As filed with the Securities and Exchange Commission on November 1, 1996
Registration No. ______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
Form S-11
Registration Statement
under
The Securities Act of 1933
-----------------
CNL AMERICAN PROPERTIES FUND, INC.
(Exact Name of Registrant as Specified in Charter)
400 East South Street, Suite 500
Orlando, Florida 32801
Telephone: (407) 422-1574
(Address of principal executive offices)
JAMES M. SENEFF, JR.
Chief Executive Officer
400 East South Street, Suite 500
Orlando, Florida 32801
Telephone (407) 422-1574
(Name and Address of Agent for Service)
COPIES TO:
THOMAS H. McCORMICK, ESQUIRE
EDMUND D. GRAFF, ESQUIRE
Shaw, Pittman, Potts & Trowbridge
2300 N Street, N.W.
Washington, D.C. 20037
Approximate date of commencement of proposed sale to the public: As soon
as practicable after the registration statement becomes effective.
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.
<TABLE>
<CAPTION>
Title of each class of securities to Proposed maximum offering price
be registered Amount to be registered per Share
<S> <C>
Common Stock, $.01 par value 27,500,000 Shares $10.00
<CAPTION>
Proposed maximum aggregate
offering price Amount of registration fee
<S> <C>
$275,000,000 $83,334
</TABLE>
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.
Prospectus
CNL AMERICAN PROPERTIES FUND, 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 AMERICAN PROPERTIES 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 27,500,000 Shares in
this offering for a maximum of $275,000,000. The Company invests in restaurant
properties (the "Properties") located across the United States to be leased on a
long-term, "triple-net" basis to creditworthy operators of selected national and
regional fast-food, family-style, and casual dining restaurant chains (the
"Restaurant Chains"). As of October 18, 1996, the Company owned a portfolio of
84 Properties, all of which were acquired with the proceeds of its initial
public offering (the "Initial Offering") which commenced in April 1995 and
terminated in December 1996. The Company is expected to have a total portfolio
of approximately 400 to 450 Properties, if the maximum number of shares of
common stock (the "Shares") of the Company is sold in this offering. Under the
Company's triple-net leases, the tenant is responsible for property costs
associated with on-going operations, including repairs, maintenance, property
taxes, utilities, and insurance. In addition, the leases are 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 certain restaurant sales above a
specified level. The Company also provides financing (the "Mortgage Loans") on a
limited basis for the purchase of buildings, generally by tenants that lease the
underlying land from the Company. To a lesser extent, the Company offers
furniture, fixture and equipment financing ("Secured Equipment Leases") to
operators of Restaurant Chains. 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"), including the following:
o The Company will rely on CNL Fund 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 mortgage financing and equipment leasing is
limited.
o The Advisor and its Affiliates are or will be engaged in other activities
that will result in potential conflicts of interest with the services that
the Advisor will provide to the Company.
o The Company owned, as of October 18, 1996, 84 Properties of the anticipated
total of 400 to 450 Properties and investors, therefore, will not have the
opportunity to evaluate all of 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") by December 31, 2005, as to which there
can be no assurance, the Company will commence orderly sale of its assets
and the distribution of the proceeds. Listing does not assure liquidity.
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 cash that the Company receives from tenants
and lessees.
o Prior to meeting certain conditions, the Company may incur debt, including
debt to make Distributions to stockholders in order to maintain its status
as a REIT, but will not encumber Properties.
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 receipt of percentage rent, and
obtaining fixed income through the receipt of payments from Mortgage Loans and
Secured Equipment Leases; (iii) qualifying as a REIT for federal income tax
purposes; and (iv) providing stockholders of the Company with liquidity of their
investment within three to eight years after commencement of this 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 the Shares of the Company.
The Company will use stockholders' funds to purchase additional Properties and
make additional Mortgage Loans. No stockholder may hold more than 9.8% of the
total Shares. Of the proceeds from the sale of Shares in this offering,
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 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 27,500,000 Shares, with the
sale of 23,000,000 of such Shares subject to approval by the stockholders of a
resolution to increase the number of authorized Shares of the Company. See
"Summary of the Articles of Incorporation and Bylaws -- Description of Capital
Stock." Of the 27,500,000 Shares offered hereby, 2,500,000 will be available
only to stockholders who elect to participate in the Company's reinvestment plan
(the "Reinvestment Plan") and who purchase Shares in this offering and receive a
copy of this Prospectus, or who purchased Shares in the initial public offering
(the "Initial Offering") of the Company and who received a copy of the related
prospectus. Any participation in such plan by a person who becomes a stockholder
otherwise than by participating in this offering or the Initial Offering must be
made pursuant to a solicitation under a separate prospectus. See "Summary of
Reinvestment Plan." Until such time, if any, as the stockholders approve an
increase in the number of authorized Shares, this offering will be limited to
4,800,000 Shares. 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.
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.
<TABLE>
<CAPTION>
Price to Selling Proceeds to
Public Commissions(1) Company(2)
<S> <C>
- -------------------------------------------------------------------------------------------------------------------------------
Per Share ............................................ $10.00 $0.75 $9.25
- -------------------------------------------------------------------------------------------------------------------------------
Total Maximum(3) ..................................... $ 275,000,000 $20,625,000 $254,375,000
===============================================================================================================================
</TABLE>
(footnotes on following page)
CNL SECURITIES CORP.
, 1996
<PAGE>
(Cover Page Continued From Previous 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. 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. 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) Offering Expenses of the Company estimated to be
3% of gross offering proceeds computed at $10.00 per Share sold
("Gross Proceeds") on the sale of 27,500,000 Shares and (ii) the
marketing support and due diligence expense reimbursement fee.
Offering Expenses exclude Selling Commissions and the marketing
support and due diligence reimbursement fee. The Advisor will pay all
Offering Expenses which exceed 3% of the Gross Proceeds.
NEITHER THE ATTORNEY GENERAL OF THE STATE OF NEW YORK NOR 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.
