaining to any such
Conflicting Businesses. However, any such Conflicting Business existing within
the Proscribed Area on the date of this Lease may continue to be operated,
managed, conducted and owned by Tenant or any Affiliate or subsidiary of Tenant
in the same manner as on the date of this Lease. Further, Tenant agrees that
Tenant's sole business shall be to lease, and Tenant shall not incur any
expenses or liability related to any business or activity other than leasing and
operating, the Premises, the premises contemplated by the Other Lease (as
hereinafter defined), and other premises owned or hereinafter owned by Landlord
or its Affiliates pursuant to terms acceptable to Landlord and Tenant. For
purposes hereof, "Full service hotel" shall mean, generally, a hotel with a
restaurant, lounge facilities and meeting space as well as minimum service
levels often including bell service and room service.
3.6 Continuous Operations. Tenant shall continuously operate its
business and maintain sufficient skilled staff and employees, and maintain
adequate levels and quality of Tenant's Personal Property to operate the
Premises as herein or otherwise required at its sole cost and expense throughout
the entire Term of this Lease.
3.7 Compliance With Restrictions, Etc. Tenant, at its expense, shall
comply with all restrictive covenants and other title exceptions affecting the
Premises and comply with and perform all of the obligations set forth in the
same to the extent that the same are applicable to the Premises or to the extent
that the same would, if not complied with or perform, impair or prevent the
continued use, occupancy and operation of the Premises for the purposes set
forth in this Lease. Further, in addition to Tenant's payment obligations under
this Lease, Tenant shall pay all sums charged, levied or assessed under any
restrictive covenants, declaration, reciprocal easement agreement or other title
exceptions, equipment leases, leases and all other agreements affecting the
Premises promptly as the same become due and shall furnish Landlord evidence of
payment thereof.
3.8 Affiliate. As used in this Lease the term "Affiliate" of any Person
shall mean (a) any other Person directly or indirectly controlling, controlled
by, or under common control with, such Person, or any general partner in such
Person or any officer or director, stockholder, or member of such Person or any
employee, agent, representative, successor or assign of any of the foregoing;
(b) any trustee of such Person; or (c) if such Person is an individual, any
member of the Family of such Person and any trusts for the benefit of such
individual or Family members. For purposes of this Section 3.8, the term
"control" (including the correlative meanings of the terms "controlling,"
"controlled by" and "under common control with") as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or to cause the direction of the management policies of such Person
whether through the ownership of voting securities or by contract or otherwise.
Further, for purposes of this Section 3.8 "Family" shall mean, as to any Person,
such Person's grandparents, all lineal descendants of such Person's
grandparents, Persons adopted by, or stepchildren of, any such grandparent or
descendant and Persons currently married to, or who are widows or widowers of,
any such grandparent, descendant, adoptee or stepchild. In addition, for
purposes of this definition, "Person" shall mean
6
<PAGE>
any individual, corporation, partnership, limited liability company, joint
venture, estate, trust, unincorporated association, and any federal, state,
county or municipal government and any political subdivision thereof.
3.9 Additional Covenants of Tenant. In addition to the other covenants
and representations of Tenant herein, Tenant hereby covenants, acknowledges and
agrees that Tenant shall:
(a) Not guaranty any obligation of any Person;
(b) Pay or cause to be paid when due all lawful claims
for labor and rents with respect to the Premises;
(c) Pay or cause to be paid when due all trade payables;
(d) Not declare, order, pay or make, directly or indirectly,
any distributions or any payments to any members or Affiliates of
Tenant, including payments in the ordinary course of business and
payments pursuant to management agreements with any such Affiliate) or
set apart any sum of property therefore, or agree to do so, if, at the
time of such proposed action or immediately after giving effect
thereto, any monetary Event of Default shall exist;
(e) Except as otherwise permitted by this Lease, not sell,
lease (as lessor or sublessor), transfer or otherwise dispose of or
abandon, all or any material portion of its assets or business to any
Person, or sell, lease, transfer or otherwise dispose of or abandon any
of Tenant's Personal Property, provided, however, Tenant may dispose of
portions of Tenant's Personal Property which have become inadequate,
obsolete, worn-out, unsuitable, undesirable or unnecessary, provided
substitute equipment or fixtures having equal or greater value and
utility have been provided.
(f) Except for liabilities incurred in the ordinary course of
business, not create, incur, assume or guarantee, or permit to exist or
become or remain liable directly or indirectly upon, any obligation,
contingent or otherwise, which in accordance with GAAP should be
reflected on the obligor's balance sheet as a liability
("Indebtedness") except the following:
(i) Indebtedness of Tenant to Landlord;
(ii) Unsecured borrowing of Tenant from its
Affiliates which are by their terms expressly subordinate
pursuant to a subordination agreement to the payments of
Tenant's obligations under this Agreement; or
(iii) Deferred fees to the Manager as provided in the
Management Agreement, provided that such fees shall be, from
and after the occurrence of a default or Event of Default,
subordinate to all amounts owing to Landlord.
7
<PAGE>
ARTICLE IV
RENT
4.1 Base Rent. Subject to proration as set forth below, and subject to
increase as set forth in Article 4.4, 9.2 and Article 11.2 hereof, Tenant shall
pay as annual base rent for the Premises ("Base Rent") as follows: (a) for the
first Lease Year (as hereinafter defined) the sum of ONE MILLION TWO HUNDRED
EIGHT THOUSAND NINE HUNDRED AND SEVENTY AND NO/100 DOLLARS ($1,208,970.00),
together with all applicable sales and use and other taxes thereon, which shall
be due and payable on the Commencement Date; and (b) for the second Lease Year
and for each successive Lease Year thereafter during the Term, the sum of ONE
MILLION TWO HUNDRED THIRTY SEVEN THOUSAND SEVEN HUNDRED FIFTY FIVE AND NO/100
DOLLARS ($1,237,755.00) together with all applicable sales and use and other
taxes thereon (other than Landlord's income taxes) which , shall be due and
payable in full on the first day of each such Lease Year. However, at Tenant's
option, and so long as Tenant shall not be in default of its obligations under
this Lease, Base Rent may be paid by Tenant to Landlord in equal monthly
installments, in advance, on the first (1st) day of each calendar month
commencing on the first (1st) day of the calendar month immediately following
the Commencement Date, it being agreed that Base Rent payable with respect to
the period between the Commencement Date and the first day of the following
calendar month shall be due at the time that the first payment of Base Rent is
due. In the event of a default by Tenant of its obligations under this Lease,
the full amount of Base Rent for such period, less the aggregate amount of all
monthly installments of Base Rent previously paid for such period, shall be
immediately due and payable by Tenant to Landlord.
For the purposes of this Lease, the term "Lease Year" shall mean and be
defined as each twelve month period commencing on the first day of the calendar
month immediately following the Commencement Date; provided, however, that the
first Lease Year shall include the period from the Commencement Date to the
first day of the next following calendar month. Base Rent shall be
proportionately prorated for any extended or partial Lease Year (i.e., the first
Lease Year and/or the final Lease Year).
4.2 Percentage Rent. In addition to, and not in lieu of, Base Rent,
Tenant shall pay to Landlord during the Term of this Lease a sum ("Percentage
Rent") which, when combined with the Percentage Rent under the Other Lease, will
equal fifteen percent (15%) of the consolidated Gross Receipts for the Premises
and the premises under and contemplated by the Other Lease (as hereinafter
defined) in excess of $8,080,000.00 for each calendar year during the Term of
this Lease. For the convenience of Tenant, and for so long as Tenant is not in
default hereunder or under the Other Lease, a portion of such Percentage Rent as
determined above shall be payable hereunder and the balance shall be payable
under the Other Lease. If there is a default hereunder or under the Other Lease,
the entire fifteen percent (15%) of Percentage Rent shall be paid under the
Lease which is not in default. Provided, further, if the Other Lease is
terminated the threshold for calculating Percentage Rent at the rate of fifteen
percent (15%) shall be THREE MILLION FOUR HUNDRED TEN THOUSAND AND NO/100
DOLLARS ($3,410,000.00)
8
<PAGE>
For the purposes of this Lease and in the calculation of Percentage
Rent, the term "Gross Receipts" shall mean and be defined as all revenues
derived by Tenant or any operator or manager of the Premises on behalf of
Tenant, or any part thereof, (or when the term is used with respect to any
entity other than Tenant, all revenue derived by such other entity) in respect
to the Premises from whatever source including without limitation all hotel
departments, parking, services and operations, off-premises catering, if any,
and all sales and services in, about and originating from the Premises
(including any common area) excluding only: interest income earned by Tenant;
the sale of used equipment, trade fixtures or any other capital assets; loan
proceeds; capital contributions; condemnation proceeds (other than those
received in respect of a temporary taking); insurance proceeds, other than so
called "business interruption or rent insurance" proceeds; such credits
allowances (but not allowances for bad debts) and refunds as are customary in
the hotel industry; returns of merchandise from or on behalf of a customer;
service charges paid by guests to the extent paid to employees of the hotel as
tips and gratuities; the amount of any sales, use or excise taxes, taxes on
rents and other similar taxes. Gross Receipts shall not be deemed cumulative
from one calendar year to any succeeding calendar year. Rather they shall be
computed separately for each calendar year on an accrual basis in accordance
with the Uniform System of Accounts for Hotels (Ninth Revised Edition, 1996 as
adopted by the American Hotel and Motel Association (the "Uniform System of
Accounts"). Each sale on credit shall be treated as a sale for the full price in
cash during the month in which such sale is initially made, irrespective of the
time when Tenant or its manager actually receives payment (whether full or
partial) from its customer or any applicable credit or credit card agency, and
no deduction shall be allowed for uncollected or uncollectible credit accounts
or sales. Revenue earned by Tenant or its manager from sales by any permitted
sublessee, concessionaire or licensee on, in or from the Premises shall be
included in Gross Receipts.
4.3 Payment of Percentage Rent. Tenant shall within thirty (30) days
after the end of each calendar quarter during the Term of this Lease submit to
Landlord an unaudited (but certified by a duly authorized officer of Tenant)
statement showing a detailed breakdown of the calculation of Percentage Rent on
a quarterly and calendar year-to-date basis. For purposes of such quarterly
calculations, Percentage Rent shall be due and payable on Gross Receipts in
excess of $2,020,000.00 (being one fourth of the annual threshold referenced in
Section 4.2 hereof.)] On or before February 1, May 1, August 1 and November 1 of
each calendar year during the Term of this Lease, Tenant shall pay to Landlord,
together with the installment of Base Rent then due, any Percentage Rent
applicable to the immediately preceding calendar quarter (i.e., the May 1
Percentage Rent payment will constitute Percentage Rent due for the first
calendar quarter of the year, and so on). Percentage Rent for any partial
calendar quarter (i.e., in the first Lease year and the final Lease year) shall
be prorated proportionately. Tenant's obligation to pay Percentage Rent for the
calendar quarter which includes the date of termination of this Lease shall
survive the termination hereof.
Tenant shall, no later than 90 days following the end of each calendar
year during the Term hereof furnish to Landlord for such calendar year a
complete statement (the "Annual Operations Statement") certified by an
independent certified public accountant who is actively engaged in the practice
of his professions and who is acceptable to Landlord (which Statement
9
<PAGE>
shall also be certified either by an officer or a partner in Tenant), setting
forth, with respect to such calendar year in reasonable detail the Gross
Receipts derived by or for the benefit of the Tenant in respect of such calendar
year together with copies of statements from the manager of the Hotel as to its
respective operations in the Hotel or on the Premises including without
limitation, all expenses incurred and income derived by them, respectively, in
respect of the Premises. If the Annual Operations Statement for any calendar
year indicated that the aggregate of the installment payments theretofore made
with respect to such calendar year pursuant to this paragraph exceeds the
Percentage Rent due for such calendar year, Landlord shall credit such
overpayment together with interest thereon determined as set forth below in this
paragraph against the next installment or installments of Base Rent falling due
(or will pay the amount of such overpayment, together with such interest to
Tenant if the Lease shall have terminated other than by reason of Tenant's
default or if Landlord so elects to do so). If, on the other hand, the Annual
Operations Statement indicates that the aggregate of the installment payments
theretofore made with respect to such calendar year is less than the Percentage
Rent due for such calendar year then Tenant shall pay the balance or excess, as
the case may be, together with interest thereon determined as set forth below in
this paragraph, to Landlord concurrently with the submission of the Annual
Operations Statement. Interest shall accrue at the Prime Rate from the last day
of the month to which it is so attributed until the date when the adjusted
amount is fully credited or paid (as the case may be), in the manner as set
forth above. For purposes of this Lease, Prime Rate shall mean and refer to the
fluctuating annual rate equal at all times to the annual rate of interest
publicly announced from time to time by Citibank, N.A. or, if such rate is no
longer publicly announced by Citibank, N.A., the Prime Rate announced in the
"Money Rates" Section of the Wall Street Journal. Each change in the Prime Rate
shall take effect on the first day of the month immediately succeeding the month
in which the corresponding change occurs in the then applicable rate referred to
above, and in the event of multiple changes in such applicable rate during such
month, the change in the Prime Rate shall be based on the last such applicable
rate in effect during the subject month.
4.4 Additional Rentals/Earn Out. In the event that Tenant and or
Stormont Trice Management Corporation should, pursuant to the terms of paragraph
21 of that certain Hotel Purchase and Sale Contract between CNL Real Estate
Advisors, Inc., and Gwinnett Residence Associates, LLC, dated April 24, 1998, as
amended by First Amendment to Hotel Purchase and Sale Contract dated July 31,
1998 (the "Purchase Contract") as assigned by CNL Real Estate Advisors, Inc., to
Landlord, (which paragraph 21 survived the closing of such Purchase Contract),
earn additional sales proceeds (purchase price), at such time as additional
sales proceeds (purchase price) are, in fact, paid to Tenant or Tenant's
designee pursuant to such paragraph 21, the Base Rent due hereunder shall
concurrently therewith be increased by that sum derived by multiplying the
amount of additional purchase price paid by the sum of ten and three-quarters
percent (10.75%).
4.5 Financial Statements. Throughout the Term of this Lease, Tenant
shall prepare and deliver to Landlord at or prior to the end of each month
during the Term hereof, a profit and loss statement and operating balance sheet
showing the results of the operation of the Premises for the immediately
preceding month and for the calendar year to date. Tenant shall provide
10
<PAGE>
Landlord with a complete financial statement which shall be delivered prior to
the end of the next following month, in the form customarily provided in the
industry and approved in advance by the Landlord, and which shall: (a) be taken
from the books and records maintained by Tenant and its manager in the form
specified herein; (b) follow the general form set forth in the Uniform System of
Accounts; and (c) indicate variances from budgeted results for each line item
against the approved budget for the Premises for such calendar year. The
aforesaid profit and loss statement, operating balance sheet and financial
statements shall be accompanied by an Officer's Certificate which, for purposes
hereof shall mean a Certificate of any Officer of Tenant (or such Officer's
designee), duly authorized, which such Officer shall certify (a) that such
statements have been properly prepared in accordance with GAAP and the Uniform
System of Accounts and are true, correct and complete in all material respects
and fairly present the consolidated financial condition of the Tenant at and as
of the dates thereof and the results of its operations for the period covered
thereby, and (b) that no Event of Default has occurred and is continuing
hereunder. Tenant shall deliver to Landlord within ninety (90) days after the
end of each calendar year, a profit and loss statement, balance sheet and
statement of cash flow certified by an independent certified public account who
is actively engaged in the practice of his professional and who is acceptable to
Landlord (which statement shall also be certified by an officer or partner in
Tenant) together with copies of all reports and communications furnished to
Tenant's manager, showing results from the operation of the Premises during such
calendar year, and reasons for material variations from the approved budget for
such year. Tenant shall also deliver to Landlord at any time and from time to
time, upon not less than twenty (20) days notice from Landlord, any financial
statements or other financial reporting information required to be filed by
Landlord with the Securities and Exchange Commission or any other governmental
authority or required pursuant to any order issued by any court, governmental
authority or arbitrator in any litigation to which Landlord is a party for
purposes of compliance therewith. Any disputes concerning the contents of such
statements or any accounting matter thereunder shall be determined by the
approved independent certified public account providing such statement. The
financial statements required herein are in addition to the statement required
under Section 4.3 hereof.
4.6 Records. Tenant shall keep and maintain at all times in accordance
with generally accepted accounting principles, consistently applied, and the
Uniform System of Accounts (separate and apart from its other books, records and
accounts) complete and accurate up-to-date books and records adequate to reflect
clearly and correctly the results of operations of the Premises, on an accrual
basis, including but not limited to, each calculation of Percentage Rent. Such
books and records shall be kept and maintained at the Premises or Tenant's
principal office in Atlanta, Georgia or, upon notice to Landlord, at the
principal office of the manager of the Premises in Atlanta, Georgia. Landlord or
its representatives shall have, at all reasonable times during normal business
hours, reasonable access, on reasonable advance notice, to examine and copy the
books and records pertaining to the Premises. Such books and records shall be
kept by the Tenant at the corporate offices of Stormont Trice Corporation in
Atlanta and shall be available for at least four (4) years after the applicable
quarterly calculation of Percentage Rent for Landlord's inspection, copying,
review and audit at Landlord's expense during reasonable business hours and upon
reasonable notice for the purpose of verifying the accuracy of Tenant's
11
<PAGE>
calculation of Percentage Rent. At Landlord's request, an authorized employee or
agent of Tenant and its manager shall be available on a quarterly basis to meet
with Landlord or its representatives and review the Tenant's operations and
records.
4.7 Audit. Landlord shall have the right to audit the books and records
of Tenant at any time during the Term of this Lease. If any such audit of
Tenant's books and records by Landlord or its agent shall reveal a deficiency in
the calculation and/or payment of Percentage Rent, Tenant shall forthwith pay
Landlord the amount of any such deficiency plus interest thereon at the rate
specified in this Lease. If any such audit shall reveal a deficiency greater
than three percent (3%) of the Percentage Rent actually paid by Tenant to
Landlord, Tenant shall in addition to the amount of such deficiency and interest
thereon, as aforesaid, also pay to Landlord the reasonable costs of such audit.
Additionally, if Gross Receipts shall be found to be willfully or intentionally
understated or if Percentage Rent shall be understated by three percent (3%) or
more and Landlord has previously notified Tenant at least once during the Term
of this Lease of a three percent (3%) or more understatement of Percentage Rent,
or if proper books and records are not maintained by Tenant as required
hereunder, Landlord shall have the right to declare an Event of Default under
this Lease.
4.8 Landlord Advances. If Landlord shall make any expenditure for which
Tenant is responsible or liable under this Lease, or if Tenant shall become
obligated to Landlord under this Lease for any sum other than Base Rent or
Percentage Rent as hereinabove provided, the amount thereof shall be deemed to
constitute additional rent ("Additional Rent") and shall be due and payable by
Tenant to Landlord, together with all applicable sales taxes thereon, if any,
simultaneously with the next succeeding monthly installment of Base Rent or at
such other time as may be expressly provided in this Lease for the payment of
the same.
For the purpose of this Lease, the term "Rent" shall mean and be
defined as all Base Rent, Percentage Rent and Additional Rent due from Tenant to
Landlord hereunder.
4.9 Sales Tax. In addition to the Rent and any other sums or amounts
required to be paid by Tenant to Landlord pursuant to the provisions of this
Lease, Tenant shall also pay to Landlord, simultaneously with such payment of
such Rent or other sums or amounts, the amount of any applicable sales, use,
excise or similar or other tax on any such Rent or other sums or amounts so paid
by Tenant to Landlord, whether the same be levied, imposed or assessed by the
State in which the Premises is located or any other federal, state, county or
municipal governmental entity or agency. Any such sales, use, excise or similar
or other taxes shall be paid by Tenant to Landlord at the same time that each of
the amounts with respect to which such taxes are payable are paid by Tenant to
Landlord. Landlord shall upon written request by Tenant provide to Tenant on an
annual basis such reasonable information as shall be necessary to enable Tenant
to pay such tax.
4.10 Payment of Rent. Each of the foregoing amounts of Rent and other
sums shall be paid to Landlord without demand and without deduction, set-off,
claim or counterclaim of any nature whatsoever which Tenant may have or allege
to have against Landlord, and all such
12
<PAGE>
payments shall, upon receipt by Landlord, be and remain the sole and absolute
property of Landlord. All such Rent and other sums shall be paid to Landlord in
legal tender of the United States at the address to which notices to Landlord
are to be given or to such other party or to such other address as Landlord may
designate from time to time by written notice to Tenant. If Landlord shall at
any time accept any such Rent or other sums after the same shall become due and
payable, such acceptance shall not excuse a delay upon subsequent occasions, or
constitute or be construed as a waiver of any of Landlord's rights hereunder.
4.11 Past Due Rent. If Tenant fails to make any payment of Rent or any
other sums or amounts to be paid by Tenant hereunder on or before the fifth day
after the date such payment is due and payable, Tenant shall pay to Landlord an
administrative late charge of five percent (5%) of the amount of such payment.
In addition, such past due payment shall bear interest at the Prime Rate plus
eight percent (8%) from the date such payment became due to the date of payment
thereof by Tenant. Thus, for example, if the Prime Rate is seven percent (7%)
the said default rate would be fifteen percent (15%). Such late charge and
interest shall constitute Additional Rent and shall be due and payable with the
next installment of Rent due hereunder.
4.12 No Abatement of Rent. No abatement, diminution or reduction (a) of
Rent, charges or other compensation, or (b) of Tenant's other obligations
hereunder shall be allowed to Tenant or any person claiming under Tenant, under
any circumstances or for any reason whatsoever and to the maximum extent
permitted by law, Tenant hereby waives the application of any local or state
statutes, land rules, regulations or ordinance providing to the contrary.
4.13 Security for Tenant's Performance. Tenant acknowledges that the
Retained Funds (as defined in the Purchase Contract) constitute security for the
faithful observance and performance by Tenant of all of the terms, covenants and
conditions of this Lease to be observed and performed, including, without
limitation, the surrender of possession of the Premises to Landlord as provided
herein. If any Event of Default shall occur and be continuing, Landlord may, at
its option, and without prejudice to any other remedy which Landlord may have on
account thereof, appropriate and apply so much of the Retained Funds as may be
necessary to compensate Landlord toward the payment of Rent or other sums or
loss or damage sustained by Landlord due to such breach by Tenant. It is
understood and agreed that the amount of the Retained Funds is not to be
considered as prepaid Rent nor shall damages be limited to the amount of
Retained Funds. Further, Landlord is not obligated to, but may, at its option,
apply the Retained Funds to Rent or other charges not paid when due or for
payment of damages incurred from Tenant's failure to perform under this Lease.
Landlord's right to possession of the Premises for non-payment of Rent for any
reason shall not in any way be affected by Landlord's possession of the Retained
Funds. In addition, Tenant understands, acknowledges and agrees that in the
event that this Lease is terminated pursuant to Article XIX hereof, the Retained
Funds shall be applied against and used for payment of all sums and amounts due
Landlord or which Landlord may recover on account of a default as contemplated
in this Lease including, but not limited to, (a) all Rents and other sums,
charges, payments, costs and expenses agreed and/or required to be paid by
Tenant to Landlord, (b) all costs and expenses of Landlord in connection with
the recovery of possession of the Premises, including reasonable attorneys fees
(based upon
13
<PAGE>
services rendered at hourly rates) and court costs, and (c) the costs of the
reletting or attempted reletting of the Premises. Any Retained Funds remaining
after payment of the aforesaid sums shall be returned to Tenant. Provided this
Lease is not terminated as a result of an Event of Default, the Retained Funds
shall be paid as provided in the Purchase Contract.
ARTICLE V
TAXES AND ASSESSMENTS
5.1 Obligation to Pay Taxes. Throughout the entire Term of this Lease,
Tenant shall bear, pay and discharge as Additional Rent and not later than the
last day on which payment may be made without penalty or interest, any and all
taxes, assessments and other governmental impositions and charges of every kind
and nature whatsoever, extraordinary as well as ordinary, and each and every
installment thereof which shall or may during the Term hereof be charged, laid,
levied, assessed, or imposed upon, or arise in connection with, the use,
occupancy or possession of the Premises or any part thereof, including, without
limitation, ad valorem real and personal property taxes, and all taxes charged,
laid, levied, assessed or imposed in lieu of or in addition to any of the
foregoing by virtue of all present or future laws, ordinances, requirements,
orders, directions, rules or regulations of federal, state, county and municipal
governments and of all other governmental authorities whatsoever. Upon payment,
Tenant shall promptly furnish to Landlord satisfactory evidence of the payment
of all taxes, assessments, impositions or charges required to be paid by Tenant
pursuant to the foregoing. Further, with respect to the calendar year in which
the Term of this Lease commences, and any tax period or year prior to the
Commencement Date (if different than a calendar year), Tenant shall be obligated
to pay or cause to be paid, and shall pay or cause to be paid, all ad valorem
taxes and personal property taxes and other charges and assessments due for such
entire calendar year (or tax year) notwithstanding the date this Lease
commences.
Notwithstanding the foregoing, Tenant shall have the right, after prior
written notice to Landlord, to contest at its own expense the amount and
validity of any taxes affecting the Premises by appropriate proceedings under
applicable law conducted in good faith and with due diligence and to postpone or
defer payment thereof, provided and so long as:
(a) Such proceedings shall operate to suspend the collection
of such taxes from Tenant or the Premises;
(b) Neither the Premises nor any part thereof would be in
immediate danger of being forfeited or lost by reason of such
proceedings, postponement or deferment; and
(c) In the case of the tax affecting the Premises which might
be or become a lien, encumbrance or charge upon or result in any
forfeiture or loss of the Premises or any part thereof, or which might
result in loss or damage to Tenant or Landlord, Tenant, prior to the
date such tax would become delinquent, shall have furnished Landlord
with security satisfactory to Landlord, and, in the event that such
security is furnished, Landlord shall not have the right during the
period of the contest to pay, remove or discharge the tax.
14
<PAGE>
5.2 Tax and Insurance Escrow Account. In the event Tenant fails to
timely pay any tax, assessment, imposition or charge required to be paid by
Tenant pursuant to Section 5.1 hereof, Landlord shall have the right, by written
notice to Tenant effective as of the date of such notice, to require Tenant to
pay or cause to be paid into a separate account (the "Tax and Insurance
Account") to be established by Tenant with a lending institution where the
accounts for the Premises are maintained, (which lending institution shall be
approved in advance by Landlord and which Tax and Insurance Account shall not be
removed from such lending institution without the express prior approval of
Landlord), and which Landlord may draw upon, a reserve amount sufficient to
discharge the obligations of Tenant under Section 5.1 and Article 8 hereof
(other than worker's compensation insurance premiums) with respect to real
estate taxes and insurance as and when they become due (such amounts, the "Tax
and Insurance Escrow Amount"). During each month commencing with the first full
calendar month following the receipt of said notice from Landlord, Tenant shall
deposit into the Tax and Insurance Account one twelfth of the Tax and Insurance
Escrow Amount so that as each installment of insurance premiums and real estate
taxes becomes due and payable, there are sufficient funds in the Tax and
Insurance Account to pay the same. If the amount of such insurance premiums and
real estate taxes has not been definitively ascertained by Tenant at the time
when any such monthly deposit is to be paid, Landlord shall require payment of
the Tax and Insurance Escrow Amount based upon the amount of premiums and real
estate taxes paid for the preceding year, subject to adjustment as and when the
amount of such premiums and real estate taxes are ascertained by Tenant. The Tax
and Insurance Escrow Amount in the Tax and Insurance Account shall be and
constitute additional security for the performance of Tenant's obligations
hereunder and shall be subject to Landlord's security interest therein and
shall, if there are sufficient funds in escrow, be used to pay taxes and
insurance premium when due. Landlord and Tenant shall execute such documentation
as may be necessary to create and maintain Landlord's security interest in the
Tax and Insurance Account. The provisions of Section 23.9 shall not be
applicable to this Article 5.
ARTICLE VI
UTILITIES
Tenant shall be liable for and shall promptly pay directly all charges
and fees (together with any applicable taxes or assessments thereon) when due
for water, gas, electricity, air conditioning, heat, septic, sewer, refuse
collection, telephone and any other utility charges, impact fees, or similar
items in connection with the use or occupancy of the Premises. Landlord shall
not be responsible or liable in any way whatsoever for the quality, quantity,
impairment, interruption, stoppage, or other interference with any utility
service, including, without limitation, water, air conditioning, heat, gas,
electric current for light and power, telephone, or any other utility service
provided to or serving the Premises. No such interruption, termination or
cessation of utility services shall relieve Tenant of its duties and obligations
pursuant to this Lease, including, without limitation, its obligation to pay all
Rent as and when the same shall be due hereunder.
15
<PAGE>
ARTICLE VII
AGREEMENTS, FEES, ETC.
Tenant shall keep and maintain in full force and free from defaults on
the part of Tenant during the entire Term of this Lease all Franchise
Agreements, license agreements and management agreements involving or relating
to the operation of the Premises for its Permitted Use. In addition, Tenant
shall either (a) keep and maintain in full force and free from defaults all
service and maintenance contracts and other contracts and agreements involving
or relating to the operation of the Premises for its Permitted Use (other than
those set forth in the preceding sentence), or (b) itself provide the services
contemplated by the agreements referenced in subparagraph (a) hereof. Tenant
hereby represents that there are no equipment leases or maintenance or service
contracts which are binding on Landlord or Tenant. Any new, and any change in
any Franchise Agreement, license agreement, management agreement or equipment
lease shall require Landlord's prior written consent, and with respect to any
new, or amendment to any, Franchise Agreement, license agreement, management
agreement, or equipment lease, the terms of Section 23.9 shall not be
applicable. Tenant shall, at its sole cost and expense, pay all franchise fees,
license fees, management fees or other expenses of any kind or nature whatsoever
in connection with its operation of the Premises for its Permitted Use. Tenant
shall also obtain and maintain all liquor licenses, certificates of occupancy
and permits and licenses required to operate the Premises.
ARTICLE VIII
INSURANCE
8.1 Insurance by Tenant. Throughout the Term of this Lease, Tenant
shall, at its sole cost and expense, maintain in full force and effect the
following types and amounts of insurance coverage on the Premises described in
this Section 8.1. The policies for insurance coverage on the Premises, including
the Improvements, FF&E and Tenant's Personal Property, shall satisfy the
requirements of the Franchise Agreement and of any mortgage, security agreement
or other financing lien affecting the Premises and all easement agreements
affecting the Premises, if any.
(a) Property Insurance. "All Risk" (special) form insurance on
the Improvements and all items of personal property used or useful in
the operation and use of the Premises, including but not limited to all
signs, awnings, canopies, gazebos, fences and retaining walls, and all
FF&E and all other operating supplies and equipment for all lobbies,
dining rooms, kitchens, laundries, halls, pantries, toilets, foyers,
corridors and other public rooms and places, and for the parlors,
suites, dressing rooms, bedrooms, baths and other private rooms, and
for all workshops, store rooms and offices in the Premises necessary
and proper for the complete and comfortable use, enjoyment, occupancy
and operation of the Premises as required herein including all
permitted alterations, changes, additions and replacements thereof and
thereto, including without limitation, insurance against loss or damage
from the perils covered under "All Risk" (Special) form, including, but
not limited to the following: fire, windstorm, sprinkler leakage,
vandalism and malicious mischief, water damage and other hazards and
perils generally included
16
<PAGE>
under extended coverage, all in an amount sufficient to cover the full
(100%) replacement value of the Improvements and FF&E, without a
co-insurance provision, and shall include an Agreed Value endorsement
and an Inflation Guard endorsement.
(b) Ordinance or Law Coverage with limits of not less than the
Improvements for Coverage A (Loss to the undamaged portion of the
building), limits not less than $500,000.00 for Coverage B (Demolition
Cost Coverage), and limits not less than $500,000.00 for Coverage C
(Increased Cost of Construction Coverage).
(c) Boiler and Machinery or System breakdown Insurance. Boiler
and Machinery insurance against loss or damage from boilers, pressure
vessels, or similar apparatus, air conditioning equipment, piping and
machinery, pumps, engines, transformers, compressors, sprinklers, if
any, now or hereafter installed in the Premises in the minimum amount
of $5,000,000.00 or in such greater amounts as are then customary or as
may be reasonably requested by Lessor from time to time.
(d) Builder's Risk Insurance. Builder's risk insurance in
accordance with the requirements of this Article (in policy form and
limits acceptable to the Landlord) but only prior ro commencement of
and during the construction of any permitted rehabilitation,
replacement, reconstruction, restoration, renovation or alteration to
the Premises.
(e) Flood Hazard Insurance. Flood hazard insurance if any
portion of the Improvements is currently or at any time in the future
located in a federally designated "Special Flood Hazard Area" and in
which flood insurance has been made available under the National Flood
Insurance Act of 1968 (and any successor thereto) in an amount that
reasonably assures that there will be sufficient proceeds to replace
the Improvements and the FF&E in the event of a loss against which such
insurance is issued, with limits and deductibles acceptable to
Landlord.
(f) Earthquake Insurance. Earthquake insurance, if the
Premises is currently, or at any time in the future, located within a
Major Earthquake Disaster Area, in amounts, form and substance and with
limits and deductibles satisfactory to the Landlord.
(g) Business Income Insurance. Business Income Insurance to be
written on Special Form (and on Earthquake and Flood forms is such
insurance for those risks is required) including Extra Expense, without
a provision for co-insurance including an amount sufficient to pay at
least eighteen (18) months of Rent for the benefit of Landlord, and at
least eighteen months of Net Operating Income less Rent for the benefit
of the Tenant.
(h) Commercial General Liability Insurance. Occurrence form
commercial general liability and property damage insurance covering the
Premises and the business conducted thereon and therein and providing
coverage against liability for personal and
17
<PAGE>
bodily injury, death and property damage, including Liquor Liability,
having limits of not less than ONE MILLION AND NO/100 DOLLARS
($1,000,000.00) per occurrence and TWO MILLION AND NO/100 DOLLARS
($2,000,000.00) aggregate (per location) and the limit on fire legal
liability should be increased to a minimum of $1,000,000.00. Such
insurance shall cover at least the following hazards: (i) premises and
operations; (ii) products and completed operations; (iii) independent
contractors; (iv) blanket contractual liability for all written and
oral contracts; (v) advertising and personal injury and broad form
property damage; and (vi) contractual liability covering the
indemnities contained in Article XVIII hereof to the extent the same is
available. Such insurance, and any and all other liability insurance
maintained by Tenant in excess of or in addition to that required
hereunder, shall name Landlord as an additional insured.
(i) Business Auto Liability Insurance. Business auto liability
insurance including owned, non-owned and hired vehicles for combined
single limit of bodily injury and property damage of not less than
$1,000,000.00 per occurrence.
(j) Garage Keepers Liability Insurance. Garage keepers legal
liability insurance covering both comprehensive and collision-type
losses with a limit of liability in an amount not less than
$1,000,000.00 per occurrence.
(k) Workers Compensation Insurance. Workers' compensation
insurance, or comparable coverage if not required by state law, and
Employers' Liability insurance in an amount of at least $1,000,000.00
per accident/disease covering all persons employed in connection with
the performance of work of any nature in or about the Premises, in a
form prescribed by the laws of the State in which the Premises is
located.
(l) Umbrella Liability Policy. An Umbrella Policy shall be
following form Primary General Liability, Automobile Liability and
Employers Liability and include Liquor Liability with limits of not
less than $50,000,000.00 per occurrence/aggregate per location.
(m) Other Insurance. Such additional insurance as may be
reasonably required from time to time, by Landlord or any Mortgagee
which is customarily carried by comparable lodging properties in the
area, including, but not limited to Plate Glass Insurance, Fidelity
Bonds/Employee Dishonesty Insurance, Innkeeper's Legal Liability
Insurance, Safe Deposit Box Legal Liability Insurance, and Employment
Practices Liability Insurance.
All deductibles on the insurance requirements of subparagraphs
(a), (b), (c), (d), (e), (f) and (g) above (except as otherwise
stipulated), shall not exceed $100,000.00 unless approved by Landlord.
All insurance required hereunder, and all other insurance maintained by
tenant on the Improvements and FF&E in excess of or in addition to that
required hereunder, shall be carried in favor of Landlord and Tenant,
as their respective interests may appear.
18
<PAGE>
8.2 Carriers and Features. All insurance policies required to be
carried by Tenant as provided in this Article shall be issued by insurance
companies approved by Landlord authorized and licensed to do business in the
State in which the Premises is located. The insurance companies must have (as
determined by Landlord at its discretion): (a) an investment grade rating for
claims paying ability assigned by a credit rating agency approved by Landlord
and (b) a general policy rating of A- or better and a financial class of VIII or
better by A.M. Best & Company, Inc. All such policies shall be for periods of
not less than one year and Tenant shall renew the same at least thirty (30) days
prior to the expiration thereof. All such policies shall name as additional
insureds, Landlord, CNL Hospitality Properties, Inc., CNL Real Estate Advisors,
Inc. and any wholly or principally owned subsidiaries of either of them that may
now or hereafter exist, as well as any Mortgagee or collateral assignee of
Landlord, and shall require not less than thirty (30) days written notice to
Landlord prior to any cancellation thereof or any change reducing coverage
thereunder or any other material change, provided, however, for any cancellation
due to non-payment, ten (10) days notice shall be required. In addition to the
foregoing, all policies of insurance required in Section 8.1 above shall contain
clauses or endorsements to the effect that (a) no act or negligence of Tenant,
or anyone acting for Tenant, or failure to comply with the provisions of any
policy which might otherwise result in a forfeiture of the insurance or any part
thereof, shall in any way affect the validity or enforceability of the insurance
insofar as Landlord is concerned, (b) Landlord shall not be liable for any
insurance premiums thereon or subject to any assessments thereunder and (c) the
coverages provided thereby will be primary and any insurance carried by any
additional insured shall be excess and non-contributory.
Tenant shall pay the premiums for all insurance policies which Tenant
is obligated to carry under this Article and, at least thirty (30) days prior to
the date any such policy of insurance must be in effect, deliver to Landlord a
copy of the policy or policies, or a certificate or certificates thereof (on
ACCORD 27 forms or equivalent) evidencing the coverage required herein and
setting forth deductibles and the amount thereof, if any, along with evidence
that the premiums therefor have been paid for at least the next ensuing
quarter-annual period. Renewal certificates shall be delivered to the Landlord
not later than the effective date of such insurance. A true and certified copy
of each required policy shall be delivered to the Landlord not later than sixty
(60) days after the effective date of such insurance.
8.3 Failure to Procure Insurance. In the event Tenant shall fail to
procure insurance required under this Article and fail to maintain the same in
full force and effect continuously during the Term of this Lease, Landlord shall
be entitled to procure (but not be obligated to procure) the same and Tenant
shall immediately reimburse Landlord for such premium expense as Additional
Rent. Further, Tenant's obligation to maintain the insurance hereunder shall not
relieve Tenant of liability under the indemnity provisions of this Lease.
8.4 Waiver of Subrogation. Tenant agrees that, with respect to any
losses incurred by Tenant and covered or contemplated by any of the policies
referenced herein, Landlord shall not have any liability to Tenant, nor to any
insurer of Tenant, for or in respect of such losses and
19
<PAGE>
Tenant shall require all policies of risk insurance carried by it on its
property in the Premises to contain or be endorsed with a provision in and by
which the Tenant and the insurer designated therein shall waive their rights of
recovery and subrogation against Landlord.
8.5 No Separate Insurance. Tenant shall not take out separate
insurance, concurrent in form or contributing in the event of loss with that
required by Sections 8.1 or 8.2 hereof, or increase the amount of any existing
insurance by securing an additional policy or additional policies, unless all
parties having an insurable interest in the subject matter of such insurance,
including Landlord and all Mortgagees, are included therein as additional
insureds and the loss is payable under such insurance in the same manner as
losses are payable under this Lease. In the event that Tenant shall take out any
such separate insurance or increase the amounts of any then existing insurance,
Tenant shall give Landlord prompt notice thereof.
ARTICLE IX
DAMAGE OR DESTRUCTION
9.1 Restoration and Repair. If, during the Term the Premises shall be
totally or partially destroyed and the Improvements located thereon and/or the
FF&E are thereby rendered Unsuitable for Its Permitted Use, (as hereinafter
defined), either Landlord or Tenant may, by the giving of notice thereof to the
other party, terminate this Lease, whereupon, this Lease shall terminate and
Landlord shall be entitled to retain the insurance proceeds payable on account
of such damage and Tenant shall pay or pay to Landlord the amount of any
deductible. If, during the Term of this Lease, the Premises and/or Improvements
and/or FF&E shall be destroyed or damaged in whole or in part by fire, windstorm
or any other cause whatsoever, but the Premises are not rendered Unsuitable for
Its Permitted Use, Tenant shall give Landlord immediate notice thereof and shall
subject to the provisions of Section 9.2 below, repair, reconstruct or replace
the Improvements and/or FF&E, or the portion thereof so destroyed or damaged, at
least to the extent of the value and character thereof existing immediately
prior to such occurrence including any Improvements or alterations required to
be made by any governmental body, county or city agency, which may increase the
replacement value of the Improvements which existed prior to the damage, due to
any changes in code or building regulations. All such restoration work shall be
started as practicable and diligently contemplated at Tenant's sole cost and
expense. Tenant shall, however, immediately take such action as necessary to
assure that the Premises (or any portion thereof, do not constitute a nuisance
or otherwise present or constitute a health or safety hazard.
9.2 Insufficient Insurance Proceeds. If this Lease is not otherwise
terminated pursuant to this Section 9 and the cost of the repair or restoration
of the Premises exceeds the amount of insurance proceeds received by Landlord
and Tenant pursuant to this Section 9, Tenant shall give Landlord notice
thereof, which notice shall set forth in reasonable detail the nature of such
deficiency and whether Tenant shall pay and assume the amount of such deficiency
(Tenant having no obligation to do so except that, if Tenant shall elect to make
such funds available, the same shall become an irrevocable obligation of Tenant
pursuant to this Lease). In the event Tenant shall elect not to pay and assume
the amount of such deficiency, Landlord shall have the
20
<PAGE>
right (but not the obligation), exercisable at Landlord's sole election by
notice to Tenant, given within sixty (60) days after Tenant's notice of the
deficiency, to elect to make available for application to the cost of repair or
restoration the amount of such deficiency; provided, however, in such event upon
any disbursement by Landlord thereof, the Base Rent shall be adjusted in the
manner contemplated for Major Repairs as provided in Section 11.2 hereof. In the
event that neither Landlord nor Tenant shall elect to make such deficiency
available for restoration, either Landlord or Tenant may terminate this Lease by
notice to the other, whereupon this Lease shall terminate as provided in Section
9.1.
For purposes hereof, the term "Unsuitable for Its Permitted Use" shall
mean a state or condition of the Premises such that following any damage or
destruction involving the Premises, the Premises cannot be operated in the good
faith judgement of Tenant (after conferring with Franchisor, if required) on a
commercially practicable basis for its Permitted Use and it cannot reasonably be
expected to be restored to substantially the same condition as existed before
such damage or destruction and as is otherwise required by this Section within
twelve (12) months following such damage or destruction or such other shorter
period of time as to which business interruption insurance is available to cover
Rent and other costs related to the Premises following such damage or
destruction.
9.3 Escrow of Insurance Proceeds. In the event of a casualty resulting
in a loss to the Improvements and/or FF&E in an amount greater than ONE HUNDRED
THOUSAND AND NO/100 DOLLARS ($100,000.00), the proceeds of all insurance
policies maintained by Tenant shall be deposited in Landlord's name in an escrow
account at a bank or other financial institution designated by Landlord, and
shall be used by Tenant for the repair, reconstruction or restoration of the
Improvements and/or FF&E to their original condition. Such proceeds shall be
disbursed periodically by Landlord upon certification of the architect or
engineer having supervision of the work that such amounts are the amounts paid
or payable for the repair, reconstruction or restoration. Tenant shall, at the
time of establishment of such escrow account and from time to time thereafter
until said work shall have been completed and paid for, furnish Landlord with
adequate evidence acceptable to Landlord that at all times the undisbursed
portion of the escrowed funds, together with any funds made available by Tenant,
is sufficient to pay for the repair, reconstruction or restoration in its
entirety. Tenant shall obtain, and make available to Landlord, receipted bills
and, upon completion of said work, full and final waivers of lien. In the event
of a casualty resulting in a loss payment for the Improvements in an amount
equal to or less than the amount stated above, the proceeds shall be paid to
Tenant, and shall be applied towards repair, reconstruction and restoration. Any
and all loss adjustments with respect to losses payable hereunder shall require
the prior written consent of Landlord. All salvage resulting from any risk
covered by insurance shall belong to Tenant, provided any rights to the same
have been waived by the insurer. In addition, notwithstanding anything in this
Lease to the contrary, Tenant shall be strictly liable and solely responsible
for the amount of any deductible and shall, upon any insurable loss in excess of
$100,000.00, pay over the amount of such deductible to Landlord (for deposit in
escrow with the insurance proceeds, as aforesaid) at the time and in the manner
herein provided for payment of the applicable proceeds to Landlord.