-----------------------------------------------------
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>
<CAPTION>
Page
<S> <C>
SUMMARY OF THE OFFERING........................................................................................ 1
RISK FACTORS................................................................................................... 9
Investment Risks ......................................................................................... 9
Possible Inability to Further Diversify Investments................................................... 9
Risk of Reliance on Management........................................................................ 9
Risk of Reliance on Advisor........................................................................... 9
Risk Associated with Leverage......................................................................... 9
Conflicts of Interest................................................................................. 9
Lack of Liquidity of Shares........................................................................... 10
Risk Associated With Management of Joint Ventures..................................................... 10
Lack of Control of Property Management................................................................ 10
Risks Associated With Mortgage Loans.................................................................. 10
Risks Associated With Secured Equipment Leases........................................................ 10
Binding Nature of Majority Stockholder Vote........................................................... 10
Risks Related to the Authority of the Board of Directors.............................................. 10
Restrictions on Transfer Relating to REIT Status...................................................... 11
Limited Liability of Officers and Directors........................................................... 11
Risks for Retirement Plan Stockholders................................................................ 11
Ability to Use of Leverage to Make Distributions...................................................... 11
Real Estate and Financing Risks .......................................................................... 11
Risks Relating to an Unspecified Property Offering.................................................... 11
Possible Delays in Investment......................................................................... 11
Risks Associated With Acquiring Properties Under Construction......................................... 12
Risks of Joint Investment in Properties............................................................... 12
Limitations on the Ability of the Company to Liquidate................................................ 12
Risks Relating to Tenant Purchase Rights.............................................................. 13
Risks of Real Property Investments.................................................................... 13
Adverse Trends in Restaurant Industry................................................................. 13
Risks Resulting From Competition...................................................................... 14
Possible Environmental Liabilities.................................................................... 14
Risks Relating to Unspecified Secured Equipment Leases................................................ 14
Tax Risks ................................................................................................ 14
Failure to Qualify as a REIT.......................................................................... 14
Risks Relating to the Secured Equipment Leases........................................................ 15
Risk of REIT Disqualification......................................................................... 15
Risk Associated With Distribution Requirements........................................................ 15
Restrictions on Maximum Share Ownership............................................................... 15
Other Tax Liabilities................................................................................. 16
Changes in Tax Laws................................................................................... 16
SUITABILITY STANDARDS AND HOW TO SUBSCRIBE .................................................................... 16
ESTIMATED USE OF PROCEEDS ..................................................................................... 18
MANAGEMENT COMPENSATION ....................................................................................... 19
CONFLICTS OF INTEREST ......................................................................................... 24
Prior and Future Programs ................................................................................ 24
Acquisition of Properties ................................................................................ 24
Sales of Properties ...................................................................................... 25
Joint Investment With An Affiliated Program .............................................................. 25
Competition for Management Time .......................................................................... 25
Compensation of the Advisor .............................................................................. 26
Relationship with Managing Dealer ........................................................................ 26
Legal Representation ..................................................................................... 26
Certain Conflict Resolution Procedures ................................................................... 26
SUMMARY OF REINVESTMENT PLAN .................................................................................. 28
REDEMPTION OF SHARES .......................................................................................... 31
-iii-
<PAGE>
BUSINESS ...................................................................................................... 32
General .................................................................................................. 32
Completed Investments..................................................................................... 34
Pending Investments....................................................................................... 35
Investment of Offering Proceeds........................................................................... 35
Site Selection and Acquisition of Properties ............................................................. 35
Standards for Investment in Properties ................................................................... 39
Description of Properties................................................................................. 39
Description of Property Leases ........................................................................... 40
Joint Venture Arrangements ............................................................................... 43
Mortgage Loans............................................................................................ 44
Management Services ...................................................................................... 45
Borrowing ................................................................................................ 46
Sale of Properties, Mortgage Loans, and Secured Equipment Leases ......................................... 47
Franchise Regulation ..................................................................................... 47
Competition .............................................................................................. 47
Regulation of Mortgage Loans and Secured Equipment Leases ................................................ 48
SELECTED FINANCIAL DATA........................................................................................ 49
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
OF THE COMPANY ............................................................................................ 49
MANAGEMENT..................................................................................................... 53
General .................................................................................................. 53
Fiduciary Responsibility of the Board of Directors ....................................................... 54
Directors and Executive Officers .......................................................................... 55
Independent Directors .................................................................................... 57
Committees of the Board of Directors ..................................................................... 57
Compensation of Directors and Executive Officers ......................................................... 58
Management Compensation .................................................................................. 58
THE ADVISOR AND THE ADVISORY AGREEMENT ........................................................................ 58
The Advisor .............................................................................................. 58
The Advisory Agreement ................................................................................... 58
CERTAIN TRANSACTIONS........................................................................................... 61
PRIOR PERFORMANCE INFORMATION ................................................................................. 61
INVESTMENT OBJECTIVES AND POLICIES ............................................................................ 66
General .................................................................................................. 66
Certain Investment Limitations ........................................................................... 67
DISTRIBUTION POLICY ........................................................................................... 68
General .................................................................................................. 68
Distributions ............................................................................................ 68
SUMMARY OF THE ARTICLES OF INCORPORATION AND BYLAWS ........................................................... 69
General .................................................................................................. 69
Description of Capital Stock ............................................................................. 70
Board of Directors ....................................................................................... 71
Stockholder Meetings ..................................................................................... 71
Advance Notice for Stockholder Nominations for
Directors and Proposals of New Business ................................................................ 71
Amendments to the Articles of Incorporation .............................................................. 72
Mergers, Combinations, and Sale of Assets ................................................................ 72
Termination of the Company and REIT Status ............................................................... 72
Restriction of Ownership ................................................................................. 72
Responsibility of Directors .............................................................................. 73
Limitation of Liability and Indemnification .............................................................. 73
Removal of Directors ..................................................................................... 74
Inspection of Books and Records .......................................................................... 74
Restrictions on "Roll-Up" Transactions ................................................................. 75
FEDERAL INCOME TAX CONSIDERATIONS ............................................................................. 76
Introduction ............................................................................................. 76
Taxation of the Company .................................................................................. 76
Taxation of Stockholders ................................................................................. 80
State and Local Taxes .................................................................................... 83
-iv-
<PAGE>
Characterization of Property Leases ...................................................................... 83
Characterization of Secured Equipment Leases ............................................................. 84
Investment in Joint Ventures ............................................................................. 85
REPORTS TO STOCKHOLDERS ....................................................................................... 85
THE OFFERING .................................................................................................. 86
General .................................................................................................. 86
Plan of Distribution ..................................................................................... 87
Subscription Procedures .................................................................................. 89
Escrow Arrangements ...................................................................................... 90
ERISA Considerations ..................................................................................... 91
Determination of Offering Price .......................................................................... 92
SUPPLEMENTAL SALES MATERIAL ................................................................................... 92
LEGAL OPINIONS ................................................................................................ 92
EXPERTS ....................................................................................................... 93
ADDITIONAL INFORMATION ........................................................................................ 93
DEFINITIONS ................................................................................................... 93
Form of Amended Reinvestment Plan ....................................................................... Exhibit A
Financial Information ................................................................................... Exhibit B
Prior Performance Tables ................................................................................ Exhibit C
Subscription Agreement .................................................................................. Exhibit D
</TABLE>
-v-
<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.
CNL AMERICAN PROPERTIES FUND, INC.
CNL American Properties 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's address is 400 East South Street, Suite 500, Orlando,
Florida 32801, telephone (407) 422-1574 or toll free (800) 522-3863.
The Company was formed primarily to acquire properties (the "Properties") to be
leased on a long-term (generally, 15 to 20 years, plus renewal options for an
additional 10 to 20 years), "triple-net" basis, which means that the tenant will
be responsible for repairs, maintenance, property taxes, utilities, and
insurance. As of October 18, 1996, the Company owned a portfolio of 84
Properties located across the United States and leased to creditworthy operators
of selected national and regional fast-food, family-style and casual-dining
restaurant chains (the "Restaurant Chains"). The Company is expected to have a
total portfolio of approximately 400 to 450 Properties, if the maximum number of
Shares of Common Stock of the Company (the "Shares") is sold in this offering.
The Company structures 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 also
offers financing for the purchase of buildings, generally by tenants that lease
the underlying land from the Company (the "Mortgage Loans"). Mortgage Loans are
expected to constitute from 5% to 10% of the Company's total investments if the
maximum number of Shares is sold in this offering. Management believes that the
economic effects of the Mortgage Loans for the purchase of buildings are similar
to those of its leases (generally with full repayment in 15 to 20 years). To a
lesser extent, the Company offers furniture, fixtures and equipment
("Equipment") financing to operators of Restaurant Chains pursuant to which the
Company provides, through direct financing leases, the Equipment (collectively,
the "Secured Equipment Leases"). The Company has obtained a $15,000,000 line of
credit (the "Loan") to be used by the Company to fund Secured Equipment Leases.
See "Business" for information regarding the Company's existing Properties, a
description of the types of Properties in which the Company invests, the
Property selection and acquisition processes, the nature of the Mortgage Loans
and Secured Equipment Leases and a description of the Loan.
Under the Company's Articles of Incorporation, the Company automatically will
terminate and dissolve on December 31, 2005 unless the Shares of the Company,
including the Shares offered hereby, 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, 2005, 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, 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.
Until such time, if any, as Listing occurs, the Company may not encumber
Properties, although it may incur debt. If Listing occurs (which is not
assured), then the Board of Directors may elect to cause the Company to encumber
any or all of the Company's Properties in connection with any borrowing. The
Board of Directors anticipates that such borrowing, in the aggregate, will not
exceed 50% of Real Estate Asset Value, although the maximum amount the Company
may borrow is 300% of Net Assets (an amount which the Company anticipates will
correspond to approximately 75% of Real Estate Asset Value). In general, Net
Assets are the Company's total assets (other than intangibles), calculated at
cost, less total liabilities. 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 Properties rather than distribute such proceeds to stockholders.
<PAGE>
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, and tax risks. These risks include:
o Risks of reliance on CNL Fund Advisors, Inc. (the "Advisor"), a
Florida corporation organized to provide management, advisory and
administrative services, 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 Risks relating to the fact that 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 Risks related to the fact that, as of October 18, 1996, the Company
owned 84 Properties of the anticipated total of 400 to 450 Properties,
and stockholders will not have the opportunity to evaluate all of the
Properties that the Company will acquire.
o Risks that 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 the Listing will occur.
o Market risks associated with investments in real estate, which means
that the amount of cash the Company will receive from tenants, lessees
or borrowers cannot be predicted.
o Risks that the Company, prior to meeting certain conditions, may incur
debt, including debt to make Distributions in order to maintain its
status as a REIT, but will not encumber Properties.
o Risks of defaults by tenants, lessees or borrowers resulting in
decreased income.
o Risks relating to the fact that 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 Risks that 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 Risks that 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 and, in turn, thereby reducing the amount of funds
available for paying Distributions to stockholders.
ESTIMATED USE OF PROCEEDS
The Company is using the proceeds of the sale of the Shares to acquire
Properties, to make Mortgage Loans, generally in connection with such
acquisitions, and to pay expenses relating to the sale of the Shares. Management
of the Company and the Advisor have estimated an average purchase price of
$800,000 to $900,000 per Property based on their past experience in acquiring
similar properties and in light of current market conditions, although prices of
Properties may be lower or higher. Assuming the maximum of 27,500,000 Shares
($275,000,000) are sold, the Company will acquire approximately 260 to 300
additional Properties with the proceeds of this offering. See "Estimated Use of
Proceeds" and "Business -- General" for a more detailed description of the
anticipated use of offering proceeds. Secured Equipment Leases will be funded
solely from the proceeds of the Loan and the number of Secured Equipment Leases
will not depend on the amount raised in this offering.
-2-
<PAGE>
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 a Property, Mortgage Loan
or Secured Equipment Lease, (iii) investments with Affiliates of the Advisor,
(iv) compensation of the Advisor, (v) the Company's relationship with the
Managing Dealer, which is an Affiliate of the Company and the Advisor, and (vi)
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 restaurant properties and
secured equipment leases among certain affiliated entities. See "Conflicts of
Interest -- Certain Conflict Resolution Procedures."
MANAGEMENT
The Company has retained the Advisor, pursuant to an advisory agreement, to
handle the day-to-day operations of the Company, to select the Company's real
estate investments, and to 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. 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 Properties 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 Property 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. See "Management Compensation" for a complete description.
See also "Certain Transactions" for a description of compensation paid to the
Advisor, Managing Dealer and other Affiliates of the Company since its
inception. The following paragraphs summarize the more significant items of
compensation.
In connection with this offering, the Managing Dealer will receive Selling
Commissions of 7.5% (a maximum of $20,625,000 if 27,500,000 Shares are sold),
and a marketing support and due diligence expense reimbursement fee of 0.5% (a
maximum of $1,375,000 if 27,500,000 Shares are sold), of the total amount raised
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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. 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 $550,000 if 27,500,000 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 related offering
terminates, and generally will be payable to the Managing Dealer, which in turn
may reallow all or a portion of such fee to Soliciting Dealers whose clients
held Shares on such date. The Company also may pay the Soliciting Dealer
Servicing Fee directly to any Soliciting Dealer exempt from registration as a
broker-dealer and 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 one or more
Properties 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 Acquisition Fees equal to 4.5% of Gross Proceeds (a maximum
of $12,375,000 if 27,500,000 Shares are sold) from the sale of Shares.
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) plus the
total outstanding 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, excluding Distributions attributable to proceeds of the Sale of a
Property (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 upon the Sale of one or more Properties or Secured Equipment Leases 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 or
the Initial Offering may purchase Shares through the Reinvestment Plan only
after receipt of a separate prospectus relating solely to the Reinvestment Plan.
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BUSINESS
As of October 18, 1996, the Company owned 84 Properties. It is anticipated that
the Company will acquire a total of 400 to 450 Properties if the maximum number
of Shares is sold in this offering (including 260 to 300 Properties to be
acquired with the proceeds of this offering and 50 to 60 additional Properties
to be acquired with the proceeds of the Initial Offering). A description of the
types of Properties which the Company purchases and leases to third parties
appears in the section entitled "Business." The Company invests in Properties of
selected national and regional restaurant chains, primarily fast-food,
family-style, and casual dining chains, the most rapidly growing segments of the
restaurant industry in recent years. Management structures the Company's
investments to allow it to participate, to the maximum extent possible, in any
sales growth in these industry segments, as reflected in the Properties that it
owns. The Properties, which typically are freestanding and are located across
the United States, are leased on a "triple-net" basis to creditworthy operators
of the Restaurant Chains selected by the Advisor and approved by the Board of
Directors. The Properties 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.
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.
As of October 18, 1996, the Company had provided Mortgage Loans to the tenant
of the 33 Properties that are land only to purchase the buildings on these
Properties. It is expected that Mortgage Loans will constitute from 5% to 10% of
the Company's total investments, if the maximum number of Shares is sold in this
offering. In general, the Company offers Mortgage Loans 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 this combined leasing and
financing structure provides the benefit of allowing the Company to receive the
return of its initial investment plus interest on each financed building, which
is generally a depreciating asset, while retaining the ownership of the
underlying land, which is generally an appreciating asset.
The Company plans to obtain short-term financing (the "Line of Credit") in an
amount up to $20,000,000, the proceeds of which will be used to acquire
Properties. Management believes that, during the offering period, the Line of
Credit will allow the Company to take advantage of investment opportunities that
might otherwise be lost if the Company was forced to delay making the
investments until it had raised a sufficient amount of offering proceeds. In
addition, management believes that the use of the Line of Credit will enable the
Company to reduce or eliminate the instances in which the Company will be
required to pay duplicate closing costs as a result of an Affiliate of the
Advisor purchasing Properties, pending receipt by the Company of sufficient
offering proceeds, in order to preserve the investment opportunity for the
Company, and the Company subsequently purchasing the Properties from the
Affiliate. The Line of Credit will be repaid from the proceeds of this offering.
No Properties will be encumbered in connection with the Line of Credit. The
Company is engaged in preliminary discussions with potential lenders but has not
yet obtained a commitment letter for the Line of Credit and may not be able to
obtain the Line of Credit on satisfactory terms.
As of October 18, 1996, the Company had entered into five Secured Equipment
Leases and in connection with these leases had received advances under the Loan
of $2,364,072. The Secured Equipment Leases are funded solely from the proceeds
of the Loan. The Company structures Secured Equipment Leases so that they will
be treated as loans secured by personal property for federal income tax
purposes.
See "Business" for a description of the types of Properties in which the
Company invests, the Property selection and acquisition processes, the Mortgage
Loans, the Secured Equipment Leases, the proposed Line of Credit and the Loan.
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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.
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 receipt of percentage rent, and to obtain fixed income through the
receipt of payments on Mortgage Loans and Secured Equipment Leases.
o to qualify and remain qualified as a REIT for federal income tax
purposes.
o to provide stockholders of the Company with liquidity of their
investment within three to eight years after commencement of this
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.
During any period in which the Company is not making a public offering of
Shares, 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
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(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."
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 by the Company for each month since the Company commenced operations.
<TABLE>
<CAPTION>
Month Total Distributions Distributions Per Share
<S> <C>
June 1995 $ 15,148 $ 0.030000
July 1995 30,682 0.030000
August 1995 57,739 0.035000
September 1995 84,467 0.050000
October 1995 104,733 0.050000
November 1995 155,665 0.058300
December 1995 190,184 0.058300
January 1996 225,354 0.058300
February 1996 255,649 0.058300
March 1996 287,805 0.058300
April 1996 323,721 0.058300
May 1996 368,155 0.058300
June 1996 407,803 0.058300
July 1996 458,586 0.059375
August 1996 517,960 0.059375
September 1996 559,599 0.059375
October 1996 615,914 0.059375
</TABLE>
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, and quarterly thereafter, and make Distributions
quarterly. 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
year ended December 31, 1995, the Company declared and made Distributions
totalling $638,618, 59.82% of which were characterized as ordinary income and
40.18% as return of capital for federal income tax purposes. For the six months
ended June 30, 1996, the Company declared and made Distributions totalling
$1,868,487, 85% of which were characterized as ordinary income and 15% as return
of capital for federal income tax purposes. Due to the fact that the Company had
not acquired all of its Properties and was still in its offering period as of
December 31, 1995 and June 30, 1996, 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.