21
<PAGE>
9.4 Abatement of Rent. This Lease shall remain in full force and effect
and Tenant's obligation to make all payments of Rent and to pay all the charges
as and when required under this Lease shall remain unabated during the Term
notwithstanding any damage involving the Premises (provided that Landlord shall
credit against such payments any amounts paid to Landlord as a consequence of
such damage under any business interruption insurance obtained by Tenant
hereunder). The provisions of this Section 9.4 shall be considered an express
agreement governing any cause of damage or destruction to the Premises and, to
the maximum extent permitted by law, Tenant hereby waives the application of any
local or state statute, law, rule, regulation or ordinance in effect during the
Term which provides for such a contingency.
9.5 Tenant's Property and Business Interruption Insurance. All
insurance proceeds payable by reason of any loss of or damage to any of Tenant's
Personal Property and the business interruption insurance maintained for the
benefit of Tenant shall be paid to Tenant; provided, however, no such payments
shall diminish or reduce the insurance payments otherwise payable to or for the
benefit of Landlord hereunder.
ARTICLE X
ADDITIONS, ALTERATIONS AND REMOVALS
10.1 Prohibition. Except as hereinafter expressly provided in Section
10.2, no portion of the Premises shall be demolished, removed or altered by
Tenant in any manner whatsoever without the prior written consent and approval
of Landlord, which is not subject to Section 23.9 and may be withheld by
Landlord in its sole and absolute discretion. Notwithstanding the foregoing,
however, Tenant shall be entitled and obligated to undertake all alterations to
the Premises required by the Franchise Agreement or any applicable law or
ordinance including, without limitation, any alterations required by any
Accessibility Laws, and, in such event, Tenant shall comply with the provisions
of Section 10.2 below.
10.2 Permitted Renovations. Landlord acknowledges that various minor,
non-structural alterations may be undertaken by Tenant from time to time and
that Tenant may be obligated under the Franchise Agreement to perform
renovations and alterations. Landlord hereby agrees that Tenant shall be
entitled to perform all such work on or about the Improvements; provided,
however, that the same shall not weaken or impair the structural strength of the
Improvements, or unless required by Franchise Agreement, alter their exterior
design or appearance or the interior design or appearance of the lobby,
materially impair use of any of the service facilities or fundamentally affect
the character or suitability of the Improvements for hotel purposes or
materially lessen or impair their value, and provided further, that in
connection with any such permitted renovation, the following conditions shall be
met, to wit:
(a) Before the commencement of any such work, plans and
specifications therefor or a detailed itemization thereof prepared by a
licensed architect approved by Landlord shall be furnished to Landlord
for its review approval. The terms of Section 23.9 shall not be
applicable to such approval. Such approval shall not constitute
22
<PAGE>
Landlord's agreement that the plans and specification are incompliance
with applicable law or an assumption by Landlord of any liability in
connection with the renovation work contemplated thereby.)
(b) Before the commencement of any such work, Tenant shall
obtain the approval thereof by all governmental departments or
authorities having or claiming jurisdiction of or over the Premises, if
required by such departments or authorities, and with any public
utility companies having an interest therein, if required by such
utility companies. In any such work, Tenant shall comply with all
applicable laws, ordinances, requirements, orders, directions, rules
and regulations of the federal, state, county and municipal governments
and of all other governmental authorities having or claiming
jurisdiction of or over the Premises and of all their respective
departments, bureaus and offices, and with the requirements and
regulations, if any, of such public utilities, of the insurance
underwriting board or insurance inspection bureau having or claiming
jurisdiction, or any other body exercising similar functions, and of
all insurance companies then writing policies covering the Premises or
any part thereof.
(c) Tenant represents and warrants to Landlord that all such
construction work will be performed in a good and workmanlike manner
and in accordance with the plans and specifications therefore, the
terms, provisions and conditions of this Lease and all governmental
requirements.
(d) Landlord shall have the right to inspect any such
construction work at all times during normal working hours and to
maintain at the Premises for that purpose (at its own expense) such
inspector(s) as it may deem necessary so long as such inspections do
not interfere with Tenant's work (but Landlord shall not thereby assume
any responsibility for the proper performance of the work in accordance
with the terms of this Lease, nor any liability arising from the
improper performance thereof).
(e) All such work shall be performed at Tenant's cost and
expense and free of any expense to Landlord and free of any liens on
Landlord's fee simple interest on or Tenant's leasehold interest in the
Premises.
(f) Upon substantial completion of any such work Tenant shall
procure a certificate of occupancy, if applicable, from the appropriate
governmental authorities verifying the substantial completion thereof.
(g) Tenant shall, and hereby agrees to, indemnify and save and
hold Landlord harmless from and against and reimburse Landlord for any
and all loss, damage, cost, liability, fee and expense (including,
without limitation, reasonable attorney's fees based upon service
rendered at hourly rates) incurred by or asserted against Landlord
which is occasioned by or results, directly or indirectly, from any
construction or renovation
23
<PAGE>
activities conducted upon the Premises; whether or not the same is
caused by or the fault of Tenant or any contractor, subcontractor,
laborer, supplier, materialman or any other third party.
10.3 Additions, Expansions and Structural Alterations. Except as
expressly permitted in Section 10.2 above, nothing in this Article or elsewhere
in this Lease shall be deemed to authorize Tenant to construct and erect any
additions to or expansions of the Improvements, or perform any alterations of a
structural nature whatsoever; it being understood that Tenant may do so only
with the prior written consent and approval of Landlord, which consent and
approval may be withheld by Landlord in its sole and absolute discretion and may
be conditioned upon the payment by Tenant to Landlord of a fee.
ARTICLE XI
MAINTENANCE AND REPAIRS
11.1 Repairs by Tenant. Except as provided in Section 11.2 hereof,
Tenant shall, at all times during the Term of this Lease and at its sole cost
and expense, put, keep, replace and maintain the Premises (including, without
limitation, all portions of the Improvements, including without limitation, the
roof, plumbing systems, electric systems and HVAC systems, Tenant's Personal
Property and the FF&E) in good repair and in good, safe and substantial order
and condition, shall make all repairs thereto, both inside and outside,
structural and non-structural, ordinary and extraordinary, howsoever the
necessity or desirability for repairs may occur, and whether or not necessitated
by wear, tear, obsolescence or defects, latent or otherwise, and shall use all
reasonable precautions to prevent waste, damage or injury. Tenant shall also, at
its own cost and expense, put, keep, replace and maintain all landscaping,
signs, sidewalks, roadways, driveways and parking areas within the Premises in
good repair and in good, safe and substantial order and condition and free from
dirt, standing water, rubbish and other obstructions or obstacles. In addition,
Tenant shall also, at its sole cost and expense, put, keep, replace and maintain
the FF&E and Tenant's Personal Property in good repair and in good, safe and
substantial order, howsoever the necessity or desirability for repairs may
occur, and whether or not necessitated by wear, tear, obsolescence or defects.
Tenant may at any time and from time to time remove and dispose of any of the
FF&E which has become obsolete or unfit for use or which is no longer useful in
the operation of the Hotel's business conducted by Tenant on the Premises;
provided, however, that the FF&E so disposed of shall be promptly replaced by
with other FF&E not necessarily of the same character, but of at least equal
usefulness and quality as, and having a value at least equal to the value of,
those disposed of, and in any event in accordance with and in compliance with
the standards required by and the provisions of this Lease. Tenant shall further
at all times maintain the Premises, including the grounds and landscaping, in an
aesthetic pleasing manner.
11.2 Landlord's Obligation. Except as hereinafter provided in this
Section 11.2 Landlord shall not be required to make any alterations,
reconstructions, replacements, changes, additions, improvements or repairs of
any kind or nature whatsoever to the Premises or any portion thereof (including,
without limitation, any portion of the Improvements or any FF&E)
24
<PAGE>
at any time during the Term of this Lease. Landlord agrees that it shall be
Landlord's responsibility to make and pay for major repairs, alterations,
improvements, renewals, replacements or additions to the Premises, structure,
roof or exterior facade, and to its mechanical, electrical, heating, ventilating
air conditioning, plumbing and vertical transportation systems (all of the
foregoing the "Major Repairs"). In this regard, Tenant shall prepare and deliver
to Landlord for its review and approval, an annual estimate (the "Building
Estimate") of the expenses necessary for Major Repairs which Tenant believes
should be made to the Premises for the following Lease Year, which Building
Estimate shall be submitted to Landlord for its review and approval not later
than sixty (60) days prior to the commencement of each calendar year during the
Term hereof. Tenant acknowledges and agrees that the terms of Section 23.9 shall
not be applicable to this Section 11.2 and any Major Repairs not approved by
Landlord shall not be made; provided, however, that Landlord agrees that it will
not withhold its consent with respect to Major Repairs which are required by
reason of any law, ordinance, regulation or order of governmental authority
having jurisdiction (as determined by Landlord in its reasonable judgement) for
the continued safe and orderly operation of the Premises or which are required
by the Franchise Agreement or which are required in the case of an emergency. If
the Landlord does not approve the Building Estimate or any Major Repair
contemplated therein, the parties shall attempt in good faith during the
subsequent thirty (30) day period to resolve any disputes, which attempts shall
include, if requested by either party, at least one meeting of executive-level
officers of Landlord and Tenant. In the event that the parties are still not
able to reach agreement on the Building Estimate for any particular Lease Year
after complying with the foregoing requirements of this Section 11.2, the
parties shall adopt such portions of the Building Estimate as they may have
agreed upon and any matters not agreed upon shall be referred to arbitration.
Pending the results of such arbitration or the earlier agreement of the parties,
no Major Repairs shall be made unless the same are set forth in a previously
approved Building Estimate or are specifically required by Landlord or otherwise
required in case of emergency as aforesaid. With respect to any such matter to
be submitted to arbitration, Landlord shall be entitled to designate any
nationally recognized accounting firm with a hospitality division of which
Landlord or an Affiliate of Landlord is not a significant client to serve as
arbitrator of such dispute within fifteen (15) days after written demand for
arbitration is received or sent by Landlord. In the event Landlord fails to make
such designation within such fifteen (15) day period, Tenant shall be entitled
to designate any nationally recognized accounting firm with a hospitality
division of which Tenant or an Affiliate of Tenant is not a significant client
to serve as arbitrator of such dispute within fifteen (15) days after Landlord
fails to timely make such designation. In the event no nationally recognized
accounting firm satisfying such qualifications is available and willing to serve
as arbitrator, the arbitrator shall be appointed by the American Arbitration
Association from among the members of its panel who are qualified and who have
experience in resolving matters of a nature similar to the matter to be resolved
by arbitration. In any event a single arbitrator shall be designated and shall
resolve the dispute. The arbitrator's decision shall be binding on all parties
and shall not be subject to further review or appeal except as otherwise allowed
by applicable law. Upon failure of either party to comply with the arbitrator's
decision, the arbitrator shall be empowered at the request of the other party to
order such compliance by the non-complying party and to supervise or arrange for
the supervision of the non-complying party to comply with the arbitrator's
decision, all at the expense of the non-complying party. To
25
<PAGE>
the maximum extent possible, the arbitrator and the parties, and the American
Arbitration Association, if applicable, shall take any action necessary to
ensure that the arbitration shall be concluded within ninety (90) days following
such dispute. The fees and expenses of the arbitrator shall be shared equally by
the Landlord and the Tenant. Unless otherwise agreed to in writing by the
parties or required by the arbitrator or the American Arbitration Association,
if applicable, arbitration proceedings hereunder shall be conducted in the state
where the Premises are located. Notwithstanding formal rules of evidence, each
party may submit such evidence as each party deems appropriate to support its
position and the arbitrator shall have access to and the right to examine all
books and records of Landlord and Tenant regarding the Premises during such
arbitration. In the event of the receipt by Tenant of a governmental order or
other circumstances ascribed in the preceding sentence, Tenant shall promptly
deliver the same to Landlord.
The cost of Major Repairs shall be borne by Landlord and upon funding
of the same by Landlord, Base Rent shall be adjusted as hereinafter provided in
this paragraph. Landlord and Tenant acknowledge and agree that in the event that
funding is necessary for Major Repairs, Landlord shall provide the funds
required for such expenditures ("Additional Capital Investment") and Base Rent
shall be increased by the amount necessary to provide a per annum yield on the
Additional Capital Investment equal to the greater of (a) ten percent 10.00% or
(b) the yield on the ten-year U.S. Treasury Securities (at the time the
Additional Capital Investment is requested by Tenant), plus 375 basis points.
11.3 The FF&E Reserve. Tenant shall establish a separate interest
bearing reserve account (the "FF&E Reserve") in a bank designated by Landlord
and reasonably approved by Tenant. All interest earned on the FF&E Reserve shall
be added to and remain part of the FF&E Reserve. The FF&E Reserve shall be used
for the replacement and renewal of FF&E in an amount which shall not be less
than the amount determined in accordance with the following provisions of this
Section 11.3 and Tenant shall use the FF&E Reserve only for the purposes of
making replacements and substitutions to the FF&E and other capital expenditures
as hereinafter referenced. All funds in the FF&E Reserve, all interest earned
thereon and all property purchased with funds from the FF&E Reserve shall be and
remain the property of Landlord. Both Tenant and Landlord shall be signatories
on the FF&E Reserve Account and either party shall be authorized to withdraw
funds from such account; provided, however, Landlord agrees that it shall not
make any withdrawals therefrom so long as Tenant is not in default hereunder.
Deposits to the FF&E Reserve shall be made as follows: (a) for each month during
the first Lease Year during the Term hereof three percent (3%) of the Gross
Receipts (as defined in Section 4.2 hereof) for such month shall be deposited in
the FF&E Reserve; (b) for each month during the second Lease Year during the
Term hereof four percent (4%) of the Gross Receipts for such month shall be
deposited in the FF&E Reserve; and (c) for each month during the third Lease
Year and each Lease Year thereafter during the Term hereof, five percent (5%) of
Gross Receipts for such month shall be deposited in the FF&E Reserve. Deposits
to the FF&E Reserve with respect to any such month shall be made in arrears
within fifteen (15) after the end of such month. Within sixty (60) days after
the close of each Lease Year, Tenant shall notify Landlord of the balance in the
FF&E Reserve and of the account in which the FF&E Reserve is
26
<PAGE>
maintained. Tenant may only withdraw funds from the FF&E Reserve contained in
the Approved FF&E Budget and, if not, only with the prior approval of Landlord,
which funds shall be withdrawn to cover the costs of the replacement, renewal
and additions related to the FF&E at the Premises and for routine or non-major
repairs and maintenance to the Premises which are normally capitalized under
generally accepted accounting principles, such as exterior and interior painting
and resurfacing building walls, floors, roofs and parking areas and replacing
folding walls and the like contemplated in the FF&E Budget (but which are not
Major Repairs as described in, and the cost of which shall be borne by Landlord,
as set forth in Section 11.2 hereof.) Not later than sixty (60) days prior to
the commencement of each calendar year during the Term hereof, Tenant shall
submit to Landlord a detailed budget of expenses for the forthcoming calendar
year (the "FF&E Budget"). Such FF&E Budget shall reflect by line item the
projected budget expenses for the Premises and assumptions on the basis of which
such line items were prepared in narrative form if necessary, including separate
budget items for all projected expenditures for replacements, substitutions and
additions to FF&E. Tenant shall provide to Landlord reasonable additional
detail, information and assumptions used in the preparation of the FF&E Budget
as requested by Landlord. Tenant shall review the FF&E Budget with Landlord, and
subject to Landlord's approval, Tenant shall implement such FF&E Budget for the
successive calendar year (during which it shall, if approved by Landlord, be
referred to as the "Approved FF&E Budget"). Landlord shall have the right to
disapprove any FF&E expenditures but Landlord agrees that it will not
unreasonably withhold its consent and that it will consent to any expenditures
required under the Franchise Agreement. Pending resolution of any dispute, the
specific disputed item of the FF&E Budget shall be suspended and replaced for
the calendar year in question by an amount equal to the lesser of (a) that
proposed by Tenant for such calendar year or (b) such budget item for the
calendar year prior thereto. Tenant shall not make any expenditures from the
FF&E Reserve, nor shall Tenant deviate from the Approved FF&E Budget without the
prior approval of Landlord, except in the case of emergency where immediate
action is necessary to prevent imminent danger to person or property. Upon the
expiration or earlier termination of this Lease, funds in the FF&E Reserve and
all property purchased with funds from the FF&E Reserve shall be paid, granted
and assigned to Landlord as Additional Rent.
ARTICLE XII
LANDLORD'S RIGHT TO INSPECT
Landlord, Mortgagee and their agents shall have the right to enter upon
the Premises or any portion thereof at any reasonable time to inspect the same,
including but not limited to, the operation, sanitation, safety, maintenance and
use of the same, or any portions of the same and to assure itself that Tenant is
in full compliance with its obligations under this Lease (but Landlord and
Mortgagee shall not thereby assume any responsibility for the performance of any
of Tenant's obligations hereunder, nor any liability arising from the improper
performance thereof). In making any such inspections, neither Landlord nor
Mortgagee shall unduly interrupt or interfere with the conduct of Tenant's
business.
27
<PAGE>
ARTICLE XIII
ASSIGNMENT, TRANSFER AND SUBLETTING BY TENANT
13.1 Transfers Prohibited Without Consent. Except as provided in
Section 13.4 hereof, Tenant shall not, without the prior written consent of
Landlord, in each instance, sell, assign or otherwise transfer this Lease, or
Tenant's interest in the Premises, in whole or in part, or any rights or
interest which Tenant may have under this Lease, or sublet the Premises, or any
part thereof, or grant or permit any lien or encumbrance on or security interest
in Tenant's interest in this Lease. If given, the consent of Landlord to an
assignment, transfer, subletting or encumbrance shall in no event be construed
to relieve Tenant or such assignee or subtenant from the obligation of obtaining
the express consent in writing of Landlord to any further assignment, transfer,
subletting or encumbrance. In addition, any such approved assignee shall
expressly assume this Lease by an agreement in recordable form, an original
executed counterpart of which shall be delivered to Landlord prior to any
assignment of the Lease. Any assignment, transfer, sublease or encumbrance in
violation of this Article shall be voidable at Landlord's option. The terms of
Section 23.9 shall not be applicable to Landlord's approval hereunder.
13.2 Indirect Transfer Prohibited Without Consent. A sale, assignment,
pledge, transfer, exchange or other disposition of (a) the stock of Tenant or
any general partner interest in Tenant or (b) any interest of a member or
members of Tenant which results in a change or transfer of management or control
of Tenant, or a merger, consolidation or other combination of Tenant with
another entity which results in a change or transfer of management or control of
Tenant, shall be deemed an assignment hereunder and shall be subject to Section
13.1 hereof. For purposes hereof, exchange or transfer of management or control
or effective control, shall mean a transfer of 50% or more of the economic
benefit of, or control of, any such entity.
13.3 Adequate Assurances. Without limiting any of the foregoing
provisions of this Article, if, pursuant to the U.S. Bankruptcy Code, as the
same may be amended from time to time, Tenant is permitted to assign or
otherwise transfer its rights and obligations under this Lease in disregard of
the restrictions contained in this Article, the assignee agrees to provide
adequate assurance to Landlord (a) that any Percentage Rent shall not decline
substantially after the date of such assignment, (b) of the continued use of the
Premises solely in accordance with the Permitted Use thereof, (c) of the
continuous operation of the business in the Premises in strict accordance with
the requirements of Article III hereof, and (d) of such other matters as
Landlord may reasonably require at the time of such assumption or assignment.
Such assignee shall agree that adequate assurance of future Percentage Rent
under this Lease by the assignee shall mean the deposit of cash security with
Landlord in an amount equal to the sum of the Percentage Rent paid for the
preceding calendar year or, if a calendar year has not yet elapsed, a sum equal
to five percent (5%) of the Base Rent then in effect, which deposit shall be
held by Landlord, without interest, for the balance of the Term as security for
the full and faithful performance of all the obligations under this Lease on the
part of the assignee yet to be performed. In addition, adequate assurance shall
mean that any such assignee shall have a net worth (exclusive of good
28
<PAGE>
will) of not less than twice the aggregate of the Rent due and payable for the
previous Lease Year. Such assignee shall expressly assume this Lease by an
agreement in recordable form, an original counterpart of which shall be
delivered to Landlord prior to an assignment of the Lease.
13.4 Permitted Transfer. Landlord hereby acknowledges and agrees that
commencing with the first day of the fourth Lease Year of the Term hereof, it
will consent to any requested transfer of this Lease by Tenant if Tenant is not
in default hereunder and Tenant demonstrates to the Landlord's reasonable
satisfaction that the proposed purchaser, transferee or assignee is a Single
Purpose Entity (a) who has a verifiable net worth (determined in accordance with
generally accepted accounting principles) of not less than two times the Rent
due and payable for the Lease Year immediately preceding such proposed sale or
transfer; (b) who is approved by the Franchisor under the Franchise Agreement
and, if required, is approved by the manager of the Premises; (c) who has not
been convicted of a felony and is known to have not engaged in criminal activity
or other activity involving moral turpitude (including any affiliate of such
person); (d) who does not, as its primary business, own, lease or operate any
casino or gambling facility (including any affiliate of such person or entity);
(e) who does not own or operate a distillery, winery or brewery or
distributorship of alcoholic beverages if such leasing, ownership or operation
might reasonably impair the ability of Tenant or the manager of the Premises, or
their Affiliates to obtain or retain any alcoholic beverage license for the
premises; or who does not own or operate a hotel or other facility proscribed in
Section 3.5 hereof. Any approval of such successor Tenant shall not affect or
alter Landlord's approval rights of each manager of the Premises and the
conditions in the Section 13.4 shall only apply to a transfer of Tenant's
interest in this Lease.
ARTICLE XIV
LANDLORD'S INTEREST NOT SUBJECT TO LIENS
14.1 Liens, Generally. Tenant shall not, directly or indirectly, create
or cause to be imposed, claimed or filed upon the Premises, or Tenant's assets,
properties or income or any portion thereof, or upon the interest of Landlord
therein, any lien, charge, attachment, claim or encumbrance of any nature
whatsoever. If, because of any act or omission of Tenant, any such lien, charge
or encumbrance shall be imposed, claimed or filed by any party whosoever or
whatsoever, Tenant shall, at its sole cost and expense, cause the same to be
promptly (and in no event later than fifteen (15) days following receipt of
notice of such lien, charge or encumbrance) fully paid and satisfied or
otherwise promptly discharged of record (by bonding or otherwise) and Tenant
shall indemnify and save and hold Landlord harmless from and against any and all
costs, liabilities, suits, penalties, claims and demands whatsoever, and from
and against any and all reasonable attorney's fees, at both trial and all
appellate levels, resulting or on account thereof and therefrom. In the event
that Tenant shall fail to comply with the foregoing provisions of this Section,
Landlord shall have the option, but not the obligation, of paying, satisfying or
otherwise discharging (by bonding or otherwise) such lien, charge or encumbrance
and Tenant agrees to reimburse Landlord, upon demand and as Additional Rent, for
all sums so paid and for all costs and expenses incurred by Landlord in
connection therewith, together with interest thereon, until paid.
29
<PAGE>
14.2 Mechanics Liens. Landlord's interest in the Premises shall not be
subjected to liens of any nature by reason of Tenant's construction, alteration,
renovation, repair, restoration, replacement or reconstruction of any
improvements on or in the Premises, or by reason of any other act or omission of
Tenant (or of any person claiming by, through or under Tenant) including, but
not limited to, mechanics' and materialmen's liens. All persons dealing with
Tenant are hereby placed on notice that such persons shall not look to Landlord
or to Landlord's credit or assets (including Landlord's interest in the
Premises) for payment or satisfaction of any obligations incurred in connection
with the construction, alteration, renovation, repair, restoration, replacement
or reconstruction thereof by or on behalf of Tenant. Tenant has no power, right
or authority to subject Landlord's interest in the Premises to any mechanic's or
materialmen's lien or claim of lien. If a lien, a claim of lien or an order for
the payment of money shall be imposed against the Premises on account of work
performed, or alleged to have been performed, for or on behalf of Tenant, Tenant
shall, within fifteen (15) days after written notice of the imposition of such
lien, claim or order, cause the Premises to be released therefrom by the payment
of the obligation secured thereby or by furnishing a bond or by any other method
prescribed or permitted by law. If a lien is released, Tenant shall thereupon
furnish Landlord with a written instrument of release in form for recording or
filing in the appropriate office of land records of the County in which the
Premises is located, and otherwise sufficient to establish the release as a
matter of record.
14.3 Contest of Liens. Tenant may, at its option, contest the validity
of any lien or claim of lien if Tenant shall have first posted an appropriate
and sufficient bond in favor of the claimant or paid the appropriate sum into
court, if permitted by and in strict compliance with applicable law, and thereby
obtained the release of the Premises from such lien. If judgment is obtained by
the claimant under any lien, Tenant shall pay the same immediately after such
judgment shall have become final and the time for appeal therefrom has expired
without appeal having been taken. Tenant shall, at its own expense, defend the
interests of Tenant and Landlord in any and all such suits; provided, however,
that Landlord may, at its election, engage its own counsel and assert its own
defenses, in which event Tenant shall cooperate with Landlord and make available
to Landlord all information and data which Landlord deems necessary or desirable
for such defense.
14.4 Notices of Commencement of Construction. If required by the laws
of the State in which the Premises is located, prior to commencement by Tenant
of any work on the Premises which shall have been previously permitted by
Landlord as provided in this Lease, Tenant shall record or file a notice of the
commencement of such work or similar notice required by applicable law (the
"Notice of Commencement") in the land records of the County in which the
Premises are located, identifying Tenant as the party for whom such work is
being performed, stating such other matters as may be required by law and
requiring the service of copies of all notices, liens or claims of lien upon
Landlord. Any such Notice of Commencement shall clearly reflect that the
interest of Tenant in the Premises is that of a leasehold estate and shall also
clearly reflect that the interest of Landlord as the fee simple owner of the
Premises shall not be
30
<PAGE>
subject to mechanics or materialmen's liens on account of the work which is the
subject of such Notice of Commencement. A copy of any such Notice of
Commencement shall be furnished to and approved by Landlord and its attorneys
prior to the recording or filing thereof, as aforesaid.
ARTICLE XV
CONDEMNATION
15.1 Complete Taking. If the whole of the Premises shall be taken or
condemned for any public or quasi-public use or purpose, by right of eminent
domain or by purchase in lieu thereof, or if a substantial portion of the
Premises shall be so taken or condemned that the portion or portions remaining
is or are not sufficient and suitable, in the mutual reasonable judgment of
Landlord and Tenant, for the continued operation thereof as required herein, so
as to effectively render the Premises untenantable, then this Lease and the Term
hereby granted shall cease and terminate as of the date on which the condemning
authority takes possession and all Rent shall be paid by Tenant to Landlord up
to that date or refunded by Landlord to Tenant if Rent has previously been paid
by Tenant beyond that date.
15.2 Partial Taking. If a portion of the Premises is taken, and the
portion or portions remaining can, in the mutual reasonable judgment of Landlord
and Tenant, be adapted and used for the conduct of Tenant's business operation
in accordance with the terms of this Lease, such that the Premises are not
effectively rendered untenantable, then the Tenant shall, utilizing condemnation
proceeds paid to Landlord from the condemning authority, promptly restore the
remaining portion or portions thereof to a condition comparable to their
condition at the time of such taking or condemnation, less the portion or
portions lost by the taking, and this Lease shall continue in full force and
effect except that the Rent payable hereunder shall, if necessary, be equitably
adjusted to take into account the portion or portions of the Premises lost by
the taking.
15.3 Award. The entire award for the Premises or the portion or
portions thereof so taken shall be apportioned between Landlord and Tenant as
follows: (a) if this Lease terminates due to a taking or condemnation, Landlord
shall be entitled to the entire award; (b) if this Lease does not terminate due
to such taking or condemnation, Tenant shall be entitled to the award to the
extent required for restoration of the Premises, and Landlord shall be entitled
to the balance of the award not applied to restoration. If this Lease does not
terminate due to a taking or condemnation, Tenant shall, with due diligence,
restore the remaining portion or portions of the Premises in the manner
hereinabove provided. In such event, the proceeds of the award to be applied to
restoration shall be deposited with a bank or financial institution designated
by Landlord as if such award were insurance proceeds, and the amount so
deposited will thereafter be treated in the same manner as insurance proceeds
are to be treated under Section 9.2 of this Lease until the restoration has been
completed and Tenant has been reimbursed for all the costs and expenses thereof.
If the award is insufficient to pay for the restoration, Tenant shall be
responsible for the remaining cost and expense of such restoration.
31
<PAGE>
15.4 Disputes. If Landlord and Tenant cannot agree in respect of any
matters to be determined under this Article, a determination shall be requested
of the court having jurisdiction over the taking or condemnation; provided,
however, that if said court will not accept such matters for determination,
either party may have the matters determined by a court otherwise having
jurisdiction over the parties.
ARTICLE XVI
SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE
16.1 Subordination. This Lease, Tenant's interest hereunder and
Tenant's leasehold interest in and to the Premises are hereby agreed by Tenant
to be and are hereby made junior, inferior, subordinate and subject in right,
title, interest, lien, encumbrance, priority and all other respects to any
mortgage or mortgages now or hereafter in force and effect upon or encumbering
Landlord's interest in the Premises, or any portion thereof, and to all
collateral assignments by Landlord to any third party or parties of any of
Landlord's rights under this Lease or the rents, issues and profits thereof or
therefrom as security for any liability or indebtedness, direct, indirect or
contingent, of Landlord to such third party or parties, and to all future
modifications, extensions, renewals, consolidations and replacements of, and all
amendments and supplements to any such mortgage, mortgages or assignments, and
upon recording of any such mortgage, mortgages or assignments, the same shall be
deemed to be prior in dignity, lien and encumbrance to this Lease, Tenant's
interest hereunder and Tenant's leasehold interest in and to the Premises
irrespective of the dates of execution, delivery or recordation of any such
mortgage, mortgages or assignments. The foregoing subordination provisions of
this Section shall be automatic and self-operative without the necessity of the
execution of any further instrument or agreement of subordination on the part of
Tenant. Provided, however, if the aggregate sum of all obligations secured by
any mortgage or mortgages encumbering the Premises exceeds sixty percent (60%)
of the fair market value of the Premises as determined at the time of such
loan(s), Tenant's aforesaid subordination shall not be applicable to the portion
of the loan(s) in excess of the said sixty percent (60%) and Tenant's written
subordination (which shall not be unreasonably withheld) shall be required with
respect to such excess. Tenant acknowledges and agrees that notwithstanding the
foregoing automatic subordination, if Landlord or the holder or proposed holder
of any such mortgage, mortgages, security interest in or assignment of the Lease
(a "Mortgagee") shall request that Tenant execute and deliver any further
instrument or agreement of subordination of this Lease or Tenant's interest
hereunder or Tenant's leasehold interest in the Premises to any such mortgage,
mortgages or assignments in confirmation or furtherance of or in addition to the
foregoing subordination provisions of this Section, Tenant shall promptly
execute and deliver the same to the requesting party. Further, Tenant agrees
that it will, from time to time, execute such reasonable documentation as may be
requested by Landlord and any Mortgagee (a) to assist Landlord and such
Mortgagee in establishing or perfecting any security interest in Landlord's
interest in the FF&E Reserve and the funds therein; and (b) to facilitate or
allow Landlord to encumber the Premises as herein contemplated. Further, should
any rating agency require the same, Tenant agrees that it will execute such
documentation as may be requested by such agency, including documentation and
amendments to Tenant's organizational documents required to qualify Tenant as a
single purpose entity, provided Landlord shall pay the
32
<PAGE>
reasonable costs incurred by Tenant in so qualifying and the Tenant will
negotiate in good faith the requirements of such single person entity. Provided
further, the parties hereto acknowledge that the requirements for a Single
Purpose Entity on Exhibit H are not binding on Tenant in such circumstance. If,
within thirty (30) days following Tenant's receipt of a written request by
Landlord or the holder or proposed holder of any such mortgage, mortgages or
assignments, Tenant shall fail or refuse or shall have not executed any such
further instrument or agreement of subordination, for whatever reason, Tenant
shall be in breach and default of its obligation to do so and of this Lease and
Landlord shall be entitled thereupon to exercise any and all remedies available
to Landlord pursuant to this Lease or otherwise provided by law. In connection
with any granting by Tenant of a mortgage to a Mortgagee (as hereinafter
defined) Landlord agrees in good faith to request on behalf of Tenant, a
non-disturbance agreement from the Mortgagee in form reasonably acceptable to
Tenant and Mortgagee.
16.2 Attornment. Tenant shall and hereby agrees to attorn, and be bound
under all of the terms, provisions, covenants and conditions of this Lease, to
any successor of the interest of Landlord under this Lease for the balance of
the Term of this Lease remaining at the time of the succession of such interest
to such successor. In particular, in the event that any proceedings are brought
for the foreclosure of any mortgage or security interest encumbering or
collateral assignment of Landlord's interest in the Premises, or any portion
thereof, Tenant shall attorn to the purchaser at any such foreclosure sale and
recognize such purchaser as Landlord under this Lease, subject, however, to all
of the terms and conditions of this Lease. Tenant agrees that neither the
purchaser at any such foreclosure sale nor the foreclosing mortgagee or holder
of such security interest or collateral assignment shall have any liability for
any act or omission of Landlord, be subject to any offsets or defenses which
Tenant may have as claim against Landlord, or be bound by any advance rents
which may have been paid by Tenant to Landlord for more than the current period
in which such rents come due.
16.3 Rights of Mortgagees and Assignees. At the time of giving any
notice of default to Landlord, Tenant shall mail or deliver to any Mortgagee a
copy of any such notice. No notice of default or termination of this Lease by
Tenant shall be effective until any Mortgagee shall have been furnished a copy
of such notice by Tenant. In the event Landlord fails to cure any default by it
under this Lease, the Mortgagee shall have, at its option, a period of thirty
(30) days after expiration of any cure period of Landlord within which to remedy
such default of Landlord or to cause such default to be remedied. In the event
that the Mortgagee elects to cure any such default by Landlord, then Tenant
shall accept such performance on the part of such Mortgagee as though the same
had been performed by Landlord, and for such purpose Tenant hereby authorizes
any Mortgagee to enter upon the Premises to the extent necessary to exercise any
of Landlord's rights, powers and duties under this Lease. If, in the event of
any default by Landlord which is reasonably capable of being cured by a
Mortgagee, the Mortgagee promptly commences and diligently pursues to cure the
default, then Tenant will not terminate this Lease or cease to perform any of
its obligations under this Lease so long as the Mortgagee is, with due
diligence, engaged in the curing of such default.
33
<PAGE>
ARTICLE XVII
END OF TERM
17.1 Surrender of Premises. Tenant shall, on or before the last day of
the Term of this Lease or upon the sooner termination thereof, peaceably and
quietly surrender and deliver to Landlord the Premises, including, without
limitation, all Improvements and FF&E and all additions thereto and replacements
thereof made from time to time over the Term of this Lease, in good order,
condition and repair, reasonable wear and tear excepted, and free and clear of
all liens and encumbrances.
17.2 Holding Over. If Tenant or any other person or party shall remain
in possession of the Premises or any part thereof following the expiration of
the Term or earlier termination of this Lease without an agreement in writing
between Landlord and Tenant with respect thereto, the person or party remaining
in possession shall be deemed to be a tenant at sufferance, and during any such
holdover, the Rent payable under this Lease by such tenant at sufferance shall
be double the rate or rates in effect immediately prior to the expiration of the
Term or earlier termination of this Lease. In no event, however, shall such
holding over be deemed or construed to be or constitute a renewal or extension
of this Lease.
ARTICLE XVIII
LIABILITY OF LANDLORD; INDEMNIFICATION
18.1 Liability of Landlord. Landlord shall not be liable to Tenant, its
employees, agents, business invitee, licensees, customers, clients, family
members or guests for any damage, injury, loss, compensation or claim,
including, but not limited to, claims for the interruption of or loss to
Tenant's business, based on, arising out of or resulting from any cause
whatsoever (other than Landlord's negligence or wilful misconduct), including,
but not limited to: (a) repairs to any portion of the Premises; (b) interruption
in Tenant's use of the Premises; (c) any accident or damage resulting from the
use or operation (by Landlord, Tenant or any other person or persons) of any
equipment within the Premises, including without limitation, heating, cooling,
electrical or plumbing equipment or apparatus; (d) the termination of this Lease
by reason of the condemnation or destruction of the Premises in accordance with
the provisions of this Lease; (e) any fire, robbery, theft, mysterious
disappearance or other casualty; (f) the actions of any other person or persons;
and (g) any leakage or seepage in or from any part or portion of the Premises,
whether from water, rain or other precipitation that may leak into, or flow
from, any part of the Premises, or from drains, pipes or plumbing fixtures in
the Improvements. Any goods, property or personal effects stored or placed by
the Tenant or its employees in or about the Premises shall be at the sole risk
of the Tenant.
18.2 Indemnification of Landlord. Tenant shall defend, indemnify and
save and hold Landlord harmless from and against any and all liabilities,
obligations, losses, damages, injunctions, suits, actions, fines, penalties,
claims, demands, costs and expenses of every kind or nature, including
reasonable attorneys' fees and court costs, incurred by Landlord, arising
directly or indirectly from or out of: (a) any failure by Tenant to perform any
of the terms, provisions,
34
<PAGE>
covenants or conditions of this Lease or the Franchise Agreement or management
agreement on Tenant's part to be performed including but not limited to the
payment of any fee, cost or expense which Tenant is obligated to pay and
discharge hereunder or under any Franchise Agreement or management agreement;
(b) any accident, injury or damage which shall happen at, in or upon the
Premises, however occurring; (c) any matter or thing growing out of the
condition, occupation, maintenance, alteration, repair, use or operation by any
person of the Premises, or any part thereof, or the operation of the business
contemplated by this Lease to be conducted thereon, thereat, therein, or
therefrom; (d) any failure of Tenant to comply with any laws, ordinances,
requirements, orders, directions, rules or regulations of any governmental
authority, including, without limitation, the Accessibility Laws; (e) any
contamination of the Premises, or the groundwaters thereof, arising on or after
the date Tenant takes possession of the Premises and occasioned by the use,
transportation, storage, spillage or discharge thereon, therein or therefrom of
any toxic or hazardous chemicals, compounds, materials or substances, whether by
Tenant or by any agent or invitee of Tenant; (f) any discharge of toxic or
hazardous sewage or waste materials from the Premises into any septic facility
or sanitary sewer system serving the Premises arising on or after the date
Tenant takes possession of the Premises, whether by Tenant or by any agent of
Tenant; or (g) any other act or omission of Tenant, its employees, agents,
invitees, customers, licensees or contractors, provided, however, Tenant shall
not be liable for or be obligated to indemnify Landlord from and against any
damages resulting from Landlord's negligence or willful misconduct.
Tenant's indemnity obligations under this Article and elsewhere in this
Lease arising prior to the termination or permitted assignment of this Lease
shall survive any such termination or assignment.
18.3 Notice of Claim or Suit. Tenant shall promptly notify Landlord of
any claim, action, proceeding or suit instituted or threatened against Tenant or
Landlord of which Tenant receives notice or of which Tenant acquires knowledge.
In the event Landlord is made a party to any action for damages or other relief
against which Tenant has indemnified Landlord, as aforesaid, Tenant shall defend
Landlord, pay all costs and shall provide effective counsel to Landlord in such
litigation or, at Landlord's option, shall pay all attorneys' fees and costs
incurred by Landlord in connection with its own defense or settlement of said
litigation.
18.4 Limitation on Liability of Landlord. In the event Tenant is
awarded a money judgment against Landlord, Tenant's sole recourse for
satisfaction of such judgment shall be limited to: (a) execution against the
Landlord's interest in the Premises or, (b) at Tenant's option (which shall be
irrevocable once elected), a credit against future Rent obligations due
hereunder up to the amount of such judgment(s). In no event shall any partner,
member, officer, director, stockholder or shareholder of Landlord or any partner
thereof or Affiliate or subsidiary thereof, be personally liable for the
obligations of Landlord hereunder.
35
<PAGE>
ARTICLE XIX
DEFAULT
19.1 Events of Default. Each of the following events shall be an Event
of Default hereunder by Tenant and shall constitute a breach of this Lease:
(a) If Tenant shall fail to pay, when due, any Rent, or
portion thereof, or any other sum due to Landlord from Tenant
hereunder, and such failure shall continue for a period of five (5)
days after the due date thereof.
(b) If Tenant shall violate or fail to comply with or perform
any other term, provision, covenant, agreement or condition to be
performed or observed by Tenant under this Lease, and such violation or
failure shall continue for a period of thirty (30) days after written
notice thereof from Landlord; provided, however, if such violation or
failure is incapable of cure by Tenant within such thirty (30) days
after Tenant's diligent and continuous efforts to cure the same, Tenant
shall have an additional period of ninety (90) days to cure the same.
(c) If any assignment, transfer, sublease or encumbrance shall
be made or deemed to be made that is in violation of the provisions of
this Lease.
(d) If Tenant shall cease the actual and continuous operation
of the business contemplated by this Lease to be conducted by Tenant
upon the Premises (and such cessation is not the result of casualty,
condemnation or renovation and accompanying restoration or is not
otherwise permitted by Landlord or is not the result of a legal
requirement or during an emergency); or if Tenant shall vacate, desert
or abandon the Premises; or if the Premises shall become empty and
unoccupied; or if the Premises or Improvements are used or are
permitted to be used for any purpose, or for the conduct of any
activity, not permitted by this Lease.
(e) If, at any time during the Term of this Lease, Tenant
shall file in any court, pursuant to any statute of either the United
States or of any State, a petition in bankruptcy or insolvency, or for
reorganization or arrangement, or for the appointment of a receiver or
trustee of all or any portion of Tenant's property, including, without
limitation, its leasehold interest in the Premises, or if Tenant shall
make an assignment for the benefit of its creditors or petitions for or
enters into an arrangement with its creditors.
(f) If, at any time during the Term of this Lease, there shall
be filed against Tenant in any courts pursuant to any statute of the
United States or of any State, a petition in bankruptcy or insolvency,
or for reorganization, or for the appointment of a receiver or trustee
of all or a portion of Tenant's property, including, without
limitation, its leasehold interest in the Premises, and any such
proceeding against Tenant shall not be dismissed within sixty (60) days
following the commencement thereof.
36
<PAGE>
(g) If Tenant's leasehold interest in the Premises or property
therein shall be seized under any levy, execution, attachment or other
process of court where the same shall not be vacated or stayed on
appeal or otherwise within thirty (30) days thereafter, or if Tenant's
leasehold interest in the Premises is sold by judicial sale and such
sale is not vacated, set aside or stayed on appeal or otherwise within
thirty (30) days thereafter.
(h) If an Event of Default shall occur under and as defined in
that certain Lease Agreement of even date herewith between Landlord and
Tenant with respect to the Residence Inn - Buckhead (Lenox Park) (the
"Other Lease").
(i) If Tenant shall default under any Franchise Agreement or
management agreement for or concerning the Premises.
(j) If a final unappealable determination is made by
applicable state authorities of the revocation or limitation of any
material license, permit, certification or approval required for the
lawful operation of the Premises in accordance with its Permitted Use
or there occurs the loss or material limitation of any material
license, permit, certification or approval under any other
circumstances under which Tenant is required to cease its operation of
the Premises in accordance with its Permitted Use at the time of such
loss or limitation.