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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 formed to invest in
restaurants leased on a "triple-net" basis to operators of national and regional
fast-food and family-style restaurant chains. As of June 30, 1996, these
partnerships, which purchase properties similar to those to be acquired by the
Company, had purchased 645 fast-food and family-style restaurant properties.
Based on an analysis of the operating results of the 86 real estate limited
partnerships in which principals of the Company have served, individually or
with others, as general partners, the Company believes that each of such
partnerships has met, or currently is in the process of meeting, its principal
investment objectives. Certain statistical data relating to the public limited
partnerships with investment objectives similar to those of the Company, and the
offerings of which closed within the last five years, are contained in Exhibit
C--Prior Performance Tables.
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, 1995. 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 27,500,000 Shares ($275,000,000) in the Company are being
offered at a price of $10.00 per Share, with the sale of 23,000,000 of such
Shares subject to approval by the stockholders of a resolution to increase the
number of authorized shares of the Company. See "Summary of the Articles of
Incorporation and Bylaws - Description of Capital Stock." Of the Shares offered
hereby, 2,500,000 will be available only to stockholders purchasing Shares in
this offering who receive a copy of this Prospectus, or to stockholders who
purchased Shares in the initial public offering (the "Initial Offering") of the
Company and who received a copy of the related prospectus, and who elect to
participate in the Reinvestment Plan. Until such time, if any, as the
stockholders approve an increase in the number of authorized Shares, this
offering will be limited to 4,800,000 Shares, 100,000 of which will be available
only to stockholders purchasing pursuant to 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 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. 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). In
addition, Nebraska, New York, and North Carolina stockholders must make a
minimum investment of 500 Shares ($5,000). Following an initial subscription for
at least the required minimum investment, any stockholder may make additional
purchases in increments of one Share.
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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.
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 Inability to Further Diversify Investments. There can be no
assurance that the stockholders will approve the increase in the number of
authorized Shares or that if such approval is given that the Company will sell
the maximum number of Shares. The potential ability of the Company to further
diversify its investments, both geographically and by type of restaurant
Properties purchased, will be limited by the amount of funds at its disposal.
Risk of 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. 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.
Risk of 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."
Risk Associated with Leverage. Other than the Loan, the Line of Credit
or to preserve its status as a REIT, the Company does not intend to borrow money
and until Listing occurs, the Company will not encumber Properties in connection
with any borrowing. At all times, the maximum amount the Company may borrow is
300% of the Company's Net Assets, although the Board of Directors anticipates
that the aggregate amount of any borrowing by the Company will not exceed 50% of
Real Estate Asset Value. The use of borrowing may present an element of risk in
the event that the cash flow from lease payments on its Properties and payments
on Secured Equipment Leases 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.
Conflicts of Interest. As discussed in detail in "Conflicts of
Interest," the Company will be subject to conflicts of interest arising out of
its relationship to the Advisor and its Affiliates. Such conflicts include
matters related to (i) allocation of new investments and management time and
services between the Company and various partnerships and other entities as to
which the officers and directors of the Advisor and the Directors and officers
of the Company have management responsibilities, (ii) the timing and terms of
the investment in or sale of a Property, Mortgage Loan or Secured Equipment
Lease of the Company, (iii) investments with Affiliates of the Advisor, (vii)
compensation to the Advisor, (v) the Company's relationship with the Managing
Dealer (which is an Affiliate of the Company and the Advisor), and (vi) 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. See "Conflicts of Interest."
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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. 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.
Risk Associated With Management of 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
experience in the restaurant industry, but there can be no assurance that the
Company will be able to make such arrangements because, as of October 18, 1996,
the Company had purchased only 84 Properties.
Risks Associated With Mortgage Loans. The experience of the Advisor and
Directors of the Company with mortgage financing is limited. In the event that a
borrower defaults on a Mortgage Loan, the Company may not be able to sell the
real property which it holds as security for the Mortgage Loan at a price that
would enable the Company to recover the balance of the Mortgage Loan. 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.
Risks Associated With Secured Equipment Leases. The experience of the
Advisor and Directors of the Company with Equipment leasing is limited. 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. 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. In addition, there are
certain federal income tax risks associated with the Secured Equipment Lease
program. See " -- Tax Risks."
Binding Nature of Majority Stockholder Vote. Stockholders may take
certain actions, including approving most 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.
Risks Relating to the Authority of the Board of Directors. Under
certain circumstances, the Company may 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." The
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Board of Directors has the power to cause the issuance of additional authorized
Shares without obtaining stockholder approval.
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."
Risks for Retirement Plan Stockholders. 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.
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
Risks Relating to an Unspecified Property Offering. The Company has
established certain criteria for evaluating Restaurant Chains, particular
Properties, and the operators of the Properties proposed for investment by the
Company. See "Business -- Standards for Investment" and "Business -- General"
for a description of these criteria and the types of Properties in which the
Company intends to invest. Prospective investors have no information to assist
them in evaluating the merits of the 260 to 300 Properties expected to be
acquired by the Company with the proceeds of this offering or the 50 to 60
additional Properties to be acquired with the proceeds of the Initial Offering.
There is no limit on the number of restaurant Properties of a particular
Restaurant Chain which the Company may acquire, although the Board of Directors
currently does not anticipate that the Company will invest more than 25% of its
Gross Proceeds in Properties of any one Restaurant Chain.
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. There also
can be no assurance that all of the Properties will operate profitably or that
defaults will not occur. See "Management" and "Prior Performance Information,"
however, for a description of the prior real estate experience of the Affiliates
of the Company and the Advisor.
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.
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An extended offering period, the inability of the Advisor to find
suitable Properties, or the fact that a program formed by Affiliates of the
Advisor subsequent to the commencement of this offering currently is in the
process of acquiring fast-food and family-style restaurant properties 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.
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 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 this offering,
will be distributed pro rata to the then stockholders of the Company in
accordance with the Articles of Incorporation.
Risks Associated With Acquiring Properties Under Construction. The
Company intends to acquire sites on which a particular restaurant to be owned by
the Company is to be built as well as existing restaurants (including
restaurants which require renovation). To the extent that the Company acquires
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."
Risks of Joint Investment in Properties. In the event that the Company
enters into a Joint Venture with another program formed by Affiliates of the
Advisor, 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 coventurer'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.
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
three to eight 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 on
the Line of Credit. 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 on the Loan. If Listing occurs, the proceeds from Sales
may be reinvested in other Properties, Mortgage Loans, or Secured Equipment
Leases for an indefinite period of time. Unless Listing occurs within eight
years after commencement of the offering, 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
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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 15 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.
Risks Relating to Tenant Purchase Rights. 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
restaurant it leases.
Risks of Real Property Investments. The value of leased Properties such
as those to be acquired by the Company, the ability of the tenants to pay rent
on a timely basis, and the amount of the rent, may be adversely affected by
certain changes in general or local economic or market conditions, increased
costs of energy or food products, increased costs and shortages of labor,
competitive factors, fuel shortages, quality of restaurant management, the
ability of a Restaurant Chain to fulfill any obligations to operators of its
restaurants, limited alternative uses for the building, changing consumer
habits, condemnation or uninsured losses, changing demographics, changing
traffic patterns, inability to remodel outmoded restaurants as required by the
franchise or lease agreement, voluntary termination by a tenant of its
obligations under a lease, and other factors. Neither the Company nor the Board
of Directors can control these factors.
Each Property will have a single tenant, and tenants may lease more
than one Property. Events such as the default or financial failure of a tenant
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 may continue for some time before the Advisor or Board of Directors
determines that it is in the interest of the Company to evict that tenant.
If a Property becomes vacant, the Company may be unable either to
re-lease 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.
The Company will not be a party to any franchise agreement between a
Restaurant 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 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.
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.
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 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.