(k) If any material representation or warranty made by Tenant
under or in connection with this Lease, the Other Lease, or in any
documents, certificate or agreement delivered in connection therewith
proves to have been false or misleading in any material respect on the
date when made or deemed made, and the same shall continue for five (5)
business days after notice thereof from Landlord.
19.2 Remedies on Default. If any of the Events of Default hereinabove
specified shall occur, Landlord, at any time thereafter, shall have and may
exercise any of the following rights and remedies:
(a) Landlord may, pursuant to written notice thereof to
Tenant, terminate this Lease and, peaceably or pursuant to appropriate
legal proceedings, re-enter, retake and resume possession of the
Premises for Landlord's own account and, for Tenant's breach of and
default under this Lease, recover immediately from Tenant any and all
rents and other sums and damages due or in existence at the time of
such termination, including, without limitation, (i) all Rent and other
sums, charges, payments, costs and expenses agreed and/or required to
be paid by Tenant to Landlord hereunder, (ii) all costs and expenses of
Landlord in connection with the recovery of possession of the Premises,
including reasonable attorney's fees based upon services rendered at
hourly rates and court costs, and (iii) all costs and expenses of
Landlord in connection with any reletting or attempted reletting of the
Premises or any part or parts thereof, including, without limitation,
brokerage fees, advertising costs, reasonable attorney's fees based
upon services
37
<PAGE>
rendered at hourly rates based upon service rendered at hourly rates
and the cost of any alterations or repairs or tenant improvements which
may be reasonably required to so relet the Premises, or any part or
parts thereof.
(b) Landlord may, pursuant to any prior notice required by
law, and without terminating this Lease, peaceably or pursuant to
appropriate legal proceedings, re-enter, retake and resume possession
of the Premises for the account of Tenant, make such alterations of and
repairs and tenant improvements to the Premises as may be reasonably
necessary in order to relet the same or any part or parts thereof and
relet or attempt to relet the Premises or any part or parts thereof for
such term or terms (which may be for a term or terms extending beyond
the Term of this Lease), at such rents and upon such other terms and
provisions as Landlord, in its sole, but reasonable, discretion, may
deem advisable. If Landlord takes possession and control of the
Premises and operates the same, Tenant shall, for so long as Landlord
is actively operating the Premises, have no obligation to operate the
Premises. If Landlord relets or attempts to relet the Premises,
Landlord shall at its sole discretion determine the terms and
provisions of any new lease or sublease and whether or not a particular
proposed new tenant or sublessee is acceptable to Landlord. Upon any
such reletting, all rents received by the Landlord from such reletting
shall be applied, (a) first, to the payment of all costs and expenses
of recovering possession of the Premises, (b) second, to the payment of
any costs and expenses of such reletting, including brokerage fees,
advertising costs, reasonable attorney's fees based upon service
rendered at hourly rates and the cost of any alterations and repairs
reasonably required for such reletting; (c) third, to the payment of
any indebtedness, other than Rent, due hereunder from Tenant to the
Landlord, (d) fourth, to the payment of all Rent and other sums due and
unpaid hereunder, and (e) fifth, the residue, if any, shall be held by
the Landlord and applied in payment of future Rents as the same may
become due and payable hereunder. If the rents received from such
reletting during any period shall be less than that required to be paid
during that period by the Tenant hereunder, Tenant shall promptly pay
any such deficiency to the Landlord and failing the prompt payment
thereof by Tenant to Landlord, Landlord shall immediately be entitled
to institute legal proceedings for the recovery and collection of the
same. Such deficiency shall be calculated and paid at the time each
payment of rent shall otherwise become due under this Lease, or, at the
option of Landlord, at the end of the Term of this Lease. Landlord
shall, in addition, be immediately entitled to sue for and otherwise
recover from Tenant any other damages occasioned by or resulting from
any abandonment of the Premises or other breach of or default under
this Lease other than a default in the payment of rent. No such
re-entry, retaking or resumption of possession of the Premises by the
Landlord for the account of Tenant shall be construed as an election on
the part of Landlord to terminate this Lease unless a written notice of
such intention shall be given to the Tenant or unless the termination
of this Lease be decreed by a court of competent jurisdiction.
Notwithstanding any such re-entry and reletting or attempted reletting
of the Premises or any part or parts thereof for the account of Tenant
without termination, Landlord may at
38
<PAGE>
any time thereafter, upon written notice to Tenant, elect to terminate
this Lease or pursue any other remedy available to Landlord for
Tenant's previous breach of or default under this Lease.
(c) Landlord may, without re-entering, retaking or resuming
possession of the Premises, sue for all Rent and all other sums,
charges, payments, costs and expenses due from Tenant to Landlord
hereunder either: (i) as they become due under this Lease, taking into
account that Tenant's right and option to pay the Rent hereunder on a
monthly basis in any particular Lease Year is conditioned upon the
absence of a default on Tenant's part in the performance of its
obligations under this Lease, or (ii) at Landlord's option, accelerate
the maturity and due date of the whole or any part of the Rent for the
entire then-remaining unexpired balance of the Term of this Lease, as
well as all other sums, charges, payments, costs and expenses required
to be paid by Tenant to Landlord hereunder, including, without
limitation, damages for breach or default of Tenant's obligations
hereunder in existence at the time of such acceleration, such that all
sums due and payable under this Lease shall, following such
acceleration, be treated as being and, in fact, be due and payable in
advance as of the date of such acceleration. Landlord may then proceed
to recover and collect all such unpaid Rent and other sums so sued for
from Tenant by distress, levy, execution or otherwise. Regardless of
which of the foregoing alternative remedies is chosen by Landlord under
this subparagraph (c), Landlord shall not be required to relet the
Premises nor exercise any other right granted to Landlord pursuant to
this Lease, nor shall Landlord be under any obligation to minimize or
mitigate Landlord's damages or Tenant's loss as a result of Tenant's
breach of or default under this Lease. Provided, however, that in the
event that Landlord exercises its option contained in (ii) above and
collects from Tenant all sums contemplated thereby and Landlord
thereafter relets the Premises (the parties acknowledging that Landlord
shall be under no obligation to relet the Premises), then after
deducting the amount of any indebtedness other than Rent due hereunder
from Tenant to Landlord and the payment of all costs and expenses of
reletting, including brokerage fees, attorneys fees, refurbishment,
etc., Landlord agrees, after the expiration of each lease year under
its lease with such new tenant, (and provided that Landlord has
received and collected from the new tenant rental for such period equal
to or greater than the Rent due hereunder and which was paid by Tenant
to Landlord pursuant to (ii) above), to return to Tenant a sum equal to
the portion of the accelerated rental paid by Tenant to Landlord
pursuant to (ii) above allocable to each such recently expired lease
year (after deducting a pro rata share of the aforesaid expenses
allocable to each year). Landlord shall determine amount of such return
in its sole discretion and such determination shall be final and
binding on Tenant.
(d) Landlord may, in addition to any other remedies provided
herein, enter upon the Premises or any portion thereof and take
possession of (i) any and all of Tenant's Personal Property, if any,
and; (ii) Tenant's books and records necessary to operate the Premises,
without liability for trespasses or conversion (Tenant hereby waiving
any right to notice or hearing prior to such taking of possession by
Landlord) and sell the same by public or private sale, after giving
Tenant reasonable notice of the time and place
39
<PAGE>
of any public or private sale, at which sale Landlord or its assigns
may purchase all or any portion of Tenant's Personal Property, if any,
unless otherwise prevented by law. Unless otherwise provided by law and
without intending to exclude any other manner of giving Tenant
reasonable notice, the requirement of reasonable notice shall be met if
such notice if given at least ten (10) days before the date of sale.
The proceeds from any such disposition, less all expenses incurred in
connection with the taking of possession, holding and selling of such
Property (including reasonable attorneys' fees based upon services
rendered at hourly rates) shall be credited against Rent which is due
hereunder.
(e) In addition to the remedies hereinabove specified and
enumerated, Landlord shall have and may exercise the right to invoke
any other remedies allowed at law or in equity as if the remedies of
re-entry, unlawful detainer proceedings and other remedies were not
herein provided. Accordingly, the mention in this Lease of any
particular remedy shall not preclude Landlord from having or exercising
any other remedy at law or in equity. Nothing herein contained shall be
construed as precluding the Landlord from having or exercising such
lawful remedies as may be and become necessary in order to preserve the
Landlord's right or the interest of the Landlord in the Premises and in
this Lease, even before the expiration of any notice periods provided
for in this Lease, if under the particular circumstances then existing
the allowance of such notice periods will prejudice or will endanger
the rights and estate of the Landlord in this Lease and in the
Premises. In addition, any provision of this Lease to the contrary
notwithstanding, no provision of this Lease shall delay or otherwise
limit Landlord's right to seek injunctive relief or Tenant's obligation
to comply with any such injunctive relief.
Provided, however, in the event that the Tenant's default
hereunder is the default contemplated in paragraph 19.1(j) above, and
such default in not caused by Tenant or any person claiming by, through
or under Tenant (including manager), or does not result form any action
or inaction on the part of Tenant or any person claiming by, through or
under Tenant (including the manager) but results solely from causes
beyond Tenant's control or actions (or person claiming by, through or
under Tenant) then with respect to such a default, Landlord's sole
remedy shall be to terminate this Lease and Landlord shall not be
entitled to recover from Tenant any damages.
19.3 Landlord May Cure Tenant Defaults. If Tenant shall default in the
performance of any term, provisions, covenant or condition on its part to be
performed hereunder, Landlord may, after notice to Tenant and a reasonable time
to perform after such notice (or without notice if, in Landlord's reasonable
opinion, an emergency exists) perform the same for the account and at the
expense of Tenant. If, at any time and by reason of such default, Landlord is
compelled to pay, or elects to pay, any sum of money or do any act which will
require the payment of any sum of money, or is compelled to incur any expense in
the enforcement of its rights hereunder or otherwise, such sum or sums, together
with interest thereon at the Prime Rate plus eight percent (8%) shall be deemed
Additional Rent hereunder and shall be repaid to Landlord by Tenant promptly
when billed therefor, and Landlord shall have all the same rights and remedies
in respect thereof as Landlord has in respect of the rents herein reserved.
40
<PAGE>
19.4 Landlord's Lien. Landlord shall have at all times during the Term
of this Lease, a valid lien for all rents and other sums of money becoming due
hereunder from Tenant, upon all goods, accounts, wares, merchandise, inventory,
furniture, fixtures, equipment, vehicles and other personal property and effects
of Tenant situated in or upon the Premises, and such property shall not be
removed therefrom except in accordance with the terms of this Lease without the
approval and consent of Landlord until all arrearages in rent as well as any and
all other sums of money then due to Landlord hereunder shall first have been
paid and discharged in full. Upon the occurrence of any Event of Default by
Tenant, Landlord may, in addition to any other remedies provided herein or by
law, enter upon the Premises and take possession of any and all goods, wares,
merchandise, books and records, inventory, furniture, fixtures, equipment,
vehicles and other personal property and effects of Tenant situated in or upon
or with respect to the Premises without liability for trespass or conversion,
and sell the same at public or private sale, with or without having such
property appraised, at which Landlord or its assigns may purchase any of the
same and apply the proceeds thereof, less any and all expenses connected with
the taking of possession and sale, as a credit against any sums due by Tenant,
and Tenant agrees to pay any deficiency forthwith. If Landlord takes possession
and control of the Premises and operates the same, Tenant shall for so long as
Landlord is actively operating the Premises, have no obligation to operate the
Premises. Alternatively, the lien hereby granted may be foreclosed in the manner
and form provided by law for foreclosure of security interests or in any other
manner and form provided by law. The statutory lien for rent, if any, is not
hereby waived and the express contractual lien herein granted is in addition
thereto and supplementary thereto. Tenant agrees to execute and deliver to
Landlord from time to time during the Term of this Lease such Financing
Statements as may be required by Landlord in order to perfect the Landlord's
lien provided herein or by state law. Tenant further agrees that during an Event
of Default or the pendency of any event or circumstance which, with the passage
of time may become an Event of Default, Tenant shall not make any distributions
to its shareholders, partners, members or other owners and any such
distributions shall be considered and deemed to be fraudulent and preferential
and subordinate to Landlord's claim for Rent and other sums hereunder.
19.5 The Other Lease. As referenced in this Lease, Landlord and Tenant
are, concurrently with the execution of this Lease, entering into the Other
Lease. It is the express agreement and understanding of Landlord and Tenant that
this Lease and the Other Lease are and shall be cross defaulted such that a
default under and/or termination of this Lease or the Other Lease shall be in
and constitute a default and or termination of the Other Lease or this Lease,
respectively. Provided, however, if this Lease is terminated by either Landlord
or Tenant as a result of a casualty pursuant to Sections 9.1 or 9.2, such
termination shall not constitute or require a termination of the Other Lease and
such Other Lease shall survive the termination of this Lease under Sections 9.1
and 9.2. Further, it is the express agreement, intent and understanding of
Landlord and Tenant that this Lease and the Other Lease are not severable.
Further, in the event that Tenant shall file for, or there shall be filed
against Tenant, bankruptcy, insolvency or a similar arrangement or proceeding,
that this Lease and the Other Lease shall be and remain cross defaulted and
considered one Lease and may not be severed or assumed separately in any such
41
<PAGE>
proceedings, it being the express agreement and intent of Landlord and Tenant
that both this Lease and the Other Lease shall be rejected by any receiver or
trustee in any such proceedings or both said Leases shall be assumed by any such
receiver or trustee.
19.6 Rights Cumulative. The rights and remedies provided and available
to Landlord in this Lease are distinct, separate and cumulative remedies, and no
one of them, whether or not exercised by Landlord, shall be deemed to be in
exclusion of any other.
ARTICLE XX
REIT REQUIREMENTS
Tenant understands that, in order for Landlord to qualify as a real
estate investment trust (a "REIT") under the Internal Revenue Code (the "Code"),
the following requirements (the "REIT Requirements") must be satisfied:
20.1 The average of the adjusted tax bases of the personal property
that is leased to Tenant with respect to the Premises at the beginning and end
of a calendar year cannot exceed fifteen percent (15%) of the average of the
aggregate adjusted tax bases of the real and personal property comprising such
Premises that is leased to Tenant under such lease at the beginning and end of
such calendar year (the "Personal Property Limitation"). If Landlord reasonably
anticipates that the Personal Property Limitation will be exceeded with respect
to the Premises for any Lease Year, Landlord shall notify Tenant, and Landlord
and Tenant shall negotiate in good faith the purchase by Tenant of items of
personal property anticipated by Landlord to be in excess of the Personal
Property Limitation. Provided, however, that Tenant's responsibility to purchase
such personal property will be offset by Landlord in some mutually agreeable
manner.
20.2 Tenant cannot sublet the property that is leased to it by
Landlord, or enter into any similar arrangement, on any basis such that the
rental or other amounts paid by the sublessee thereunder would be based, in
whole or in part, on either (a) the net income or profits derived by the
business activities of the sublessee or (b) any other formula such that any
portion of the rent paid by Tenant to Landlord would fail to qualify as "rent
from real property" within the meaning of Section 856(d) of the Code.
20.3 Anything to the contrary in this Agreement notwithstanding, Tenant
shall not sublease the property leased to it by Landlord to, or enter into any
similar arrangement with, any person in which Landlord owns, directly or
indirectly, a ten percent (10%) or more interest, with the meaning of Section
856(d)(2)(B) of the Code, and any such action shall be deemed void ab initio.
42
<PAGE>
20.4 Anything to the contrary in this Agreement notwithstanding,
neither party shall take, or permit to take, any action that would cause
Landlord to own, directly or indirectly, a ten percent (10%) or greater interest
in the Tenant within the meaning of Section 856(d)(2)(B) of the Code, and any
similar or successor provision thereto, and any such action shall be deemed void
ab initio.
ARTICLE XXI
NOTICES
Any notice required or permitted to be given under this Lease shall be
deemed given if delivered personally to an officer or general partner of the
party to be notified or sent by (a) United States registered or certified mail,
postage prepaid, return receipt requested, (b) telecopy or (c) overnight courier
service, and addressed as follows:
If to Landlord: CNL Hospitality Properties, Inc.
400 East South Street, Suite 500
Orlando, Florida 32801
ATTN: Mr. C. Brian Strickland
With a copy to: Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, Florida 32801
ATTN: Richard J. Fildes, Esquire
If to Tenant: STC Leasing Associates, LLC
c/o Stormont Trice Corporation
One Riverside
Suite 300
4401 Northside Parkway
Atlanta, Georgia 30327
ATTN: Mr. James M. Stormont, Jr.
With a copy to: King and Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763
ATTN: Robert G. Pennington, Esquire
or such other address or party as may be designated by either party by written
notice to the other. Except as otherwise provided in this Lease, every notice,
demand, request or other communication hereunder shall be deemed to have been
given or served upon actual receipt thereof. Accordingly, a notice shall not be
effective until actually received. Notwithstanding the foregoing, any notice
mailed to the last designated address of any person or party to which a notice
may be or is required to be delivered pursuant to this Lease shall not be deemed
43
<PAGE>
ineffective if actual delivery cannot be made due to a change of address of the
person or party to which the notice is directed or the failure or refusal of
such person or party to accept delivery of the notice.
ARTICLE XXIII
MISCELLANEOUS
23.1 "Net" Lease. Landlord and Tenant acknowledge and agree that both
parties intend that this Lease shall be and constitute what is generally
referred to in the real estate industry as a "triple net" or "absolute net"
lease, such that Tenant shall be obligated hereunder to pay all costs and
expenses incurred with respect to, and associated with, the Premises and all
personal property thereon and therein and the business operated thereon and
therein, including, without limitation, all taxes and assessments, utility
charges, insurance costs, maintenance costs and repair, replacement and
restoration expenses (all as more particularly herein provided) and all costs
and expenses for, under and with respect to the Franchise Agreement and any
management agreement for the Premises, together with any and all other
assessments, charges, costs and expenses of any kind or nature whatsoever
related to, or associated with, the Premises and the business operated thereon
and therein; provided, however, that Landlord shall nonetheless be obligated to
pay any debt service on any mortgage encumbering Landlord's fee simple interest
in the Premises, and Landlord's personal income taxes with respect to the rents
received by Landlord under this Lease. Except as expressly hereinabove provided,
Landlord shall bear no cost or expense of any type or nature with respect to, or
associated with, the Premises.
23.2 Estoppel Certificates. Tenant shall from time to time, within
fifteen (15) days after request by Landlord and without charge, give a Tenant
Estoppel Certificate in the form attached hereto as Exhibit E and containing
such other matters as may be reasonably requested by Landlord to any person,
firm or corporation specified by Landlord.
23.3 Brokerage. Landlord and Tenant hereby represent and warrant to
each other that they have not engaged, employed or utilized the services of any
business or real estate brokers, salesmen, agents or finders in the initiation,
negotiation or consummation of the business and real estate transaction
reflected in this Lease. On the basis of such representation and warranty, each
party shall and hereby agrees to indemnify and save and hold the other party
harmless from and against the payment of any commissions or fees to or claims
for commissions or fees by any real estate or business broker, salesman, agent
or finder resulting from or arising out of any actions taken or agreements made
by them with respect to the business and real estate transaction reflected in
this Lease.
23.4 No Partnership or Joint Venture. Landlord shall not, by virtue of
this Lease, in any way or for any purpose, be deemed to be a partner of Tenant
in the conduct of Tenant's business upon, within or from the Premises or
otherwise, or a joint venturer or a member of a joint enterprise with Tenant.
44
<PAGE>
23.5 Entire Agreement. This Lease contains the entire agreement between
the parties and, except as otherwise provided herein, can only be changed,
modified, amended or terminated by an instrument in writing executed by the
parties. It is mutually acknowledged and agreed by Landlord and Tenant that
there are no verbal agreements, representations, warranties or other
understandings affecting the same; and that Tenant hereby waives, as a material
part of the consideration hereof, all claims against Landlord for rescission,
damages or any other form of relief by reason of any alleged covenant, warranty,
representation, agreement or understanding not contained in this Lease. This
Lease shall not be changed, amended or modified except by a written instrument
executed by Landlord and Tenant.
23.6 Waiver. No release, discharge or waiver of any provision hereof
shall be enforceable against or binding upon Landlord or Tenant unless in
writing and executed by Landlord or Tenant, as the case may be. Neither the
failure of Landlord or Tenant to insist upon a strict performance of any of the
terms, provisions, covenants, agreements and conditions hereof, nor the
acceptance of any Rent by Landlord with knowledge of a breach of this Lease by
Tenant in the performance of its obligations hereunder, or the following of any
practice or custom at variance with the terms hereof, shall not be deemed or
constitute a waiver of any rights or remedies that Landlord or Tenant may have
or a waiver of any subsequent breach or default in any of such terms,
provisions, covenants, agreements and conditions or the waiver of the right to
demand exact compliance with the terms hereof.
23.7 Time. Time is of the essence in every particular of this Lease,
including, without limitation, obligations for the payment of money.
23.8 Costs and Attorneys' Fees. In addition to Landlord's rights under
Sections 18.2 and 19.2, if either party shall bring an action to recover any sum
due hereunder, or for any breach hereunder, and shall obtain a judgment or
decree in its favor, the court may award to such prevailing party its reasonable
costs and reasonable attorney's fees based upon service rendered at hourly
rates, specifically including reasonable attorney's fees based upon service
rendered at hourly rates incurred in connection with any appeals (whether or not
taxable as such by law). Landlord shall also be entitled to recover its
reasonable attorney's fees based upon service rendered at hourly rates and costs
incurred in any bankruptcy action filed by or against Tenant, including, without
limitation, those incurred in seeking relief from the automatic stay, in dealing
with the assumption or rejection of this Lease, in any adversary proceeding, and
in the preparation and filing of any proof of claim.
23.9 Approval of Landlord. Whenever the consent to or of Landlord is
referred to or is a condition precedent to the taking of any action by Tenant,
unless otherwise provided herein, such consent or approval shall not be
unreasonably withheld or delayed, and the failure of Landlord to notify Tenant
that it does not give its consent or approval within thirty (30) days after
receipt of any request shall be deemed to constitute such consent or approval.
Whenever Tenant is required under this Lease to do anything to meet the
satisfaction or judgement of Landlord, the reasonable satisfaction or judgement
of Landlord shall be deemed sufficient. The foregoing provision of this Section
shall not apply in any instance where the provisions of this
45
<PAGE>
Lease expressly state that the provisions of this Section do not apply or where
the provisions of this Lease expressly state that such consent, approval or
satisfaction are subject to the sole and absolute discretion or judgement of
Landlord, and in each such instance Landlord's approval or consent may be
unreasonably withheld or unreasonable satisfaction or judgement may be exercised
by Landlord.
23.10 Captions and Headings. The captions and headings in this Lease
have been inserted herein only as a matter of convenience and for reference and
in no way define, limit or describe the scope or intent of, or otherwise affect,
the provisions of this Lease.
23.11 Severability. If any provision of this Lease shall be deemed to
be invalid, it shall be considered deleted therefrom and shall not invalidate
the remaining provisions of this Lease.
23.12 Successors and Assigns. The agreements, terms, provisions,
covenants and conditions contained in this Lease shall be binding upon and inure
to the benefit of Landlord and Tenant and, to the extent permitted herein, their
respective successors and assigns.
23.13 Applicable Law. This Lease shall be governed by, and construed in
accordance with, the laws of the State in which the Premises is located.
23.14 Recordation of Memorandum of Lease. At either party's option, a
short form memorandum of this Lease, in the form attached hereto as Exhibit F
shall be recorded or filed among the appropriate land records of the County in
which the Premises is located, and Tenant shall pay the transfer and all
recording costs associated therewith. In the event of a discrepancy between the
provisions of this Lease and such short form memorandum thereof, the provisions
of this Lease shall prevail.
23.15 Waiver of Jury Trial. TENANT AND LANDLORD HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM OR THEIR HEIRS,
PERSONAL REPRESENTATIVES, SUCCESSORS OR ASSIGNS MAY HAVE TO A TRIAL BY JURY IN
RESPECT TO ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LEASE
OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT TO LANDLORD'S
ACCEPTING THIS LEASE.
23.16 Guaranty. In order to further secure Tenant's obligations
hereunder, Stormont Trice Corporation, Stormont Trice Development Corporation
and Stormont Trice Management Corporation (each a "Guarantor" and collectively
"Guarantors") have agreed to provide, and shall provide, a joint and several
Guaranty of this Lease, the form of which Guaranty is attached hereto as Exhibit
G and by this reference made a part hereof. The original of such Guaranty shall
be executed by the Guarantors in connection with the execution of this Lease.
The Guarantors have further joined in executing this Lease for the sole purpose
of acknowledging their agreement to
46
<PAGE>
provide such Guaranty and the Guaranty referenced in Section 23.22. The Tenant
is an Affiliate of the Guarantors and some if not all of the officers, directors
and shareholders of the Guarantors are also officers and directors of the Tenant
and the Guarantors therefore will benefit from Tenant's entering into this
Lease.
23.17 Landlord's Option to Terminate Lease.
(a) In the event Landlord enters into a bona fide contract to
sell the Premises to a non-Affiliated Person, Landlord may terminate the Lease
by giving not less than ninety (90) days' prior Notice to Tenant of Landlord's
election to terminate the Lease effective upon the closing under such contract.
Effective upon such closing, this Lease shall terminate and be of no further
force and effect except as to any obligations of the parties existing as of such
date that survive termination of this Lease. As compensation for the early
termination of its leasehold estate under this Section 23.17(a), Landlord shall
within 180 days of such closing, pay to Tenant the fair market value of Tenant's
leasehold estate hereunder, plus twenty percent (20%). In addition, in the event
if such early termination as provided herein in this Section 23.17 (a) Landlord
shall deliver the Retained Funds to Tenant. In the event Landlord and Tenant are
unable to agree upon the fair market value of an original or replacement
leasehold estate, it shall be determined by appraisal using the appraisal
procedure set forth in Section 23.17(b).
For the purposes of this Section, fair market value of the
leasehold estate (i) means, as applicable, an amount equal to the price that a
willing buyer not compelled to buy would pay a willing seller not compelled to
sell for Tenant's leasehold estate under this Lease or an offered replacement
leasehold estate, and (ii) shall not contemplate the existence of a third party
management agreement with respect to which management fees are paid.
(b) If it becomes necessary to determine fair market value for
any purpose of this Lease, the party required or permitted to give Notice of
such required determination shall include in the Notice the name of a person
selected to act as appraiser on its behalf. Within ten (10) days after Notice,
Landlord (or Tenant, as the case may be) shall by Notice to Tenant (or Landlord,
as the case may be) appoint a second person as appraiser on its behalf. The
appraisers thus appointed, each of whom must be a member of the American
Institute of Real Estate Appraisers (or any successor organization thereto) with
at lease five years experience in the State where the Premises are located
appraising property similar to the Premises, shall, within 45 days after the
date of the Notice appointing the first appraiser, proceed to appraise said the
Premises to determine the fair market value as of the relevant date (giving
effect to the impact, if any, of inflation from the date of their decision to
the relevant date); provided, however, that if only one appraiser shall have
been so appointed, then the determination of such appraiser shall be final and
binding upon the parties. If two appraisers are appointed and if the difference
between the amounts so determined does not exceed five percent (5%) of the
lesser of such amounts, then fair market value shall be an amount equal to fifty
(50%) percent of the sum of the amounts so determined. If the difference between
the amounts so determined exceeds five percent of the lesser of such amounts,
then such two appraisers shall have twenty days to appoint a third appraiser. If
no such appraiser shall have been appointed with such twenty days, or within
ninety
47
<PAGE>
(90) days of the original request for a determination of fair market value,
whichever is earlier, either Landlord or Tenant may apply to any court having
jurisdiction to have such appointment made by such court. Any appraiser
appointed by the original appraisers or by such court shall be instructed to
determine fair market value within 45 days after appointment of such appraiser.
The determination of the appraiser which differs most in the terms of dollar
amount from the determinations of the other two appraisers shall be excluded,
and fifty percent of the sum of the remaining two determinations shall be final
and binding upon Landlord and Tenant as the fair market value. This provision
for determining by appraisal shall be specifically enforceable to the extent
such remedy is available under applicable law, and any determination hereunder
shall be final and binding upon the parties except as otherwise provided by
applicable law. Landlord shall pay the fees and expenses of the appraisers.
(c) In the event this Lease Agreement terminates pursuant to
Section 4(A) or 4(B) of that certain Owner Agreement between Landlord, Tenant
and Franchisor of even date herewith (the "Owner Agreement"), as compensation
for such termination, Landlord shall, within 180 days of such termination, pay
Tenant the fair market value of Tenant's leasehold estate plus 20% as
contemplated in subparagraph (a) hereof. Further, in the event Franchisor
terminates the Owner Agreement and the Franchise Agreement pursuant to Section
4(C) of the Owner Agreement, (i) Landlord shall pay for all costs of
"de-identifying" and "re-identifying" the Improvements, and (ii) Landlord and
Tenant shall in good faith negotiate and agree upon a new "flag" for the
Premises and any changes to the terms of this Lease. If Landlord and Tenant
cannot agree upon a new "flag" or any changes to this Lease as referenced in
(ii) of the preceding sentence, either Landlord or Tenant shall have the right
to terminate this Lease by notice to the other party, whereupon (x) this Lease
shall terminate on the first business day following the expiration of the second
calendar month after the receipt of such notice and Landlord shall within 60
days following such termination pay to Tenant the fair market value of Tenant's
leasehold estate as determined pursuant to subparagraph (a) above; provided,
however, Landlord shall not be obligated to pay the additional 20% of such fair
market value as referenced in subparagraph (a) hereof.
23.18 Treatment of Lease. Landlord and Tenant each agree to treat this
Lease as a true lease for tax purposes and as an operating lease for generally
accepted accounting principles.
23.19 Landlord's Option to Acquire the Tenant's Personal Property;
Transfer of Licenses. Upon the expiration or early termination of this Lease,
the Landlord shall have the right and option to acquire all of Tenant's Personal
Property then in place or utilized at or within the Premises for the then market
value thereof (current replacement cost as determined by appraisal subject to,
and with appropriate price adjustments for, all equipment leases, conditional
sales contracts, UCC-1 Financing statements and other encumbrances to which such
personal property is subject, at the time of such expiration or termination of
this Lease. Provided, Landlord's right to acquire the Tenant's Personal Property
as herein provided shall be in addition to and not in lieu of Landlord's rights
with respect to Tenant's Personal Property as a result of a default hereunder by
Tenant. Further, upon the expiration or sooner termination of this Lease, Tenant
shall use its best efforts to transfer and assign to Landlord or its designee or
assist Landlord or
48
<PAGE>
its designee in obtaining, any contracts, licenses, permits, development rights,
trade names, telephone exchange numbers identified with the Premises, approvals
and certificates and all other transferable intangible property, miscellaneous
rights, benefits and privileges of any kind or character with respect to the
Premises useful or required for the then operation of the Premises.
23.20 Tenant's Representations.
In addition to the any other representation or warranty set
forth herein and as an inducement to Landlord to enter into this Lease,
Tenant hereby represents and warrants to Landlord as follows:
(a) Tenant is a limited liability company duly organized and
validly existing and in good standing under the laws of the State of
Georgia. Tenant has all requisite power and authority under the laws of
the State of Georgia and its charter documents to enter into and
perform its obligations under this Lease and to consummate the
transactions contemplated hereby. Tenant is duly authorized to transact
business in any jurisdiction in which the nature of the business
conducted by it requires such qualification.
(b) Tenant has taken all necessary action to authorize the
execution, delivery and performance of this Lease, and upon the
execution and delivery of any document to be delivered by Tenant, prior
to the date hereof, such document shall constitute the valid and
binding obligation and agreement of Tenant, enforceable against Tenant
in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application affecting the rights and remedies
of creditors and except to the extent that the availability of
equitable relief may be subject to the discretion of the court before
which any proceeding may be brought.
(c) Neither the execution and delivery of this Lease or the
compliance with the terms and provisions hereof, will result in any
breach of the terms, conditions or provisions of, or conflict with or
constitute a default under, or result in the creation of any lien,
charges or encumbrance upon any property or assets of Tenant pursuant
to the terms of any other indenture, mortgage, deed of trust, note,
evidence of indebtedness, agreement or other instrument to which Tenant
may be a party or by which it or any of its properties may be bound, or
violate any provisions of law, or any applicable order, writ,
injunction, judgement or decree of any court, or any order or other
public regulation of any governmental commission, bureau or
administrative agency.
(d) There are no judgements presently outstanding and
unsatisfied against Tenant or any of its properties, and neither Tenant
nor any of its properties are involved in any material litigation at
law or in equity or any proceeding before any court, or by or before
any governmental or administrative agency, which litigation or
proceeding could materially adversely affect Tenant, and no such
material litigation or proceeding is, to the knowledge of Tenant,
threatened against Tenant and no investigation looking toward such a
proceeding has begun or is contemplated.
49
<PAGE>
(e) To the knowledge of Tenant, neither this Lease nor any
other document, certificate or statement furnished to Landlord by or on
behalf of Tenant in connection with the transaction contemplated herein
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained
herein or therein not misleading. To the knowledge of Tenant there is
no fact or condition which materially and adversely affects the
business, operations, affairs, properties or condition of Tenant which
has not been set forth in this Lease or in other documents,
certificates or statements furnished to Landlord in connection with the
transaction contemplated hereby.
(f) Tenant hereby represents to Landlord that, in the
reasonable opinion of Tenant, the Premises and the Improvements therein
are adequately furnished and contain adequate FF&E and inventory
consistent with the amount of FF&E and inventory which is customarily
maintained in a hotel of the type and character of the Premises as
otherwise required to operate the Premises in a manner contemplated by
this Lease and in compliance with the Franchise Agreement and all legal
requirements. In addition to the foregoing, Tenant shall provide and
maintain throughout the Term, all Tenant's Personal Property as shall
be necessary in order to operate the Premises in compliance with
applicable legal requirements and insurance requirements and otherwise
in accordance with customarily practice in the industry for the
Permitted Use. If, from and after the Commencement Date, Tenant
acquires an interest in any items of tangible personal property (other
than motor vehicles) on, or in connection with the Premises which
belong to anyone other than Tenant, Tenant shall require the agreement
permitting such use to provide that Landlord or its designee may assume
Tenant's rights and obligations under such agreement upon the
termination of this Lease and any assumption of management or operation
of the Premises by Landlord or its designee.
(g) Tenant shall deliver to Landlord within thirty (30) days
after receipt of or after modification thereof, copies of all licenses
authorizing Tenant and/or manager to operate the Premises for its
Permitted Use.
(h) Tenant shall give prompt notice to Landlord of any
litigation or any administrative proceeding to which it may hereafter
become a party of which tenant has notice or actual knowledge and which
involves a potential uninsured liability equal to or greater than
$100,000.00 or which, in Tenant's reasonable opinion, may otherwise
result in any material adverse change in the business, operations,
property, prospects, results of operation or conditions, financial or
otherwise, of Tenant.
(i) During the Term of this Lease, except as approved in
writing by Landlord, and except for those nights when all rooms in the
Premises are sold, Tenant shall not, either directly or indirectly, for
itself, or through, or on behalf of, or in connection with any Person,
divert or attempt to divert any business or customer of the Premises to
any
50
<PAGE>
competitor, by direct or indirect inducement or otherwise, or do or
perform, directly or indirectly, any other act injurious or prejudicial
to the good will associate with the Landlord or the Premises.
(j) Tenant acknowledges that Tenant's failure or repeated
delays in making prompt payment in accordance with the terms of any
agreement, leases, invoices or statements for purchase or lease of
furniture, fixtures, equipment, inventories, supplies, travel agent
services or other goods or services will be detrimental to the
reputation of Landlord and Tenant. Accordingly, Tenant agrees that
Tenant shall pay when due all undisputed amounts owed by Tenant in
connection with the operation of the Premises.
(k) All employees of Tenant are solely employees of Tenant and
not Landlord. Tenant is not Landlord's agent for any purpose in regard
to Tenant's employees or otherwise. Further, Tenant expressly
acknowledges and agrees that Landlord does exercise any direction or
control over the employment policies or employment decisions of Tenant.
(l) Tenant shall submit to Landlord within ninety (90) days
after the end of each calendar year during the Term of this Lease, a
list of all members of the Tenant (being a limited liability company),
and the respective interests in Tenant held by each of such members as
of the end of each calendar year. If Tenant is a corporation, or if any
member of Tenant is a corporation, Tenant shall submit to Landlord
within ninety (90) days after the end of each calendar year during the
Term of this Lease, a list of all shareholders and the respective
interests of Tenant (or such corporate member) held by each of such
shareholders as of the end of each calendar year. In addition, if
Tenant is a partnership, Tenant shall submit to Landlord within ninety
(90) days after the end of each calendar year during the Term of this
Lease a list of all partners and the respect interests in Tenant held
by each partner as of the end of each calendar year.
23.21 No Merger of Title. It is expressly acknowledged and agreed that
it is the intent of the parties that there shall be no merger of this Lease or
of the leasehold estate created hereby by reason of the fact that the same
Person may acquire, own or hold, directly or indirectly, this Lease or the
leasehold estate created hereby and the fee estate or ground landlord's interest
in the Premises.
23.22 Additional Obligations relating to the Franchise Agreement. In
addition to the obligations contained herein, Tenant agrees to deliver to
Landlord (a) copies of all notices provided by the Franchisor to Tenant under
the terms of the Franchise Agreement concerning notices of default, notices of
changes or modifications to the Premises and the like; and (b) evidence of
acceptable to Landlord that Tenant has paid to Franchisor all sums due from
Tenant to Franchisor under the Franchise Agreement.
51
<PAGE>
In addition to the foregoing, Tenant expressly understands,
acknowledges and agrees that in connection with the execution of this Lease,
Landlord has entered into that certain Owner's Agreement between Landlord,
Tenant and Franchisor and that in the event of a default under the Franchise
Agreement by Tenant, Landlord may be or become liable to Franchisor under the
terms of the Owner's Agreement and the Franchise Agreement. Tenant further
acknowledges and agrees that Tenant shall indemnify and hold Landlord harmless
from and against any and all loss, damage, injunctions, obligations, suits,
actions, fines, penalties, claims, demands, costs and expenses of any kind and
nature resulting or arising directly or indirectly from Tenant's default under
the Franchise Agreement. Accordingly, to further secure Tenant's indemnity
obligations to Landlord hereunder with respect to defaults under the Franchise
Agreement, the Guarantors, in addition to the Guaranty of even date herewith,
referenced in Section 23.16 hereof, shall execute that certain separate Guaranty
in favor of Landlord, a copy of which is attached hereto as Exhibit I. The
original of such Guaranty shall be executed by the Guarantors in connection with
the execution of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
duly executed on or as of the day and year first above written.
Signed, sealed and delivered
in the presence of: CNL HOSPITALITY PARTNERS, L.P.
a Delaware limited partnership
By: /s/ Charles A. Muller
Name: Charles A. Muller
Title: Executive Vice President
(CORPORATE SEAL)
"LANDLORD"
STC LEASING ASSOCIATES, LLC
a Georgia Limited Liability Company
By: /s/ James M. Stormont, Jr.
Name: James M. Stormont, Jr.
Its: Authorized Member
(CORPORATE SEAL)
52
<PAGE>
"TENANT"
STORMONT TRICE CORPORATION,
By: /s/ James M. Stormont, Jr.
Name: James M. Stormont, Jr.
Its: Treasurer
(CORPORATE SEAL)
STORMONT TRICE DEVELOPMENT
CORPORATION
By: /s/ James M. Stormont, Jr.
Name: James M. Stormont, Jr.
Its: Vice President
(CORPORATE SEAL)
STORMONT TRICE MANAGEMENT
CORPORATION
By: /s/ James M. Stormont, Jr.
Name: James M. Stormont, Jr.
Its: Treasurer
(CORPORATE SEAL)
"GUARANTORS"
53
<PAGE>
JOINDER OF STORMONT TRICE MANAGEMENT CORPORATION
Stormont Trice Management Corporation, as the manager of the Premises,
hereby joins in the execution of this Lease as Manager for the purpose of
acknowledging and agreeing to the restriction and limitation set forth in
Article 3.2 hereof (regarding the subordinate position of manager, the
management agreement and management fees to this Lease) and Article 3.5 hereof
regarding the operation of a Conflicting Business within the Prescribed Area by
manager.
STORMONT TRICE MANAGEMENT
CORPORATION
By: /s/ James M. Stormont, Jr.
Its: Treasurer
54
<PAGE>
EXHIBIT 10.16
Lease Agreement between CNL Hospitality Properties, L.P. and
STC Leasing Associates, LLC, dated August 1, 1998,
relating to the Residence Inn - Buckhead (Lenox Park)
<PAGE>
RESIDENCE INN - BUCKHEAD (Lenox Park)
LEASE AGREEMENT
Between
CNL HOSPITALITY PARTNERS, L.P.
a Delaware Limited Partnership Corporation,
as Landlord,
and
STC LEASING ASSOCIATES, LLC,
a Georgia Limited Liability Company,
as Tenant,
Dated
as of
August 1, 1998
<PAGE>
LEASE AGREEMENT
TABLE OF CONTENTS
PAGE
ARTICLE I....................................................................1
AGREEMENT TO LEASE..................................................1
1.1 Demise............................................1
1.2 Condition.........................................1
1.3 Quiet Enjoyment...................................2
ARTICLE II...................................................................2
TERM................................................................2
2.1 Initial Term......................................2
2.2 Commencement Date.................................2
2.3 Option to Renew...................................2
ARTICLE III..................................................................3
USE AND OPERATION OF PREMISES.......................................3
3.1 Permitted Use.....................................3
3.2 Standard of Operation.............................3
3.3 Compliance with Laws..............................3
3.4 Hazardous Materials and Sewage Prohibited.........4
3.5 Conflicting Businesses Prohibited.................5
3.6 Continuous Operations.............................6
3.7 Compliance With Restrictions, Etc.................6
3.8 Affiliate.........................................6
3.9 Additional Covenants of Tenant....................6
ARTICLE IV...................................................................7
RENT................................................................7
4.1 Base Rent.........................................7
4.2 Percentage Rent...................................8
4.3 Payment of Percentage Rent........................9
4.4 Additional Rentals/Earn Out......................10
4.5 Financial Statements.............................10
4.6 Records..........................................11
4.7 Audit............................................11
4.8 Landlord Advances................................11
4.9 Sales Tax........................................12
4.10 Payment of Rent..................................12
4.11 Past Due Rent....................................12
4.12 No Abatement of Rent.............................12
4.13 Security for Tenant's Performance................12
i
<PAGE>
ARTICLE V...................................................................13
TAXES AND ASSESSMENTS..............................................13
5.1 Obligation to Pay Taxes..........................13
5.2 Tax and Insurance Escrow Account.................14
ARTICLE VI..................................................................15
UTILITIES..........................................................15
ARTICLE VII.................................................................15
AGREEMENTS, FEES, ETC..............................................15
ARTICLE VIII................................................................15
INSURANCE..........................................................15
8.1 Insurance by Tenant..............................15
8.2 Carriers and Features............................18
8.3 Failure to Procure Insurance.....................18
8.4 Waiver of Subrogation............................19
8.5 No Separate Insurance............................19
ARTICLE IX..................................................................19
DAMAGE OR DESTRUCTION..............................................19
9.1 Restoration and Repair...........................19
9.2 Insufficient Insurance Proceeds..................19
9.3 Escrow of Insurance Proceeds.....................20
9.4 Abatement of Rent................................20
ARTICLE X...................................................................21
ADDITIONS, ALTERATIONS AND REMOVALS................................21
10.1 Prohibition......................................21
10.2 Permitted Renovations............................21
10.3 Additions, Expansions and Structural Alterations.22
ARTICLE XI..................................................................23
MAINTENANCE AND REPAIRS............................................23
11.1 Repairs by Tenant................................23
11.2 Landlord's Obligation............................23
11.3 The FF&E Reserve.................................25
ARTICLE XII.................................................................26
LANDLORD'S RIGHT TO INSPECT........................................26
ARTICLE XIII................................................................26
ASSIGNMENT, TRANSFER AND SUBLETTING BY TENANT......................26
13.1 Transfers Prohibited Without Consent.............26
13.2 Indirect Transfer Prohibited Without Consent.....26
13.3 Adequate Assurances..............................27
ii
<PAGE>
ARTICLE XIV.................................................................28
LANDLORD'S INTEREST NOT SUBJECT TO LIENS...........................28
14.1 Liens, Generally.................................28
14.2 Mechanics Liens..................................28
14.3 Contest of Liens.................................28
14.4 Notices of Commencement of Construction..........29
ARTICLE XV..................................................................29
CONDEMNATION.......................................................29
15.1 Complete Taking..................................29
15.2 Partial Taking...................................29
15.3 Award............................................29
15.4 Disputes.........................................30
ARTICLE XVI.................................................................30
SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE......................30
16.1 Subordination....................................30
16.2 Attornment.......................................31
16.3 Rights of Mortgagees and Assignees...............31
ARTICLE XVII................................................................32
END OF TERM........................................................32
17.1 Surrender of Premises............................32
17.2 Holding Over.....................................32
ARTICLE XVIII...............................................................32
LIABILITY OF LANDLORD; INDEMNIFICATION.............................32
18.1 Liability of Landlord............................32
18.2 Indemnification of Landlord......................32
18.3 Notice of Claim or Suit..........................33
18.4 Limitation on Liability of Landlord..............33
ARTICLE XIX.................................................................34
DEFAULT............................................................34
19.1 Events of Default................................34
19.2 Remedies on Default..............................35
19.3 Landlord May Cure Tenant Defaults................38
19.4 Landlord's Lien..................................38
19.6 Rights Cumulative................................39
ARTICLE XX..................................................................39
REIT REQUIREMENTS..................................................39
ARTICLE XXI.................................................................40
NOTICES............................................................40
iii
<PAGE>
ARTICLE XXIII...............................................................41
MISCELLANEOUS......................................................41
23.1 "Net" Lease......................................41
23.2 Estoppel Certificates............................41
23.3 Brokerage........................................42
23.4 No Partnership or Joint Venture..................42
23.5 Entire Agreement.................................42
23.6 Waiver...........................................42
23.7 Time.............................................42
23.8 Costs and Attorneys' Fees........................42
23.9 Approval of Landlord.............................43
23.10 Captions and Headings............................43
23.11 Severability.....................................43
23.12 Successors and Assigns...........................43
23.13 Applicable Law...................................43
23.14 Recordation of Memorandum of Lease...............43
23.15 Waiver of Jury Trial.............................43
23.16 Guaranty.........................................44
23.17 Landlord's Option to Terminate Lease.............44
23.18 Treatment of Lease...............................45
23.19 Landlord's Option to Acquire the Tenant's
Personal Property; Transfer of Licenses........45
23.20 Tenant's Representations.........................46
23.21 No Merger of Title...............................48
23.22 Additional Obligations relating to the
Franchise Agreement............................48
iv
<PAGE>
LEASE AGREEMENT
THIS LEASE AND AGREEMENT (the "Lease") made and entered into as of this
1st day of August, 1998 by and between CNL Hospitality Partners, L.P., a
Delaware Limited Partnership (the "Landlord") and STC Leasing Associates, LLC, a
Georgia Limited Liability Company (the "Tenant");
W I T N E S S E T H:
WHEREAS, Landlord is the record owner of fee simple title to that
certain parcel of real property located in Dekalb County, Georgia more
particularly and legally described on Exhibit A attached hereto (the "Land"),
upon which there has been constructed and located certain improvements in the
nature of a 150 suite Residence Inn by Marriott, together with related paved
parking and appurtenant improvements known as "Residence Inn" - Buckhead (Lenox
Park)(together the "Improvements"); and
WHEREAS, Landlord is also the owner of the items of personal property
more particularly described on Exhibit B attached hereto (the "FF&E") and
WHEREAS, Tenant desires to lease from Landlord, and Landlord has agreed
to lease to Tenant, all of the Land and Improvements and FF&E (together the
"Premises"), upon the terms and conditions as more particularly hereinafter
provided and described;
NOW, THEREFORE, for and in consideration of the premises hereof, the
sums of money to be paid hereunder, and the mutual and reciprocal obligations
undertaken herein, the parties hereto do hereby covenant, stipulate and agree as
follows:
ARTICLE I
AGREEMENT TO LEASE
1.1 Demise. Landlord, for and in consideration of the rents herein
reserved and required to be paid by Tenant and of the covenants, promises and
agreements herein contained, does hereby demise, let and lease unto Tenant, and
Tenant, for and in consideration of the foregoing demise by Landlord and of the
covenants, promises and agreements herein contained does hereby hire, lease and
take as Tenant from Landlord the entire Premises, upon those terms and
conditions hereinafter set forth together with and subject to easements,
restrictions and reservations of record. The subject demise does not include the
Tenant's operating supplies, inventory and equipment, more particularly
described on Exhibit C attached hereto (the "Tenant's Personal Property").
1.2 Condition. Tenant acknowledges and agrees that the Premises are and
shall be leased by Landlord to Tenant and from Landlord by Tenant in its present
"as is" condition, subject to the existing state of title and all applicable
legal or governmental requirements, and Landlord makes absolutely no
representations or warranties whatsoever with respect to the Premises or the
condition thereof. Tenant acknowledges that Landlord has not investigated and
does not warrant or represent to Tenant that the Premises are fit for the
purposes intended by Tenant or for any other purpose or purposes whatsoever, and
Tenant acknowledges that the
<PAGE>
Premises are to be leased to Tenant in their existing condition, i.e., "as-is",
and "where-is", without any representation or warranty as to habitability or
fitness for any particular purpose, on and as of the Commencement Date defined
in Section 2.2 below. Tenant, however, represents and acknowledges that all
permits, licenses and approvals required by any governmental or
quasi-governmental, body, department, commission, board, bureau, instrumentality
or officer, or otherwise appropriate with respect to the construction,
operation, leasing, maintenance or use of the Premises or any part thereof, have
been issued and are valid and in full force and effect and that no provision,
condition or limitation of any of the same has been breached or violated. Tenant
acknowledges that Tenant shall, except as otherwise provided herein in Section
11.2, be solely responsible for any and all actions, repairs, permits, approvals
and costs required for the rehabilitation, renovation, use, occupancy and
operation of the Premises in accordance with applicable governmental
requirements, foreseen or unforeseen, including, without limitation, all
governmental charges and fees, if any, which may be due or payable to applicable
authorities. Tenant agrees that, by leasing the Premises, Tenant warrants and
represents that Tenant has examined and approved all things concerning the
Premises which Tenant deems material to Tenant's leasing and use of the
Premises. Tenant further acknowledges and agrees that (a) neither Landlord nor
any agent of Landlord has made any representation or warranty, express or
implied, concerning the Premises or which have induced Tenant to execute this
Lease and (b) any other representations and warranties are expressly disclaimed
by Landlord.
1.3 Quiet Enjoyment. Landlord covenants and agrees that so long as
Tenant shall timely pay all rents due to Landlord from Tenant hereunder and
keep, observe and perform all covenants, promises and agreements on Tenant's
part to be kept, observed and performed hereunder, Tenant shall and may
peacefully and quietly have, hold and occupy the Premises free of any
interference from Landlord; subject, however, and nevertheless to the terms,
provisions and conditions of this Lease.
ARTICLE II
TERM
2.1 Initial Term. The initial term of this Lease (sometimes the
"Initial Term") shall, unless sooner terminated as elsewhere provided in this
Lease, commence on the Commencement Date (as hereinafter defined) and terminate
and expire at 11:59 p.m. on August 31, 2017. For purposes of this Lease the word
"Term" shall mean and refer to the Initial Term and each five (5) year extension
of this Lease duly exercised and effective pursuant to Section 2.3 hereof.
2.2 Commencement Date. For the purposes of this Lease, the
"Commencement Date" shall be August 1, 1998.
2.3 Option to Renew. Tenant shall have and is hereby granted three (3)
options to extend this Lease for an additional five (5) years each, upon the
same terms, covenants, conditions and rental as set forth herein; provided that
Tenant is not in default hereunder at the commencement of the respective
additional period and provided Tenant has simultaneously extended the term of
the Other Lease. Tenant may exercise each such five (5) year option successively
by giving written notice to Landlord not less than twelve (12) months nor more
than
2
<PAGE>
eighteen (18) months prior to the respective expiration of the initial Term of
this Lease or of the then applicable option period. Should Tenant fail to give
Landlord such timely written notice during the required period, all remaining
rights of renewal shall automatically expire.
ARTICLE III
USE AND OPERATION OF PREMISES
3.1 Permitted Use. Tenant covenants and agrees that it shall,
throughout the Term of this Lease, continuously use and occupy the Premises
solely and exclusively as a limited service inn, for the accommodation of hotel
guests, with appropriate amenities for the same and for no other purpose without
interruption except for reasonable interruptions in respect to portions of the
Premises for reasonable periods for repairs, renovations, replacements and
rebuilding all of which shall be carried out pursuant to, and in accordance with
the applicable provisions of this Lease (the foregoing being referred to as the
"Permitted Use"). Without the prior written consent of the Landlord, no
Affiliate of Tenant may be a subtenant or concessionaire in the Premises.
3.2 Standard of Operation. Throughout the Term of this Lease, Tenant
shall continuously operate the Premises in full compliance with the terms hereof
and of that certain Franchise Agreement between Tenant and Marriott
International, Inc. dated May 23, 1996 (for so long as the same is in effect)
and thereafter pursuant to any other franchise agreement approved by Landlord
(for the purposes hereof, the aforesaid Marriott Franchise Agreement and any
subsequent franchise agreement are hereinafter together referred to as a
"Franchise Agreement"). In the absence of a Franchise Agreement, Tenant shall
continuously operate the Premises as a first-class extended stay hotel. Tenant
shall endeavor and use good faith efforts to maximize Gross Receipts and gross
operating profit for the Premises. Tenant shall further provide, or cause to be
provided, all group services, facilities and benefits generally available to
Residence Inns by Marriott operated elsewhere by Residence Inns by Marriott
System Standards or the standards of any successor franchisor or licensor, if
any. Tenant may, at its option and at its expense, engage a manager for the
Premises; provided however, that any manager and any management agreement for
the Premises shall be subject to Landlord's prior approval, shall be subordinate
to this Lease (and accordingly all management fees shall be subordinate to rent
hereunder) and shall terminate and expire, if not sooner, upon the expiration or
earlier termination of this Lease. For purposes of Landlord's approval of a
manager as required by the preceding sentence, the Landlord hereby agrees that
any manager, (a) the principals of which are, and the majority of the beneficial
interest of which are held and owned by, and the power to direct all operations
and the day-to-day management is lodged in, Richard M. Stormont, and/or Donald
R. Trice and/or James M. Stormont, Jr., and (b) which is actually and primarily
involved in the business of managing hotels and actually manages at least four
(4) hotels and 1000 rooms, shall be acceptable, provided the management
agreement with such manager shall still require the Landlord's approval. The
terms of Section 23.9 are not applicable to Landlord's approval herein.
3.3 Compliance with Laws. Tenant shall at all times at its sole cost
and expense, keep and maintain the Premises in compliance with all applicable
laws, ordinances, statutes, rules, regulations, orders, directions and
requirements of all federal, state, county and municipal governments and of all
other governmental agencies or authorities having or claiming jurisdiction over
the Premises or the business activities conducted thereon or therein and of all
of their respective departments, bureaus, agencies or officers, and of any
insurance underwriting board
3
<PAGE>
or insurance inspection bureau having or claiming such jurisdiction or any other
body exercising similar functions and of all insurance companies from time to
time selected by Tenant to write policies of insurance covering the Premises and
any business or business activity conducted thereon or therein whether the same
are currently existing or promulgated hereafter. Tenant agrees to give Landlord
notice of any of the foregoing matters affecting the Premises which is or are
enacted, passed, promulgated, made, issued or adopted a copy of which is served
upon, or received by Tenant or a copy of which is posted on or fastened or
attached to the Premises, within ten (10) days after service, receipt, posting,
fastening or attaching. At the same time, the Tenant will inform Landlord as to
the work or steps which Tenant proposes to do or take in order to comply
therewith.
Notwithstanding the generality of the foregoing, Tenant shall, at its
sole expense, maintain the Premises in full compliance with all applicable
federal, state or municipal laws, ordinances, rules and regulations currently in
existence or hereafter enacted or rendered governing accessibility for the
disabled or handicapped, including, but not limited to, any applicable
provisions of The Architectural Barriers Act of 1968, The Rehabilitation Act of
1973, The Fair Housing Act of 1988, The Americans With Disabilities Act, the
accessibility code(s), if any, of the State in which the Premises is located,
and all regulations and guidelines promulgated under any all of the foregoing,
as the same may be amended from time to time (collectively the "Accessibility
Laws").
In addition, Tenant shall not suffer or permit the Premises to be used
by the public, as such without restriction or in such manner as might tend to
impair Landlord's title to, or its reversionary interest in, the Premises or in
such manner as might make possible a claim or claims of adverse usage or adverse
possession by the public, as such or of implied dedication of the Premises or
any portion thereof.
3.4 Hazardous Materials and Sewage Prohibited. Except as permitted by
applicable law, Tenant shall at all times during the Term of this Lease keep the
Premises free of Hazardous Materials (as hereinafter defined). Neither Tenant
nor any of its employees, agents, invitees, licensees, contractors, guests, or
subtenants (if permitted) shall use, generate, manufacture, refine, treat,
process, produce, store, deposit, handle, transport, release, or dispose of
Hazardous Materials in, on or about the Premises or the groundwater thereof, in
violation of any federal, state or municipal law, decision, statute, rule,
ordinance or regulation currently in existence or hereafter enacted or rendered.
Tenant shall give Landlord prompt written notice of any claim received by Tenant
from any person, entity, or governmental agency that a release or disposal of
Hazardous Materials has occurred on the Premises or the groundwater thereof. As
used herein, the Term "Hazardous Materials" shall mean and be defined as any and
all toxic or hazardous substances, chemicals, materials or pollutants, of any
kind or nature, which are regulated, governed, restricted or prohibited by any
federal, state or local law, decision, statute, rule, or ordinance currently in
existence or hereafter enacted or rendered, and shall include (without
limitation), all oil, gasoline and petroleum based substances.
Tenant shall not discharge or permit to be discharged into any septic
facility or sanitary sewer system serving the Premises any toxic or hazardous
sewage or waste other than that which permitted by applicable law or which is
normal domestic waste water for the type of business contemplated by this Lease
to be conducted by Tenant on, in or from the Premises. Any toxic
4
<PAGE>
or hazardous sewage or waste which is produced or generated in connection with
the use or operation of the Premises shall be handled and disposed of as
required by and in compliance with all applicable local, state and federal laws,
ordinances and rules or regulations or shall be pre- treated to the level of
domestic wastewater prior to discharge into any septic facility or sanitary
sewer system serving the Premises.
3.5 Conflicting Businesses Prohibited. Landlord and Tenant hereby
recognize and acknowledge (a) that the Base Rent and the Percentage Rent payable
by Tenant to Landlord under this Lease have been established at the levels
specified in this Lease upon the premise and with the expectation that
Percentage Rent will constitute a material part of the total rents payable by
Tenant to Landlord under this Lease, (b) that the expectation of receiving
Percentage Rent constitutes a material consideration for Landlord's willingness
to execute this Lease and thereby lease and demise the Premises to Tenant, and
(c) that the operation, management, franchising or ownership by Tenant or an
Affiliate of Tenant of another business of the type specified in Section 3.1
above or any substantially similar or competing business (other than a full
service hotel as hereinafter defined (such other business or substantially
similar or competing business being referred to herein as a "Conflicting
Business") within the trade area depicted on Exhibit D attached hereto (the
"Proscribed Area") will tend to result in a decrease in the amount of Gross
Receipts which would otherwise reasonably be expected to be made upon, within
and from the Premises and thereby result in a reduction of the Percentage Rent
which would otherwise be payable by Tenant to Landlord pursuant to this Lease in
the absence of the operation of a Conflicting Business by Tenant or any
Affiliate of Tenant (as hereinafter defined) within the Proscribed Area.
Accordingly, Tenant on behalf of itself and its Affiliates, and Tenant's manager
(who has joined in the execution of this Lease solely to acknowledge the
restriction herein) agree that during the Term of this Lease neither Tenant, nor
any Affiliate of Tenant nor Tenant's manager, shall operate, manage, franchise,
own or have any other interest in a Conflicting Business within the Proscribed
Area. In the event of a breach of this covenant, in addition to any other remedy
otherwise available to Landlord, including injunctive relief, Landlord may, at
its election, require that forty percent (40%) of all Gross Receipts made from
any such Conflicting Business opened, operated, managed, leased, developed or
owned by Tenant or any affiliate or subsidiary of Tenant within the Proscribed
Area be included in the amount of Gross Receipts made from the Premises for
purposes of the determination and calculation of the Percentage Rent due from
Tenant to Landlord under this Lease (i.e., as though such Gross Receipts of the
Conflicting Business had actually been made upon, within and from the Premises).
If Landlord so elects, all provisions of Article IV of this Lease relating to
Tenant's maintenance and submission to Landlord of books, records and statements
shall be applicable to all books, records and statements pertaining to any such
Conflicting Businesses. However, any such Conflicting Business existing within
the Proscribed Area on the date of this Lease may continue to be operated,
managed, conducted and owned by Tenant or any Affiliate or subsidiary of Tenant
in the same manner as on the date of this Lease. Further, Tenant agrees that
Tenant's sole business shall be to lease, and Tenant shall not incur any
expenses or liability related to any business or activity other than leasing and
operating, the Premises, the premises contemplated by the Other Lease (as
hereinafter defined), and other premises owned or hereinafter owned by Landlord
or its Affiliates pursuant to terms acceptable to Landlord and Tenant. For
purposes hereof, "Full service hotel" shall mean, generally, a hotel with a
restaurant, lounge facilities and meeting space as well as minimum service
levels often including bell service and room service.
5
<PAGE>
3.6 Continuous Operations. Tenant shall continuously operate its
business and maintain sufficient skilled staff and employees, and maintain
adequate levels and quality of Tenant's Personal Property to operate the
Premises as herein or otherwise required at its sole cost and expense throughout
the entire Term of this Lease.
3.7 Compliance With Restrictions, Etc. Tenant, at its expense, shall
comply with all restrictive covenants and other title exceptions affecting the
Premises and comply with and perform all of the obligations set forth in the
same to the extent that the same are applicable to the Premises or to the extent
that the same would, if not complied with or perform, impair or prevent the
continued use, occupancy and operation of the Premises for the purposes set
forth in this Lease. Further, in addition to Tenant's payment obligations under
this Lease, Tenant shall pay all sums charged, levied or assessed under any
restrictive covenants, declaration, reciprocal easement agreement or other title
exceptions, equipment leases, leases and all other agreements affecting the
Premises promptly as the same become due and shall furnish Landlord evidence of
payment thereof.
3.8 Affiliate. As used in this Lease the term "Affiliate" of any Person
shall mean (a) any other Person directly or indirectly controlling, controlled
by, or under common control with, such Person, or any general partner in such
Person or any officer or director, stockholder, or member of such Person or any
employee, agent, representative, successor or assign of any of the foregoing;
(b) any trustee of such Person; or (c) if such Person is an individual, any
member of the Family of such Person and any trusts for the benefit of such
individual or Family members. For purposes of this Section 3.8, the term
"control" (including the correlative meanings of the terms "controlling,"
"controlled by" and "under common control with") as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or to cause the direction of the management policies of such Person
whether through the ownership of voting securities or by contract or otherwise.
Further, for purposes of this Section 3.8 "Family" shall mean, as to any Person,
such Person's grandparents, all lineal descendants of such Person's
grandparents, Persons adopted by, or stepchildren of, any such grandparent or
descendant and Persons currently married to, or who are widows or widowers of,
any such grandparent, descendant, adoptee or stepchild. In addition, for
purposes of this definition, "Person" shall mean any individual, corporation,
partnership, limited liability company, joint venture, estate, trust,
unincorporated association, and any federal, state, county or municipal
government and any political subdivision thereof.
3.9 Additional Covenants of Tenant. In addition to the other covenants
and representations of Tenant herein, Tenant hereby covenants, acknowledges and
agrees that Tenant shall:
(a) Not guaranty any obligation of any Person;
(b) Pay or cause to be paid when due all lawful claims for
labor and rents with respect to the Premises;
(c) Pay or cause to be paid when due all trade payables;
6
<PAGE>
(d) Not declare, order, pay or make, directly or indirectly,
any distributions or any payments to any members or Affiliates of
Tenant, including payments in the ordinary course of business and
payments pursuant to management agreements with any such Affiliate) or
set apart any sum of property therefore, or agree to do so, if, at the
time of such proposed action or immediately after giving effect
thereto, any monetary Event of Default shall exist;
(e) Except as otherwise permitted by this Lease, not sell,
lease (as lessor or sublessor), transfer or otherwise dispose of or
abandon, all or any material portion of its assets or business to any
Person, or sell, lease, transfer or otherwise dispose of or abandon any
of Tenant's Personal Property, provided, however, Tenant may dispose of
portions of Tenant's Personal Property which have become inadequate,
obsolete, worn-out, unsuitable, undesirable or unnecessary, provided
substitute equipment or fixtures having equal or greater value and
utility have been provided.
(f) Except for liabilities incurred in the ordinary course of
business, not create, incur, assume or guarantee, or permit to exist or
become or remain liable directly or indirectly upon, any obligation,
contingent or otherwise, which in accordance with GAAP should be
reflected on the obligor's balance sheet as a liability
("Indebtedness") except the following:
(i) Indebtedness of Tenant to Landlord;
(ii) Unsecured borrowing of Tenant from its
Affiliates which are by their terms expressly subordinate
pursuant to a subordination agreement to the payments of
Tenant's obligations under this Agreement; or
(iii) Deferred fees to the Manager as provided in the
Management Agreement, provided that such fees shall be, from
and after the occurrence of a default or Event of Default,
subordinate to all amounts owing to Landlord.
ARTICLE IV
RENT
4.1 Base Rent. Subject to proration as set forth below, and subject to
increase as set forth in Article 4.4, 9.2 and Article 11.2 hereof, Tenant shall
pay as annual base rent for the Premises ("Base Rent") as follows: (a) for the
first Lease Year (as hereinafter defined) the sum of ONE MILLION SIX HUNDRED
FIFTY-FOUR THOUSAND THREE HUNDRED AND EIGHTY AND NO/100 DOLLARS ($1,654,380.00),
together with all applicable sales and use and other taxes thereon, which shall
be due and payable on the Commencement Date; and (b) for the second Lease Year
and for each successive Lease Year thereafter during the Term, the sum of ONE
MILLION SIX HUNDRED NINETY THREE THOUSAND SEVEN HUNDRED SEVENTY AND NO/100
DOLLARS ($1,693,770.00) together with all applicable sales and use and other
taxes thereon (other than Landlord's income taxes) which , shall be due and
payable in full on the first day of each such Lease Year. However, at Tenant's
option, and so long as Tenant shall not be in default of its obligations under
this Lease, Base Rent may be paid by Tenant to Landlord in equal monthly
installments, in advance, on the first (1st) day of each
7
<PAGE>
calendar month commencing on the first (1st) day of the calendar month
immediately following the Commencement Date, it being agreed that Base Rent
payable with respect to the period between the Commencement Date and the first
day of the following calendar month shall be due at the time that the first
payment of Base Rent is due. In the event of a default by Tenant of its
obligations under this Lease, the full amount of Base Rent for such period, less
the aggregate amount of all monthly installments of Base Rent previously paid
for such period, shall be immediately due and payable by Tenant to Landlord.
For the purposes of this Lease, the term "Lease Year" shall mean and be
defined as each twelve month period commencing on the first day of the calendar
month immediately following the Commencement Date; provided, however, that the
first Lease Year shall include the period from the Commencement Date to the
first day of the next following calendar month. Base Rent shall be
proportionately prorated for any extended or partial Lease Year (i.e., the first
Lease Year and/or the final Lease Year).
4.2 Percentage Rent. In addition to, and not in lieu of, Base Rent,
Tenant shall pay to Landlord during the Term of this Lease a sum ("Percentage
Rent") which, when combined with the Percentage Rent under the Other Lease, will
equal fifteen percent (15%) of the consolidated Gross Receipts for the Premises
and the premises under and contemplated by the Other Lease (as hereinafter
defined) in excess of $8,080,000.00 for each calendar year during the Term of
this Lease. For the convenience of Tenant, and for so long as Tenant is not in
default hereunder or under the Other Lease, a portion of such Percentage Rent as
determined above shall be payable hereunder and the balance shall be payable
under the Other Lease. If there is a default hereunder or under the Other Lease,
the entire fifteen percent (15%) of Percentage Rent shall be paid under the
Lease which is not in default. Provided, further, if the Other Lease is
terminated the threshold for calculating Percentage Rent at the rate of fifteen
percent (15%) shall be FOUR MILLION SIX HUNDRED SEVENTY THOUSAND AND NO/100
DOLLARS ($4,670,000.00)
For the purposes of this Lease and in the calculation of Percentage
Rent, the term "Gross Receipts" shall mean and be defined as all revenues
derived by Tenant or any operator or manager of the Premises on behalf of
Tenant, or any part thereof, (or when the term is used with respect to any
entity other than Tenant, all revenue derived by such other entity) in respect
to the Premises from whatever source including without limitation all hotel
departments, parking, services and operations, off-premises catering, if any,
and all sales and services in, about and originating from the Premises
(including any common area) excluding only: interest income earned by Tenant;
the sale of used equipment, trade fixtures or any other capital assets; loan
proceeds; capital contributions; condemnation proceeds (other than those
received in respect of a temporary taking); insurance proceeds, other than so
called "business interruption or rent insurance" proceeds; such credits
allowances (but not allowances for bad debts) and refunds as are customary in
the hotel industry; returns of merchandise from or on behalf of a customer;
service charges paid by guests to the extent paid to employees of the hotel as
tips and gratuities; the amount of any sales, use or excise taxes, taxes on
rents and other similar taxes. Gross Receipts shall not be deemed cumulative
from one calendar year to any succeeding calendar year. Rather they shall be
computed separately for each calendar year on an accrual basis in accordance
with the Uniform System of Accounts for Hotels (Ninth Revised Edition, 1996 as
adopted by the American Hotel and Motel Association (the "Uniform System of
Accounts"). Each sale on credit
8
<PAGE>
shall be treated as a sale for the full price in cash during the month in which
such sale is initially made, irrespective of the time when Tenant or its manager
actually receives payment (whether full or partial) from its customer or any
applicable credit or credit card agency, and no deduction shall be allowed for
uncollected or uncollectible credit accounts or sales. Revenue earned by Tenant
or its manager from sales by any permitted sublessee, concessionaire or licensee
on, in or from the Premises shall be included in Gross Receipts.
4.3 Payment of Percentage Rent. Tenant shall within thirty (30) days
after the end of each calendar quarter during the Term of this Lease submit to
Landlord an unaudited (but certified by a duly authorized officer of Tenant)
statement showing a detailed breakdown of the calculation of Percentage Rent on
a quarterly and calendar year-to-date basis. For purposes of such quarterly
calculations, Percentage Rent shall be due and payable on Gross Receipts in
excess of $2,020,000.00 (being one fourth of the annual threshold referenced in
Section 4.2 hereof.)] On or before February 1, May 1, August 1 and November 1 of
each calendar year during the Term of this Lease, Tenant shall pay to Landlord,
together with the installment of Base Rent then due, any Percentage Rent
applicable to the immediately preceding calendar quarter (i.e., the May 1
Percentage Rent payment will constitute Percentage Rent due for the first
calendar quarter of the year, and so on). Percentage Rent for any partial
calendar quarter (i.e., in the first Lease year and the final Lease year) shall
be prorated proportionately. Tenant's obligation to pay Percentage Rent for the
calendar quarter which includes the date of termination of this Lease shall
survive the termination hereof.
Tenant shall, no later than 90 days following the end of each calendar
year during the Term hereof furnish to Landlord for such calendar year a
complete statement (the "Annual Operations Statement") certified by an
independent certified public accountant who is actively engaged in the practice
of his professions and who is acceptable to Landlord (which Statement shall also
be certified either by an officer or a partner in Tenant), setting forth, with
respect to such calendar year in reasonable detail the Gross Receipts derived by
or for the benefit of the Tenant in respect of such calendar year together with
copies of statements from the manager of the Hotel as to its respective
operations in the Hotel or on the Premises including without limitation, all
expenses incurred and income derived by them, respectively, in respect of the
Premises. If the Annual Operations Statement for any calendar year indicated
that the aggregate of the installment payments theretofore made with respect to
such calendar year pursuant to this paragraph exceeds the Percentage Rent due
for such calendar year, Landlord shall credit such overpayment together with
interest thereon determined as set forth below in this paragraph against the
next installment or installments of Base Rent falling due (or will pay the
amount of such overpayment, together with such interest to Tenant if the Lease
shall have terminated other than by reason of Tenant's default or if Landlord so
elects to do so). If, on the other hand, the Annual Operations Statement
indicates that the aggregate of the installment payments theretofore made with
respect to such calendar year is less than the Percentage Rent due for such
calendar year then Tenant shall pay the balance or excess, as the case may be,
together with interest thereon determined as set forth below in this paragraph,
to Landlord concurrently with the submission of the Annual Operations Statement.
Interest shall accrue at the Prime Rate from the last day of the month to which
it is so attributed until the date when the adjusted amount is fully credited or
paid (as the case may be), in the manner as set forth above. For purposes of
this Lease, Prime Rate shall mean and refer to the fluctuating annual rate equal
at all times to the annual rate of interest publicly announced from time to time
by Citibank, N.A. or, if such rate
9
<PAGE>
is no longer publicly announced by Citibank, N.A., the Prime Rate announced in
the "Money Rates" Section of the Wall Street Journal. Each change in the Prime
Rate shall take effect on the first day of the month immediately succeeding the
month in which the corresponding change occurs in the then applicable rate
referred to above, and in the event of multiple changes in such applicable rate
during such month, the change in the Prime Rate shall be based on the last such
applicable rate in effect during the subject month.
4.4 Additional Rentals/Earn Out. In the event that Tenant and or
Stormont Trice Management Corporation should, pursuant to the terms of paragraph
21 of that certain Hotel Purchase and Sale Contract between CNL Real Estate
Advisors, Inc., and Buckhead Residence Associates, LLC, dated April 24, 1998, as
amended by First Amendment to Hotel Purchase and Sale Contract dated July 31,
1998 (the "Purchase Contract") as assigned by CNL Real Estate Advisors, Inc., to
Landlord, (which paragraph 21 survived the closing of such Purchase Contract),
earn additional sales proceeds (purchase price), at such time as additional
sales proceeds (purchase price) are, in fact, paid to Tenant or Tenant's
designee pursuant to such paragraph 21, the Base Rent due hereunder shall
concurrently therewith be increased by that sum derived by multiplying the
amount of additional purchase price paid by the sum of ten and three-quarters
percent (10.75%).
4.5 Financial Statements. Throughout the Term of this Lease, Tenant
shall prepare and deliver to Landlord at or prior to the end of each month
during the Term hereof, a profit and loss statement and operating balance sheet
showing the results of the operation of the Premises for the immediately
preceding month and for the calendar year to date. Tenant shall provide Landlord
with a complete financial statement which shall be delivered prior to the end of
the next following month, in the form customarily provided in the industry and
approved in advance by the Landlord, and which shall: (a) be taken from the
books and records maintained by Tenant and its manager in the form specified
herein; (b) follow the general form set forth in the Uniform System of Accounts;
and (c) indicate variances from budgeted results for each line item against the
approved budget for the Premises for such calendar year. The aforesaid profit
and loss statement, operating balance sheet and financial statements shall be
accompanied by an Officer's Certificate which, for purposes hereof shall mean a
Certificate of any Officer of Tenant (or such Officer's designee), duly
authorized, which such Officer shall certify (a) that such statements have been
properly prepared in accordance with GAAP and the Uniform System of Accounts and
are true, correct and complete in all material respects and fairly present the
consolidated financial condition of the Tenant at and as of the dates thereof
and the results of its operations for the period covered thereby, and (b) that
no Event of Default has occurred and is continuing hereunder. Tenant shall
deliver to Landlord within ninety (90) days after the end of each calendar year,
a profit and loss statement, balance sheet and statement of cash flow certified
by an independent certified public account who is actively engaged in the
practice of his professional and who is acceptable to Landlord (which statement
shall also be certified by an officer or partner in Tenant) together with copies
of all reports and communications furnished to Tenant's manager, showing results
from the operation of the Premises during such calendar year, and reasons for
material variations from the approved budget for such year. Tenant shall also
deliver to Landlord at any time and from time to time, upon not less than twenty
(20) days notice from Landlord, any financial statements or other financial
reporting information required to be filed by Landlord with the Securities and
Exchange Commission or any other governmental authority or required pursuant to
any order issued by any court, governmental authority or arbitrator in any
litigation
10
<PAGE>
to which Landlord is a party for purposes of compliance therewith. Any disputes
concerning the contents of such statements or any accounting matter thereunder
shall be determined by the approved independent certified public account
providing such statement. The financial statements required herein are in
addition to the statement required under Section 4.3 hereof.
4.6 Records. Tenant shall keep and maintain at all times in accordance
with generally accepted accounting principles, consistently applied, and the
Uniform System of Accounts (separate and apart from its other books, records and
accounts) complete and accurate up-to-date books and records adequate to reflect
clearly and correctly the results of operations of the Premises, on an accrual
basis, including but not limited to, each calculation of Percentage Rent. Such
books and records shall be kept and maintained at the Premises or Tenant's
principal office in Atlanta, Georgia or, upon notice to Landlord, at the
principal office of the manager of the Premises in Atlanta, Georgia. Landlord or
its representatives shall have, at all reasonable times during normal business
hours, reasonable access, on reasonable advance notice, to examine and copy the
books and records pertaining to the Premises. Such books and records shall be
kept by the Tenant at the corporate offices of Stormont Trice Corporation in
Atlanta and shall be available for at least four (4) years after the applicable
quarterly calculation of Percentage Rent for Landlord's inspection, copying,
review and audit at Landlord's expense during reasonable business hours and upon
reasonable notice for the purpose of verifying the accuracy of Tenant's
calculation of Percentage Rent. At Landlord's request, an authorized employee or
agent of Tenant and its manager shall be available on a quarterly basis to meet
with Landlord or its representatives and review the Tenant's operations and
records.
4.7 Audit. Landlord shall have the right to audit the books and records
of Tenant at any time during the Term of this Lease. If any such audit of
Tenant's books and records by Landlord or its agent shall reveal a deficiency in
the calculation and/or payment of Percentage Rent, Tenant shall forthwith pay
Landlord the amount of any such deficiency plus interest thereon at the rate
specified in this Lease. If any such audit shall reveal a deficiency greater
than three percent (3%) of the Percentage Rent actually paid by Tenant to
Landlord, Tenant shall in addition to the amount of such deficiency and interest
thereon, as aforesaid, also pay to Landlord the reasonable costs of such audit.
Additionally, if Gross Receipts shall be found to be willfully or intentionally
understated or if Percentage Rent shall be understated by three percent (3%) or
more and Landlord has previously notified Tenant at least once during the Term
of this Lease of a three percent (3%) or more understatement of Percentage Rent,
or if proper books and records are not maintained by Tenant as required
hereunder, Landlord shall have the right to declare an Event of Default under
this Lease.
4.8 Landlord Advances. If Landlord shall make any expenditure for which
Tenant is responsible or liable under this Lease, or if Tenant shall become
obligated to Landlord under this Lease for any sum other than Base Rent or
Percentage Rent as hereinabove provided, the amount thereof shall be deemed to
constitute additional rent ("Additional Rent") and shall be due and payable by
Tenant to Landlord, together with all applicable sales taxes thereon, if any,
simultaneously with the next succeeding monthly installment of Base Rent or at
such other time as may be expressly provided in this Lease for the payment of
the same.
For the purpose of this Lease, the term "Rent" shall mean and be
defined as all Base Rent, Percentage Rent and Additional Rent due from Tenant to
Landlord hereunder.
11
<PAGE>
4.9 Sales Tax. In addition to the Rent and any other sums or amounts
required to be paid by Tenant to Landlord pursuant to the provisions of this
Lease, Tenant shall also pay to Landlord, simultaneously with such payment of
such Rent or other sums or amounts, the amount of any applicable sales, use,
excise or similar or other tax on any such Rent or other sums or amounts so paid
by Tenant to Landlord, whether the same be levied, imposed or assessed by the
State in which the Premises is located or any other federal, state, county or
municipal governmental entity or agency. Any such sales, use, excise or similar
or other taxes shall be paid by Tenant to Landlord at the same time that each of
the amounts with respect to which such taxes are payable are paid by Tenant to
Landlord. Landlord shall upon written request by Tenant provide to Tenant on an
annual basis such reasonable information as shall be necessary to enable Tenant
to pay such tax.
4.10 Payment of Rent. Each of the foregoing amounts of Rent and other
sums shall be paid to Landlord without demand and without deduction, set-off,
claim or counterclaim of any nature whatsoever which Tenant may have or allege
to have against Landlord, and all such payments shall, upon receipt by Landlord,
be and remain the sole and absolute property of Landlord. All such Rent and
other sums shall be paid to Landlord in legal tender of the United States at the
address to which notices to Landlord are to be given or to such other party or
to such other address as Landlord may designate from time to time by written
notice to Tenant. If Landlord shall at any time accept any such Rent or other
sums after the same shall become due and payable, such acceptance shall not
excuse a delay upon subsequent occasions, or constitute or be construed as a
waiver of any of Landlord's rights hereunder.
4.11 Past Due Rent. If Tenant fails to make any payment of Rent or any
other sums or amounts to be paid by Tenant hereunder on or before the fifth day
after the date such payment is due and payable, Tenant shall pay to Landlord an
administrative late charge of five percent (5%) of the amount of such payment.
In addition, such past due payment shall bear interest at the Prime Rate plus
eight percent (8%) from the date such payment became due to the date of payment
thereof by Tenant. Thus, for example, if the Prime Rate is seven percent (7%)
the said default rate would be fifteen percent (15%). Such late charge and
interest shall constitute Additional Rent and shall be due and payable with the
next installment of Rent due hereunder.
4.12 No Abatement of Rent. No abatement, diminution or reduction (a) of
Rent, charges or other compensation, or (b) of Tenant's other obligations
hereunder shall be allowed to Tenant or any person claiming under Tenant, under
any circumstances or for any reason whatsoever and to the maximum extent
permitted by law, Tenant hereby waives the application of any local or state
statutes, land rules, regulations or ordinance providing to the contrary.
4.13 Security for Tenant's Performance. Tenant acknowledges that the
Retained Funds (as defined in the Purchase Contract) constitute security for the
faithful observance and performance by Tenant of all of the terms, covenants and
conditions of this Lease to be observed and performed, including, without
limitation, the surrender of possession of the Premises to Landlord as provided
herein. If any Event of Default shall occur and be continuing, Landlord may, at
its option, and without prejudice to any other remedy which Landlord may have on
account thereof, appropriate and apply so much of the Retained Funds as may be
necessary to compensate Landlord toward the payment of Rent or other sums or
loss or damage sustained by Landlord due to such breach by Tenant. It is
understood and agreed that the amount of the
12
<PAGE>
Retained Funds is not to be considered as prepaid Rent nor shall damages be
limited to the amount of Retained Funds. Further, Landlord is not obligated to,
but may, at its option, apply the Retained Funds to Rent or other charges not
paid when due or for payment of damages incurred from Tenant's failure to
perform under this Lease. Landlord's right to possession of the Premises for
non-payment of Rent for any reason shall not in any way be affected by
Landlord's possession of the Retained Funds. In addition, Tenant understands,
acknowledges and agrees that in the event that this Lease is terminated pursuant
to Article XIX hereof, the Retained Funds shall be applied against and used for
payment of all sums and amounts due Landlord or which Landlord may recover on
account of a default as contemplated in this Lease including, but not limited
to, (a) all Rents and other sums, charges, payments, costs and expenses agreed
and/or required to be paid by Tenant to Landlord, (b) all costs and expenses of
Landlord in connection with the recovery of possession of the Premises,
including reasonable attorneys fees (based upon services rendered at hourly
rates) and court costs , and (c) the costs of the reletting or attempted
reletting of the Premises. Any Retained Funds remaining after payment of the
aforesaid sums shall be returned to Tenant. Provided this Lease is not
terminated as a result of an Event of Default, the Retained Funds shall be paid
as provided in the Purchase Contract.
ARTICLE V
TAXES AND ASSESSMENTS
5.1 Obligation to Pay Taxes. Throughout the entire Term of this Lease,
Tenant shall bear, pay and discharge as Additional Rent and not later than the
last day on which payment may be made without penalty or interest, any and all
taxes, assessments and other governmental impositions and charges of every kind
and nature whatsoever, extraordinary as well as ordinary, and each and every
installment thereof which shall or may during the Term hereof be charged, laid,
levied, assessed, or imposed upon, or arise in connection with, the use,
occupancy or possession of the Premises or any part thereof, including, without
limitation, ad valorem real and personal property taxes, and all taxes charged,
laid, levied, assessed or imposed in lieu of or in addition to any of the
foregoing by virtue of all present or future laws, ordinances, requirements,
orders, directions, rules or regulations of federal, state, county and municipal
governments and of all other governmental authorities whatsoever. Upon payment,
Tenant shall promptly furnish to Landlord satisfactory evidence of the payment
of all taxes, assessments, impositions or charges required to be paid by Tenant
pursuant to the foregoing. Further, with respect to the calendar year in which
the Term of this Lease commences, and any tax period or year prior to the
Commencement Date (if different than a calendar year), Tenant shall be obligated
to pay or cause to be paid, and shall pay or cause to be paid, all ad valorem
taxes and personal property taxes and other charges and assessments due for such
entire calendar year (or tax year) notwithstanding the date this Lease
commences.
Notwithstanding the foregoing, Tenant shall have the right, after prior
written notice to Landlord, to contest at its own expense the amount and
validity of any taxes affecting the Premises by appropriate proceedings under
applicable law conducted in good faith and with due diligence and to postpone or
defer payment thereof, provided and so long as:
(a) Such proceedings shall operate to suspend the collection
of such taxes from Tenant or the Premises;
13
<PAGE>
(b) Neither the Premises nor any part thereof would be in
immediate danger of being forfeited or lost by reason of such
proceedings, postponement or deferment; and
(c) In the case of the tax affecting the Premises which might
be or become a lien, encumbrance or charge upon or result in any
forfeiture or loss of the Premises or any part thereof, or which might
result in loss or damage to Tenant or Landlord, Tenant, prior to the
date such tax would become delinquent, shall have furnished Landlord
with security satisfactory to Landlord, and, in the event that such
security is furnished, Landlord shall not have the right during the
period of the contest to pay, remove or discharge the tax.
5.2 Tax and Insurance Escrow Account. In the event Tenant fails to
timely pay any tax, assessment, imposition or charge required to be paid by
Tenant pursuant to Section 5.1 hereof, Landlord shall have the right, by written
notice to Tenant effective as of the date of such notice, to require Tenant to
pay or cause to be paid into a separate account (the "Tax and Insurance
Account") to be established by Tenant with a lending institution where the
accounts for the Premises are maintained, (which lending institution shall be
approved in advance by Landlord and which Tax and Insurance Account shall not be
removed from such lending institution without the express prior approval of
Landlord), and which Landlord may draw upon, a reserve amount sufficient to
discharge the obligations of Tenant under Section 5.1 and Article 8 hereof
(other than worker's compensation insurance premiums) with respect to real
estate taxes and insurance as and when they become due (such amounts, the "Tax
and Insurance Escrow Amount"). During each month commencing with the first full
calendar month following the receipt of said notice from Landlord, Tenant shall
deposit into the Tax and Insurance Account one twelfth of the Tax and Insurance
Escrow Amount so that as each installment of insurance premiums and real estate
taxes becomes due and payable, there are sufficient funds in the Tax and
Insurance Account to pay the same. If the amount of such insurance premiums and
real estate taxes has not been definitively ascertained by Tenant at the time
when any such monthly deposit is to be paid, Landlord shall require payment of
the Tax and Insurance Escrow Amount based upon the amount of premiums and real
estate taxes paid for the preceding year, subject to adjustment as and when the
amount of such premiums and real estate taxes are ascertained by Tenant. The Tax
and Insurance Escrow Amount in the Tax and Insurance Account shall be and
constitute additional security for the performance of Tenant's obligations
hereunder and shall be subject to Landlord's security interest therein and
shall, if there are sufficient funds in escrow, be used to pay taxes and
insurance premium when due. Landlord and Tenant shall execute such documentation
as may be necessary to create and maintain Landlord's security interest in the
Tax and Insurance Account. The provisions of Section 23.9 shall not be
applicable to this Article 5.