Adverse Trends in Restaurant Industry. The Properties in which the
Company intends to invest are expected to be operated by Restaurant Chains
within the fast-food, family-style, or casual dining segments of the restaurant
industry, and the Company does not intend to invest in other segments of the
restaurant industry. The success of the future operations of fast-food,
family-style, and casual dining segments will depend largely on their ability to
adapt to dominant trends in the restaurant industry, including greater
competitive pressures, increased
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consolidation of the leading fast-food chains, industry overbuilding, dependence
on consumer spending and dining patterns and changing demographics, the
introduction of new concepts and menu items, availability of labor, levels of
food prices, and general economic conditions. See "Business -- General" for a
description of the size and nature of the restaurant industry and current trends
in the industry. The success of a particular Restaurant Chain concept, the
Restaurant Chain's ability to fulfill any obligations to operators of its
restaurants, and trends in the fast-food, family-style, and casual dining
segments of the restaurant industry will affect the income that the Company
derives from restaurants which are part of such Restaurant Chain.
Risks Resulting From Competition. The Company will compete with other
entities, including Affiliates, for the acquisition of restaurant sites and
completed restaurants. See "Conflicts of Interest -- Prior and Future Programs."
In addition, the restaurant business is highly competitive, and it is
anticipated that any restaurant Property acquired by the Company will compete
with other restaurants 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
restaurants in the vicinity. In addition, the Company will compete with other
financing sources for suitable tenants and properties.
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 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.
Risks Relating to Unspecified Secured Equipment Leases. Prospective
stockholders have no information to assist them in evaluating the merits of any
Secured Equipment Lease entered into after the date of this Prospectus. No
assurance can be given that the Company will be successful in identifying
additional operators or negotiating additional Secured Equipment Leases on
financially attractive terms or that lessees will fulfill their obligations
under Secured Equipment Leases.
TAX RISKS
Failure to Qualify as a REIT. The Company operates as a REIT for
federal income tax purposes. 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, 1995, 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, 1995, 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
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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.
Risks Relating to the Secured Equipment Leases. 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."
Risk 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 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."
Risk Associated With 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 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.
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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 Considera-
tions -- 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.
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.
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."
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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 insure 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 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. 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). In
addition, Nebraska, New York, and North Carolina investors must make a minimum
investment of 500 Shares ($5,000). 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."
-17-
<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 4,800,000
Shares and 27,500,000 Shares are sold. This offering is limited to 4,800,000
Shares until such time, if any, as the stockholders approve an increase in the
number of authorized Shares. See "Summary of Articles of Incorporation and
Bylaws - Description of Capital Stock." 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 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.
<TABLE>
<CAPTION>
Maximum of 4,800,000 Shares Maximum of 27,500,000 Shares
without stockholder approval (1) with stockholder approval (2)
Amount Percent Amount Percent
<S> <C>
GROSS PROCEEDS TO THE COMPANY (3) . . . . . . . . . . . . . . . $48,000,000 100.0% $275,000,000 100.0%
Less:
Selling Commissions to CNL
Securities Corp. (3) . . . . . . . . . . . . . . . . . . 3,600,000 7.5% 20,625,000 7.5%
Marketing Support and Due Diligence
Expense Reimbursement Fee to
CNL Securities Corp. (3) . . . . . . . . . . . . . . . . . 240,000 0.5% 1,375,000 0.5%
Offering Expenses (4). . . . . . . . . . . . . . . . . . . . 1,440,000 3.0% 8,250,000 3.0%
NET PROCEEDS TO THE COMPANY . . . . . . . . . . . . . . . . . . . 42,720,000 89.0% 244,750,000 89.0%
Less:
Acquisition Fees to the Advisor (5) . . . . . . . . . . . . . 2,160,000 4.5% 12,375,000 4.5%
Acquisition Expenses (6) . . . . . . . . . . . . . . . . . . . 240,000 0.5% 1,375,000 0.5%
Initial Working Capital Reserve . . . . . . . . . . . . . . . (7) (7)
CASH PAYMENT FOR PURCHASE OF PROPERTIES
AND THE MAKING OF MORTGAGE LOANS
BY THE COMPANY (8) . . . . . . . . . . . . . . . . . . . . . . $40,320,000 84.0% $231,000,000 84.0%
</TABLE>
- --------------------------------------------
FOOTNOTES:
(1) Includes 100,000 Shares that may be sold only pursuant to the Reinvestment
Plan.
(2) Offering proceeds will exceed $48,000,000 only if the stockholders approve
an increase in the number of authorized Shares. Includes 2,500,000 Shares
that may be sold only 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. See "The Offering -- Plan of Distribution" for a
more complete description of this fee.
(4) 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 Offering Expenses which exceed 3% of Gross Proceeds.
(5) Acquisition Fees include all fees and commissions paid by the Company to
any person or entity in connection with the purchase, development or
construction of any Property or investing in 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 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 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.
-18-
<PAGE>
MANAGEMENT COMPENSATION
The table below summarizes 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 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 27,500,000 Shares ($275,000,000) may be sold, subject to
approval by the stockholders of an increase in the number of authorized Shares.
See "Summary of Articles of Incorporation and Bylaws Description of Capital
Stock." This amount includes 2,500,000 Shares that may be sold only pursuant to
the Reinvestment Plan. If the stockholders do not approve an increase in the
number of authorized Shares, a maximum of 4,800,000 shares may be sold. This
amount includes 100,000 shares that may be sold only pursuant to 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.
-19-
<PAGE>
<TABLE>
<CAPTION>
Type of
Compensation Estimated
and Recipient Method of Computation Maximum Amount
<S> <C>
Offering Stage
Selling Selling Commissions of 7.5% per Share on all Shares sold, subject to $20,625,000 if 27,500,000 Shares
Commissions to reduction under certain circumstances as described in ``The are sold; $3,600,000 if 4,800,000
Managing Offering Plan of Distribution.'' Soliciting Dealers may be Shares are sold.
Dealer and reallowed Selling Commissions of up to 7% with respect to Shares they
Soliciting sell.
Dealers
Marketing Expense allowance of 0.5% of Gross Proceeds to the Managing Dealer, $1,375,000 if 27,500,000 Shares
support and all or a portion of which may be reallowed to Soliciting Dealers. are sold; $240,000 if 4,800,000
due diligence The Managing Dealer will pay all sums attributable to bona fide due Shares are sold.
expense diligence expenses from this fee.
reimbursement
fee to
Managing
Dealer and
Soliciting
Dealers
Reimbursement Actual expenses incurred, except that the Advisor will pay all such Amount is not determinable at this
to the Advisor expenses in excess of 3% of Gross Proceeds. time but will not exceed 3% of
and its Gross Proceeds, $8,250,000 if
Affiliates for 27,500,000 Shares are sold;
Offering Ex- $1,440,000 if 4,800,000 Shares are
penses sold.
Acquisition Stage
Acquisition 4.5% of Gross Proceeds payable to the Advisor as Acquisition Fees. $12,375,000 if 27,500,000 Shares
Fee to the are sold; $2,160,000 if 4,800,000
Advisor Shares are sold.
Other Any fees paid to Affiliates of the Advisor in connection with the Amount is not determinable at this
Acquisition financing, construction or renovation of a Property. Payment of such time.
Fees to fees will be subject to approval by the Board of Directors, including
Affiliates of a majority of the Independent Directors, not otherwise interested in
the Advisor the transaction.
Reimbursement Reimbursement to the Advisor and its Affiliates for expenses actually Acquisition Expenses, which are
of Acquisition incurred. based on a number of factors,
Expenses to including the purchase price of
the Advisor the Properties, are not determin-
and its able at this time.
Affiliates
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. 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.
-20-
<PAGE>
<CAPTION>
Type of
Compensation Estimated
and Recipient Method of Computation Maximum Amount
<S> <C>
Operational Stage
Asset A monthly Asset Management Fee in an amount equal to one-twelfth of Amount is not determinable at this
Management Fee .60% of the Company's Real Estate Asset Value and the outstanding time. The amount of the Asset
to the Advisor principal amount of the Mortgage Loans as of the end of the preceding Management Fee will depend upon,
month. Specifically, Real Estate Asset Value equals the amount among other things, the cost of
invested in the Properties wholly owned by the Company, determined on the Properties and the amount
the basis of cost, plus, in the case of Properties owned by any Joint invested in Mortgage Loans.
Venture or partnership in which the Company is a co-venturer or
partner, the portion of the cost of such Properties paid by the
Company, exclusive of Acquisition Fees and Expenses. The Asset
Management Fee, which will not 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 Operating Expenses (which, in general, are those expenses relating to Amount is not determinable at this
to the Advisor administration of the Company on an ongoing basis) will be reimbursed time.
and Affiliates by the Company. To the extent that Operating Expenses payable or
for operating reimbursable by the Company, in any four consecutive fiscal quarters
expenses (the ``Expense Year''), exceed (the ``Excess Amount'') the greater of
2% of Average Invested Assets or 25% of Net Income (the ``2%/25%
Guidelines'') and the Independent Directors determine that the Excess
Amount was justified based on unusual nonrecurring factors which they
deem sufficient, the Excess Amount may be carried over and included
in Operating Expenses in subsequent Expense Years, and reimbursed to
the Advisor in one or more of such years, but only to the extent such
reimbursement would not cause the Company's Operating Expenses to
exceed the 2%/25% Guidelines in any Expense 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 and the Independent Directors determine that the Excess
Amount was justified, there shall be sent to the stockholders a
written disclosure of such fact, together with an explanation of the
factors the Independent Directors considered in determining that such
Excess Amount was justified. In the event the Independent Directors
do not determine that such Excess Amount was justified, the Advisor
shall reimburse the Company at the end of the Expense Year the amount
by which the total Operating Expenses paid or incurred by the Company
exceed the limitations herein provided.
Soliciting An annual fee of .20% of Invested Capital on December 31 of each Amount is not determinable at this
Dealer year, commencing on December 31 of the year following the year in time. Until such time as assets
Servicing Fee which the related offering terminates, generally payable to the are sold, the estimated amounts
to Managing Managing Dealer, which in turn may reallow all or a portion of such payable to the Managing Dealer for
Dealer fee to Soliciting Dealers whose clients hold Shares on such date. each of the years following the
The Company may also pay the Soliciting Dealer Servicing Fee directly year of termination of the
to any Soliciting Dealer exempt from registration as a broker-dealer offering are expected to be
whose clients held Shares on such date. In general, Invested Capital $550,000 if 27,500,000 Shares are
is the amount of cash paid by the stockholders to the Company for sold; $96,000 if 4,800,000 Shares
their Shares, reduced by certain prior Distributions to the are sold.
stockholders from the Sale of one or more Properties, Mortgage Loans
or Secured Equipment Leases. The Soliciting Dealer Servicing Fee
will terminate as of the beginning of any year in which the Company
is liquidated or in which Listing occurs, provided, however, that any
previously accrued but unpaid portion of the Soliciting Dealer
Servicing Fee may be paid in such year or any subsequent year.
Accordingly, the Soliciting Dealer Servicing Fee will not be paid
after December 31, 2005.
-21-
<PAGE>
<CAPTION>
Type of
Compensation Estimated
and Recipient Method of Computation Maximum Amount
<S> <C>
Deferred, A deferred, subordinated real estate disposition fee, payable upon Amount is not determinable at this
subordinated Sale of one or more Properties, in an amount equal to the lesser of time. The amount of this fee, if
real estate (i) one-half of a Competitive Real Estate Commission, or (ii) 3% of it becomes payable, will depend
disposition the sales price of such Property or Properties. Payment of such fee upon the price at which Properties
fee payable to shall be made only if the Advisor provides a substantial amount of are sold.
the Advisor services in connection with the Sale of a Property or Properties and
from a Sale or shall be subordinated to receipt by the stockholders of Distributions
Sales of a equal to the sum of (i) their aggregate Stockholders' 8% Return and
Property not (ii) their aggregate Invested Capital. If, at the time of a Sale,
in liquidation payment of the disposition fee is deferred because the subordination
of the Company 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.
Subordinated At such time, if any, as Listing occurs, the Advisor shall be paid Amount is not determinable at this
Incentive Fee the Subordinated Incentive Fee in an amount equal to 10% of the time.
payable to the amount by which (i) the market value of the Company (as defined
Advisor at below) plus the total Distributions made to stockholders from the
such time, if Company's inception until the date of Listing exceeds (ii) the sum of
any, as (A) 100% of Invested Capital and (B) the total Distributions required
Listing occurs 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, A deferred, subordinated share equal to 10% of Net Sales Proceeds Amount is not determinable at this
subordinated from Sales of a Property or Secured Equipment Lease remaining after time.
share of Net receipt by the stockholders of Distributions equal to the sum of (i)
Sales Proceeds the Stockholders' 8% Return and (ii) 100% of Invested Capital.
from a Sale or Following Listing, no share of Net Sales Proceeds will be paid to the
Sales of a Advisor.
Property or
Secured
Equipment
Lease not in
liquidation of
the Company
payable to the
Advisor
Secured A fee paid to the Advisor out of the proceeds of the Loan for Amount is not determinable at this
Equipment negotiating Secured Equipment Leases and supervising the Secured time.
Lease Ser- Equipment Lease program equal to 2% of the purchase price of the
vicing Fee to Equipment subject to each Secured Equipment Lease and paid upon
the Advisor entering into such lease.
Reimbursement Repayment by the Company of actual expenses incurred. Amount not determinable at this
to the Advisor time.
and Affiliates
for Secured
Equipment
Lease
servicing ex-
penses
<PAGE>
-22-
<CAPTION>
Type of
Compensation Estimated
and Recipient Method of Computation Maximum Amount
<S> <C>
Liquidation Stage
Deferred, A deferred, subordinated real estate disposition fee, payable upon Amount is not determinable at this
subordinated Sale of one or more Properties, in an amount equal to the lesser of time. The amount of this fee, if
real estate (i) one-half of a Competitive Real Estate Commission, or (ii) 3% of it becomes payable, will depend
disposition the sales price of such Property or Properties. Payment of such fee upon the price at which Properties
fee payable to shall be made only if the Advisor provides a substantial amount of are sold.
the Advisor services in connection with the Sale of a Property or Properties and
from a Sale or shall be subordinated to receipt by the stockholders of Distributions
Sales in equal to the sum of (i) their aggregate Stockholders' 8% Return and
liquidation of (ii) their aggregate Invested Capital. If, at the time of a Sale,
the Company 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, A deferred, subordinated share equal to 10% of Net Sales Proceeds Amount is not determinable at this
subordinated from Sales of a Property or Secured Equipment Lease remaining payable time.
share of Net after receipt by the stockholders of Distributions equal to the sum
Sales Proceeds of (i) the Stockholders' 8% Return and (ii) 100% of Invested Capital.
from a Sale or Following Listing, no share of Net Sales Proceeds will be paid to the
Sales of a Advisor.
Property or
Secured
Equipment
Lease in
liquidation of
the Company
payable to the
Advisor
</TABLE>
-23-
<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.
---------------------------- --------------------------
| CNL AMERICAN PROPERTIES | | |
| FUND, INC. | | CNL Group, Inc. |
| (the Company) | | |
---------------------------- --------------------------
| |
| |
| |
(Advisory Agreement) 100%
-------------------- | ---------------
| |
-------------------------- -----------------------------
| CNL FUND ADVISORS, INC. | | CNL Securities Corp. |
| (Advisor to Company) | | (Managing Dealer) |
-------------------------- -----------------------------
PRIOR AND FUTURE PROGRAMS
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 public partnerships) involve and will involve Affiliates of the
Advisor in the ownership, operation, leasing, and management of fast-food,
family-style and casual dining, including restaurants that may be suitable for
the Company.
Certain of these affiliated public or private real estate programs
invest or may invest solely in fast-food, casual dining, and family-style
restaurants, may purchase properties concurrently with the Company and may lease
fast-food, casual dining, and family-style restaurant 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 and Secured Equipment Lease programs. 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.
An Affiliate of the Advisor currently is purchasing properties for a
private program that was organized to purchase, lease and/or finance fast-food
and family-style restaurant facilities, including furniture, fixtures, equipment
and start-up costs associated therewith. Such program generally will purchase
restaurant properties or an interest therein only when furniture, fixtures,
equipment and start-up costs also will be supplied by the program. It is not
expected that the financing offered by such program will be segregable and,
therefore, the program will not compete with the Company for lessees. If the
equipment arrangement offered by such program becomes segregable, a conflict
could arise between such program and the Company for lessees.