14
<PAGE>
ARTICLE VI
UTILITIES
Tenant shall be liable for and shall promptly pay directly all charges
and fees (together with any applicable taxes or assessments thereon) when due
for water, gas, electricity, air conditioning, heat, septic, sewer, refuse
collection, telephone and any other utility charges, impact fees, or similar
items in connection with the use or occupancy of the Premises. Landlord shall
not be responsible or liable in any way whatsoever for the quality, quantity,
impairment, interruption, stoppage, or other interference with any utility
service, including, without limitation, water, air conditioning, heat, gas,
electric current for light and power, telephone, or any other utility service
provided to or serving the Premises. No such interruption, termination or
cessation of utility services shall relieve Tenant of its duties and obligations
pursuant to this Lease, including, without limitation, its obligation to pay all
Rent as and when the same shall be due hereunder.
ARTICLE VII
AGREEMENTS, FEES, ETC.
Tenant shall keep and maintain in full force and free from defaults on
the part of Tenant during the entire Term of this Lease all Franchise
Agreements, license agreements and management agreements involving or relating
to the operation of the Premises for its Permitted Use. In addition, Tenant
shall either (a) keep and maintain in full force and free from defaults all
service and maintenance contracts and other contracts and agreements involving
or relating to the operation of the Premises for its Permitted Use (other than
those set forth in the preceding sentence), or (b) itself provide the services
contemplated by the agreements referenced in subparagraph (a) hereof. Tenant
hereby represents that there are no equipment leases or maintenance or service
contracts which are binding on Landlord or Tenant. Any new, and any change in
any Franchise Agreement, license agreement, management agreement or equipment
lease shall require Landlord's prior written consent, and with respect to any
new, or amendment to any, Franchise Agreement, license agreement, management
agreement, or equipment lease, the terms of Section 23.9 shall not be
applicable. Tenant shall, at its sole cost and expense, pay all franchise fees,
license fees, management fees or other expenses of any kind or nature whatsoever
in connection with its operation of the Premises for its Permitted Use. Tenant
shall also obtain and maintain all liquor licenses, certificates of occupancy
and permits and licenses required to operate the Premises.
ARTICLE VIII
INSURANCE
8.1 Insurance by Tenant. Throughout the Term of this Lease, Tenant
shall, at its sole cost and expense, maintain in full force and effect the
following types and amounts of insurance coverage on the Premises described in
this Section 8.1. The policies for insurance coverage on the Premises, including
the Improvements, FF&E and Tenant's Personal Property, shall satisfy the
requirements of the Franchise Agreement and of any mortgage, security agreement
or other financing lien affecting the Premises and all easement agreements
affecting the Premises, if any.
15
<PAGE>
(a) Property Insurance. "All Risk" (special) form insurance on
the Improvements and all items of personal property used or useful in
the operation and use of the Premises, including but not limited to all
signs, awnings, canopies, gazebos, fences and retaining walls, and all
FF&E and all other operating supplies and equipment for all lobbies,
dining rooms, kitchens, laundries, halls, pantries, toilets, foyers,
corridors and other public rooms and places, and for the parlors,
suites, dressing rooms, bedrooms, baths and other private rooms, and
for all workshops, store rooms and offices in the Premises necessary
and proper for the complete and comfortable use, enjoyment, occupancy
and operation of the Premises as required herein including all
permitted alterations, changes, additions and replacements thereof and
thereto, including without limitation, insurance against loss or damage
from the perils covered under "All Risk" (Special) form, including, but
not limited to the following: fire, windstorm, sprinkler leakage,
vandalism and malicious mischief, water damage and other hazards and
perils generally included under extended coverage, all in an amount
sufficient to cover the full (100%) replacement value of the
Improvements and FF&E, without a co-insurance provision, and shall
include an Agreed Value endorsement and an Inflation Guard endorsement.
(b) Ordinance or Law Coverage with limits of not less than the
Improvements for Coverage A (Loss to the undamaged portion of the
building), limits not less than $500,000.00 for Coverage B (Demolition
Cost Coverage), and limits not less than $500,000.00 for Coverage C
(Increased Cost of Construction Coverage).
(c) Boiler and Machinery or System breakdown Insurance. Boiler
and Machinery insurance against loss or damage from boilers, pressure
vessels, or similar apparatus, air conditioning equipment, piping and
machinery, pumps, engines, transformers, compressors, sprinklers, if
any, now or hereafter installed in the Premises in the minimum amount
of $5,000,000.00 or in such greater amounts as are then customary or as
may be reasonably requested by Lessor from time to time.
(d) Builder's Risk Insurance. Builder's risk insurance in
accordance with the requirements of this Article (in policy form and
limits acceptable to the Landlord) but only prior to commencement of
and during the construction of any permitted rehabilitation,
replacement, reconstruction, restoration, renovation or alteration to
the Premises.
(e) Flood Hazard Insurance. Flood hazard insurance if any
portion of the Improvements is currently or at any time in the future
located in a federally designated "Special Flood Hazard Area" and in
which flood insurance has been made available under the National Flood
Insurance Act of 1968 (and any successor thereto) in an amount that
reasonably assures that there will be sufficient proceeds to replace
the Improvements and the FF&E in the event of a loss against which such
insurance is issued, with limits and deductibles acceptable to
Landlord.
(f) Earthquake Insurance. Earthquake insurance, if the
Premises is currently, or at any time in the future, located within a
Major Earthquake Disaster Area, in amounts, form and substance and with
limits and deductibles satisfactory to the Landlord.
16
<PAGE>
(g) Business Income Insurance. Business Income Insurance to be
written on Special Form (and on Earthquake and Flood forms is such
insurance for those risks is required) including Extra Expense, without
a provision for co-insurance including an amount sufficient to pay at
least eighteen (18) months of Rent for the benefit of Landlord, and at
least eighteen months of Net Operating Income less Rent for the benefit
of the Tenant.
(h) Commercial General Liability Insurance. Occurrence form
commercial general liability and property damage insurance covering the
Premises and the business conducted thereon and therein and providing
coverage against liability for personal and bodily injury, death and
property damage, including Liquor Liability, having limits of not less
than ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) per occurrence and
TWO MILLION AND NO/100 DOLLARS ($2,000,000.00) aggregate (per location)
and the limit on fire legal liability should be increased to a minimum
of $1,000,000.00. Such insurance shall cover at least the following
hazards: (i) premises and operations; (ii) products and completed
operations; (iii) independent contractors; (iv) blanket contractual
liability for all written and oral contracts; (v) advertising and
personal injury and broad form property damage; and (vi) contractual
liability covering the indemnities contained in Article XVIII hereof to
the extent the same is available. Such insurance, and any and all other
liability insurance maintained by Tenant in excess of or in addition to
that required hereunder, shall name Landlord as an additional insured.
(i) Business Auto Liability Insurance. Business auto liability
insurance including owned, non-owned and hired vehicles for combined
single limit of bodily injury and property damage of not less than
$1,000,000.00 per occurrence.
(j) Garage Keepers Liability Insurance. Garage keepers legal
liability insurance covering both comprehensive and collision-type
losses with a limit of liability in an amount not less than
$1,000,000.00 per occurrence.
(k) Workers Compensation Insurance. Workers' compensation
insurance, or comparable coverage if not required by state law, and
Employers' Liability insurance in an amount of at least $1,000,000.00
per accident/disease covering all persons employed in connection with
the performance of work of any nature in or about the Premises, in a
form prescribed by the laws of the State in which the Premises is
located.
(l) Umbrella Liability Policy. An Umbrella Policy shall be
following form Primary General Liability, Automobile Liability and
Employers Liability and include Liquor Liability with limits of not
less than $50,000,000.00 per occurrence/aggregate per location.
(m) Other Insurance. Such additional insurance as may be
reasonably required from time to time, by Landlord or any Mortgagee
which is customarily carried by comparable lodging properties in the
area, including, but not limited to Plate Glass Insurance, Fidelity
Bonds/Employee Dishonesty Insurance, Innkeeper's Legal Liability
Insurance, Safe Deposit Box Legal Liability Insurance, and Employment
Practices Liability Insurance.
17
<PAGE>
All deductibles on the insurance requirements of subparagraphs
(a), (b), (c), (d), (e), (f) and (g) above (except as otherwise
stipulated), shall not exceed $100,000.00 unless approved by Landlord.
All insurance required hereunder, and all other insurance maintained by
tenant on the Improvements and FF&E in excess of or in addition to that
required hereunder, shall be carried in favor of Landlord and Tenant,
as their respective interests may appear.
8.2 Carriers and Features. All insurance policies required to be
carried by Tenant as provided in this Article shall be issued by insurance
companies approved by Landlord authorized and licensed to do business in the
State in which the Premises is located. The insurance companies must have (as
determined by Landlord at its discretion): (a) an investment grade rating for
claims paying ability assigned by a credit rating agency approved by Landlord
and (b) a general policy rating of A- or better and a financial class of VIII or
better by A.M. Best & Company, Inc. All such policies shall be for periods of
not less than one year and Tenant shall renew the same at least thirty (30) days
prior to the expiration thereof. All such policies shall name as additional
insureds, Landlord, CNL Hospitality Properties, Inc., CNL Real Estate Advisors,
Inc. and any wholly or principally owned subsidiaries of either of them that may
now or hereafter exist, as well as any Mortgagee or collateral assignee of
Landlord, and shall require not less than thirty (30) days written notice to
Landlord prior to any cancellation thereof or any change reducing coverage
thereunder or any other material change, provided, however, for any cancellation
due to non-payment, ten (10) days notice shall be required. In addition to the
foregoing, all policies of insurance required in Section 8.1 above shall contain
clauses or endorsements to the effect that (a) no act or negligence of Tenant,
or anyone acting for Tenant, or failure to comply with the provisions of any
policy which might otherwise result in a forfeiture of the insurance or any part
thereof, shall in any way affect the validity or enforceability of the insurance
insofar as Landlord is concerned, (b) Landlord shall not be liable for any
insurance premiums thereon or subject to any assessments thereunder and (c) the
coverages provided thereby will be primary and any insurance carried by any
additional insured shall be excess and non-contributory.
Tenant shall pay the premiums for all insurance policies which Tenant
is obligated to carry under this Article and, at least thirty (30) days prior to
the date any such policy of insurance must be in effect, deliver to Landlord a
copy of the policy or policies, or a certificate or certificates thereof (on
ACCORD 27 forms or equivalent) evidencing the coverage required herein and
setting forth deductibles and the amount thereof, if any, along with evidence
that the premiums therefor have been paid for at least the next ensuing
quarter-annual period. Renewal certificates shall be delivered to the Landlord
not later than the effective date of such insurance. A true and certified copy
of each required policy shall be delivered to the Landlord not later than sixty
(60) days after the effective date of such insurance.
8.3 Failure to Procure Insurance. In the event Tenant shall fail to
procure insurance required under this Article and fail to maintain the same in
full force and effect continuously during the Term of this Lease, Landlord shall
be entitled to procure (but not be obligated to procure) the same and Tenant
shall immediately reimburse Landlord for such premium expense as Additional
Rent. Further, Tenant's obligation to maintain the insurance hereunder shall not
relieve Tenant of liability under the indemnity provisions of this Lease.
18
<PAGE>
8.4 Waiver of Subrogation. Tenant agrees that, with respect to any
losses incurred by Tenant and covered or contemplated by any of the policies
referenced herein, Landlord shall not have any liability to Tenant, nor to any
insurer of Tenant, for or in respect of such losses and Tenant shall require all
policies of risk insurance carried by it on its property in the Premises to
contain or be endorsed with a provision in and by which the Tenant and the
insurer designated therein shall waive their rights of recovery and subrogation
against Landlord.
8.5 No Separate Insurance. Tenant shall not take out separate
insurance, concurrent in form or contributing in the event of loss with that
required by Sections 8.1 or 8.2 hereof, or increase the amount of any existing
insurance by securing an additional policy or additional policies, unless all
parties having an insurable interest in the subject matter of such insurance,
including Landlord and all Mortgagees, are included therein as additional
insureds and the loss is payable under such insurance in the same manner as
losses are payable under this Lease. In the event that Tenant shall take out any
such separate insurance or increase the amounts of any then existing insurance,
Tenant shall give Landlord prompt notice thereof.
ARTICLE IX
DAMAGE OR DESTRUCTION
9.1 Restoration and Repair. If, during the Term the Premises shall be
totally or partially destroyed and the Improvements located thereon and/or the
FF&E are thereby rendered Unsuitable for Its Permitted Use, (as hereinafter
defined), either Landlord or Tenant may, by the giving of notice thereof to the
other party, terminate this Lease, whereupon, this Lease shall terminate and
Landlord shall be entitled to retain the insurance proceeds payable on account
of such damage and Tenant shall pay or pay to Landlord the amount of any
deductible. If, during the Term of this Lease, the Premises and/or Improvements
and/or FF&E shall be destroyed or damaged in whole or in part by fire, windstorm
or any other cause whatsoever, but the Premises are not rendered Unsuitable for
Its Permitted Use, Tenant shall give Landlord immediate notice thereof and shall
subject to the provisions of Section 9.2 below, repair, reconstruct or replace
the Improvements and/or FF&E, or the portion thereof so destroyed or damaged, at
least to the extent of the value and character thereof existing immediately
prior to such occurrence including any Improvements or alterations required to
be made by any governmental body, county or city agency, which may increase the
replacement value of the Improvements which existed prior to the damage, due to
any changes in code or building regulations. All such restoration work shall be
started as practicable and diligently contemplated at Tenant's sole cost and
expense. Tenant shall, however, immediately take such action as necessary to
assure that the Premises (or any portion thereof, do not constitute a nuisance
or otherwise present or constitute a health or safety hazard.
9.2 Insufficient Insurance Proceeds. If this Lease is not otherwise
terminated pursuant to this Section 9 and the cost of the repair or restoration
of the Premises exceeds the amount of insurance proceeds received by Landlord
and Tenant pursuant to this Section 9, Tenant shall give Landlord notice
thereof, which notice shall set forth in reasonable detail the nature of such
deficiency and whether Tenant shall pay and assume the amount of such deficiency
(Tenant having no obligation to do so except that, if Tenant shall elect to make
such funds available, the same shall become an irrevocable obligation of Tenant
pursuant to this Lease). In the event Tenant shall elect not to pay and assume
the amount of such deficiency, Landlord shall have the
19
<PAGE>
right (but not the obligation), exercisable at Landlord's sole election by
notice to Tenant, given within sixty (60) days after Tenant's notice of the
deficiency, to elect to make available for application to the cost of repair or
restoration the amount of such deficiency; provided, however, in such event upon
any disbursement by Landlord thereof, the Base Rent shall be adjusted in the
manner contemplated for Major Repairs as provided in Section 11.2 hereof. In the
event that neither Landlord nor Tenant shall elect to make such deficiency
available for restoration, either Landlord or Tenant may terminate this Lease by
notice to the other, whereupon this Lease shall terminate as provided in Section
9.1.
For purposes hereof, the term "Unsuitable for Its Permitted Use" shall
mean a state or condition of the Premises such that following any damage or
destruction involving the Premises, the Premises cannot be operated in the good
faith judgement of Tenant (after conferring with Franchisor, if required) on a
commercially practicable basis for its Permitted Use and it cannot reasonably be
expected to be restored to substantially the same condition as existed before
such damage or destruction and as is otherwise required by this Section within
twelve (12) months following such damage or destruction or such other shorter
period of time as to which business interruption insurance is available to cover
Rent and other costs related to the Premises following such damage or
destruction.
9.3 Escrow of Insurance Proceeds. In the event of a casualty resulting
in a loss to the Improvements and/or FF&E in an amount greater than ONE HUNDRED
THOUSAND AND NO/100 DOLLARS ($100,000.00), the proceeds of all insurance
policies maintained by Tenant shall be deposited in Landlord's name in an escrow
account at a bank or other financial institution designated by Landlord, and
shall be used by Tenant for the repair, reconstruction or restoration of the
Improvements and/or FF&E to their original condition. Such proceeds shall be
disbursed periodically by Landlord upon certification of the architect or
engineer having supervision of the work that such amounts are the amounts paid
or payable for the repair, reconstruction or restoration. Tenant shall, at the
time of establishment of such escrow account and from time to time thereafter
until said work shall have been completed and paid for, furnish Landlord with
adequate evidence acceptable to Landlord that at all times the undisbursed
portion of the escrowed funds, together with any funds made available by Tenant,
is sufficient to pay for the repair, reconstruction or restoration in its
entirety. Tenant shall obtain, and make available to Landlord, receipted bills
and, upon completion of said work, full and final waivers of lien. In the event
of a casualty resulting in a loss payment for the Improvements in an amount
equal to or less than the amount stated above, the proceeds shall be paid to
Tenant, and shall be applied towards repair, reconstruction and restoration. Any
and all loss adjustments with respect to losses payable hereunder shall require
the prior written consent of Landlord. All salvage resulting from any risk
covered by insurance shall belong to Tenant, provided any rights to the same
have been waived by the insurer. In addition, notwithstanding anything in this
Lease to the contrary, Tenant shall be strictly liable and solely responsible
for the amount of any deductible and shall, upon any insurable loss in excess of
$100,000.00, pay over the amount of such deductible to Landlord (for deposit in
escrow with the insurance proceeds, as aforesaid) at the time and in the manner
herein provided for payment of the applicable proceeds to Landlord.
9.4 Abatement of Rent. This Lease shall remain in full force and effect
and Tenant's obligation to make all payments of Rent and to pay all the charges
as and when required under this Lease shall remain unabated during the Term
notwithstanding any damage involving the
20
<PAGE>
Premises (provided that Landlord shall credit against such payments any amounts
paid to Landlord as a consequence of such damage under any business interruption
insurance obtained by Tenant hereunder). The provisions of this Section 9.4
shall be considered an express agreement governing any cause of damage or
destruction to the Premises and, to the maximum extent permitted by law, Tenant
hereby waives the application of any local or state statute, law, rule,
regulation or ordinance in effect during the Term which provides for such a
contingency.
9.5 Tenant's Property and Business Interruption Insurance. All
insurance proceeds payable by reason of any loss of or damage to any of Tenant's
Personal Property and the business interruption insurance maintained for the
benefit of Tenant shall be paid to Tenant; provided, however, no such payments
shall diminish or reduce the insurance payments otherwise payable to or for the
benefit of Landlord hereunder.
ARTICLE X
ADDITIONS, ALTERATIONS AND REMOVALS
10.1 Prohibition. Except as hereinafter expressly provided in Section
10.2, no portion of the Premises shall be demolished, removed or altered by
Tenant in any manner whatsoever without the prior written consent and approval
of Landlord, which is not subject to Section 23.9 and may be withheld by
Landlord in its sole and absolute discretion. Notwithstanding the foregoing,
however, Tenant shall be entitled and obligated to undertake all alterations to
the Premises required by the Franchise Agreement or any applicable law or
ordinance including, without limitation, any alterations required by any
Accessibility Laws, and, in such event, Tenant shall comply with the provisions
of Section 10.2 below.
10.2 Permitted Renovations. Landlord acknowledges that various minor,
non-structural alterations may be undertaken by Tenant from time to time and
that Tenant may be obligated under the Franchise Agreement to perform
renovations and alterations. Landlord hereby agrees that Tenant shall be
entitled to perform all such work on or about the Improvements; provided,
however, that the same shall not weaken or impair the structural strength of the
Improvements, or unless required by Franchise Agreement, alter their exterior
design or appearance or the interior design or appearance of the lobby,
materially impair use of any of the service facilities or fundamentally affect
the character or suitability of the Improvements for hotel purposes or
materially lessen or impair their value, and provided further, that in
connection with any such permitted renovation, the following conditions shall be
met, to wit:
(a) Before the commencement of any such work, plans and
specifications therefor or a detailed itemization thereof prepared by a
licensed architect approved by Landlord shall be furnished to Landlord
for its review approval. The terms of Section 23.9 shall not be
applicable to such approval. Such approval shall not constitute
Landlord's agreement that the plans and specification are incompliance
with applicable law or an assumption by Landlord of any liability in
connection with the renovation work contemplated thereby.)
21
<PAGE>
(b) Before the commencement of any such work, Tenant shall
obtain the approval thereof by all governmental departments or
authorities having or claiming jurisdiction of or over the Premises, if
required by such departments or authorities, and with any public
utility companies having an interest therein, if required by such
utility companies. In any such work, Tenant shall comply with all
applicable laws, ordinances, requirements, orders, directions, rules
and regulations of the federal, state, county and municipal governments
and of all other governmental authorities having or claiming
jurisdiction of or over the Premises and of all their respective
departments, bureaus and offices, and with the requirements and
regulations, if any, of such public utilities, of the insurance
underwriting board or insurance inspection bureau having or claiming
jurisdiction, or any other body exercising similar functions, and of
all insurance companies then writing policies covering the Premises or
any part thereof.
(c) Tenant represents and warrants to Landlord that all such
construction work will be performed in a good and workmanlike manner
and in accordance with the plans and specifications therefore, the
terms, provisions and conditions of this Lease and all governmental
requirements.
(d) Landlord shall have the right to inspect any such
construction work at all times during normal working hours and to
maintain at the Premises for that purpose (at its own expense) such
inspector(s) as it may deem necessary so long as such inspections do
not interfere with Tenant's work (but Landlord shall not thereby assume
any responsibility for the proper performance of the work in accordance
with the terms of this Lease, nor any liability arising from the
improper performance thereof).
(e) All such work shall be performed at Tenant's cost and
expense and free of any expense to Landlord and free of any liens on
Landlord's fee simple interest on or Tenant's leasehold interest in the
Premises.
(f) Upon substantial completion of any such work Tenant shall
procure a certificate of occupancy, if applicable, from the appropriate
governmental authorities verifying the substantial completion thereof.
(g) Tenant shall, and hereby agrees to, indemnify and save and
hold Landlord harmless from and against and reimburse Landlord for any
and all loss, damage, cost, liability, fee and expense (including,
without limitation, reasonable attorney's fees based upon service
rendered at hourly rates) incurred by or asserted against Landlord
which is occasioned by or results, directly or indirectly, from any
construction or renovation activities conducted upon the Premises;
whether or not the same is caused by or the fault of Tenant or any
contractor, subcontractor, laborer, supplier, materialman or any other
third party.
10.3 Additions, Expansions and Structural Alterations. Except as
expressly permitted in Section 10.2 above, nothing in this Article or elsewhere
in this Lease shall be deemed to authorize Tenant to construct and erect any
additions to or expansions of the Improvements, or perform any alterations of a
structural nature whatsoever; it being understood that Tenant may
22
<PAGE>
do so only with the prior written consent and approval of Landlord, which
consent and approval may be withheld by Landlord in its sole and absolute
discretion and may be conditioned upon the payment by Tenant to Landlord of a
fee.
ARTICLE XI
MAINTENANCE AND REPAIRS
11.1 Repairs by Tenant. Except as provided in Section 11.2 hereof,
Tenant shall, at all times during the Term of this Lease and at its sole cost
and expense, put, keep, replace and maintain the Premises (including, without
limitation, all portions of the Improvements, including without limitation, the
roof, plumbing systems, electric systems and HVAC systems, Tenant's Personal
Property and the FF&E) in good repair and in good, safe and substantial order
and condition, shall make all repairs thereto, both inside and outside,
structural and non-structural, ordinary and extraordinary, howsoever the
necessity or desirability for repairs may occur, and whether or not necessitated
by wear, tear, obsolescence or defects, latent or otherwise, and shall use all
reasonable precautions to prevent waste, damage or injury. Tenant shall also, at
its own cost and expense, put, keep, replace and maintain all landscaping,
signs, sidewalks, roadways, driveways and parking areas within the Premises in
good repair and in good, safe and substantial order and condition and free from
dirt, standing water, rubbish and other obstructions or obstacles. In addition,
Tenant shall also, at its sole cost and expense, put, keep, replace and maintain
the FF&E and Tenant's Personal Property in good repair and in good, safe and
substantial order, howsoever the necessity or desirability for repairs may
occur, and whether or not necessitated by wear, tear, obsolescence or defects.
Tenant may at any time and from time to time remove and dispose of any of the
FF&E which has become obsolete or unfit for use or which is no longer useful in
the operation of the Hotel's business conducted by Tenant on the Premises;
provided, however, that the FF&E so disposed of shall be promptly replaced by
with other FF&E not necessarily of the same character, but of at least equal
usefulness and quality as, and having a value at least equal to the value of,
those disposed of, and in any event in accordance with and in compliance with
the standards required by and the provisions of this Lease. Tenant shall further
at all times maintain the Premises, including the grounds and landscaping, in an
aesthetic pleasing manner.
11.2 Landlord's Obligation. Except as hereinafter provided in this
Section 11.2 Landlord shall not be required to make any alterations,
reconstructions, replacements, changes, additions, improvements or repairs of
any kind or nature whatsoever to the Premises or any portion thereof (including,
without limitation, any portion of the Improvements or any FF&E) at any time
during the Term of this Lease. Landlord agrees that it shall be Landlord's
responsibility to make and pay for major repairs, alterations, improvements,
renewals, replacements or additions to the Premises, structure, roof or exterior
facade, and to its mechanical, electrical, heating, ventilating air
conditioning, plumbing and vertical transportation systems (all of the foregoing
the "Major Repairs"). In this regard, Tenant shall prepare and deliver to
Landlord for its review and approval, an annual estimate (the "Building
Estimate") of the expenses necessary for Major Repairs which Tenant believes
should be made to the Premises for the following Lease Year, which Building
Estimate shall be submitted to Landlord for its review and approval not later
than sixty (60) days prior to the commencement of each calendar year during the
Term hereof. Tenant acknowledges and agrees that the terms of Section 23.9 shall
not be applicable to this Section 11.2 and any Major Repairs not approved by
Landlord shall
23
<PAGE>
not be made; provided, however, that Landlord agrees that it will not withhold
its consent with respect to Major Repairs which are required by reason of any
law, ordinance, regulation or order of governmental authority having
jurisdiction (as determined by Landlord in its reasonable judgement) for the
continued safe and orderly operation of the Premises or which are required by
the Franchise Agreement or which are required in the case of an emergency. If
the Landlord does not approve the Building Estimate or any Major Repair
contemplated therein, the parties shall attempt in good faith during the
subsequent thirty (30) day period to resolve any disputes, which attempts shall
include, if requested by either party, at least one meeting of executive-level
officers of Landlord and Tenant. In the event that the parties are still not
able to reach agreement on the Building Estimate for any particular Lease Year
after complying with the foregoing requirements of this Section 11.2, the
parties shall adopt such portions of the Building Estimate as they may have
agreed upon and any matters not agreed upon shall be referred to arbitration.
Pending the results of such arbitration or the earlier agreement of the parties,
no Major Repairs shall be made unless the same are set forth in a previously
approved Building Estimate or are specifically required by Landlord or otherwise
required in case of emergency as aforesaid. With respect to any such matter to
be submitted to arbitration, Landlord shall be entitled to designate any
nationally recognized accounting firm with a hospitality division of which
Landlord or an Affiliate of Landlord is not a significant client to serve as
arbitrator of such dispute within fifteen (15) days after written demand for
arbitration is received or sent by Landlord. In the event Landlord fails to make
such designation within such fifteen (15) day period, Tenant shall be entitled
to designate any nationally recognized accounting firm with a hospitality
division of which Tenant or an Affiliate of Tenant is not a significant client
to serve as arbitrator of such dispute within fifteen (15) days after Landlord
fails to timely make such designation. In the event no nationally recognized
accounting firm satisfying such qualifications is available and willing to serve
as arbitrator, the arbitrator shall be appointed by the American Arbitration
Association from among the members of its panel who are qualified and who have
experience in resolving matters of a nature similar to the matter to be resolved
by arbitration. In any event a single arbitrator shall be designated and shall
resolve the dispute. The arbitrator's decision shall be binding on all parties
and shall not be subject to further review or appeal except as otherwise allowed
by applicable law. Upon failure of either party to comply with the arbitrator's
decision, the arbitrator shall be empowered at the request of the other party to
order such compliance by the non-complying party and to supervise or arrange for
the supervision of the non-complying party to comply with the arbitrator's
decision, all at the expense of the non-complying party. To the maximum extent
possible, the arbitrator and the parties, and the American Arbitration
Association, if applicable, shall take any action necessary to ensure that the
arbitration shall be concluded within ninety (90) days following such dispute.
The fees and expenses of the arbitrator shall be shared equally by the Landlord
and the Tenant. Unless otherwise agreed to in writing by the parties or required
by the arbitrator or the American Arbitration Association, if applicable,
arbitration proceedings hereunder shall be conducted in the state where the
Premises are located. Notwithstanding formal rules of evidence, each party may
submit such evidence as each party deems appropriate to support its position and
the arbitrator shall have access to and the right to examine all books and
records of Landlord and Tenant regarding the Premises during such arbitration.
In the event of the receipt by Tenant of a governmental order or other
circumstances ascribed in the preceding sentence, Tenant shall promptly deliver
the same to Landlord.
24
<PAGE>
The cost of Major Repairs shall be borne by Landlord and upon funding
of the same by Landlord, Base Rent shall be adjusted as hereinafter provided in
this paragraph. Landlord and Tenant acknowledge and agree that in the event that
funding is necessary for Major Repairs, Landlord shall provide the funds
required for such expenditures ("Additional Capital Investment") and Base Rent
shall be increased by the amount necessary to provide a per annum yield on the
Additional Capital Investment equal to the greater of (a) ten percent 10.00% or
(b) the yield on the ten-year U.S. Treasury Securities (at the time the
Additional Capital Investment is requested by Tenant), plus 375 basis points.
11.3 The FF&E Reserve. Tenant shall establish a separate interest
bearing reserve account (the "FF&E Reserve") in a bank designated by Landlord
and reasonably approved by Tenant. All interest earned on the FF&E Reserve shall
be added to and remain part of the FF&E Reserve. The FF&E Reserve shall be used
for the replacement and renewal of FF&E in an amount which shall not be less
than the amount determined in accordance with the following provisions of this
Section 11.3 and Tenant shall use the FF&E Reserve only for the purposes of
making replacements and substitutions to the FF&E and other capital expenditures
as hereinafter referenced. All funds in the FF&E Reserve, all interest earned
thereon and all property purchased with funds from the FF&E Reserve shall be and
remain the property of Landlord. Both Tenant and Landlord shall be signatories
on the FF&E Reserve Account and either party shall be authorized to withdraw
funds from such account; provided, however, Landlord agrees that it shall not
make any withdrawals therefrom so long as Tenant is not in default hereunder.
Deposits to the FF&E Reserve shall be made as follows: (a) for each month during
the first Lease Year during the Term hereof three percent (3%) of the Gross
Receipts (as defined in Section 4.2 hereof) for such month shall be deposited in
the FF&E Reserve; (b) for each month during the second Lease Year during the
Term hereof four percent (4%) of the Gross Receipts for such month shall be
deposited in the FF&E Reserve; and (c) for each month during the third Lease
Year and each Lease Year thereafter during the Term hereof, five percent (5%) of
Gross Receipts for such month shall be deposited in the FF&E Reserve. Deposits
to the FF&E Reserve with respect to any such month shall be made in arrears
within fifteen (15) after the end of such month. Within sixty (60) days after
the close of each Lease Year, Tenant shall notify Landlord of the balance in the
FF&E Reserve and of the account in which the FF&E Reserve is maintained. Tenant
may only withdraw funds from the FF&E Reserve contained in the Approved FF&E
Budget and, if not, only with the prior approval of Landlord, which funds shall
be withdrawn to cover the costs of the replacement, renewal and additions
related to the FF&E at the Premises and for routine or non-major repairs and
maintenance to the Premises which are normally capitalized under generally
accepted accounting principles, such as exterior and interior painting and
resurfacing building walls, floors, roofs and parking areas and replacing
folding walls and the like contemplated in the FF&E Budget (but which are not
Major Repairs as described in, and the cost of which shall be borne by Landlord,
as set forth in Section 11.2 hereof.) Not later than sixty (60) days prior to
the commencement of each calendar year during the Term hereof, Tenant shall
submit to Landlord a detailed budget of expenses for the forthcoming calendar
year (the "FF&E Budget"). Such FF&E Budget shall reflect by line item the
projected budget expenses for the Premises and assumptions on the basis of which
such line items were prepared in narrative form if necessary, including separate
budget items for all projected expenditures for replacements, substitutions and
additions to FF&E. Tenant shall provide to Landlord reasonable additional
detail, information and assumptions used in the preparation of the FF&E Budget
as requested by Landlord. Tenant shall review the FF&E
25
<PAGE>
Budget with Landlord, and subject to Landlord's approval, Tenant shall implement
such FF&E Budget for the successive calendar year (during which it shall, if
approved by Landlord, be referred to as the "Approved FF&E Budget"). Landlord
shall have the right to disapprove any FF&E expenditures but Landlord agrees
that it will not unreasonably withhold its consent and that it will consent to
any expenditures required under the Franchise Agreement. Pending resolution of
any dispute, the specific disputed item of the FF&E Budget shall be suspended
and replaced for the calendar year in question by an amount equal to the lesser
of (a) that proposed by Tenant for such calendar year or (b) such budget item
for the calendar year prior thereto. Tenant shall not make any expenditures from
the FF&E Reserve, nor shall Tenant deviate from the Approved FF&E Budget without
the prior approval of Landlord, except in the case of emergency where immediate
action is necessary to prevent imminent danger to person or property. Upon the
expiration or earlier termination of this Lease, funds in the FF&E Reserve and
all property purchased with funds from the FF&E Reserve shall be paid, granted
and assigned to Landlord as Additional Rent.
ARTICLE XII
LANDLORD'S RIGHT TO INSPECT
Landlord, Mortgagee and their agents shall have the right to enter upon
the Premises or any portion thereof at any reasonable time to inspect the same,
including but not limited to, the operation, sanitation, safety, maintenance and
use of the same, or any portions of the same and to assure itself that Tenant is
in full compliance with its obligations under this Lease (but Landlord and
Mortgagee shall not thereby assume any responsibility for the performance of any
of Tenant's obligations hereunder, nor any liability arising from the improper
performance thereof). In making any such inspections, neither Landlord nor
Mortgagee shall unduly interrupt or interfere with the conduct of Tenant's
business.
ARTICLE XIII
ASSIGNMENT, TRANSFER AND SUBLETTING BY TENANT
13.1 Transfers Prohibited Without Consent. Except as provided in
Section 13.4 hereof, Tenant shall not, without the prior written consent of
Landlord, in each instance, sell, assign or otherwise transfer this Lease, or
Tenant's interest in the Premises, in whole or in part, or any rights or
interest which Tenant may have under this Lease, or sublet the Premises, or any
part thereof, or grant or permit any lien or encumbrance on or security interest
in Tenant's interest in this Lease. If given, the consent of Landlord to an
assignment, transfer, subletting or encumbrance shall in no event be construed
to relieve Tenant or such assignee or subtenant from the obligation of obtaining
the express consent in writing of Landlord to any further assignment, transfer,
subletting or encumbrance. In addition, any such approved assignee shall
expressly assume this Lease by an agreement in recordable form, an original
executed counterpart of which shall be delivered to Landlord prior to any
assignment of the Lease. Any assignment, transfer, sublease or encumbrance in
violation of this Article shall be voidable at Landlord's option. The terms of
Section 23.9 shall not be applicable to Landlord's approval hereunder.
13.2 Indirect Transfer Prohibited Without Consent. A sale, assignment,
pledge, transfer, exchange or other disposition of (a) the stock of Tenant or
any general partner interest in Tenant or (b) any interest of a member or
members of Tenant which results in a change or transfer of
26
<PAGE>
management or control of Tenant, or a merger, consolidation or other combination
of Tenant with another entity which results in a change or transfer of
management or control of Tenant, shall be deemed an assignment hereunder and
shall be subject to Section 13.1 hereof. For purposes hereof, exchange or
transfer of management or control or effective control, shall mean a transfer of
50% or more of the economic benefit of, or control of, any such entity.
13.3 Adequate Assurances. Without limiting any of the foregoing
provisions of this Article, if, pursuant to the U.S. Bankruptcy Code, as the
same may be amended from time to time, Tenant is permitted to assign or
otherwise transfer its rights and obligations under this Lease in disregard of
the restrictions contained in this Article, the assignee agrees to provide
adequate assurance to Landlord (a) that any Percentage Rent shall not decline
substantially after the date of such assignment, (b) of the continued use of the
Premises solely in accordance with the Permitted Use thereof, (c) of the
continuous operation of the business in the Premises in strict accordance with
the requirements of Article III hereof, and (d) of such other matters as
Landlord may reasonably require at the time of such assumption or assignment.
Such assignee shall agree that adequate assurance of future Percentage Rent
under this Lease by the assignee shall mean the deposit of cash security with
Landlord in an amount equal to the sum of the Percentage Rent paid for the
preceding calendar year or, if a calendar year has not yet elapsed, a sum equal
to five percent (5%) of the Base Rent then in effect, which deposit shall be
held by Landlord, without interest, for the balance of the Term as security for
the full and faithful performance of all the obligations under this Lease on the
part of the assignee yet to be performed. In addition, adequate assurance shall
mean that any such assignee shall have a net worth (exclusive of good will) of
not less than twice the aggregate of the Rent due and payable for the previous
Lease Year. Such assignee shall expressly assume this Lease by an agreement in
recordable form, an original counterpart of which shall be delivered to Landlord
prior to an assignment of the Lease.
13.4 Permitted Transfer. Landlord hereby acknowledges and agrees that
commencing with the first day of the fourth Lease Year of the Term hereof, it
will consent to any requested transfer of this Lease by Tenant if Tenant is not
in default hereunder and Tenant demonstrates to the Landlord's reasonable
satisfaction that the proposed purchaser, transferee or assignee is a Single
Purpose Entity (a) who has a verifiable net worth (determined in accordance with
generally accepted accounting principles) of not less than two times the Rent
due and payable for the Lease Year immediately preceding such proposed sale or
transfer; (b) who is approved by the Franchisor under the Franchise Agreement
and, if required, is approved by the manager of the Premises; (c) who has not
been convicted of a felony and is known to have not engaged in criminal activity
or other activity involving moral turpitude (including any affiliate of such
person); (d) who does not, as its primary business, own, lease or operate any
casino or gambling facility (including any affiliate of such person or entity);
(e) who does not own or operate a distillery, winery or brewery or
distributorship of alcoholic beverages if such leasing, ownership or operation
might reasonably impair the ability of Tenant or the manager of the Premises, or
their Affiliates to obtain or retain any alcoholic beverage license for the
premises; or who does not own or operate a hotel or other facility proscribed in
Section 3.5 hereof. Any approval of such successor Tenant shall not affect or
alter Landlord's approval rights of each manager of the Premises and the
conditions in the Section 13.4 shall only apply to a transfer of Tenant's
interest in this Lease.
27
<PAGE>
ARTICLE XIV
LANDLORD'S INTEREST NOT SUBJECT TO LIENS
14.1 Liens, Generally. Tenant shall not, directly or indirectly, create
or cause to be imposed, claimed or filed upon the Premises, or Tenant's assets,
properties or income or any portion thereof, or upon the interest of Landlord
therein, any lien, charge, attachment, claim or encumbrance of any nature
whatsoever. If, because of any act or omission of Tenant, any such lien, charge
or encumbrance shall be imposed, claimed or filed by any party whosoever or
whatsoever, Tenant shall, at its sole cost and expense, cause the same to be
promptly (and in no event later than fifteen (15) days following receipt of
notice of such lien, charge or encumbrance) fully paid and satisfied or
otherwise promptly discharged of record (by bonding or otherwise) and Tenant
shall indemnify and save and hold Landlord harmless from and against any and all
costs, liabilities, suits, penalties, claims and demands whatsoever, and from
and against any and all reasonable attorney's fees, at both trial and all
appellate levels, resulting or on account thereof and therefrom. In the event
that Tenant shall fail to comply with the foregoing provisions of this Section,
Landlord shall have the option, but not the obligation, of paying, satisfying or
otherwise discharging (by bonding or otherwise) such lien, charge or encumbrance
and Tenant agrees to reimburse Landlord, upon demand and as Additional Rent, for
all sums so paid and for all costs and expenses incurred by Landlord in
connection therewith, together with interest thereon, until paid.
14.2 Mechanics Liens. Landlord's interest in the Premises shall not be
subjected to liens of any nature by reason of Tenant's construction, alteration,
renovation, repair, restoration, replacement or reconstruction of any
improvements on or in the Premises, or by reason of any other act or omission of
Tenant (or of any person claiming by, through or under Tenant) including, but
not limited to, mechanics' and materialmen's liens. All persons dealing with
Tenant are hereby placed on notice that such persons shall not look to Landlord
or to Landlord's credit or assets (including Landlord's interest in the
Premises) for payment or satisfaction of any obligations incurred in connection
with the construction, alteration, renovation, repair, restoration, replacement
or reconstruction thereof by or on behalf of Tenant. Tenant has no power, right
or authority to subject Landlord's interest in the Premises to any mechanic's or
materialmen's lien or claim of lien. If a lien, a claim of lien or an order for
the payment of money shall be imposed against the Premises on account of work
performed, or alleged to have been performed, for or on behalf of Tenant, Tenant
shall, within fifteen (15) days after written notice of the imposition of such
lien, claim or order, cause the Premises to be released therefrom by the payment
of the obligation secured thereby or by furnishing a bond or by any other method
prescribed or permitted by law. If a lien is released, Tenant shall thereupon
furnish Landlord with a written instrument of release in form for recording or
filing in the appropriate office of land records of the County in which the
Premises is located, and otherwise sufficient to establish the release as a
matter of record.
14.3 Contest of Liens. Tenant may, at its option, contest the validity
of any lien or claim of lien if Tenant shall have first posted an appropriate
and sufficient bond in favor of the claimant or paid the appropriate sum into
court, if permitted by and in strict compliance with applicable law, and thereby
obtained the release of the Premises from such lien. If judgment is obtained by
the claimant under any lien, Tenant shall pay the same immediately after such
judgment shall have become final and the time for appeal therefrom has expired
without appeal
28
<PAGE>
having been taken. Tenant shall, at its own expense, defend the interests of
Tenant and Landlord in any and all such suits; provided, however, that Landlord
may, at its election, engage its own counsel and assert its own defenses, in
which event Tenant shall cooperate with Landlord and make available to Landlord
all information and data which Landlord deems necessary or desirable for such
defense.
14.4 Notices of Commencement of Construction. If required by the laws
of the State in which the Premises is located, prior to commencement by Tenant
of any work on the Premises which shall have been previously permitted by
Landlord as provided in this Lease, Tenant shall record or file a notice of the
commencement of such work or similar notice required by applicable law (the
"Notice of Commencement") in the land records of the County in which the
Premises are located, identifying Tenant as the party for whom such work is
being performed, stating such other matters as may be required by law and
requiring the service of copies of all notices, liens or claims of lien upon
Landlord. Any such Notice of Commencement shall clearly reflect that the
interest of Tenant in the Premises is that of a leasehold estate and shall also
clearly reflect that the interest of Landlord as the fee simple owner of the
Premises shall not be subject to mechanics or materialmen's liens on account of
the work which is the subject of such Notice of Commencement. A copy of any such
Notice of Commencement shall be furnished to and approved by Landlord and its
attorneys prior to the recording or filing thereof, as aforesaid.
ARTICLE XV
CONDEMNATION
15.1 Complete Taking. If the whole of the Premises shall be taken or
condemned for any public or quasi-public use or purpose, by right of eminent
domain or by purchase in lieu thereof, or if a substantial portion of the
Premises shall be so taken or condemned that the portion or portions remaining
is or are not sufficient and suitable, in the mutual reasonable judgment of
Landlord and Tenant, for the continued operation thereof as required herein, so
as to effectively render the Premises untenantable, then this Lease and the Term
hereby granted shall cease and terminate as of the date on which the condemning
authority takes possession and all Rent shall be paid by Tenant to Landlord up
to that date or refunded by Landlord to Tenant if Rent has previously been paid
by Tenant beyond that date.