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
fast-food, family-style and casual dining restaurant chains and their
franchisees. See "Business -- General." A purchaser
-24-
<PAGE>
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 restaurant properties on an interim basis.
Typically, no more than ten to 15 restaurant properties are temporarily owned by
Affiliates of the Advisor on this interim basis at any particular time. These
restaurant 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.
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,
make a mortgage loan or enter into a secured equipment lease that also would be
a suitable investment for 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
stockholders 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." In addition, the Company has
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 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.
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 Company and officers and directors of the Advisor may
experience conflicts of interest in allocating
-25-
<PAGE>
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 and will be engaged to perform various services
for the Company and has and will receive fees and compensation for such
services. None of the agreements for such services were the result of
arm'slength 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, and 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 Lease 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 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 restaurant
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
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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. The Advisor and
its Affiliates will not make loans to the Company, or to Joint Ventures in which
the Company is a co-venturer, for the purchase of Properties. Any loans to the
Company by the Advisor or its Affiliates for other purposes 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 properties (either existing properties or properties
upon which restaurants are to be constructed) to be leased on a "triple-net"
basis to operators of national and regional fast-food, family-style, and casual
dining Restaurant Chains, and (ii) offer Secured Equipment Leases. The Advisor
and its Affiliates also will not purchase property or offer 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 properties (either existing properties or properties upon which
restaurants are to be constructed) to be leased on a "triple-net" basis to
operators of national and regional fast-food, family-style, and casual dining
Restaurant 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 facilities,
including furniture, fixtures and equipment, and incurring related costs for
public and private programs, which have investment objectives that are not
identical, and 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. The Advisor or its Affiliates currently and
in the future may offer interests in one or more public or private programs
organized to purchase and lease fast-food, family-style, and casual dining
restaurants on a "triple-net" basis.
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 Board of Directors and
the Advisor 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 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, 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
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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 Income Fund XVIII, Ltd., a public program, and CNL Income &
Growth Fund VIII, Ltd., a private program, offerings of securities for both of
which are ongoing. As of October 18, 1996, CNL Income Fund XVIII, Ltd. had
approximately $2,200,000 available for investment and CNL Income & Growth Fund
VIII, Ltd. had not received the minimum amount of offering proceeds required to
release such proceeds from escrow. In the future, other public and private
programs affiliated with the Advisor and other Affiliates of the Company are
expected to engage in offerings of securities and have offering proceeds
available for investment.
[UPDATE]
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.
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"). For any period during which the Company
is making a public offering of Shares, 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 during the term of this
offering is $10.00 per Share. If no public offering is ongoing, 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 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 restaurant 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 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 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 2,500,000 Shares registered with the
Securities and Exchange Commission (the "Commission") in connection with this
offering, provided, that until such time, if any, as the stockholders approve an
increase in the number of authorized Shares, 100,000 Shares will be available
for purchase. See "The Offering -- Plan of Distribution" and "Summary of the
Articles of Incorporation and Bylaws -- Description of Capital Stock." After the
offering has terminated, Shares will be available from any additional Shares
which the Company elects to register with the Commission for the Reinvestment
Plan.
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
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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.
After the termination of the 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.
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%, and 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. 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.
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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.
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 ten days'
written notice to the Board of Directors.
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 of 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.
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REDEMPTION OF SHARES
After the termination of the 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 stockholder's Shares to the Company for redemption at any time, in
accordance with the procedures outlined herein. At 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). In that event, the Company may
use all or a portion of such amount to acquire one or more additional
Properties, or to make one or more additional Mortgage Loans, provided that the
Company (or, if applicable, the Joint Venture) enters into a binding contract to
purchase such Property or Properties, or enter into such Mortgage Loan or
Mortgage Loans, 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 other 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 from
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
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redemption not reasonably practical; (iii) any governmental or regulatory agency
with jurisdiction over the Company so demands for the protection of the
stockholders; (iv) they determine, in their sole discretion, that such
redemption would be unlawful; or (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. For a discussion of the tax treatment of such redemptions, see "Federal
Income Tax Considerations -- Taxation of Stockholders."
BUSINESS
GENERAL
The Company purchases existing fast-food, family-style, and casual
dining restaurant Properties, including land and buildings, as well as
Properties upon which such restaurants are to be constructed, the land
underlying the restaurant 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 also provides financing (the "Mortgage Loans") for the purchase of
buildings, generally by tenants that lease the underlying land from the Company.
To a lesser extent, the Company offers furniture, fixture and equipment
("Equipment") financing to operators of Restaurant Chains pursuant to which the
Company will finance, through direct financing leases, the Equipment
(collectively, the "Secured Equipment Leases.")
As of October 18, 1996, the Company owned 84 Properties. It is
anticipated that the Company will acquire a total of 400 to 450 Properties if
the maximum number of Shares is sold in this offering (including 260 to 300
Properties to be acquired with the proceeds of this offering and 50 to 60
additional Properties to be acquired with the proceeds of the initial offering).
The Properties, which typically are freestanding and are located across
the United States, are leased on a "triple-net" basis to creditworthy operators
of the Restaurant Chains selected by the Advisor and approved by the Board of
Directors. Each Property acquisition and Mortgage Loan commitment by the Company
is subject to the approval of the Board of Directors. Properties purchased by
the Company are leased under arrangements 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. See
"Description of Leases -- Computation of Lease Payments," below.
The Company invests in 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 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, 1996
issue of Restaurants and Institutions, it is projected that the casual dining
segment of full-service restaurants sales will experience 4.1% real growth in
sales this year, with sales predicted to reach $46 billion. The top 15 casual
dining chains have a total of 4,539 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. By the year 2000, food service sales are
expected to exceed $392 billion. Industry publications project that restaurant
industry sales will increase from $173.7 billion in 1985 to $313 billion in
1996. Restaurant industry sales for 1995 are projected to be $298 billion. In
1995, nominal growth, which is comprised of real growth and inflationary growth,
was 5.2% and is estimated to be 5.0% in 1996. Real growth of the restaurant
industry in 1995 was 2.3%, and industry analysts currently estimate that the
restaurant industry will achieve 2.4% real growth in 1996; however, according to
the National Restaurant Association, fast-food restaurants should outpace the
industry average for real growth, with a projected 4.2% increase over 1995.
Sales in this segment of the restaurant industry are projected to be $100.2
billion for 1996.
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<PAGE>
The Company invests 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. Additionally, according to The Wall Street
Journal (May 11, 1992), the average American spends $19,791 on fast-food in a
lifetime. Further, according to Nation's Restaurant News, the 100 largest
restaurant chains are posting an average of 7.2% growth in their systemwide
sales figures for 1995. Casual-theme dining concepts are among the chains
showing the strongest growth. In 1995, the sandwich segment experienced sales
growth of 6.98% over 1994 figures, and, the casual dining segment experienced
systemwide sales growth in 1995 of 12.99%, compared to 14.6% in 1994. 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
Restaurant Chains in which Affiliates of the Company (consisting of a listed
public REIT, 18 public partnerships and 8 private partnerships) have invested,
as of December 31, 1995:
<TABLE>
<CAPTION>
Aggregate
Dollars Invested by Percentage of Number of
Name Company Affiliates Dollars Invested Prior Programs
<S> <C>
Golden Corral $95,619,000 15.3% 22
Burger King 88,306,000 14.1% 22
Denny's 85,637,000 13.7% 19
Jack in the Box 59,652,000 9.5% 12
Hardee's 58,599,000 9.4% 13
Long John Silver's 32,029,000 5.1% 6
Shoney's 31,871,000 5.1% 11
Wendy's 24,593,000 3.9% 13
Checkers 21,263,000 3.4% 7
Perkins 16,311,000 2.6% 9
KFC 13,642,000 2.2% 10
TGI Friday's 13,918,000 2.2% 6
Pizza Hut 12,404,000 2.0% 7
Popeyes 9,357,000 1.5% 7
Taco Bell 6,428,000 1.0% 5
Ponderosa 3,210,000 0.5% 3
Captain D's 2,819,000 0.5% 4
</TABLE>
Management structures the Company's investments to allow it to
participate, to the maximum extent possible, in any sales growth in these
industry segments, as reflected in the Properties that it owns. The Company
therefore generally structures its leases with percentage rent requirements
which are based on gross sales of the particular restaurant. Gross sales may
increase even absent real growth because increases in the restaurant's 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 generally structures its leases to provide a minimum
level of rent, with automatic increases in the minimum rent, which is payable
regardless of the amount of gross sales at a particular Property. The Company
also endeavors 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 chains and continuing to develop relationships in the
industry in order to reduce certain risks associated with investment in real
estate; and acquisition of properties which will not be encumbered prior to
Listing. See "Standards for Investment" below for a description of the standards
which the Board of Directors employs in selecting Restaurant Chains and
particular restaurant Properties within a Restaurant Chain for investment.