15.2 Partial Taking. If a portion of the Premises is taken, and the
portion or portions remaining can, in the mutual reasonable judgment of Landlord
and Tenant, be adapted and used for the conduct of Tenant's business operation
in accordance with the terms of this Lease, such that the Premises are not
effectively rendered untenantable, then the Tenant shall, utilizing condemnation
proceeds paid to Landlord from the condemning authority, promptly restore the
remaining portion or portions thereof to a condition comparable to their
condition at the time of such taking or condemnation, less the portion or
portions lost by the taking, and this Lease shall continue in full force and
effect except that the Rent payable hereunder shall, if necessary, be equitably
adjusted to take into account the portion or portions of the Premises lost by
the taking.
15.3 Award. The entire award for the Premises or the portion or
portions thereof so taken shall be apportioned between Landlord and Tenant as
follows: (a) if this Lease terminates due to a taking or condemnation, Landlord
shall be entitled to the entire award; (b) if this Lease does not terminate due
to such taking or condemnation, Tenant shall be entitled to the award to
29
<PAGE>
the extent required for restoration of the Premises, and Landlord shall be
entitled to the balance of the award not applied to restoration. If this Lease
does not terminate due to a taking or condemnation, Tenant shall, with due
diligence, restore the remaining portion or portions of the Premises in the
manner hereinabove provided. In such event, the proceeds of the award to be
applied to restoration shall be deposited with a bank or financial institution
designated by Landlord as if such award were insurance proceeds, and the amount
so deposited will thereafter be treated in the same manner as insurance proceeds
are to be treated under Section 9.2 of this Lease until the restoration has been
completed and Tenant has been reimbursed for all the costs and expenses thereof.
If the award is insufficient to pay for the restoration, Tenant shall be
responsible for the remaining cost and expense of such restoration.
15.4 Disputes. If Landlord and Tenant cannot agree in respect of any
matters to be determined under this Article, a determination shall be requested
of the court having jurisdiction over the taking or condemnation; provided,
however, that if said court will not accept such matters for determination,
either party may have the matters determined by a court otherwise having
jurisdiction over the parties.
ARTICLE XVI
SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE
16.1 Subordination. This Lease, Tenant's interest hereunder and
Tenant's leasehold interest in and to the Premises are hereby agreed by Tenant
to be and are hereby made junior, inferior, subordinate and subject in right,
title, interest, lien, encumbrance, priority and all other respects to any
mortgage or mortgages now or hereafter in force and effect upon or encumbering
Landlord's interest in the Premises, or any portion thereof, and to all
collateral assignments by Landlord to any third party or parties of any of
Landlord's rights under this Lease or the rents, issues and profits thereof or
therefrom as security for any liability or indebtedness, direct, indirect or
contingent, of Landlord to such third party or parties, and to all future
modifications, extensions, renewals, consolidations and replacements of, and all
amendments and supplements to any such mortgage, mortgages or assignments, and
upon recording of any such mortgage, mortgages or assignments, the same shall be
deemed to be prior in dignity, lien and encumbrance to this Lease, Tenant's
interest hereunder and Tenant's leasehold interest in and to the Premises
irrespective of the dates of execution, delivery or recordation of any such
mortgage, mortgages or assignments. The foregoing subordination provisions of
this Section shall be automatic and self-operative without the necessity of the
execution of any further instrument or agreement of subordination on the part of
Tenant. Provided, however, if the aggregate sum of all obligations secured by
any mortgage or mortgages encumbering the Premises exceeds sixty percent (60%)
of the fair market value of the Premises as determined at the time of such
loan(s), Tenant's aforesaid subordination shall not be applicable to the portion
of the loan(s) in excess of the said sixty percent (60%) and Tenant's written
subordination (which shall not be unreasonably withheld) shall be required with
respect to such excess. Tenant acknowledges and agrees that notwithstanding the
foregoing automatic subordination, if Landlord or the holder or proposed holder
of any such mortgage, mortgages, security interest in or assignment of the Lease
(a "Mortgagee") shall request that Tenant execute and deliver any further
instrument or agreement of subordination of this Lease or Tenant's interest
hereunder or Tenant's leasehold interest in the Premises to any such mortgage,
mortgages or assignments in confirmation or furtherance of or in addition to the
foregoing subordination provisions of this Section, Tenant shall promptly
30
<PAGE>
execute and deliver the same to the requesting party. Further, Tenant agrees
that it will, from time to time, execute such reasonable documentation as may be
requested by Landlord and any Mortgagee (a) to assist Landlord and such
Mortgagee in establishing or perfecting any security interest in Landlord's
interest in the FF&E Reserve and the funds therein; and (b) to facilitate or
allow Landlord to encumber the Premises as herein contemplated. Further, should
any rating agency require the same, Tenant agrees that it will execute such
documentation as may be requested by such agency, including documentation and
amendments to Tenant's organizational documents required to qualify Tenant as a
single purpose entity, provided Landlord shall pay the reasonable costs incurred
by Tenant in so qualifying and the Tenant will negotiate in good faith the
requirements of such single person entity. Provided further, the parties hereto
acknowledge that the requirements for a Single Purpose Entity on Exhibit H are
not binding on Tenant in such circumstance. If, within thirty (30) days
following Tenant's receipt of a written request by Landlord or the holder or
proposed holder of any such mortgage, mortgages or assignments, Tenant shall
fail or refuse or shall have not executed any such further instrument or
agreement of subordination, for whatever reason, Tenant shall be in breach and
default of its obligation to do so and of this Lease and Landlord shall be
entitled thereupon to exercise any and all remedies available to Landlord
pursuant to this Lease or otherwise provided by law. In connection with any
granting by Tenant of a mortgage to a Mortgagee (as hereinafter defined)
Landlord agrees in good faith to request on behalf of Tenant, a non-disturbance
agreement from the Mortgagee in form reasonably acceptable to Tenant and
Mortgagee.
16.2 Attornment. Tenant shall and hereby agrees to attorn, and be bound
under all of the terms, provisions, covenants and conditions of this Lease, to
any successor of the interest of Landlord under this Lease for the balance of
the Term of this Lease remaining at the time of the succession of such interest
to such successor. In particular, in the event that any proceedings are brought
for the foreclosure of any mortgage or security interest encumbering or
collateral assignment of Landlord's interest in the Premises, or any portion
thereof, Tenant shall attorn to the purchaser at any such foreclosure sale and
recognize such purchaser as Landlord under this Lease, subject, however, to all
of the terms and conditions of this Lease. Tenant agrees that neither the
purchaser at any such foreclosure sale nor the foreclosing mortgagee or holder
of such security interest or collateral assignment shall have any liability for
any act or omission of Landlord, be subject to any offsets or defenses which
Tenant may have as claim against Landlord, or be bound by any advance rents
which may have been paid by Tenant to Landlord for more than the current period
in which such rents come due.
16.3 Rights of Mortgagees and Assignees. At the time of giving any
notice of default to Landlord, Tenant shall mail or deliver to any Mortgagee a
copy of any such notice. No notice of default or termination of this Lease by
Tenant shall be effective until any Mortgagee shall have been furnished a copy
of such notice by Tenant. In the event Landlord fails to cure any default by it
under this Lease, the Mortgagee shall have, at its option, a period of thirty
(30) days after expiration of any cure period of Landlord within which to remedy
such default of Landlord or to cause such default to be remedied. In the event
that the Mortgagee elects to cure any such default by Landlord, then Tenant
shall accept such performance on the part of such Mortgagee as though the same
had been performed by Landlord, and for such purpose Tenant hereby authorizes
any Mortgagee to enter upon the Premises to the extent necessary to exercise any
of Landlord's rights, powers and duties under this Lease. If, in the event of
any default by Landlord which is reasonably capable of being cured by a
Mortgagee, the Mortgagee promptly commences
31
<PAGE>
and diligently pursues to cure the default, then Tenant will not terminate this
Lease or cease to perform any of its obligations under this Lease so long as the
Mortgagee is, with due diligence, engaged in the curing of such default.
ARTICLE XVII
END OF TERM
17.1 Surrender of Premises. Tenant shall, on or before the last day of
the Term of this Lease or upon the sooner termination thereof, peaceably and
quietly surrender and deliver to Landlord the Premises, including, without
limitation, all Improvements and FF&E and all additions thereto and replacements
thereof made from time to time over the Term of this Lease, in good order,
condition and repair, reasonable wear and tear excepted, and free and clear of
all liens and encumbrances.
17.2 Holding Over. If Tenant or any other person or party shall remain
in possession of the Premises or any part thereof following the expiration of
the Term or earlier termination of this Lease without an agreement in writing
between Landlord and Tenant with respect thereto, the person or party remaining
in possession shall be deemed to be a tenant at sufferance, and during any such
holdover, the Rent payable under this Lease by such tenant at sufferance shall
be double the rate or rates in effect immediately prior to the expiration of the
Term or earlier termination of this Lease. In no event, however, shall such
holding over be deemed or construed to be or constitute a renewal or extension
of this Lease.
ARTICLE XVIII
LIABILITY OF LANDLORD; INDEMNIFICATION
18.1 Liability of Landlord. Landlord shall not be liable to Tenant, its
employees, agents, business invitee, licensees, customers, clients, family
members or guests for any damage, injury, loss, compensation or claim,
including, but not limited to, claims for the interruption of or loss to
Tenant's business, based on, arising out of or resulting from any cause
whatsoever (other than Landlord's negligence or wilful misconduct), including,
but not limited to: (a) repairs to any portion of the Premises; (b) interruption
in Tenant's use of the Premises; (c) any accident or damage resulting from the
use or operation (by Landlord, Tenant or any other person or persons) of any
equipment within the Premises, including without limitation, heating, cooling,
electrical or plumbing equipment or apparatus; (d) the termination of this Lease
by reason of the condemnation or destruction of the Premises in accordance with
the provisions of this Lease; (e) any fire, robbery, theft, mysterious
disappearance or other casualty; (f) the actions of any other person or persons;
and (g) any leakage or seepage in or from any part or portion of the Premises,
whether from water, rain or other precipitation that may leak into, or flow
from, any part of the Premises, or from drains, pipes or plumbing fixtures in
the Improvements. Any goods, property or personal effects stored or placed by
the Tenant or its employees in or about the Premises shall be at the sole risk
of the Tenant.
18.2 Indemnification of Landlord. Tenant shall defend, indemnify and
save and hold Landlord harmless from and against any and all liabilities,
obligations, losses, damages, injunctions, suits, actions, fines, penalties,
claims, demands, costs and expenses of every kind or nature, including
reasonable attorneys' fees and court costs, incurred by Landlord, arising
directly
32
<PAGE>
or indirectly from or out of: (a) any failure by Tenant to perform any of the
terms, provisions, covenants or conditions of this Lease or the Franchise
Agreement or management agreement on Tenant's part to be performed including but
not limited to the payment of any fee, cost or expense which Tenant is obligated
to pay and discharge hereunder or under any Franchise Agreement or management
agreement; (b) any accident, injury or damage which shall happen at, in or upon
the Premises, however occurring; (c) any matter or thing growing out of the
condition, occupation, maintenance, alteration, repair, use or operation by any
person of the Premises, or any part thereof, or the operation of the business
contemplated by this Lease to be conducted thereon, thereat, therein, or
therefrom; (d) any failure of Tenant to comply with any laws, ordinances,
requirements, orders, directions, rules or regulations of any governmental
authority, including, without limitation, the Accessibility Laws; (e) any
contamination of the Premises, or the groundwaters thereof, arising on or after
the date Tenant takes possession of the Premises and occasioned by the use,
transportation, storage, spillage or discharge thereon, therein or therefrom of
any toxic or hazardous chemicals, compounds, materials or substances, whether by
Tenant or by any agent or invitee of Tenant; (f) any discharge of toxic or
hazardous sewage or waste materials from the Premises into any septic facility
or sanitary sewer system serving the Premises arising on or after the date
Tenant takes possession of the Premises, whether by Tenant or by any agent of
Tenant; or (g) any other act or omission of Tenant, its employees, agents,
invitees, customers, licensees or contractors, provided, however, Tenant shall
not be liable for or be obligated to indemnify Landlord from and against any
damages resulting from Landlord's negligence or willful misconduct.
Tenant's indemnity obligations under this Article and elsewhere in this
Lease arising prior to the termination or permitted assignment of this Lease
shall survive any such termination or assignment.
18.3 Notice of Claim or Suit. Tenant shall promptly notify Landlord of
any claim, action, proceeding or suit instituted or threatened against Tenant or
Landlord of which Tenant receives notice or of which Tenant acquires knowledge.
In the event Landlord is made a party to any action for damages or other relief
against which Tenant has indemnified Landlord, as aforesaid, Tenant shall defend
Landlord, pay all costs and shall provide effective counsel to Landlord in such
litigation or, at Landlord's option, shall pay all attorneys' fees and costs
incurred by Landlord in connection with its own defense or settlement of said
litigation.
18.4 Limitation on Liability of Landlord. In the event Tenant is
awarded a money judgment against Landlord, Tenant's sole recourse for
satisfaction of such judgment shall be limited to: (a) execution against the
Landlord's interest in the Premises or, (b) at Tenant's option (which shall be
irrevocable once elected), a credit against future Rent obligations due
hereunder up to the amount of such judgment(s). In no event shall any partner,
member, officer, director, stockholder or shareholder of Landlord or any partner
thereof or Affiliate or subsidiary thereof, be personally liable for the
obligations of Landlord hereunder.
33
<PAGE>
ARTICLE XIX
DEFAULT
19.1 Events of Default. Each of the following events shall be an Event
of Default hereunder by Tenant and shall constitute a breach of this Lease:
(a) If Tenant shall fail to pay, when due, any Rent, or
portion thereof, or any other sum due to Landlord from Tenant
hereunder, and such failure shall continue for a period of five (5)
days after the due date thereof.
(b) If Tenant shall violate or fail to comply with or perform
any other term, provision, covenant, agreement or condition to be
performed or observed by Tenant under this Lease, and such violation or
failure shall continue for a period of thirty (30) days after written
notice thereof from Landlord; provided, however, if such violation or
failure is incapable of cure by Tenant within such thirty (30) days
after Tenant's diligent and continuous efforts to cure the same, Tenant
shall have an additional period of ninety (90) days to cure the same.
(c) If any assignment, transfer, sublease or encumbrance shall
be made or deemed to be made that is in violation of the provisions of
this Lease.
(d) If Tenant shall cease the actual and continuous operation
of the business contemplated by this Lease to be conducted by Tenant
upon the Premises (and such cessation is not the result of casualty,
condemnation or renovation and accompanying restoration or is not
otherwise permitted by Landlord or is not the result of a legal
requirement or during an emergency); or if Tenant shall vacate, desert
or abandon the Premises; or if the Premises shall become empty and
unoccupied; or if the Premises or Improvements are used or are
permitted to be used for any purpose, or for the conduct of any
activity, not permitted by this Lease.
(e) If, at any time during the Term of this Lease, Tenant
shall file in any court, pursuant to any statute of either the United
States or of any State, a petition in bankruptcy or insolvency, or for
reorganization or arrangement, or for the appointment of a receiver or
trustee of all or any portion of Tenant's property, including, without
limitation, its leasehold interest in the Premises, or if Tenant shall
make an assignment for the benefit of its creditors or petitions for or
enters into an arrangement with its creditors.
(f) If, at any time during the Term of this Lease, there shall
be filed against Tenant in any courts pursuant to any statute of the
United States or of any State, a petition in bankruptcy or insolvency,
or for reorganization, or for the appointment of a receiver or trustee
of all or a portion of Tenant's property, including, without
limitation, its leasehold interest in the Premises, and any such
proceeding against Tenant shall not be dismissed within sixty (60) days
following the commencement thereof.
34
<PAGE>
(g) If Tenant's leasehold interest in the Premises or property
therein shall be seized under any levy, execution, attachment or other
process of court where the same shall not be vacated or stayed on
appeal or otherwise within thirty (30) days thereafter, or if Tenant's
leasehold interest in the Premises is sold by judicial sale and such
sale is not vacated, set aside or stayed on appeal or otherwise within
thirty (30) days thereafter.
(h) If an Event of Default shall occur under and as defined in
that certain Lease Agreement of even date herewith between Landlord and
Tenant with respect to the Residence Inn - Gwinnett Place (the "Other
Lease").
(i) If Tenant shall default under any Franchise Agreement or
management agreement for or concerning the Premises.
(j) If a final unappealable determination is made by
applicable state authorities of the revocation or limitation of any
material license, permit, certification or approval required for the
lawful operation of the Premises in accordance with its Permitted Use
or there occurs the loss or material limitation of any material
license, permit, certification or approval under any other
circumstances under which Tenant is required to cease its operation of
the Premises in accordance with its Permitted Use at the time of such
loss or limitation.
(k) If any material representation or warranty made by Tenant
under or in connection with this Lease, the Other Lease, or in any
documents, certificate or agreement delivered in connection therewith
proves to have been false or misleading in any material respect on the
date when made or deemed made, and the same shall continue for five (5)
business days after notice thereof from Landlord.
19.2 Remedies on Default. If any of the Events of Default hereinabove
specified shall occur, Landlord, at any time thereafter, shall have and may
exercise any of the following rights and remedies:
(a) Landlord may, pursuant to written notice thereof to
Tenant, terminate this Lease and, peaceably or pursuant to appropriate
legal proceedings, re-enter, retake and resume possession of the
Premises for Landlord's own account and, for Tenant's breach of and
default under this Lease, recover immediately from Tenant any and all
rents and other sums and damages due or in existence at the time of
such termination, including, without limitation, (i) all Rent and other
sums, charges, payments, costs and expenses agreed and/or required to
be paid by Tenant to Landlord hereunder, (ii) all costs and expenses of
Landlord in connection with the recovery of possession of the Premises,
including reasonable attorney's fees based upon services rendered at
hourly rates and court costs, and (iii) all costs and expenses of
Landlord in connection with any reletting or attempted reletting of the
Premises or any part or parts thereof, including, without limitation,
brokerage fees, advertising costs, reasonable attorney's fees based
upon services rendered at hourly rates based upon service rendered at
hourly rates and the cost of any alterations or repairs or tenant
improvements which may be reasonably required to so relet the Premises,
or any part or parts thereof.
35
<PAGE>
(b) Landlord may, pursuant to any prior notice required by
law, and without terminating this Lease, peaceably or pursuant to
appropriate legal proceedings, re-enter, retake and resume possession
of the Premises for the account of Tenant, make such alterations of and
repairs and tenant improvements to the Premises as may be reasonably
necessary in order to relet the same or any part or parts thereof and
relet or attempt to relet the Premises or any part or parts thereof for
such term or terms (which may be for a term or terms extending beyond
the Term of this Lease), at such rents and upon such other terms and
provisions as Landlord, in its sole, but reasonable, discretion, may
deem advisable. If Landlord takes possession and control of the
Premises and operates the same, Tenant shall, for so long as Landlord
is actively operating the Premises, have no obligation to operate the
Premises. If Landlord relets or attempts to relet the Premises,
Landlord shall at its sole discretion determine the terms and
provisions of any new lease or sublease and whether or not a particular
proposed new tenant or sublessee is acceptable to Landlord. Upon any
such reletting, all rents received by the Landlord from such reletting
shall be applied, (a) first, to the payment of all costs and expenses
of recovering possession of the Premises, (b) second, to the payment of
any costs and expenses of such reletting, including brokerage fees,
advertising costs, reasonable attorney's fees based upon service
rendered at hourly rates and the cost of any alterations and repairs
reasonably required for such reletting; (c) third, to the payment of
any indebtedness, other than Rent, due hereunder from Tenant to the
Landlord, (d) fourth, to the payment of all Rent and other sums due and
unpaid hereunder, and (e) fifth, the residue, if any, shall be held by
the Landlord and applied in payment of future Rents as the same may
become due and payable hereunder. If the rents received from such
reletting during any period shall be less than that required to be paid
during that period by the Tenant hereunder, Tenant shall promptly pay
any such deficiency to the Landlord and failing the prompt payment
thereof by Tenant to Landlord, Landlord shall immediately be entitled
to institute legal proceedings for the recovery and collection of the
same. Such deficiency shall be calculated and paid at the time each
payment of rent shall otherwise become due under this Lease, or, at the
option of Landlord, at the end of the Term of this Lease. Landlord
shall, in addition, be immediately entitled to sue for and otherwise
recover from Tenant any other damages occasioned by or resulting from
any abandonment of the Premises or other breach of or default under
this Lease other than a default in the payment of rent. No such
re-entry, retaking or resumption of possession of the Premises by the
Landlord for the account of Tenant shall be construed as an election on
the part of Landlord to terminate this Lease unless a written notice of
such intention shall be given to the Tenant or unless the termination
of this Lease be decreed by a court of competent jurisdiction.
Notwithstanding any such re-entry and reletting or attempted reletting
of the Premises or any part or parts thereof for the account of Tenant
without termination, Landlord may at any time thereafter, upon written
notice to Tenant, elect to terminate this Lease or pursue any other
remedy available to Landlord for Tenant's previous breach of or default
under this Lease.
(c) Landlord may, without re-entering, retaking or resuming
possession of the Premises, sue for all Rent and all other sums,
charges, payments, costs and expenses due from Tenant to Landlord
hereunder either: (i) as they become due under this Lease, taking into
account that Tenant's right and option to pay the Rent hereunder on a
monthly basis in any particular Lease Year is conditioned upon the
absence of a default on Tenant's part
36
<PAGE>
in the performance of its obligations under this Lease, or (ii) at
Landlord's option, accelerate the maturity and due date of the whole or
any part of the Rent for the entire then-remaining unexpired balance of
the Term of this Lease, as well as all other sums, charges, payments,
costs and expenses required to be paid by Tenant to Landlord hereunder,
including, without limitation, damages for breach or default of
Tenant's obligations hereunder in existence at the time of such
acceleration, such that all sums due and payable under this Lease
shall, following such acceleration, be treated as being and, in fact,
be due and payable in advance as of the date of such acceleration.
Landlord may then proceed to recover and collect all such unpaid Rent
and other sums so sued for from Tenant by distress, levy, execution or
otherwise. Regardless of which of the foregoing alternative remedies is
chosen by Landlord under this subparagraph (c), Landlord shall not be
required to relet the Premises nor exercise any other right granted to
Landlord pursuant to this Lease, nor shall Landlord be under any
obligation to minimize or mitigate Landlord's damages or Tenant's loss
as a result of Tenant's breach of or default under this Lease.
Provided, however, that in the event that Landlord exercises its option
contained in (ii) above and collects from Tenant all sums contemplated
thereby and Landlord thereafter relets the Premises (the parties
acknowledging that Landlord shall be under no obligation to relet the
Premises), then after deducting the amount of any indebtedness other
than Rent due hereunder from Tenant to Landlord and the payment of all
costs and expenses of reletting, including brokerage fees, attorneys
fees, refurbishment, etc., Landlord agrees, after the expiration of
each lease year under its lease with such new tenant, (and provided
that Landlord has received and collected from the new tenant rental for
such period equal to or greater than the Rent due hereunder and which
was paid by Tenant to Landlord pursuant to (ii) above), to return to
Tenant a sum equal to the portion of the accelerated rental paid by
Tenant to Landlord pursuant to (ii) above allocable to each such
recently expired lease year (after deducting a pro rata share of the
aforesaid expenses allocable to each year). Landlord shall determine
amount of such return in its sole discretion and such determination
shall be final and binding on Tenant.
(d) Landlord may, in addition to any other remedies provided
herein, enter upon the Premises or any portion thereof and take
possession of (i) any and all of Tenant's Personal Property, if any,
and; (ii) Tenant's books and records necessary to operate the Premises,
without liability for trespasses or conversion (Tenant hereby waiving
any right to notice or hearing prior to such taking of possession by
Landlord) and sell the same by public or private sale, after giving
Tenant reasonable notice of the time and place of any public or private
sale, at which sale Landlord or its assigns may purchase all or any
portion of Tenant's Personal Property, if any, unless otherwise
prevented by law. Unless otherwise provided by law and without
intending to exclude any other manner of giving Tenant reasonable
notice, the requirement of reasonable notice shall be met if such
notice if given at least ten (10) days before the date of sale. The
proceeds from any such disposition, less all expenses incurred in
connection with the taking of possession, holding and selling of such
Property (including reasonable attorneys' fees based upon services
rendered at hourly rates) shall be credited against Rent which is due
hereunder.
(e) In addition to the remedies hereinabove specified and
enumerated, Landlord shall have and may exercise the right to invoke
any other remedies allowed at law or in equity as if the remedies of
re-entry, unlawful detainer proceedings and other remedies
37
<PAGE>
were not herein provided. Accordingly, the mention in this Lease of any
particular remedy shall not preclude Landlord from having or exercising
any other remedy at law or in equity. Nothing herein contained shall be
construed as precluding the Landlord from having or exercising such
lawful remedies as may be and become necessary in order to preserve the
Landlord's right or the interest of the Landlord in the Premises and in
this Lease, even before the expiration of any notice periods provided
for in this Lease, if under the particular circumstances then existing
the allowance of such notice periods will prejudice or will endanger
the rights and estate of the Landlord in this Lease and in the
Premises. In addition, any provision of this Lease to the contrary
notwithstanding, no provision of this Lease shall delay or otherwise
limit Landlord's right to seek injunctive relief or Tenant's obligation
to comply with any such injunctive relief.
Provided, however, in the event that the Tenant's default
hereunder is the default contemplated in paragraph 19.1(j) above, and
such default in not caused by Tenant or any person claiming by, through
or under Tenant (including manager), or does not result form any action
or inaction on the part of Tenant or any person claiming by, through or
under Tenant (including the manager) but results solely from causes
beyond Tenant's control or actions (or person claiming by, through or
under Tenant) then with respect to such a default, Landlord's sole
remedy shall be to terminate this Lease and Landlord shall not be
entitled to recover from Tenant any damages.
19.3 Landlord May Cure Tenant Defaults. If Tenant shall default in the
performance of any term, provisions, covenant or condition on its part to be
performed hereunder, Landlord may, after notice to Tenant and a reasonable time
to perform after such notice (or without notice if, in Landlord's reasonable
opinion, an emergency exists) perform the same for the account and at the
expense of Tenant. If, at any time and by reason of such default, Landlord is
compelled to pay, or elects to pay, any sum of money or do any act which will
require the payment of any sum of money, or is compelled to incur any expense in
the enforcement of its rights hereunder or otherwise, such sum or sums, together
with interest thereon at the Prime Rate plus eight percent (8%) shall be deemed
Additional Rent hereunder and shall be repaid to Landlord by Tenant promptly
when billed therefor, and Landlord shall have all the same rights and remedies
in respect thereof as Landlord has in respect of the rents herein reserved.
19.4 Landlord's Lien. Landlord shall have at all times during the Term
of this Lease, a valid lien for all rents and other sums of money becoming due
hereunder from Tenant, upon all goods, accounts, wares, merchandise, inventory,
furniture, fixtures, equipment, vehicles and other personal property and effects
of Tenant situated in or upon the Premises, and such property shall not be
removed therefrom except in accordance with the terms of this Lease without the
approval and consent of Landlord until all arrearages in rent as well as any and
all other sums of money then due to Landlord hereunder shall first have been
paid and discharged in full. Upon the occurrence of any Event of Default by
Tenant, Landlord may, in addition to any other remedies provided herein or by
law, enter upon the Premises and take possession of any and all goods, wares,
merchandise, books and records, inventory, furniture, fixtures, equipment,
vehicles and other personal property and effects of Tenant situated in or upon
or with respect to the Premises without liability for trespass or conversion,
and sell the same at public or private sale, with or without having such
property appraised, at which Landlord or its assigns may purchase any of the
same and apply the proceeds thereof, less any and all expenses connected with
the
38
<PAGE>
taking of possession and sale, as a credit against any sums due by Tenant, and
Tenant agrees to pay any deficiency forthwith. If Landlord takes possession and
control of the Premises and operates the same, Tenant shall for so long as
Landlord is actively operating the Premises, have no obligation to operate the
Premises. Alternatively, the lien hereby granted may be foreclosed in the manner
and form provided by law for foreclosure of security interests or in any other
manner and form provided by law. The statutory lien for rent, if any, is not
hereby waived and the express contractual lien herein granted is in addition
thereto and supplementary thereto. Tenant agrees to execute and deliver to
Landlord from time to time during the Term of this Lease such Financing
Statements as may be required by Landlord in order to perfect the Landlord's
lien provided herein or by state law. Tenant further agrees that during an Event
of Default or the pendency of any event or circumstance which, with the passage
of time may become an Event of Default, Tenant shall not make any distributions
to its shareholders, partners, members or other owners and any such
distributions shall be considered and deemed to be fraudulent and preferential
and subordinate to Landlord's claim for Rent and other sums hereunder.
19.5 The Other Lease. As referenced in this Lease, Landlord and Tenant
are, concurrently with the execution of this Lease, entering into the Other
Lease. It is the express agreement and understanding of Landlord and Tenant that
this Lease and the Other Lease are and shall be cross defaulted such that a
default under and/or termination of this Lease or the Other Lease shall be in
and constitute a default and or termination of the Other Lease or this Lease,
respectively. Provided, however, if this Lease is terminated by either Landlord
or Tenant as a result of a casualty pursuant to Sections 9.1 or 9.2, such
termination shall not constitute or require a termination of the Other Lease and
such Other Lease shall survive the termination of this Lease under Sections 9.1
and 9.2. Further, it is the express agreement, intent and understanding of
Landlord and Tenant that this Lease and the Other Lease are not severable.
Further, in the event that Tenant shall file for, or there shall be filed
against Tenant, bankruptcy, insolvency or a similar arrangement or proceeding,
that this Lease and the Other Lease shall be and remain cross defaulted and
considered one Lease and may not be severed or assumed separately in any such
proceedings, it being the express agreement and intent of Landlord and Tenant
that both this Lease and the Other Lease shall be rejected by any receiver or
trustee in any such proceedings or both said Leases shall be assumed by any such
receiver or trustee.
19.6 Rights Cumulative. The rights and remedies provided and available
to Landlord in this Lease are distinct, separate and cumulative remedies, and no
one of them, whether or not exercised by Landlord, shall be deemed to be in
exclusion of any other.
ARTICLE XX
REIT REQUIREMENTS
Tenant understands that, in order for Landlord to qualify as a real
estate investment trust (a "REIT") under the Internal Revenue Code (the "Code"),
the following requirements (the "REIT Requirements") must be satisfied:
20.1 The average of the adjusted tax bases of the personal property
that is leased to Tenant with respect to the Premises at the beginning and end
of a calendar year cannot exceed fifteen percent (15%) of the average of the
aggregate adjusted tax bases of the real and personal
39
<PAGE>
property comprising such Premises that is leased to Tenant under such lease at
the beginning and end of such calendar year (the "Personal Property
Limitation"). If Landlord reasonably anticipates that the Personal Property
Limitation will be exceeded with respect to the Premises for any Lease Year,
Landlord shall notify Tenant, and Landlord and Tenant shall negotiate in good
faith the purchase by Tenant of items of personal property anticipated by
Landlord to be in excess of the Personal Property Limitation. Provided, however,
that Tenant's responsibility to purchase such personal property will be offset
by Landlord in some mutually agreeable manner.
20.2 Tenant cannot sublet the property that is leased to it by
Landlord, or enter into any similar arrangement, on any basis such that the
rental or other amounts paid by the sublessee thereunder would be based, in
whole or in part, on either (a) the net income or profits derived by the
business activities of the sublessee or (b) any other formula such that any
portion of the rent paid by Tenant to Landlord would fail to qualify as "rent
from real property" within the meaning of Section 856(d) of the Code.
20.3 Anything to the contrary in this Agreement notwithstanding, Tenant
shall not sublease the property leased to it by Landlord to, or enter into any
similar arrangement with, any person in which Landlord owns, directly or
indirectly, a ten percent (10%) or more interest, with the meaning of Section
856(d)(2)(B) of the Code, and any such action shall be deemed void ab initio.
20.4 Anything to the contrary in this Agreement notwithstanding,
neither party shall take, or permit to take, any action that would cause
Landlord to own, directly or indirectly, a ten percent (10%) or greater interest
in the Tenant within the meaning of Section 856(d)(2)(B) of the Code, and any
similar or successor provision thereto, and any such action shall be deemed void
ab initio.
ARTICLE XXI
NOTICES
Any notice required or permitted to be given under this Lease shall be
deemed given if delivered personally to an officer or general partner of the
party to be notified or sent by (a) United States registered or certified mail,
postage prepaid, return receipt requested, (b) telecopy or (c) overnight courier
service, and addressed as follows:
If to Landlord: CNL Hospitality Properties, Inc.
400 East South Street, Suite 500
Orlando, Florida 32801
ATTN: Mr. C. Brian Strickland
With a copy to: Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 N. Eola Drive
Orlando, Florida 32801
ATTN: Richard J. Fildes, Esquire
40
<PAGE>
If to Tenant: STC Leasing Associates, LLC
c/o Stormont Trice Corporation
One Riverside
Suite 300
4401 Northside Parkway
Atlanta, Georgia 30327
ATTN: Mr. James M. Stormont, Jr.
With a copy to: King and Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763
ATTN: Robert G. Pennington, Esquire
or such other address or party as may be designated by either party by written
notice to the other. Except as otherwise provided in this Lease, every notice,
demand, request or other communication hereunder shall be deemed to have been
given or served upon actual receipt thereof. Accordingly, a notice shall not be
effective until actually received. Notwithstanding the foregoing, any notice
mailed to the last designated address of any person or party to which a notice
may be or is required to be delivered pursuant to this Lease shall not be deemed
ineffective if actual delivery cannot be made due to a change of address of the
person or party to which the notice is directed or the failure or refusal of
such person or party to accept delivery of the notice.
ARTICLE XXIII
MISCELLANEOUS
23.1 "Net" Lease. Landlord and Tenant acknowledge and agree that both
parties intend that this Lease shall be and constitute what is generally
referred to in the real estate industry as a "triple net" or "absolute net"
lease, such that Tenant shall be obligated hereunder to pay all costs and
expenses incurred with respect to, and associated with, the Premises and all
personal property thereon and therein and the business operated thereon and
therein, including, without limitation, all taxes and assessments, utility
charges, insurance costs, maintenance costs and repair, replacement and
restoration expenses (all as more particularly herein provided) and all costs
and expenses for, under and with respect to the Franchise Agreement and any
management agreement for the Premises, together with any and all other
assessments, charges, costs and expenses of any kind or nature whatsoever
related to, or associated with, the Premises and the business operated thereon
and therein; provided, however, that Landlord shall nonetheless be obligated to
pay any debt service on any mortgage encumbering Landlord's fee simple interest
in the Premises, and Landlord's personal income taxes with respect to the rents
received by Landlord under this Lease. Except as expressly hereinabove provided,
Landlord shall bear no cost or expense of any type or nature with respect to, or
associated with, the Premises.
23.2 Estoppel Certificates. Tenant shall from time to time, within
fifteen (15) days after request by Landlord and without charge, give a Tenant
Estoppel Certificate in the form attached hereto as Exhibit E and containing
such other matters as may be reasonably requested by Landlord to any person,
firm or corporation specified by Landlord.
41
<PAGE>
23.3 Brokerage. Landlord and Tenant hereby represent and warrant to
each other that they have not engaged, employed or utilized the services of any
business or real estate brokers, salesmen, agents or finders in the initiation,
negotiation or consummation of the business and real estate transaction
reflected in this Lease. On the basis of such representation and warranty, each
party shall and hereby agrees to indemnify and save and hold the other party
harmless from and against the payment of any commissions or fees to or claims
for commissions or fees by any real estate or business broker, salesman, agent
or finder resulting from or arising out of any actions taken or agreements made
by them with respect to the business and real estate transaction reflected in
this Lease.
23.4 No Partnership or Joint Venture. Landlord shall not, by virtue of
this Lease, in any way or for any purpose, be deemed to be a partner of Tenant
in the conduct of Tenant's business upon, within or from the Premises or
otherwise, or a joint venturer or a member of a joint enterprise with Tenant.
23.5 Entire Agreement. This Lease contains the entire agreement between
the parties and, except as otherwise provided herein, can only be changed,
modified, amended or terminated by an instrument in writing executed by the
parties. It is mutually acknowledged and agreed by Landlord and Tenant that
there are no verbal agreements, representations, warranties or other
understandings affecting the same; and that Tenant hereby waives, as a material
part of the consideration hereof, all claims against Landlord for rescission,
damages or any other form of relief by reason of any alleged covenant, warranty,
representation, agreement or understanding not contained in this Lease. This
Lease shall not be changed, amended or modified except by a written instrument
executed by Landlord and Tenant.
23.6 Waiver. No release, discharge or waiver of any provision hereof
shall be enforceable against or binding upon Landlord or Tenant unless in
writing and executed by Landlord or Tenant, as the case may be. Neither the
failure of Landlord or Tenant to insist upon a strict performance of any of the
terms, provisions, covenants, agreements and conditions hereof, nor the
acceptance of any Rent by Landlord with knowledge of a breach of this Lease by
Tenant in the performance of its obligations hereunder, or the following of any
practice or custom at variance with the terms hereof, shall not be deemed or
constitute a waiver of any rights or remedies that Landlord or Tenant may have
or a waiver of any subsequent breach or default in any of such terms,
provisions, covenants, agreements and conditions or the waiver of the right to
demand exact compliance with the terms hereof.
23.7 Time. Time is of the essence in every particular of this Lease,
including, without limitation, obligations for the payment of money.
23.8 Costs and Attorneys' Fees. In addition to Landlord's rights under
Sections 18.2 and 19.2, if either party shall bring an action to recover any sum
due hereunder, or for any breach hereunder, and shall obtain a judgment or
decree in its favor, the court may award to such prevailing party its reasonable
costs and reasonable attorney's fees based upon service rendered at hourly
rates, specifically including reasonable attorney's fees based upon service
rendered at hourly rates incurred in connection with any appeals (whether or not
taxable as such by law). Landlord shall also be entitled to recover its
reasonable attorney's fees based upon service rendered at hourly rates and costs
incurred in any bankruptcy action filed by or against Tenant,
42
<PAGE>
including, without limitation, those incurred in seeking relief from the
automatic stay, in dealing with the assumption or rejection of this Lease, in
any adversary proceeding, and in the preparation and filing of any proof of
claim.
23.9 Approval of Landlord. Whenever the consent to or of Landlord is
referred to or is a condition precedent to the taking of any action by Tenant,
unless otherwise provided herein, such consent or approval shall not be
unreasonably withheld or delayed, and the failure of Landlord to notify Tenant
that it does not give its consent or approval within thirty (30) days after
receipt of any request shall be deemed to constitute such consent or approval.
Whenever Tenant is required under this Lease to do anything to meet the
satisfaction or judgement of Landlord, the reasonable satisfaction or judgement
of Landlord shall be deemed sufficient. The foregoing provision of this Section
shall not apply in any instance where the provisions of this Lease expressly
state that the provisions of this Section do not apply or where the provisions
of this Lease expressly state that such consent, approval or satisfaction are
subject to the sole and absolute discretion or judgement of Landlord, and in
each such instance Landlord's approval or consent may be unreasonably withheld
or unreasonable satisfaction or judgement may be exercised by Landlord.
23.10 Captions and Headings. The captions and headings in this Lease
have been inserted herein only as a matter of convenience and for reference and
in no way define, limit or describe the scope or intent of, or otherwise affect,
the provisions of this Lease.
23.11 Severability. If any provision of this Lease shall be deemed to
be invalid, it shall be considered deleted therefrom and shall not invalidate
the remaining provisions of this Lease.
23.12 Successors and Assigns. The agreements, terms, provisions,
covenants and conditions contained in this Lease shall be binding upon and inure
to the benefit of Landlord and Tenant and, to the extent permitted herein, their
respective successors and assigns.
23.13 Applicable Law. This Lease shall be governed by, and construed in
accordance with, the laws of the State in which the Premises is located.
23.14 Recordation of Memorandum of Lease. At either party's option, a
short form memorandum of this Lease, in the form attached hereto as Exhibit F
shall be recorded or filed among the appropriate land records of the County in
which the Premises is located, and Tenant shall pay the transfer and all
recording costs associated therewith. In the event of a discrepancy between the
provisions of this Lease and such short form memorandum thereof, the provisions
of this Lease shall prevail.
23.15 Waiver of Jury Trial. TENANT AND LANDLORD HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM OR THEIR HEIRS,
PERSONAL REPRESENTATIVES, SUCCESSORS OR ASSIGNS MAY HAVE TO A TRIAL BY JURY IN
RESPECT TO ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LEASE
OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
43
<PAGE>
ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT TO LANDLORD'S
ACCEPTING THIS LEASE.
23.16 Guaranty. In order to further secure Tenant's obligations
hereunder, Stormont Trice Corporation, Stormont Trice Development Corporation
and Stormont Trice Management Corporation (each a "Guarantor" and collectively
"Guarantors") have agreed to provide, and shall provide, a joint and several
Guaranty of this Lease, the form of which Guaranty is attached hereto as Exhibit
G and by this reference made a part hereof. The original of such Guaranty shall
be executed by the Guarantors in connection with the execution of this Lease.
The Guarantors have further joined in executing this Lease for the sole purpose
of acknowledging their agreement to provide such Guaranty and the Guaranty
referenced in Section 23.22. The Tenant is an Affiliate of the Guarantors and
some if not all of the officers, directors and shareholders of the Guarantors
are also officers and directors of the Tenant and the Guarantors therefore will
benefit from Tenant's entering into this Lease.
23.17 Landlord's Option to Terminate Lease.
(a) In the event Landlord enters into a bona fide contract to
sell the Premises to a non-Affiliated Person, Landlord may terminate the Lease
by giving not less than ninety (90) days' prior Notice to Tenant of Landlord's
election to terminate the Lease effective upon the closing under such contract.
Effective upon such closing, this Lease shall terminate and be of no further
force and effect except as to any obligations of the parties existing as of such
date that survive termination of this Lease. As compensation for the early
termination of its leasehold estate under this Section 23.17(a), Landlord shall
within 180 days of such closing, pay to Tenant the fair market value of Tenant's
leasehold estate hereunder, plus twenty percent (20%). In addition, in the event
if such early termination as provided herein in this Section 23.17 (a) Landlord
shall deliver the Retained Funds to Tenant. In the event Landlord and Tenant are
unable to agree upon the fair market value of an original or replacement
leasehold estate, it shall be determined by appraisal using the appraisal
procedure set forth in Section 23.17(b).
For the purposes of this Section, fair market value of the leasehold
estate (i) means, as applicable, an amount equal to the price that a willing
buyer not compelled to buy would pay a willing seller not compelled to sell for
Tenant's leasehold estate under this Lease or an offered replacement leasehold
estate, and (ii) shall not contemplate the existence of a third party management
agreement with respect to which management fees are paid.
(b) If it becomes necessary to determine fair market value for
any purpose of this Lease, the party required or permitted to give Notice of
such required determination shall include in the Notice the name of a person
selected to act as appraiser on its behalf. Within ten (10) days after Notice,
Landlord (or Tenant, as the case may be) shall by Notice to Tenant (or Landlord,
as the case may be) appoint a second person as appraiser on its behalf. The
appraisers thus appointed, each of whom must be a member of the American
Institute of Real Estate Appraisers (or any successor organization thereto) with
at lease five years experience in the State where the Premises are located
appraising property similar to the Premises, shall, within 45 days after the
date of the Notice appointing the first appraiser, proceed to appraise said the
Premises to determine the fair market value as of the relevant date (giving
effect to the impact, if any, of
44
<PAGE>
inflation from the date of their decision to the relevant date); provided,
however, that if only one appraiser shall have been so appointed, then the
determination of such appraiser shall be final and binding upon the parties. If
two appraisers are appointed and if the difference between the amounts so
determined does not exceed five percent (5%) of the lesser of such amounts, then
fair market value shall be an amount equal to fifty (50%) percent of the sum of
the amounts so determined. If the difference between the amounts so determined
exceeds five percent of the lesser of such amounts, then such two appraisers
shall have twenty days to appoint a third appraiser. If no such appraiser shall
have been appointed with such twenty days, or within ninety (90) days of the
original request for a determination of fair market value, whichever is earlier,
either Landlord or Tenant may apply to any court having jurisdiction to have
such appointment made by such court. Any appraiser appointed by the original
appraisers or by such court shall be instructed to determine fair market value
within 45 days after appointment of such appraiser. The determination of the
appraiser which differs most in the terms of dollar amount from the
determinations of the other two appraisers shall be excluded, and fifty percent
of the sum of the remaining two determinations shall be final and binding upon
Landlord and Tenant as the fair market value. This provision for determining by
appraisal shall be specifically enforceable to the extent such remedy is
available under applicable law, and any determination hereunder shall be final
and binding upon the parties except as otherwise provided by applicable law.
Landlord shall pay the fees and expenses of the appraisers.
(c) In the event this Lease Agreement terminates pursuant to
Section 4(A) or 4(B) of that certain Owner Agreement between Landlord, Tenant
and Franchisor of even date herewith (the "Owner Agreement"), as compensation
for such termination, Landlord shall, within 180 days of such termination, pay
Tenant the fair market value of Tenant's leasehold estate plus 20% as
contemplated in subparagraph (a) hereof. Further, in the event Franchisor
terminates the Owner Agreement and the Franchise Agreement pursuant to Section
4(C) of the Owner Agreement, (i) Landlord shall pay for all costs of
"de-identifying" and "re-identifying" the Improvements, and (ii) Landlord and
Tenant shall in good faith negotiate and agree upon a new "flag" for the
Premises and any changes to the terms of this Lease. If Landlord and Tenant
cannot agree upon a new "flag" or any changes to this Lease as referenced in
(ii) of the preceding sentence, either Landlord or Tenant shall have the right
to terminate this Lease by notice to the other party, whereupon (x) this Lease
shall terminate on the first business day following the expiration of the second
calendar month after the receipt of such notice and Landlord shall within 60
days following such termination pay to Tenant the fair market value of Tenant's
leasehold estate as determined pursuant to subparagraph (a) above; provided,
however, Landlord shall not be obligated to pay the additional 20% of such fair
market value as referenced in subparagraph (a) hereof.
23.18 Treatment of Lease. Landlord and Tenant each agree to treat this
Lease as a true lease for tax purposes and as an operating lease for generally
accepted accounting principles.
23.19 Landlord's Option to Acquire the Tenant's Personal Property;
Transfer of Licenses. Upon the expiration or early termination of this Lease,
the Landlord shall have the right and option to acquire all of Tenant's Personal
Property then in place or utilized at or within the Premises for the then market
value thereof (current replacement cost as determined by appraisal subject to,
and with appropriate price adjustments for, all equipment leases, conditional
sales contracts, UCC-1 Financing statements and other encumbrances to which such
personal property
45
<PAGE>
is subject, at the time of such expiration or termination of this Lease.
Provided, Landlord's right to acquire the Tenant's Personal Property as herein
provided shall be in addition to and not in lieu of Landlord's rights with
respect to Tenant's Personal Property as a result of a default hereunder by
Tenant. Further, upon the expiration or sooner termination of this Lease, Tenant
shall use its best efforts to transfer and assign to Landlord or its designee or
assist Landlord or its designee in obtaining, any contracts, licenses, permits,
development rights, trade names, telephone exchange numbers identified with the
Premises, approvals and certificates and all other transferable intangible
property, miscellaneous rights, benefits and privileges of any kind or character
with respect to the Premises useful or required for the then operation of the
Premises.
23.20 Tenant's Representations.
In addition to the any other representation or warranty set
forth herein and as an inducement to Landlord to enter into this Lease,
Tenant hereby represents and warrants to Landlord as follows:
(a) Tenant is a limited liability company duly organized and
validly existing and in good standing under the laws of the State of
Georgia. Tenant has all requisite power and authority under the laws of
the State of Georgia and its charter documents to enter into and
perform its obligations under this Lease and to consummate the
transactions contemplated hereby. Tenant is duly authorized to transact
business in any jurisdiction in which the nature of the business
conducted by it requires such qualification.
(b) Tenant has taken all necessary action to authorize the
execution, delivery and performance of this Lease, and upon the
execution and delivery of any document to be delivered by Tenant, prior
to the date hereof, such document shall constitute the valid and
binding obligation and agreement of Tenant, enforceable against Tenant
in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application affecting the rights and remedies
of creditors and except to the extent that the availability of
equitable relief may be subject to the discretion of the court before
which any proceeding may be brought.
(c) Neither the execution and delivery of this Lease or the
compliance with the terms and provisions hereof, will result in any
breach of the terms, conditions or provisions of, or conflict with or
constitute a default under, or result in the creation of any lien,
charges or encumbrance upon any property or assets of Tenant pursuant
to the terms of any other indenture, mortgage, deed of trust, note,
evidence of indebtedness, agreement or other instrument to which Tenant
may be a party or by which it or any of its properties may be bound, or
violate any provisions of law, or any applicable order, writ,
injunction, judgement or decree of any court, or any order or other
public regulation of any governmental commission, bureau or
administrative agency.
(d) There are no judgements presently outstanding and
unsatisfied against Tenant or any of its properties, and neither Tenant
nor any of its properties are involved in any material litigation at
law or in equity or any proceeding before any court, or by or before
any governmental or administrative agency, which litigation or
proceeding could
46
<PAGE>
materially adversely affect Tenant, and no such material litigation or
proceeding is, to the knowledge of Tenant, threatened against Tenant
and no investigation looking toward such a proceeding has begun or is
contemplated.
(e) To the knowledge of Tenant, neither this Lease nor any
other document, certificate or statement furnished to Landlord by or on
behalf of Tenant in connection with the transaction contemplated herein
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained
herein or therein not misleading. To the knowledge of Tenant there is
no fact or condition which materially and adversely affects the
business, operations, affairs, properties or condition of Tenant which
has not been set forth in this Lease or in other documents,
certificates or statements furnished to Landlord in connection with the
transaction contemplated hereby.
(f) Tenant hereby represents to Landlord that, in the
reasonable opinion of Tenant, the Premises and the Improvements therein
are adequately furnished and contain adequate FF&E and inventory
consistent with the amount of FF&E and inventory which is customarily
maintained in a hotel of the type and character of the Premises as
otherwise required to operate the Premises in a manner contemplated by
this Lease and in compliance with the Franchise Agreement and all legal
requirements. In addition to the foregoing, Tenant shall provide and
maintain throughout the Term, all Tenant's Personal Property as shall
be necessary in order to operate the Premises in compliance with
applicable legal requirements and insurance requirements and otherwise
in accordance with customarily practice in the industry for the
Permitted Use. If, from and after the Commencement Date, Tenant
acquires an interest in any items of tangible personal property (other
than motor vehicles) on, or in connection with the Premises which
belong to anyone other than Tenant, Tenant shall require the agreement
permitting such use to provide that Landlord or its designee may assume
Tenant's rights and obligations under such agreement upon the
termination of this Lease and any assumption of management or operation
of the Premises by Landlord or its designee.
(g) Tenant shall deliver to Landlord within thirty (30) days
after receipt of or after modification thereof, copies of all licenses
authorizing Tenant and/or manager to operate the Premises for its
Permitted Use.
(h) Tenant shall give prompt notice to Landlord of any
litigation or any administrative proceeding to which it may hereafter
become a party of which tenant has notice or actual knowledge and which
involves a potential uninsured liability equal to or greater than
$100,000.00 or which, in Tenant's reasonable opinion, may otherwise
result in any material adverse change in the business, operations,
property, prospects, results of operation or conditions, financial or
otherwise, of Tenant.
(i) During the Term of this Lease, except as approved in
writing by Landlord, and except for those nights when all rooms in the
Premises are sold, Tenant shall not, either directly or indirectly, for
itself, or through, or on behalf of, or in connection with any Person,
divert or attempt to divert any business or customer of the Premises to
any
47
<PAGE>
competitor, by direct or indirect inducement or otherwise, or do or
perform, directly or indirectly, any other act injurious or prejudicial
to the good will associate with the Landlord or the Premises.
(j) Tenant acknowledges that Tenant's failure or repeated
delays in making prompt payment in accordance with the terms of any
agreement, leases, invoices or statements for purchase or lease of
furniture, fixtures, equipment, inventories, supplies, travel agent
services or other goods or services will be detrimental to the
reputation of Landlord and Tenant. Accordingly, Tenant agrees that
Tenant shall pay when due all undisputed amounts owed by Tenant in
connection with the operation of the Premises.
(k) All employees of Tenant are solely employees of Tenant and
not Landlord. Tenant is not Landlord's agent for any purpose in regard
to Tenant's employees or otherwise. Further, Tenant expressly
acknowledges and agrees that Landlord does exercise any direction or
control over the employment policies or employment decisions of Tenant.
(l) Tenant shall submit to Landlord within ninety (90) days
after the end of each calendar year during the Term of this Lease, a
list of all members of the Tenant (being a limited liability company),
and the respective interests in Tenant held by each of such members as
of the end of each calendar year. If Tenant is a corporation, or if any
member of Tenant is a corporation, Tenant shall submit to Landlord
within ninety (90) days after the end of each calendar year during the
Term of this Lease, a list of all shareholders and the respective
interests of Tenant (or such corporate member) held by each of such
shareholders as of the end of each calendar year. In addition, if
Tenant is a partnership, Tenant shall submit to Landlord within ninety
(90) days after the end of each calendar year during the Term of this
Lease a list of all partners and the respect interests in Tenant held
by each partner as of the end of each calendar year.
23.21 No Merger of Title. It is expressly acknowledged and agreed that
it is the intent of the parties that there shall be no merger of this Lease or
of the leasehold estate created hereby by reason of the fact that the same
Person may acquire, own or hold, directly or indirectly, this Lease or the
leasehold estate created hereby and the fee estate or ground landlord's interest
in the Premises.
23.22 Additional Obligations relating to the Franchise Agreement. In
addition to the obligations contained herein, Tenant agrees to deliver to
Landlord (a) copies of all notices provided by the Franchisor to Tenant under
the terms of the Franchise Agreement concerning notices of default, notices of
changes or modifications to the Premises and the like; and (b) evidence of
acceptable to Landlord that Tenant has paid to Franchisor all sums due from
Tenant to Franchisor under the Franchise Agreement.
In addition to the foregoing, Tenant expressly understands,
acknowledges and agrees that in connection with the execution of this Lease,
Landlord has entered into that certain Owner's Agreement between Landlord,
Tenant and Franchisor and that in the event of a default under the Franchise
Agreement by Tenant, Landlord may be or become liable to Franchisor under the
terms of the Owner's Agreement and the Franchise Agreement. Tenant further
acknowledges and
48
<PAGE>
agrees that Tenant shall indemnify and hold Landlord harmless from and against
any and all loss, damage, injunctions, obligations, suits, actions, fines,
penalties, claims, demands, costs and expenses of any kind and nature resulting
or arising directly or indirectly from Tenant's default under the Franchise
Agreement. Accordingly, to further secure Tenant's indemnity obligations to
Landlord hereunder with respect to defaults under the Franchise Agreement, the
Guarantors, in addition to the Guaranty of even date herewith, referenced in
Section 23.16 hereof, shall execute that certain separate Guaranty in favor of
Landlord, a copy of which is attached hereto as Exhibit I. The original of such
Guaranty shall be executed by the Guarantors in connection with the execution of
this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
duly executed on or as of the day and year first above written.
Signed, sealed and delivered
in the presence of: CNL HOSPITALITY PARTNERS, L.P.
a Delaware limited partnership
By: /s/ Charles A. Muller
Name: Charles A. Muller
Title: Executive Vice President
(CORPORATE SEAL)
"LANDLORD"
STC LEASING ASSOCIATES, LLC
a Georgia Limited Liability Company
By: /s/ James M. Stormont, Jr.
Name: James M. Stormont, Jr.
Its: Authorized Member
(CORPORATE SEAL)
49
<PAGE>
"TENANT"
STORMONT TRICE CORPORATION,
By: /s/ James M. Stormont, Jr.
Name: James M. Stormont, Jr.
Its: Treasurer
(CORPORATE SEAL)
STORMONT TRICE DEVELOPMENT
CORPORATION
By: /s/ James M. Stormont, Jr.
Name: James M. Stormont, Jr.
Its: Vice President
(CORPORATE SEAL)
STORMONT TRICE MANAGEMENT
CORPORATION
By: /s/ James M. Stormont, Jr.
Name: James M. Stormont, Jr.
Its: Treasurer
(CORPORATE SEAL)
"GUARANTORS"
50
<PAGE>
JOINDER OF STORMONT TRICE MANAGEMENT CORPORATION
Stormont Trice Management Corporation, as the manager of the Premises,
hereby joins in the execution of this Lease as Manager for the purpose of
acknowledging and agreeing to the restriction and limitation set forth in
Article 3.2 hereof (regarding the subordinate position of manager, the
management agreement and management fees to this Lease) and Article 3.5 hereof
regarding the operation of a Conflicting Business within the Prescribed Area by
manager.
STORMONT TRICE MANAGEMENT
CORPORATION
By: /s/ James M. Stormont, Jr.
Its: Treasurer
51
<PAGE>
EXHIBIT 10.17
Master Revolving Line of Credit Loan Agreement with
CNL Hospitality Properties, Inc. and Colonial Bank,
dated July 31, 1998
<PAGE>
MASTER REVOLVING
LINE OF CREDIT
LOAN AGREEMENT
THIS MASTER REVOLVING LINE OF CREDIT LOAN AGREEMENT, dated __________,
1998 (the "Master Loan Agreement"), is made by and between CNL HOSPITALITY
PROPERTIES, INC., formerly CNL American Realty Fund, Inc., (a Maryland
corporation) and CNL HOSPITALITY PARTNERS, LP, a Delaware limited partnership
(collectively, "Borrower"), with its offices at 400 E. South Street, Suite 500,
Orlando, Florida 32801-2878, and COLONIAL BANK, a state chartered bank organized
and existing under the laws of the State of Florida, with its offices located at
201 E. Pine Street, Orlando, Florida, 32801 ("Bank").
RECITALS
A. Borrower has applied to Bank for a $30,000,000.00 credit facility to
provide financing for various loans of differing amounts (hereinafter
individually referred to as a "Loan" or collectively as the "Loans"), to be
advanced by Bank pursuant to the terms hereof.
B. Borrower will use the proceeds of the Loans to acquire hotels and
related improvements or amenities ("Hotels"), which shall be leased to
acceptable credit tenants, as herein provided.
C. Borrower and Bank wish to enter into this Master Loan Agreement to
provide a format to be effective, to the extent possible, with respect to such
Loans as Bank has presently agreed to make or may, in the future, agree to make.
D. From time to time Borrower and Bank shall enter into a Funding
Agreement/Loan Summary for each Loan which shall set forth certain specific loan
information (the "Loan Summaries" or, individually, a "Loan Summary") pertaining
to individual Loans that may be approved by Bank as provided herein and agreed
upon between the parties, the terms of which shall be incorporated herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Borrower and Bank hereby agree as
follows:
ARTICLE I
Definitions
1.1 For the purposes hereof, for each Loan:
a. "Architect" or "Supervising Architect" means the architect,
who will serve as Borrower's architect, as identified in the Loan Summary.
Borrower shall retain an architect who will perform various services in
connection with Hotels on behalf of Borrower under an Architect's Contract (as
hereinafter defined) with Borrower. Bank's Consultant and Borrower's supervising
architect shall not be the same person or firm;
b. "Closing Date" means the date upon which a Loan is closed
pursuant to the terms hereof;
c. "Commitment" means Bank's commitment letter (and all
amendments thereto) to Borrower, if any, as described in the Loan Summary, the
terms and conditions of which are incorporated herein by reference, but in the
event of any conflict or discrepancy between the terms of this Master Loan
Agreement and the Commitment, the terms of this Master Loan Agreement shall
control;
<PAGE>
d. "Consultant" means the architectural or engineering firm
which Bank shall designate to perform various services on behalf of Bank. The
services to be performed by Bank's Consultant include inspections of the Hotels
and all utilities, services, systems or facilities used in conjunction
therewith;
e. "Default" means a violation of any term, covenant, or
condition hereunder or a Default as defined under any of the Loan Documents
which remains uncured after the expiration of any applicable grace period or
required notice, if any, provided in the Loan Documents;
f. "Default Condition" means the occurrence or existence of an
event or condition which, upon the giving of notice or the passage of time, or
both, would constitute a Default;
g. "Financing Statements" means the UCC financing statements
filed in order to perfect Bank's lien on certain leases, contract rights,
personal property and fixtures as more particularly described therein;
h. "Governmental Authorities" means any local, state, or
federal governmental agency, regulatory body or office, or any
quasi-governmental office (including health and environmental), or any officer
or official of any such agency, office, or body whose consent or approval is
required as a prerequisite to the commencement of the construction of the
Improvements, or to the operation and occupancy of the Improvements or the
Hotel, or to the performance of any act or obligation or the observance of any
agreement, provision or condition of whatsoever nature herein contained;
i. "Hotel" means any Land, building and related structure
designed for overnight accommodation with all related Improvements, amenities,
utilities, parking areas and other facilities associated therewith that is
managed, maintained and operated by an entity with substantial hotel ownership
and management experience.
j. "Improvements" means all improvements on the Land (as
defined hereinbelow), including without limitation the improvements described in
the Loan Summary;
k. "Land" means all the real property upon which a Hotel is
located, including, without limitation, all improvements and amenities
associated therewith, and shall include all easements, licenses, permits,
approvals, drainage rights, impact fee or use credits and all other
hereditaments, right, title and interest associated and used in conjunction with
the Hotel;
l. "Loan Documents" means this Master Loan Agreement, the
Note, the Assignment of Leases and Rents, the Agreement Not to Encumber, and the
Financing Statements, and any other document or writing executed in connection
therewith or in furtherance thereof;
m. "Note" means a promissory note dated as of the Closing Date
executed by Borrower in favor of Bank evidencing a particular Loan for a
particular Hotel, as well as any promissory note or notes issued by Borrower in
substitution, replacement, extension, future advance, amendment, assumption or
renewal of the Note or any such promissory note or notes;
n. "Permitted Encumbrances" means those liens, encumbrances,
easement and other matters specified in the Agreement Not to Encumber as
"Permitted Encumbrances";
o. "Plans" means plans and specifications for the Improvements
prepared by the Architect and identified by Bank, and including such amendments
thereto as may from time to time be made by Borrower and approved by Bank.
- 3 -
<PAGE>
p. "Primary Lease" means a valid, binding executed and
existing lease for the use of a Hotel which is for an initial term of more than
ten (10) years and is entered into between Borrower and a tenant who is an
experienced hotel manager which is deemed to be creditworthy by the Bank and
such other terms as are acceptable to Bank and Bank counsel.
q. "Title Policy" means the owner's title policy meeting the
requirements of this Master Loan Agreement.
ARTICLE II
Line of Credit Guidance Facility
2.1 Loan Facility. Upon the execution of this Master Loan Agreement,
and subject to the terms hereof, the Bank has agree to provide a credit facility
to the Borrower in an amount up to a maximum of $30,000,000.00 (the "Master
Facility"). Borrower hereby acknowledges and agrees that the execution of this
Master Loan Agreement does not obligate Bank to make a future Loan for any
specific future Hotel or any other loans, and that any future request by
Borrower for an additional Loan for a new Hotel shall be made or denied by Bank
in the exercise of its sole discretion. Such decision may not be based on any
specific financial performance or other criteria of Borrower, or a Hotel, or by
prior actions, agreements or loans by Bank to Borrower. Bank shall retain full
and complete discretion to review and approve or disapprove future loan requests
under this Master Loan Agreement as and when such requests are made by Borrower.
Bank shall make any decisions on future requests for a Loan for a future Hotel,
if any, based solely upon its own underwriting and other decision making
processes. Borrower's proper compliance with the Loan Documents (including,
without limitation, this Master Loan Agreement) will not be determinative of
whether any future Loans or other loan requests are approved or granted. Bank
and Borrower acknowledge and agree that the structure of this Master Loan
Agreement has been prepared in such a way as to set out the terms of any future
Loans and to structure the Loan Documents to provide a format that may reduce or
minimize costs in the event future Loans are made by Bank to Borrower and
Borrower acknowledges it has fully consulted with its legal counsel in
connection therewith, and has satisfied itself as to the structure and format of
the Loan Documents delivered and reviewed by Borrower as of the date of this
Master Loan Agreement in that regard.
2.2 Term of Master Facility. The Master Facility shall be for a term of
five (5) years from the date of this Master Loan Agreement, subject to
termination by Bank within ninety (90) days of each anniversary date of this
Master Loan Agreement, in the event the Bank determines there has been a
material deterioration in the Loan or value of the collateral, as determined in
Bank's reasonable discretion, and such termination shall be effective upon
written notice to Borrower within such ninety (90) day period, whereupon the
Master Facility shall expire and terminate on the date so specified in the
notice, provided any outstanding Loan would mature on the maturity date as
provided that in the respective Note evidencing such Loan, and would remain
unaffected by such termination.
2.3 Terms of Future Loans. Upon the approval of any request by Borrower
of a new Loan for a new Hotel, such Loan shall be made in accordance with the
terms and provisions of this Master Loan Agreement and the following terms:
a. Interest Rate: The outstanding principal balance shall bear
interest at a variable rate per annum equal to either (i) the Base Rate plus 30
basis points, or (ii) the LIBOR Rate plus 318 basis points, for Loans on Hotels,
as selected by Borrower at the time of making each loan (the "Interest Rate").
The Interest Rate shall be adjusted daily in accordance with fluctuations in the
Base Rate or the LIBOR Rate, as applicable. "Base Rate" shall mean the
fluctuating rate of interest per annum established by Colonial Bank as its base
lending rate in effect from time to time whether or not such rate shall be
otherwise published. Such Base Rate is established by Colonial Bank as an index
or base rate and may or may not at any time be the best or lowest rate of
interest offered by Bank. The "LIBOR Rate" means a rate per annum for U.S.
dollar deposits for a 30, 60, 90, 180 or 360-day maturity as reported on page
3750 (under the caption "USD" of the Telerate
- 4 -
<PAGE>
Services, Incorporated, screen or such other display as may replace such page)
as of 11:00 a.m., London time, two London Business Days before the relevant
Interest Period begins (or if not so reported, a then as determined by Lender
from another recognized source or interbank quotation). LIBOR shall be rounded
to the next higher 1/1000 of one percent. "London Business Day" means any
business day on which commercial banks are open for international business
(including dealings in dollar deposits) in London.
b. Term: Sixty (60) months from the Closing Date of the Loan
for a specific Hotel.
c. Loan Commitment Fee: Borrower shall pay to Bank a loan
commitment fee equal to one-half of one percent (1/2%) of the disbursements
under each Loan, as provided in Section 4.32.
2.4 Notes. The funds loaned under the Master Facility will be evidenced
by various Notes indicating the principal amount of each Loan made pursuant to
the line of credit; provided, however, that the amount actually due from
Borrower to Bank from time to time will be evidenced by the Bank's records
(provided such amounts are prepared and posted properly without arithmetic or
mathematical errors), and may increase and decrease from time to time, or be
completely repaid and again reborrowed, but in no event shall the total amount
due exceed $30,000,000.00.
2.5 Release by Borrower. Borrower waives and released any claims, now
or in the future, known or unknown, that it may have to require or compel Bank
to provide future Loans other than as may be separately agreed by Borrower and
Bank pursuant to a subsequent commitment letter or other written agreement
between the parties, specifying the terms and conditions of such fundings. Any
such commitment or agreement shall be satisfactory to Bank, in its sole
discretion. In connection therewith, Borrower will execute such additional loan
documentation as Bank shall require including, without limitation, amendments
and modifications to the Loan Documents, together with the Loan Summary, which
will evidence and set forth the particular terms, conditions, restrictions,
agreements and covenants that pertain to the future Loans, as required by Bank.
Borrower acknowledges and agrees that the terms and conditions in any future
Loan Summary and related loan documentation shall be determined independently of
the terms of the Loan Documents and of any prior Loan Summary, if any, and
Borrower shall not rely upon the form and content of the terms of the Loan
Documents and of any prior Loan Summary as being determinative of what may be
included in a future Loan Summary.
2.6 Revolving Feature. The funds loaned under the Master Facility will
be evidenced by the various Notes; provided, however, that the amount actually
due from Borrower to Bank from time to time will be evidenced by Bank's records
and may increase and decrease form time to time or be completely repaid and
again reborrowed.
2.7 Disbursements Under Loans. The parties acknowledge and agree that
the Bank can make one or disbursement of any Loan at the request of Borrower,
provided, however, the aggregate amount of such disbursements shall not exceed
the principal amount of the Note. Each disbursement of the Loan must satisfy the
conditions precedent set forth in Article IV of the Master Revolving Line of
Credit Loan Agreement and such other provisions of the Loan Documents as may
apply.
ARTICLE III
The Loans
As to each Loan made by Bank to Borrower:
3.1 Loan Terms. Subject to the terms and conditions of this Master Loan
Agreement, Bank will lend, and Borrower will borrow, such sums as Bank and
Borrower shall agree upon, as specified in the Loan Summary which borrowing
shall be evidenced by the Note. All of the terms, definitions, conditions, and
covenants of the Note, the Assignment of Leases and Rents, the Agreement Not to
Encumber, and any other
- 5 -
<PAGE>
documents executed in connection therewith or pursuant thereto are expressly
made a part of this Master Loan Agreement by reference in the same manner and
with the same effect as if set forth herein at length and shall have the meaning
set forth in such instrument(s) unless otherwise defined herein.
3.2 Interest. The outstanding principal balance of the Loan shall bear
interest based on a 360 (actual) day year at the interest rate specified in the
Note, and principal and interest shall be due and payable in accordance with the
terms of the Note.
3.3 Disbursements. Bank agrees that it will, from time to time, and so
long as there shall exist no Default Condition or Default, disburse Loan
proceeds to Borrower pursuant to the Loan Documents. The conditions set forth in
this Article III hereof must be satisfied and the conditions set forth in
Article IV hereof must be satisfied before Bank will make the disbursement for
each Loan hereunder.
3.4 Draw Requests. At least three (3) days prior to each Loan
disbursement by Bank, Borrower must submit to Bank a Request for Disbursement on
a form acceptable to Bank, which shall include:
a. Request for Disbursement: A completed Request for
Disbursement signed by Borrower in a format acceptable and certified to Bank,
setting forth the amount of Loan proceeds desired, together with such
certifications and additional information as Bank may require.
b. Owner's Affidavit: A notarized affidavit from Borrower
shall be submitted which certifies that Owner is or shall upon application of
the Disbursement immediately become fee simple title holder to the Hotel.
c. Equity Compliance: Copies of paid invoices or other
acceptable documentation indicating Borrower's investment of Borrower's own
funds in the Hotel for those items and in the amounts indicated on the certified
Cost Breakdown, attached as an exhibit to the Funding Agreement/Loan Summary.
3.5 Disbursement Amounts. Following receipt of a Request for
Disbursement and receipt and review of the report of the Consultant, Bank shall
determine the amount of the disbursement it will make in accordance with the
Bank's underwriting policies adopted from time to time by the Bank.
3.6 Equity Requirements. If Bank determines that costs of acquisition
of a Hotel exceed the amount specified on the Loan Summary, which includes
certain specified amounts of "up front" equity and deferred equity to be paid by
Borrower, or if Bank at any time determines in its reasonable discretion that
the Loan proceeds plus the amount of all equity investments made are not
sufficient to meet the Bank's underwriting policies, and to pay all other sums
due, then Bank shall, upon written Notice to Borrower, have the option of
requiring Borrower to deposit with Bank additional funds from some other source
(or submit evidence to Bank of equity investments previously made) in amounts
sufficient to cover the anticipated or resulting deficit before Bank will
disburse any additional Loan proceeds.
ARTICLE IV
Conditions Precedent to Disbursement of Each Loan
Bank shall not be obligated to make the Loan disbursement with respect
to each Loan until all of the following conditions precedent have been satisfied
as to such Loan by proper evidence, execution and/or delivery to Bank of the
following items, all in form and substance reasonably satisfactory to Bank and
Bank's counsel:
4.1 Note. The original Note, properly executed, shall have been
delivered to Bank.
- 6 -
<PAGE>
4.2 Assignment of Leases and Rents, Security Agreement and Agreement
Not to Encumber. The Assignment of Leases and Rents and the Agreement Not to
Encumber, covering the Hotel, which with the Security Agreement shall be a
validly perfected first priority lien, shall have been delivered to Bank, and
which shall contain, among other provisions, the following provisions:
a. That upon any sale, conveyance, assignment or
transfer of all or any part of the Hotel or any
interest therein, Bank may, at Bank's option, declare
the Loan to be immediately due and payable without
notice or demand. Bank may, in Bank's sole discretion
decide not to exercise said option, in which event
Bank's forbearance may be predicated on such terms
and conditions as Bank may, in Bank's sole discretion
require, including, but not limited to, Bank's
approval of the transferee's creditworthiness and
management ability, the execution and delivery to
Bank by the transferee, prior to the sale, transfer,
assignment or conveyance, of a written assumption
agreement containing such terms as Bank may require,
including, but not limited to, a payment of a part of
the principal amount of the Note, an increase in the
rate of interest payable on the Note, the payment of
an assumption fee, a modification of the term of the
Note, and such other terms or conditions as Bank may
require, or Bank may make any such adjustments in the
terms of the Loan without requiring an assumption by
such transferee;
b. That Borrower shall not, without the prior written
consent of Bank, mortgage, pledge, hypothecate or
otherwise encumber (other than by a lease or leases
of the property which shall be in compliance with
Section 6.21 hereof) all or any portion of the Hotel,
even if such pledge or mortgage is subordinate to
Bank's lien position, and any violation of this
prohibition shall give Bank the right immediately to
accelerate the maturity of the Loan without notice or
demand;
c. That Borrower shall provide evidence that all ad
valorem or other applicable taxes and insurance
premiums have been paid when due.
d. That all income, profits, rents, insurance proceeds
or other incomes from leases or any other source
relating to the Hotel are assigned to the benefit of
the Bank including but not limited to the Primary
Lease, all as more particularly set forth in the
Assignment of Leases and Rents.
e. Any and all Leases assigned to the Bank pursuant
hereto shall be required to contain a provision which
requires the tenant to give written notice to Bank of
any and all defaults of landlord and provides the
Bank opportunity to cure the same, such provision to
be in a form and substance deemed adequate by Bank
and Bank's counsel.
f. That the Assignment of Leases and Rents and Security
Agreement shall be cross- defaulted with respect to
any other indebtedness or obligations from Borrower
to Bank.
4.3 Assignment of FF&E Account. An Assignment of FF&E Account, properly
executed by Borrower and delivered to the Bank.
4.4 Indemnity. A Hazardous Substance Certificate and Indemnification
Agreement, properly executed by Borrower, shall have been delivered to Bank.
- 7 -
<PAGE>
4.5 Financing Statements. The Financing Statements on forms approved
for filing in the appropriate state and local filing offices shall have been
properly executed.
4.6 Title Policy. The Title Policy (or a satisfactory commitment or
binder therefore), as to each Hotel from First American Title Insurance Company
or such other company or companies acceptable to Bank (the "Title Company"), and
on such form, approved by Bank issued by the Title Company to the Borrower in
the amount equal to or greater than the amount of the Loan insuring that the
Borrower is the fee simple owner of the Hotel subject only to the Permitted
Encumbrances.
4.7 Title Exceptions. Copies of all documents creating exceptions to
the Title Policy.
4.8 Survey. Three (3) copies of a recent survey of the Land (the
"Survey") prepared by a registered land surveyor acceptable to Bank and
certified to Bank, the Title Company, and Borrower. Such survey shall show: (a)
all boundaries of the Land with courses and distances indicated including chord
bearings and arc and chord distances for all curves, (b) dimensions and
locations of all existing improvements and of all easements, whether recorded or
unrecorded, private drives, roadways, encroachments, utility and transmission
lines, governmental regulation and jurisdictional lines, building restriction
lines established by zoning regulations or private covenants and restrictions,
whether recorded or unrecorded, (c) the distances to, and names of the nearest
intersecting streets, (d) a narrative metes and bounds legal description of the
boundary of the Land, (e) the area of the Land and the Hotel and any
Improvements thereon, (f) a certification as to the applicable flood zone(s) for
the Land; and if the subject property contains more than one Flood Zone
Designation, the boundary line(s) between the Flood Zone Designated Areas, (g) a
statement as to access to or from the Hotel, (h) the date of the survey and the
surveyor's registration number and seal, (i) other facts in any way affecting
the Land, (j) a certification that the survey was made in accordance with the
requirements for an ALTA land survey and in accordance with applicable state
law, and (k) such other details as the Bank may request.
4.9 Flood Hazards. Evidence as to whether or not the Land is located
within an area identified as having "special flood hazards" as such term is used
in the Federal Flood Disaster Protection Act of 1973. Such evidence can be the
certification that is required in connection with the survey required herein.
4.10 Flood Hazard Insurance. If all or any part of the Improvements is
to be located in an area having "special flood hazard", a flood insurance policy
naming Bank as a loss payee must be submitted to Bank. Satisfactory evidence of
premium payments must be provided.
4.11 Liability Insurance. Evidence of premium payments of Liability
Insurance meeting the requirements set forth in the Lease shall be provided to
the Bank in accordance with the terms set forth herein and in the Security
Agreement. All Liability Insurance shall be evidenced by policies issued by an
insurance company rated "A-VI" or better by A.M. Best & Co., and licensed to do
business in the state of Georgia. Each such policy is hereinafter referred as an
"Insurance Policy". Each Insurance Policy shall provide that the same shall not
be amended or canceled except after thirty (30) days prior written notice to
Bank, shall insure Bank, as an additional insured and shall list Bank as a loss
payee on casualty coverage for the Land, Hotel and Improvements. Copies of duly
executed certificates of insurance shall be delivered to the Bank no more than
ten (10) days after the effective date of the any Lease and upon the annual
anniversary date thereof and thereafter as may be reasonably requested by the
Bank.
4.12 Property Insurance. Evidence of Property Insurance covering
damages to each Hotel and all personal property and Improvements associated
therewith and meeting the requirements as set forth in the Security Agreement
shall be provided to Bank in accordance with the same terms as set forth in the
requirements for Casualty Insurance in Section 4.11 above.
- 8 -
<PAGE>
4.13 Borrower's Organizational Documents And Resolutions. (i) A
certified copy from the appropriate governmental body of organizational
documents of Borrower, certifying that Borrower is duly organized, validly
existing, and in good standing under the state of its existence, (ii) evidence
that Borrower has the authority under such documents and laws to enter into the
Loan as contemplated by the Loan Documents, and (iii) if applicable, evidence
that Borrower has made all appropriate filings, including without limitation,
qualification to do business in the state where the Land is located, the state
of its organization or domicile, and Florida, necessary to enter into the Loan
and execute the Loan Documents. Additionally, Borrower shall provide (i)
certified resolutions or other corporate documents of Borrower evidencing that
Borrower have taken all requisite corporate action, and received all corporate
approvals necessary to enter into the Loan and execute the Loan Documents, and
(ii) such other documents or writings as Bank may reasonably request.
4.14 Fictitious Name Certificate. If Borrower utilizes or intends to
utilize a fictitious name, a copy of the Fictitious Name Certificate of the
Borrower issued by the Florida Secretary of State and any other jurisdiction in
which such filing is necessary.
4.15 Attorney's Opinion. The written opinions of counsel to Borrower
(with respect to the laws of Florida and the state where the Land is located, if
different), addressed to Bank, acceptable to Bank and Bank's counsel, as to
those matters required by Bank. The attorneys opinion, with respect to the
enforceability of remedies provided in the Loan Documents and related instrument
may be made subject to or as affected by, applicable bankruptcy, moratorium,
reorganization, insolvency or similar laws from time to time in effect affecting
the rights of creditors generally. As to matters of fact, such opinions may be
qualified to the extent of the knowledge of such counsel based upon due inquiry
and reasonable investigation.
4.16 Compliance with Laws and Matters of Record. Satisfactory
documentary evidence that the Land with Improvements, and the intended uses of
the Land, are in compliance with all applicable laws, regulations and ordinances
and private covenants, easements, and conditions of record. Such evidence is
subject to approval by Bank and Bank's counsel and may include letters,
licenses, permits, certificates and other correspondence from the appropriate
Governmental Authorities, opinions of Borrower's counsel or other counsel, and
opinions or certifications from the Architect, or the Engineer. The laws,
regulations and ordinances with which compliance should be evidenced include
without limitation the following: health and environmental protection laws, laws
related to or regulating water management districts, hazardous materials and
substances and storm water drainage, erosion control ordinances, tree and
landscaping ordinances, building codes, land use requirements, threshold
building consultant requirements, the development of regional impact Statutes,
doing business and/or licensing laws and zoning laws (the evidence submitted as
to zoning should include the zoning designation made for the Land, the permitted
uses of the Land under such zoning designation and zoning requirements as to
parking, lot size, ingress, egress and building setbacks).
4.17 Taxes. Evidence that each Hotel is, or will be, separately
assessed for tax purposes and information as to tax parcel identification
numbers, tax rates, estimated tax values and the identities of the taxing
authorities.
4.18 Utilities. Evidence of the availability and suitability of the
water, sewer, telephone, electrical, natural gas, and other utilities needed to
properly service the Hotel in its intended use.
4.19 Plans and Specifications. With respect to Hotels, evidence of the
Plans which include architectural, structural, mechanical, plumbing, electrical
and site development (including storm drainage, utility lines, erosion control
and landscaping).
4.20 Permits. A copy certified by Borrower of evidence of all
applicable permits including, without limitation, the building permit and all
permits pursuant thereto, land use permits, dredge and stormwater discharge
permits (federal and state), and any other permits required for use and
occupation of the Hotel.
- 9 -
<PAGE>
4.21 Engineer's Report. Copies of the report signed by Borrower's
Engineer detailing the results of the engineer's inspection of the Hotel,
certified to the Borrower and Bank.
4.22 Soil Tests. Evidence of a prior report as to soil borings made on
the Land by a soil testing firm satisfactory to Bank or certification in the
Engineers Report as to such soil borings. The report and/or certification shall
include the conclusions and findings of the soil testing firm as to the
suitability of the soil for adequately supporting the improvements.
4.23 Environmental Assessment
a. An environmental assessment of the Land and Improvements
performed at Borrower's expense by a licensed engineer or other environmental
consultant satisfactory to Bank stating whether:
i) the Land is located within any area designated
as a hazardous substance site by any of the Governmental
Authorities;
ii) hazardous or toxic wastes or other materials or
substances, regulated, controlled, or prohibited by any
federal, state or local environmental laws, including but not
limited to asbestos, are located on the Land or Improvements;
and
iii) the Land has been cited or investigated in the
past for any violation of any such laws, regulations, or
ordinances.
b. Receipt of any acceptable environmental audit is a
condition precedent to Bank's obligation under the Commitment and hereunder. If
the environmental assessment shall reveal any condition unacceptable to Bank,
Bank may elect to be relieved of any obligation under the Commitment after
providing written notice to Borrower. If Bank does not elect to terminate the
Commitment, Borrower shall obtain a Phase II audit or conduct other additional
testing, at its sole cost and expense, and Borrower shall promptly conduct such
additional audits and testing and/or complete such remedial action. Bank may
require Borrower to provide evidence that all necessary actions have been taken
to remove any hazardous substance contamination and/or to restore the site to a
condition acceptable to Bank and state and federal governmental agencies.
c. Bank shall use best efforts to keep and maintain matters
set forth in the Environmental Assessment confidential by and among the Bank's
employees, agents, representatives and assigns; excepting, however, when
required by operation of Law to report any matters contained therein to any
governmental agency.
4.24 Leases. Copies of the then existing lease between the tenant for
the Hotel (the "Tenant") and Borrower (the "Tenant Lease"), certified by
Borrower and the respective Tenant to be accurate, complete, unaltered, and
binding.
4.25 Taxpayer Identification Number. Borrower's federal taxpayer
identification number.
4.26 Borrower's Affidavit. An affidavit of Borrower regarding the
absence of any other parties in possession of the Hotel, other than the tenant
under the Primary Lease and the guests of the Hotel (but merely in their
capacity as guests) and such other matters as may be requested by Bank;.
4.27 Fee. A fee equal to one-half of one percent (1/2%) of the actual
disbursements under each Loan shall be due and payable by Borrower to the Bank
at closing or subsequent disbursement.
- 10 -
<PAGE>
4.28 Notice. A copy of a recorded notice stating that all leases
affecting the Hotel, or any portion thereof, prohibit the attachment of
Tenant-related liens.
4.29 Appraisal. A signed copy of an appraisal by an MAI certified
appraiser approved by Bank reflecting the value of the Hotel to be not less than
the amount specified in the Loan Summary.
4.30 Comprehensive Plan. Documentary evidence, satisfactory to Bank and
its counsel, that use and operation of the Hotel are consistent with concurrency
requirements and other applicable provisions of the local comprehensive plan,
local land development regulations, and any other similar requirements
("Comprehensive Plan"). Such evidence may include a certificate from Borrower's
Architect, on a form satisfactory to Bank, certifying to Bank that the use and
operation of the Hotel are consistent with the Comprehensive Plan.
4.31 Facilities for Handicapped. Bank shall have received and approved
evidence, satisfactory to Bank, that the Improvements comply with all legal
requirements regarding access and facilities for handicapped or disabled
persons, including, without limitation, and to the extent applicable, Part V of
the Florida Building Construction Standards Act entitled "Accessibility by
Handicapped Persons" Chapter 553, Fla Stat. (or similar law in other
jurisdictions, if applicable); the Federal Architectural Barriers Act of 1988
(42 U.S.C. 4151, et. seq.), the Fair Housing Amendment Act of 1988 (42 U.S.C.
3601, et. seq.), The Americans With Disabilities Act of 1990 (42 U.S.C. 12101
et. seq.), and The Rehabilitation Act of 1973 (29 U.S.C. 794)
4.32 Reports and Analysis. Such reports and analysis as reasonably
requested by the Bank to establish the financial feasibility of the development,
use and operation of the Hotel as contemplated by the Loan.
4.33 No Defaults. No Default Condition or Default shall exist under the
Loan Documents.
4.34 Request. Bank shall have received Borrower's Request for
Disbursement.
4.35 Tenant Estoppel Certificates and Subordination Agreements. Any
tenant occupying the Hotel, or any portion thereof, or which will occupy the
Hotel, or any portion thereof, shall execute and deliver to Bank a tenant
estoppel certificate and subordination agreement in a form satisfactory to Bank.
The tenant shall also agree to provide the Bank notice and opportunity to cure
any and all defaults of landlord prior to tenant seeking any remedy. The tenant
estoppel certificate shall certify, among other things, the date the tenant
accepted occupancy of the leased premises (if applicable), the absence of any
lease defaults by landlord, the date the tenant commenced rent payments (if
applicable), the lease's material terms, and such other matters as may be
requested by Bank. The tenant estoppel shall also contain the tenant's agreement
to indemnify and hold Bank harmless from any and all losses arising from the
tenant's storage, disposal, releases, spills, or discharges of hazardous waste
on the Land. The subordination agreement shall provide, among other things, that
the tenant's right, title and interest under the lease is subordinate to the
lien of Bank's Assignment of Leases and Rents, Security Agreement and Assignment
of FF&E Account.
4.36 Miscellaneous. All other Loan Documents or items that are
customarily provided in loan transactions of this type required by Bank and all
other loan documents or items set forth in the Commitment.
ARTICLE V
Borrower's Covenants and Agreements As To Each Loan
5.1 Payment and Performance. Borrower will pay when due all sums owing
to Bank under all of the Note(s), this Master Loan Agreement, the Assignment of
Rents and the other Loan Documents, and perform all obligations as outlined or
referenced therein.
- 11 -
<PAGE>
5.2 Organization; Powers. CNL Hospitality Properties, Inc., has been
duly formed and is validly existing as a corporation under the laws of the State
of Maryland and CNL Hospitality Partners, LP, has been duly formed and is
validly existing as a limited partnership under the laws of the State of
Maryland and each has all requisite power and authority to execute, deliver and
perform its obligations under this Agreement and other Loan Documents and to
carry on its business as now conducted and as proposed to be conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a material adverse effect.
5.3 Authorization;Enforceability. The Loan is within the Borrower's
powers and has been duly authorized by all necessary action. The Security
Agreement and the other Loan Documents have been duly executed and delivered by
the Borrower and constitute the legal, valid and binding obligations of the
Borrower, enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent, conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
5.4 Further Assurances. Borrower will promptly do any act and execute
any additional documents reasonably required by Bank to secure the Loan, to
confirm or perfect the lien of the Assignment of Leases and Rents or any other
Loan Documents or to comply with the Commitment, including, but not limited to,
additional financing statements or continuation statements, new or replacement
notes and/or Loan Documents and agreements supplementing, extending or otherwise
modifying the Loan Documents and certificates as to the amount of the
indebtedness evidenced by the Note from time to time.
5.5 Inspection. Borrower will permit Bank and its authorized agents to
enter upon the Hotel during normal working hours and as often as Bank desires,
for the purpose of inspecting the Hotel or the Improvements. Failure of Bank or
its authorized agents to discover deficiencies in the Improvements shall not
make Bank or its agent liable to Borrower or to any other person on account of
such failure, nor shall any prior failure constitute a waiver of Bank's rights.
Borrower specifically acknowledges that all inspections undertaken by Bank or
its agent shall be for the sole benefit of Bank and not for Borrower, or any
third party. The costs of all inspections shall be at Borrower's expense;
provided, however, that as long as there is no Default, such cost shall not
exceed $500.00 for each Loan.
5.6 Fees and Expenses. Whether or not the Loan is made, or all Loan
proceeds disbursed hereunder, Borrower agrees to pay all expenses incurred by
Bank, or by Borrower in order to meet Bank's requirements, in connection with
the Loan, including without limitation, commitment and renewal fees or deposits
to bank, fees for appraisal, reappraisal survey, recording, title insurance,
builder's risk and other insurance premiums, property taxes, intangible taxes,
documentary stamp taxes, the design architect's and Architect's fees, the
Engineer's fees, the Consultant's fees, and such reasonable legal fees and costs
incurred by Bank in connection with the making of the Loan, the enforcement of
bank's rights under the Loan Documents, or in connection with litigation or
threatened litigation by a third party which arises because Bank made this Loan.
Any such amounts paid by Bank shall constitute part of the debt which is secured
by the Loan Documents, and shall be due and payable upon demand.
5.7 Use of Loan Funds. Borrower shall use all Loan proceeds disbursed
to Borrower solely in payment of costs incurred in connection with acquiring the
Hotel, in accordance with the Loan Summary. Loan funds from one Hotel project
shall not be utilized for any other project under this Master Loan Agreement.
5.8 Insurance. Borrower covenants to maintain insurance as required
herein and in the Security Agreement.
- 12 -
<PAGE>
5.9 Taxes and Insurance. Upon the request of Bank, Borrower shall
submit to Bank such receipts and other statements which shall evidence, to the
satisfaction of Bank, that all taxes, assessments and insurance premiums have
been paid in full.
5.10 Availability of Utilities. All utility services necessary for the
Improvements and the operation thereof for their intended purposes are presently
available through presently existing public or unencumbered private easements or
rights-of-ways in accordance with validly executed and enforceable utility
service agreements between Borrower and the provider of each of such services
(the "Utility Service Agreements") at the boundaries of the Land, including but
not limited to, water, storms and sanitary sewer, gas, electric and telephone
facilities, and all such utilities are non-interruptible. Borrower shall also
provide Bank with copies of all Utility Service Agreements.
5.11 Additional Construction. Borrower shall not construct or permit
the construction of any improvements on the Land other than those Improvements
approved in writing by Bank.
5.12 Financial Statements. Borrower shall submit annual audit reports
and semi-annual unaudited company prepared financial statements to the Bank.
Such statements shall include, at a minimum: a balance sheet; an income and
expense statement; a statement showing contingent liabilities; detailed cash
flow statements for each project or entity in which Borrower has an interest and
on which Bank has advanced funds under a Loan; and any supporting schedules or
documentation which Bank may require. Detailed cash flow statements shall
include, as applicable: the project name; location; percentage of Borrower's
ownership interest; leasing status; net operating income; current loan balance;
debt service; source of any operating deficit; amount and beneficiary of any
cash distributions; and the amount of cash invested in or received from that
enterprise. In addition detailed cash flow projects for the next fiscal year
(twelve month period) for each Hotel or entity shall be submitted. Each
unaudited statement must contain a certification to Bank of the statement's
accuracy and completeness signed by the highest ranking financial officer of the
Borrower. Annual statements of business entities (including corporation and
partnership) shall be audited and bear the unqualified opinion of an acceptable
certified public accountant. The annual statements shall be submitted no later
than April 30th of each year of the Loan term. Interim statements shall be
submitted within 30 days of Bank's request.
5.13 Appraisals. In addition to the appraisals required by Bank prior
to closing of the Loan, updated appraisals shall be prepared at Borrower's
expense when requested by Bank or when required in connection with any extension
options in the Note. Such appraisals shall be prepared in accordance with
written instructions from Bank and by a professional appraiser selected and
engaged by Bank. Borrower shall cooperate fully with the appraisal process and
shall allow the appraiser reasonable access to the Hotel and its tenants.
5.14 Hazardous Substances. Concurrently with the execution hereof,
Borrower warrants and represents to Bank that, to the best of Borrower's
knowledge, the Hotel and all real property, now or previously owned by Borrower
during the period of Borrower's ownership, and are not now being used in
violation of any federal, state or local environmental law, ordinance or
regulation; that no proceedings have been commenced, or notices(s) received,
concerning any alleged violation of any such environmental law, ordinance or
regulation. Borrower covenants that it shall not permit any such materials to be
brought onto the Hotel or any other real property owned by Borrower, or if so
brought or found located thereon, shall be immediately removed with proper
disposal, and all required environmental cleanup procedures shall be diligently
undertaken pursuant to all applicable laws, ordinances and regulations. Borrower
herein indemnifies and holds Bank harmless against any loss, claim or costs
incurred by Bank in connection with the warranties granted herein. Borrower's
obligations hereunder shall survive any proceeding to enforce Bank's rights
under the Loan Documents.
- 13 -
<PAGE>
At any time deemed necessary by Bank, but no more frequently than once
each calendar year, the Bank may in its reasonable discretion, at its election,
obtain one or more environmental assessments of the Land prepared by a
geohydrologist, an independent engineer, or other qualified consultant or expert
approved by Bank evaluating or confirming (i) whether any Hazardous Substances
are present in the soil or water at the Land and (ii) whether the use and
operation of the Land complies with all applicable Environmental Laws relating
to air quality, environmental control, release of oil, hazardous materials,
hazardous wastes and hazardous substances, and any and all other applicable
environmental laws. Environmental assessments may include detailed visual
inspection as to the Land including, without limitation, any and all storage
areas, storage tanks, drains, dry wells, and leasing areas and the taking of
soil samples, surface water samples, and ground water samples, as well as such
other investigations or analyses as are necessary or appropriate for a complete
determination of the compliance of the Land and the use and operation thereof
with all applicable Environmental Laws. Such environmental assessment shall be
the sole cost and expense of Borrower.
In the event that it is determined that additional tests and/or
remediation are necessary as a result of the aforesaid assessments, or in the
event such additional testing or remediation is recommended by the aforesaid
assessments, Borrower agrees to immediately perform the tests or undertake the
remediation as recommended. In the event contamination or other environmental
problem is found on the Land and Borrower does not promptly undertake the
remediation as recommended, Borrower shall be in default hereunder.
Bank shall use best efforts to keep and maintain matters set forth in
any hazardous substances notices and/or environmental assessments confidential
by and among the Bank's employees, agents, representatives and assigns;
excepting, however, when required by operation of law to report any such matters
contained therein to any governmental agency.
5.15 Leases Affecting Hotel. Borrower shall not, without the express
prior written consent of Bank, enter into any lease affecting the Hotel or any
part thereof (including the Primary Lease), or amend, modify, extend, terminate
or cancel, accept the surrender of any portion of the Hotel which is the subject
of a lease (except by expiration of such lease in accordance with its terms),
subordinate, accelerate the payment of rent as to, or change the terms of any
renewal option of any lease now existing or hereafter created, or permit or
suffer an assignment or sublease thereof, except as set out herein. Any lease or
any modification, extension, or renewal of any lease, affecting or relating to
all or any portion of a Hotel shall be subject to Bank's prior written approval.
Copies of all leases or modifications, renewals, or extensions thereto, approved
by the Bank shall be certified as accurate and complete by Borrower and Tenant
and delivered to the Bank within fifteen (15) days of execution.
5.16 Assignment of Contracts. As additional security for the Loan and
for the performance by Borrower of all of its obligations hereunder Borrower
hereby assigns to Bank all of Borrower's interest in any and all contracts,
agreements, permits, licenses, approvals, or other documents or writing relating
to the leasing, management or operation of the Improvements. This assignment
shall not, however, be deemed to impose upon Bank any of Borrower's obligations
under any such contract. Borrower will fulfill the obligations of Borrower under
all contracts, enforce the performance thereof and give immediate notice to Bank
of any material default by the other party to such contract. Further, Borrower,
will not, without the prior written consent of Bank (i) materially modify, or
amend the terms of any material contract, or (ii) waive or release the
performance of any material obligation to be performed by the other party to any
such contract.
5.17 Subordinate Financing. Borrower shall not permit there to exist
nor shall Borrower obtain any subordinate financing of the Hotel, or any part
thereof, or any other property granted as security for the Loan.
5.18 Transfer of Property or Borrower. Borrower shall not permit any
change in its ownership, or the ownership of its general partners, the nature
and operation of its business or the nature and character of Borrower or the
Hotel, nor shall Borrower sell, assign, transfer, hypothecate or dispose of all
or any portion of the Hotel except as permitted hereby, without the prior
written consent of Bank, which consent shall be
- 14 -
<PAGE>
withheld or granted in Bank's sole and absolute discretion. Notwithstanding the
foregoing, the sale or disposition of shares or units of Borrower sold or
transferred pursuant to a registration made with the Securities and Exchange
Commission pursuant to the Securities and Exchange Act of 1934 shall be deemed a
permissible transaction.
5.19 Americans With Disabilities Act. Borrower covenants and agrees
that, during the term of the Loan, the Hotel will be in full compliance with the
Americans With Disabilities Act ("ADA" of July 26, 1990, 42 U.S.C Section 12191,
et. seq.) as amended from time to time, and the regulations promulgated pursuant
thereto. Borrower shall be solely responsible for all ADA compliance costs
including without limitation, reasonable attorneys fees and litigation costs,
which responsibility shall survive the repayment of the Loan and foreclosure of
the Hotel.
ARTICLE VI
Borrower's Representations and Warranties As to Each Loan
6.1 Representations and Warranties. Borrower hereby represents and
warrants to Bank that:
a. Representations and Warranties in Loan Documents. All of
the representations and warranties contained in the Assignment of Leases and
Rents, the Agreement Not to Encumber and the other Loan Documents are true and
correct and are incorporated herein by reference as if set out in full.
b. Other Financing. Borrower has not (i) received any other
financing for the acquisition of the Hotel existing as of the date of the Loan
for such Hotel, or (ii) received any other financing of Improvements, equipment
or other facilities used in conjunction with each Hotel.
c. Governmental Requirements and Other Requirements, To
Borrower's knowledge, after due inquiry, the use and operation of the Hotel does
and shall comply with all covenants, conditions and restrictions affecting the
Land or any portion thereof; and do and shall comply with all Governmental
Requirements.
d. Use of the Hotel. To Borrower's knowledge there is no (i)
plan, study or effort by any Governmental Authority or any nongovernmental
person or agency which may adversely affect the current or planned use of the
Hotel, or (ii) any intended or proposed Governmental Requirement (including, but
not limited to, zoning changes) which may adversely affect the current or
planned use of the Hotel.
e. Moratorium. There is no moratorium or like governmental
order or restriction now in effect with respect to the Hotel and, to the best of
Borrower's knowledge, no moratorium or similar ordinance or restriction is now
contemplated.
f. Permits. To Borrower's knowledge, after due inquiry, prior
to the closing on each Loan, all permits, approvals and consents of Governmental
Authorities and public and private utilities having jurisdiction necessary in
connection with such Hotel shall have been issued and be in good standing.
g. Condition of Hotel. To Borrower's knowledge, after due
inquiry, at time of closing of each Loan, (i) no defect or condition of the
Hotel Improvements, Land or the soil, ground water or geology of or under the
Land and (ii) no other agreement, arrangement, understanding or conditions
whatsoever, exists which will delay or impair the use, or the operation of Hotel
for its intended purpose.
- 15 -
<PAGE>
h. Surveys. The Survey, and all plot plans and other documents
heretofore furnished by Borrower to Bank with respect to Land and Improvements
are accurate and complete as of their respective dates. To Borrower's knowledge,
after due inquiry (which inquiry will include review of the Survey and an
inspection of the Land) there are no encroachments onto the Land and no
Improvements on the Land encroach onto any adjoining property.
i. Sale of Securities. Borrower has not instituted, caused to
be instituted or been a party to and, to the best of Borrower's knowledge, there
has not been any public offering with respect to the Land and Improvements, or
either, within the meaning of the Securities Act of 1933 and the Securities
Exchange Act of 1934 ("Securities Laws") unless the same comply with all Laws,
including but not limited to the Securities laws, and Borrower promptly and
timely provides a copy of all materials filed with any Governmental Authority in
conjunction therewith.
j. Reliance on Representations. Borrower acknowledges that
Bank has relied upon the Borrower's representations and is not charged with any
knowledge contrary thereto that may be received by an examination of the public
records wherein the Land is located or that may have been received by any
officer, director, agent, employee of shareholder of Bank.
ARTICLE VII
Events of Default
7.1 Default. The occurrence of any one or more of the following events
(time being of the essence as to this Master Loan Agreement and all of its
provisions) with respect to one or more Loans constitutes a "Default" by
Borrower under this Master Loan Agreement, and at the option of Bank, under the
other Loan Documents for the respective Loan or any other Loan:
a. Scheduled Payment. Borrower's failure to make any payment
required under any of the Note(s) when due.
b. Monetary Default. Borrower's failure to make any other
payment required by this Master Loan Agreement or the other Loan Documents,
within ten (10) days of the due date, which payment is not received by Bank
within fifteen (15) days of receipt of written notice of such failure from Bank.
c. Other. Borrower's failure to perform any other obligation
imposed upon Borrower by this Master Loan Agreement or any other Loan Document
within the time period specified, or as may be specified by Bank, if in the sole
opinion of Bank such Default is curable, should such failure not be cured by
Borrower within thirty (30) days of receipt of written notice from the Bank, so
long as this thirty (30) day period does not conflict with any other provision
in the Loan Documents. This provision shall not be construed to provide Borrower
with any grace period in complying with any obligations imposed on Borrower by
the terms of the Loan Documents.
d. Representation. Any representation or warranty of Borrower
contained in this Master Loan Agreement or in any certificate delivered pursuant
hereto, or in any other instrument or statement furnished in connection
herewith, proves to be incorrect or misleading in any adverse respect as of the
time when the same shall have been made, including, without limitation, any and
all financial statements, operating statements, and schedules attached thereto,
furnished by Borrower to Bank or pursuant to any provision of this Master Loan
Agreement, provided such representation or warranty is made accurate by Borrower
within thirty (30) days of receipt of written notice from Bank.
e. Bankruptcy. Borrower or any general partner of Borrower or
any affiliate (i) files a voluntary petition in bankruptcy or a petition or
answer seeking or acquiescing in any reorganization or for an arrangement,
composition, readjustment, liquidation, dissolution, or similar relief for
itself pursuant to the
- 16 -
<PAGE>
United States Bankruptcy Code or any similar law or regulation, federal or
state, relating to any relief for debtors, now or hereafter in effect; or (ii)
makes an assignment for the benefit of creditors or admits in writing its
inability to pay or fails to pay its debts as they become due; or (iii) suspends
payment of its obligations or take any action in furtherance of the foregoing;
or (iv) consents to or acquiesces in the appointment of a receiver, trustee,
custodian, conservator, liquidator or other similar official of Borrower, a
general partner of Borrower, for all or any part of the Hotel or other assets of
such party, or either; or (v) has filed against it an involuntary petition,
arrangement, composition, readjustment, liquidation dissolution, or an answer
proposing an adjudication of it as a bankruptcy or insolvent, or is subject to
reorganization pursuant to the United States Bankruptcy Code, an action seeking
to appoint a trustee, receiver, custodian, or conservator or liquidator, or any
similar law, federal or state, now or hereinafter in effect, and such action is
approved by any court of competent jurisdiction and the order approving the same
shall not be vacated or stayed within sixty (60) days from entry; or (vi)
consents to the filing of any such petition or answer, or shall fail to deny the
material allegations of the same in a timely manner.
f. Judgments. (1) A final judgment other than a final judgment
in connection with any condemnation, and including any judgment or other final
determination of any contest permitted by the Assignment of Rent, is entered
against Borrower, any Guarantor, or any general partner of Borrower, that (i)
adversely affects the value, use or operation of any Hotel, or any portion
thereof, in Bank's sole judgment, or (ii) adversely affects, or may adversely
affect, the validity, enforceability or priority of the lien or security
interest created by the any Loan Document in Bank's sole judgment, or both; or
(2) execution or other final process issues thereon with respect to any Hotel,
or any portion thereof, and (3) Borrower or any general partner of Borrower,
does not discharge the same or provide for its discharge in accordance with its
terms, or procure a stay of execution thereon, in any event within thirty (30)
days from entry, or Borrower shall not, within such period or such longer period
during which execution on such judgment shall have been entered, and cause its
execution to be stayed during such appeal, or if on appeal such order, decree or
process shall be affirmed and Borrower shall not discharge such judgment
provided for its discharge in accordance with its terms within sixty (60) days
after the entry of such order or decree or affirmance, or if any stay of
execution on appeal is released or otherwise discharged.
g. Liens. Any federal, state or local tax lien or any claim of
lien for labor or materials or any other lien or encumbrances of any nature
whatsoever is recorded against Borrower or any Hotel, or any part thereof, and
is not removed by payment or transferred to substitute security in the manner
provided by law, within thirty (30) days after it is recorded in accordance with
applicable law, or is not contested by Borrower in the manner permitted by loan
Documents.
h. Leases. Borrower's default in the performance of its
obligations as lessor under any lease of all or any portion of the Hotel,
including the Primary Lease, which default could result, in Bank's sole
judgment, in the termination of said lease provided such default is not cured by
Borrower within thirty (30) days after receipt of written notice from Bank.
i. Other Notes or Mortgages. Borrower's default in the
performance or payment of Borrower's obligations under any other note or under
any mortgage encumbering all or any part of the Hotel, if the other mortgage is
permitted by the Bank, whether such other note or mortgage is held by Bank or by
any other party, provided such default is not cured by Borrower within thirty
(30) days after receipt of written notice from the Bank.
j. Borrower Default Under Loan Documents. Borrower's default
in the payment or performance of any of Borrower's obligations under any of the
Loan Documents pertaining to any Loan, including this Master Loan Agreement and
any amendments, riders or Loan Summaries attached hereto, provided such default
is not cured by Borrower within thirty (30) days of receipt of written notice
from Bank, excepting, however, if this thirty (30) day period should conflict
with any other notice and opportunity to cure provision contained in the Loan
Documents.
- 17 -
<PAGE>
k. Borrower's Continued Existence. Borrower shall cease to
exist or to be qualified to do or transact business in the state in which the
Hotel is located or shall be dissolved or shall be a party to a merger or
consolidation, or shall sell all or substantially all of its assets without
providing thirty (30) days written notice to the Bank in the event of any
voluntary dissolution, mergers or consolidations or after thirty (30) days
written notice from Bank in the event of involuntary merger, dissolution or
consolidation.
l. Stock in Borrower/Change in Partners. If any legal or
beneficial interest, including, but not limited to, shares of stock of Borrower
are issued, sold transferred, conveyed, assigned, mortgaged, pledged, or
otherwise disposed of so as to result in change of control of Borrower, whether
voluntarily or by operation of law, other than a sale by CNL Hospitality
Partners LP of limited partnership interests in itself, and whether with or
without consideration, or any agreement for any of the foregoing is entered
into; or, of any general partnership interest or other equity interest in
Borrower is sold, transferred, assigned, conveyed, mortgaged, pledged, or
otherwise disposed or, whether voluntarily or by operation of law, and whether
with or without consideration, or any agreement for any of the foregoing is
entered into, or any general partner of Borrower withdraws from the partnership;
unless otherwise permitted or approved by the Bank.
m. Transfer of Property or Ownership. Any sale, conveyance,
transfer, assignment, or other disposition of all or any part of any Hotel.
n. False Statement. Any statement or representation of
Borrower contained in the loan application or any financial statements or other
materials furnished to Bank or any other lender prior or subsequent to the
making of the Loan secured hereby are discovered to have been false or incorrect
or incomplete, which statement or representation is not made accurate within
thirty (30) days of receipt of written notice from Bank.
o. Default Under Indemnity. Borrower shall default under any
obligation imposed by any indemnity whether contained within any of the Loan
Documents, (including, without limitation, the Hazardous Substance Certificate
and Indemnification Agreement), or otherwise, which default is not cured by
Borrower within thirty (30) days of receipt of written notice from Bank.
p. Cross Default. Any default by Borrower under any other
documents or instruments evidencing any other loans by Bank to Borrower (or any
one if more than one Borrower) or in any mortgages or other collateral documents
securing such loans, which default is not cured by Borrower within thirty (30)
days of receipt of written notice from Bank.
q. Non-Compliance with the Plans and Specifications. Failure
of any of the Improvements to comply with the requirements of any Governmental
authority unless Borrower, after thirty (30) days notice, undertakes and
diligently pursues the correction of such failure.
r. Non-Payment of Debts. Borrower is generally not paying its
debts as such debts become due, provided such debts are not paid and evidence of
such payment provided to Bank within thirty (30) days of receipt of written
notice from Bank.
s. Securities Laws Violation. The assertion of any violation
by Borrower of the 1933 Securities Act, 1934 Securities Act or the Blue Sky Laws
by any Governmental Authorities or the institution of any securities litigation
not dismissed within sixty (60) days of the commencement of same.
t. Miscellaneous. If at any time Bank shall reasonably deem
itself insecure or shall determine that there has been a material adverse change
in the financial condition or prospect of Borrower, provided such change is not
cured by Borrower to Bank's reasonable satisfaction within sixty (60) days of
receipt of written notice from Bank.
- 18 -
<PAGE>
ARTICLE VIII
Bank's Rights and Remedies
The following rights and remedies are available to Bank as to all Loans
then outstanding and any Hotels pertaining thereto:
8.1 Acceleration. Upon the occurrence of a Default, the entire unpaid
principal balance of the Loans and all accrued but unpaid interest thereon and
any costs or expenses then due to Bank and any and all other obligations of
Borrower to Bank, shall, at the option of Bank and without notice to Borrower,
become immediately due and payable and, Bank shall have no further obligation to
make any advance, disbursement or Loan under this Master Loan Agreement.
8.2 Remedies. Upon the occurrence of a Default, Bank may avail itself
of any and all rights and remedies available at law or in equity or as provided
under this Master Loan Agreement or any of the other Loan Documents.
8.3 Action to Protect Bank's Interest and Granting Mortgage. From and
after the occurrence of a Default, the Bank shall be entitled to pursue any and
all remedies provided in the Loan Documents to protect the Bank's interest. In
addition to all remedies of Bank provided in this Agreement and in the Loan
Documents, upon a Default within twenty (20) days, Borrower shall execute a
Mortgage for each and every Hotel heretofore or hereafter financed in whole or
in part by the Bank pursuant to this Loan Agreement. Such Mortgage shall be upon
terms as set forth in Exhibit attached hereto. In the event Borrower fails or
refuses to execute any of said Mortgages, Borrower does hereby irrevocably
appoint and grant to the Bank power of attorney for Borrower to act for Borrower
in regard to the Bank's request including the right to execute any and all such
Mortgages and documents relating thereto, to record the same upon the public
records and to do all things necessary to create a first mortgage lien upon each
respective Hotel. Borrower shall be responsible for all cost and expenses
related to such Mortgages including but not limited to recording, documentary,
or other taxes, and a mortgage title insurance policy insuring Bank's mortgage.
8.4 Special Remedy. In the event either the Primary Lease or the
"Franchise Agreement" entered into between tenant under the Primary Lease and a
reputable hotel operator and franchisor, shall be terminated for any reason
whatsoever, in addition to all other remedies available to Bank under the Loan
Documents, Borrower shall, within twenty (20) days of receiving notice from
Bank, execute a Mortgage securing the Note with respect to such Hotel for which
the Primary Lease or Franchise Agreement has terminated unless Borrower has
provided the Lender a new Primary Lease or Franchise Agreement upon
substantially similar terms as exist at the time of making the Loan for such
Hotel and meeting the requirements of this Master Loan Agreement (hereinafter a
"Qualified Lease" and "Qualified Franchisor" respectively), in the reasonable
judgment of Bank. Such Mortgage shall be upon terms as set forth in Exhibit
_____ attached hereto. In the event Borrower fails or refuses to execute said
Mortgage(s), Borrower does hereby irrevocably appoint and grant to the Bank
power of attorney for Borrower to act for Borrower in regard to the Bank's
request including the right to execute any such Mortgage(s) and documents
relating thereto, to record the same upon the public records and to do all
things necessary to create a first mortgage lien upon said Hotel(s). Borrower
shall be responsible for all cost and expenses related to such Mortgage(s)
including but not limited to recording, documentary, or other taxes, and a
mortgage title insurance policy insuring Bank's mortgage. Bank agrees to release
the lien created by any Mortgage made pursuant to this Section 8.4 if Borrower
is not in Default and Borrower has or subsequently obtains a Qualified Lease
and/or Qualified Franchisor.
8.5 Remedies Cumulative; Nonwaiver. All remedies of Bank provided for
herein or in the other Loan Documents for any Loan are cumulative and shall be
in addition to any and all other rights and remedies provided for or available
under the other Loan Documents, at law or in equity. The exercise of any right
or remedy by Bank hereunder shall not in any way constitute a cure or waiver of
a Default Condition or a Default hereunder or under the Loan Documents, or all
remedies of Bank provided for herein or in the other Loan
- 19 -
<PAGE>
Documents for any Loan are cumulative and shall be in addition to any and all
other rights and remedies provided for or available under the other Loan
Documents, at law or in equity. The exercise of any right or remedy by Bank
hereunder shall not in any way constitute a cure or waiver of a Default
Condition or a Default hereunder or under the Loan Documents, or
8.6 Remedies Cumulative; Nonwaiver. All remedies of Bank provided for
herein or in the other Loan Documents for any Loan are cumulative and shall be
in addition to any and all other rights and remedies provided for or available
under the other Loan Documents, at law or in equity. The exercise of any right
or remedy by Bank hereunder shall not in any way constitute a cure or waiver of
a Default Condition or a Default hereunder or under the Loan Documents, or
invalidate an act done pursuant to any notice of the occurrence of a Default
Condition or a Default hereunder or under the Loan Documents, or invalidate any
act done pursuant to any notice of the occurrence of a Default Condition or
Default, or prejudice Bank in the exercise of said rights, Bank realizes all
amounts owed to it under the Loan Documents.
8.7 No Liability of Bank. Whether or not Bank elects to employ any or
all remedies available to it in the event of an occurrence of a Default
Condition or Default, Bank shall not be liable for the construction of or
failure to construct or complete or protect the Improvements or for payment of
any expense incurred in connection with the exercise or any remedy available to
Bank or for the construction or Completion of the Improvements or for the
performance or nonperformance of any other obligation of Borrower.
8.8 Security Interest. It is understood and agreed that Bank shall have
and enjoy and is hereby granted a lien on, and a security interest in, all real
and personal property and fixtures described in the Security Agreement and
Assignment of Leases and Rents, and including without limitation, any and all
materials of Borrower (stored on-site or off-site) reserves, deferred payments,
deposits or advance payments for materials (stored on-site or off-site)
undisbursed Loan proceeds, insurance refunds, impound accounts, refunds for
overpayment of any kind, and such lien and security interest shall constitute
additional security for the debt of Borrower under the Loan Documents (including
but not limited to the FF&E Account), and Bank shall have and possess any and
all rights and remedies of a secured party provided by law with respect to
enforcement of and recovery on its security interest on such items and amounts.
In the event of a conflict between this paragraph and any security interest
granted pursuant to the Assignment of Leases and Rents, the terms and provisions
contained in the Assignment of Leases and Rents shall control.
ARTICLE IX
General Conditions
The following conditions shall be applicable throughout the term of
this Master Loan Agreement:
9.1 Loan Summary. For any Loan made pursuant to this Master Loan
Agreement to be effective, Borrower must complete and execute the Loan Summary
pertaining thereto and the same must be accepted by Bank in its sole discretion
and executed by the Bank, and Borrower must comply with all the applicable terms
and conditions hereof including, without limitation, the execution and delivery
of the Loan Documents which pertain to the Loan.
9.2 Waivers. No waiver of any Default Condition or Default or breach by
Borrower hereunder shall be implied from any delay or omissions by Bank to take
action on account of such Default Condition or Default, and no express waiver
shall affect any Default Condition or Default other than the Default specified
in the waiver and it shall be operative only for the time and to the extent
therein stated. Waivers or any covenants, terms or conditions contained herein
must be in writing and shall not be construed as a waiver of any subsequent
breach of the same covenant, term or condition. The consent or approval by Bank
to or of any act by Borrower requiring further consent or approval shall not be
deemed to waive or render unnecessary the
- 20 -
<PAGE>
consent or approval to or of any subsequent or similar act. No single or partial
exercise of any right or remedy of Bank hereunder shall preclude any further
exercise thereof or the exercise of any other or different right or remedy.
9.3 Benefit. This Master Loan Agreement is made and entered into for
the sole protection and benefit of Bank and Borrower, their successors and
assigns, and no other person or persons have any right to action hereon or
rights to the Loan all proceeds at any time, nor shall Bank owe any duty
whatsoever to any claimant for labor or services performed or material furnished
in connection with the Hotel, or to apply any undisbursed portion of the Loan to
the payment of any such claim, or to exercise any right or power of Bank
hereunder or arising from any Default Condition or Default by Borrower.
9.4 Assignment. The terms hereof shall be binding upon and inure to the
benefit of the heirs, successors, assigns, and personal representatives of the
parties hereto; provided, however, that Borrower shall not assign this Master
Loan Agreement or any of its rights, interests, duties or obligations hereunder
or any Loan proceeds or other moneys to be advanced hereunder in whole or in
part without the prior written consent of Bank and that any such assignment
(whether voluntary or by operation of law) without said consent shall be void.
It is expressly recognized and agreed that Bank may assign this Master Loan
Agreement, the Agreement Not to Encumber, the Assignment of Leases and Rents and
any other Loan Documents in whole or in part, to any other person, firm, or
legal entity provided that all of the provisions hereof shall continue in full
force and effect and, in the event of such assignment, Bank shall thereafter be
relieved of all liability under the Loan Documents arising from and after the
date of such assignment and any Loan disbursements made by any assignee shall be
deemed made in pursuant and not in modification hereof and shall be secured by
the Assignment of Leases and Rents and any other Loan Documents.
9.5 Amendments. This Master Loan Agreement shall not be amended except
by a written instrument signed by all parties hereto.
9.6 Terms. Whenever the context and construction so require, all words
used in the singular number herein shall be deemed to have been used in the
plural, and vice versa, and the masculine gender shall include the feminine and
neuter and the neuter shall include the masculine and feminine.
9.7 Post-Closing Environmental Assessments. In addition to the
environmental report required to be furnished to Bank as a condition precedent
to closing, Bank may, but no more frequently than annually, at Bank's sole
option, and at the Borrower's expense, require an environmental assessment or
updated assessment conforming to Bank's Guidance Document, from a reputable
environmental consultant satisfactory to Bank as to whether the Hotel, or any
portion thereof, has been or is presently being used for the handling, storage,
transportation or disposal of hazardous or toxic materials. If such report
indicates such past, or present use, handling, storage, transportation or
disposal of hazardous or toxic materials, such shall be deemed to constitute a
default by the Borrower under the Loan Documents.
9.8 Cross-Default/Cross Collateral. A default hereunder or under any of
the documents evidencing or securing a Loan shall constitute an event of default
under any other Loan or other indebtedness (now or hereafter existing) of
Borrower to Bank. Any default under any document evidencing or securing such
other indebtedness shall constitute a default hereunder.
9.9 Anti-Coercion Notice. The insurance laws of the State of Florida
provide that Bank may not require Borrower to take insurance through any
particular insurance agent or company to insure the Land or Improvements.
Borrower, subject to the rules adopted by the Florida Insurance Commissions, has
the right to have insurance placed with an insurance agent or company of
Borrower's choice, provided the company meets Bank's requirements. Bank has the
right to designate reasonable financial requirements as to the company and the
adequacy of the insurance coverage. Borrower shall also execute any documents
required by similar laws of any other state which may be applicable.
- 21 -
<PAGE>
9.10 Entire Agreement. This Master Loan Agreement, when accepted, shall
constitute the entire agreement between Borrower and Bank, and it may not be
altered or amended unless agreed to in writing by Bank and Borrower.
9.11 Indemnification.
Borrower shall indemnify and hold Bank and its directors,
officers, agent, employees, and attorneys harmless from all liability, loss
expense or damage of any kind or nature, including, without limitation, any
suits, proceedings, claims, demands, or damages (including attorney's fees and
costs paid or incurred in connection therewith at both trial and appellate
levels), incurred or arising by reason of:
a. This Master Loan Agreement or the making of a Loan
(except for liability, loss, expense, or damage
arising from the willful misconduct of Bank);
b. Any claim or action for the payment of any brokerage
commissions or fees which may be claimed to be
payable in connection with this Master Loan
Agreement; and
c. The past, present or future handling, storage,
transportation, or disposal of hazardous substances
upon the Hotel, or any portion thereof.
These indemnifications shall survive the full payment and performance of the
obligations of the Borrower under the Loan Documents.
9.12 Choice of Law. The Loans, and all documents executed in connection
therewith shall be governed by and construed in accordance with Florida law
except with respect to the enforcement of the Assignment of Leases and Rents,
the Security Agreement, the Financing Statements and the Agreement Not To
Encumber, which shall be governed by the laws of the State where the Hotel is
located, and Borrower shall execute such instruments necessary in connection
therewith.
9.13 Controlling Agreement. The parties intend to conform strictly to
the applicable usury laws. All agreements between Bank and Borrower (or any
other party liable with respect to any indebtedness under the Loan Documents)
are hereby limited by the provision of this paragraph which shall override and
control all such agreements, whether now existing or hereafter arising and
whether written or oral. In no way, nor in any event or contingency (including
but not limited to prepayment default, demand for payment or acceleration of the
maturity of any obligation), shall the interest contracted for, charged or
received under this Master Loan Agreement or otherwise exceed the maximum amount
permissible under applicable law. If, from any possible construction of any
document interest would otherwise be payable to bank in excess of the maximum
lawful amount any such construction shall be subject to the provisions of this
paragraph and such document shall be automatically reformed and the interest
payable to Bank shall be automatically reduced to the maximum amount permitted
under applicable law, without the necessity of execution of any amendment or new
document. If Bank shall ever receive anything of value which is characterized as
interest under applicable law and which would apart from this provisions be in
excess of the maximum lawful amount, an amount equal to the amount which would
have been excessive interest shall be applied to the reduction of the principal
amount owing in the inverse order of its maturity and to the payment of
interest, or refunded to Borrower if and to the extent such amount which would
have been excessive exceeds unpaid principal. The right to accelerate maturity
of any indebtedness does not include the right to accelerate any interest which
has not otherwise accrued on the date of such acceleration, and Bank does not
intend to charge or receive any unearned interest in the event of acceleration.
All interest paid or agreed to be paid to Bank shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and spread throughout the full
stated term (including any renewal or extension) of such indebtedness so that
the amount of interest on account of such indebtedness does not exceed the
maximum permitted by applicable law.
- 22 -
<PAGE>
9.14 NOTICE TO ALL BORROWERS AND OTHER OBLIGORS, FINAL AGREEMENT. The
following notice is incorporated in this Master Loan Agreement; and such of the
Loan Documents as Bank may specify and shall contain such notice in solid
capital letters;
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
9.15 Publicity. Upon approval of Borrower, not to be unreasonably
withheld, and after Bank's request, and subject to applicable laws, regulations
and restrictions, Borrower shall, at Bank's expense, place upon each Hotel, at a
location mutually acceptable to Borrower and Bank, a sign or signs advertising
the fact that financing is being provided by Bank. Bank shall also have the
right to secure printed publicity through newspaper and other media concerning
the Hotel and source of financing.
9.16 Savings Clause. Invalidation of any one or more of the provisions
of this Master Loan Agreement shall in no way affect any of the other provisions
hereof, which shall remain in full force and effect.
9.17 Execution in Counterparts. This Master Loan Agreement may be
executed in two or more counterparts, each of which shall be deemed to be an
original, but all of which shall constitute one and the same instrument, and in
making proof of this Master Loan Agreement, it shall not be necessary to produce
or account for more than one such counterpart.
9.18 Captions. The captions herein are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
of this Master Loan Agreement nor the intent of any provisions hereof.
9.19 Notices. Each notice, request, demand, director or other
communication provided for hereunder shall be in writing and mailed (by
registered or certified mail, return receipt requested), delivered by hand, or
sent by facsimile (with receipt confirmed by facsimile) to Borrower or Bank at
the addresses indicated herein. Notices and other communications mailed shall be
deemed given three (3) days after being mailed; those sent by facsimile shall be
deemed given when sent, and those delivered by hand or reputable overnight
courier shall be deemed given when delivered. To the greatest extent permitted
under applicable law, Borrower waives all notice and demand in connection with
or relating to this Agreement. Borrower agrees that in any instance in which
reasonable advance notice to Borrower is required by law, such requirement shall
be satisfied if notice is given (deemed given) at least five (5) days in
advance.
9.20 No Commitment. Nothing in this Master Loan Agreement shall be
construed or deemed to be a commitment by Bank to make any future Loan or Loans
to Borrower other than as may be set forth in any Commitment Letter or other
agreements as Borrower and Bank may agree upon.
9.21 WAIVER OF JURY TRIAL. BY ACCEPTANCE HEREOF, BORROWER AGREES THAT
NEITHER BORROWER, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR LEGAL REPRESENTATIVE OF
BORROWER ALL OF WHOM ARE HEREINAFTER REFERRED TO AS THE 'PARTIES' SHALL SEEK A
JURY TRIAL IN ANY LAWSUIT, PROCEEDINGS, COUNTERCLAIM, OR ANY OTHER LITIGATION
PROCEDURE BASED UPON OR ARISING OUT OF THIS MASTER LOAN AGREEMENT OR ANY
INSTRUMENT EVIDENCING, SECURING, OR RELATING TO THE INDEBTEDNESS AND OTHER
OBLIGATIONS EVIDENCE HEREBY, ANY RELATED AGREEMENT OR INSTRUMENT, ANY OTHER
COLLATERAL FOR THE INDEBTEDNESS EVIDENCE HEREBY OR THE DEALINGS OR THE
RELATIONSHIP BETWEEN
- 23 -
<PAGE>
OR AMONG THE PARTIES, OR ANY OF THEM. NONE OF THE PARTIES WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY
OTHER ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS
SECTION HAVE BEEN FULLY NEGOTIATED BY THE PARTIES WITH BANK, AND THESE
PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. BANK HAS IN NO WAY AGREED WITH OR
REPRESENTED TO ANY OF THE PARTIES THAT THE PROVISIONS OF THIS SECTION WILL NOT
BE FULLY ENFORCED IN ALL INSTANCES.
9.22 Waiver of Rights. THE BORROWER HEREBY KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY WAIVES ALL RIGHTS WHICH THE BORROWER HAS UNDER CHAPTER 14 OF TITLE
44 OF THE OFFICIAL CODE OF GEORGIA OR UNDER ANY SIMILAR PROVISION OF APPLICABLE
LAW TO NOTICE AND TO A JUDICIAL HEARING PRIOR TO THE ISSUANCE OF A WRIT OF
POSSESSION ENTITLING A BANK, ITS SUCCESSORS AND ASSIGNS TO POSSESSION OF THE
COLLATERAL UPON DEFAULT OR EVENT OF DEFAULT. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING AND WITHOUT LIMITING ANY OTHER RIGHT WHICH THE BANK MAY HAVE, THE
BORROWER CONSENTS THAT, IF THE BANK FILES A PETITION FOR AN IMMEDIATE WRIT OF
POSSESSION IN COMPLIANCE WITH SECTIONS 44-14-261 AND 44-14-262 OF THE OFFICIAL
CODE OF GEORGIA OR UNDER ANY SIMILAR PROVISION OF APPLICABLE LAW AND THIS WAIVER
OR A COPY HEREOF IS ALLEGED IN SUCH PETITION AND ATTACHED THERETO, THE COURT
BEFORE WHICH SUCH PETITION IS FILED MAY DISPENSE WITH ALL RIGHTS AND PROCEDURES
HEREIN WAIVED AND MAY ISSUE FORTHWITH AN IMMEDIATE WRIT OF POSSESSION IN
ACCORDANCE WITH CHAPTER 14 OF TITLE 44 OF THE OFFICIAL CODE OF GEORGIA OR IN
ACCORDANCE WITH ANY SIMILAR PROVISION OF APPLICABLE LAW, WITHOUT THE NECESSITY
OF AN ACCOMPANYING BOND AS OTHERWISE REQUIRED BY SECTION 44-14- 263 OF THE
OFFICIAL CODE OF GEORGIA OR IN ACCORDANCE WITH ANY SIMILAR PROVISION OF
APPLICABLE LAW. THE BORROWER HEREBY ACKNOWLEDGES THAT IT HAS READ AND FULLY
UNDERSTANDS THE TERMS OF THIS WAIVER AND THE EFFECT HEREOF.
9.23 Joint and Several. If there is more than one entity executing as
Borrower under this Master Loan Agreement, each and every entity executing this
Master Loan Agreement on behalf of Borrower shall be joint and severally liable
for all debts and obligations and this Master Loan Agreement.
- 24 -
<PAGE>
IN WITNESS WHEREOF, Borrower and Bank have executed this Master Loan
Agreement as of the above written date by their duly authorized respective
officers.
WITNESSES:
BORROWER:
CNL HOSPITALITY PROPERTIES, INC.,
a Maryland corporation
/s/ William T. Dymond, Jr. By: /s/ Charles A. Muller
Signature Printed Name: Charles A. Muller
Title: Executive Vice President
William T. Dymond, Jr.
Print/Type Name
(CORPORATE SEAL)
/s/ Peter Latham
Signature
Peter Latham
Print/Type Name
BORROWER:
CNL HOSPITALITY PARTNERS, LP,
a Delaware limited partnership
/s/ William T. Dymond, Jr. By: CNL Hospitality GP Corp., a
Signature Delaware Corporation, its
sole general partner
William T. Dymond, Jr. By: /s/ Charles A. Muller
Print/Type Name Printed Name: Charles A. Muller
Title: Executive Vice President
/s/ Peter Latham
Signature
(CORPORATE SEAL)
Peter Latham
Print/Type Name
- 25 -
<PAGE>
BANK:
COLONIAL BANK
/s/ Peter Latham By: /s/ H.E. Davis
Signature Printed Name: H.E. Davis
Title: President
Peter Latham
Print/Type Name
/s/ Richard J. Fildes
Signature
Richard J. Fildes
Print/Type Name
- 26 -
<PAGE>
EXHIBIT 23.4
Consent of PricewaterhouseCoopers LLP,
Certified Public Accountants,
dated September 21, 1998
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-11 (File
No. 333-9943) of our report dated January 22, 1998 on our audit of the financial
statements of CNL American Realty Fund, Inc. We also consent to the reference to
our Firm under the caption "Experts".
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Orlando, Florida
September 21, 1998
<PAGE>
EXHIBIT 23.5
Consent of Arthur Andersen LLP,
Certified Public Accountants,
dated September 21, 1998
<PAGE>
CONSENT OF THE INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
dated February 27, 1998 with respect to the financial statements of Buckhead
Residence Associates, L.L.C. and our report dated February 27, 1998 with respect
to the financial statements of Gwinnett Residence Associates, L.L.C. included in
or made part of this Registration Statement (File No. 333-9943.)
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Atlanta, Georgia
September 21, 1998
<PAGE>