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<PAGE>
Management acquires Properties in part with a view to diversification
among Restaurant Chains and 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.
Management believes that freestanding, "triple-net" leased restaurant
properties of the type in which the Company invests 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 conductive to customer name recognition.
COMPLETED INVESTMENTS
As of October 18, 1996, the Company had invested or committed for
investment approximately $80,900,000 of the net proceeds from the Initial
Offering in 84 Properties (44 Properties which consist of land and building, 33
Properties which consist of land only and seven Properties which consist of
building only), in Mortgage Loans to the tenants of the 33 Properties consisting
of land only and to pay related Acquisition Fees and Acquisition Expense. See
"Certain Transactions." All of the Properties are owned by the Company in fee
simple, except for one Property which is owned through a joint venture
arrangement. All of the Properties were acquired since the Company commenced
operations on June 1, 1995 and have leases expiring from 12 to 20 years after
the date on which each lease commenced.
The following tables set forth the number of Company Properties by
Restaurant Chain and by state:
<TABLE>
<CAPTION>
Restaurant Number of Properties
--------------------
<S> <C>
Applebee's 2
Arby's 2
Boston Market 11
Burger King 5
Denny's 5
Golden Corral 10
Jack in the Box 5
Kenny Rogers Roasters 2
Pizza Hut 33
Ryan's Family Steak House 1
TGI Friday's 4
Wendy's 4
--
Total 84
</TABLE>
<TABLE>
<CAPTION>
State Number of Properties
----- --------------------
<S> <C>
California 8
Connecticut 2
Delaware 1
Florida 3
Illinois 4
Indiana 3
Iowa 1
Michigan 5
Minnesota 2
Mississippi 2
Nebraska 1
New Jersey 2
New Mexico 1
Ohio 22
Oklahoma 1
Oregon 1
Tennessee 3
Texas 12
West Virginia 10
--
Total 84
</TABLE>
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<PAGE>
PENDING INVESTMENTS
As of October 18, 1996, the Company had initial commitments to acquire
eight properties, including six properties which consist of land and building,
and two properties which consist of land only and in connection with which the
Company expects to provide mortgage financing for the purchase of the building.
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. 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 all eight
of these properties are expected to be entered into on substantially the same
terms described in the section of the Prospectus entitled "Business --
Description of Property Leases.".
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
Board of Directors 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.
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. The Company estimates that
it will acquire 260 to 300 additional Properties, based on an estimated average
purchase price of $800,000 to $900,000 per Property, if the maximum of
27,500,000 Shares is sold. Management has estimated the average purchase price
of a Property based on its past experience in acquiring similar properties and
in light of current market conditions. 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. Management estimates that
approximately 30% to 50% of the Company's investment in a Property generally is
for the cost of land, and 50% to 70% generally is for the cost of the building.
See "Joint Venture Arrangements" below and "Risk Factors -- Investment Risks --
Possible Inability to Further Diversify Investments."
Although management cannot estimate the number of additional Mortgage
Loans that may be entered into, management currently expects to invest
approximately 5% to 10% of Gross Proceeds of this offering, assuming the maximum
of 27,500,000 Shares is sold, in Mortgage Loans.
Additional Secured Equipment Leases will be funded with the proceeds of
the Loan. No portion of Gross Proceeds of this offering will be used to fund
Secured Equipment Leases. Although management cannot estimate the number of
additional Secured Equipment Leases that may be entered into, it expects to
limit to $15,000,000 the amount used to fund Secured Equipment Leases, including
the $2,364,072 advanced under the Loan as of October 18, 1996, 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.
SITE SELECTION AND ACQUISITION OF PROPERTIES
General. The Restaurant Chains selected by the Advisor, and as approved
by the Board of Directors, have full-time staffs engaged in site selection and
evaluation. All new sites must be approved by the Restaurant Chains. The
Restaurant 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 also review and
approve all proposed tenants and restaurant sites. The Restaurant Chains or the
operators generally make their site evaluations and analyses, as well as
financial information regarding proposed tenants, available to the Company.
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<PAGE>
The Board of Directors, on behalf of the Company, elects 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
restaurant 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 restaurant. In addition, the potential tenant
must meet at least the minimum standards established by a Restaurant Chain for
its operators. The Advisor also performs an independent break-even analysis of
the potential profitability of a restaurant property using historical data and
other data developed by the Company and provided by the Restaurant Chains.
Although the Restaurant Chains that are selected by the Advisor approve
each tenant and each Property, the Board of Directors exercise(s) 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 may not be purchased by the Company.
In each Property acquisition, the Advisor negotiates 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 provide for monthly rental payments and automatic
increases in base rent at specified times during the lease terms, plus a
percentage of gross restaurant sales, will increase the value of the Properties
and provide an inflation hedge. See "Description of Leases" below for a
discussion of the 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 provides at its own expense all Equipment
(such as deep fryers, grills, refrigerators, and freezers) necessary to operate
the Company's Property as a restaurant. 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 as a
restaurant 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 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 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 is supported by an appraisal of the real
estate prepared by an independent appraiser. The Advisor, however, relies on its
own independent analysis and not on such appraisals in determining whether or
not to recommend the Company to acquire a particular Property. The purchase
price of each such Property, plus any Acquisition Fees paid by the Company in
connection with such purchase, may 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.
Construction and Renovation. In some cases, construction or renovation
is 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
-36-
<PAGE>
building or building only, the Company generally enters into a development
agreement with the tenant pursuant to which the Company advances funds to the
tenant to meet construction or renovation costs as they are incurred. The tenant
acts as the project developer, enters into all construction contracts, and
arranges for and coordinates all aspects of the construction or renovation of
the restaurant improvements. The tenant is responsible for the construction or
renovation of the restaurant 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
restaurant improvements must provide a payment and performance bond or other
satisfactory form of guarantee of performance. All construction and renovation
must be performed or supervised by persons or entities acceptable to the Advisor
and the Board of Directors. The Company is 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
advances its funds on a monthly basis to meet construction draw requests of the
tenant. The Company, in general, only advances its funds to meet the tenant'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 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 tenant (including the purchase price of the land
plus closing costs and certain other costs) generally does not exceed the
maximum amount specified in the development agreement. Such maximum amount is
based on the Company's estimate of the costs of such construction or renovation.
In certain cases in which the Company intends to purchase a Property
upon completion of construction or renovation of that Property, the Company
permits the proposed tenant to arrange for a bank or another lender to provide
construction financing to the tenant. In such cases, the lender may seek
assurance from the Company that it has sufficient funds to pay to the tenant 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 tenant 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.
Under the development agreement, the tenant generally is obligated to
complete the construction or renovation of the restaurant improvements within
120 to 150 days from the date of the development agreement. If the construction
or renovation is not completed within that time and the tenant fails to remedy
this default within 10 days after notice from the Company, the Company has the
option to grant the tenant additional time to complete the construction, to take
over construction or renovation of the restaurant improvements, or to terminate
the development agreement and require the tenant 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 restaurant
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 enters into an indemnification and put
agreement (the "Indemnity Agreement") with the tenant and any guarantor of the
obligations of the tenant under the lease in connection with the acquisition of
Properties to be constructed or renovated. The Indemnity Agreement will provide
for certain additional rights to the Company unless certain conditions are met.
In general, these conditions are (i) the tenant's acquisition of all permits,
approvals, and consents necessary to permit commencement of construction or
renovation of the restaurant 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 restaurant as evidenced by the issuance of a
certificate of occupancy, within a specified period of time (generally, 120 to
150 days) after the date of the Indemnity Agreement. If such conditions are not
met, the Company has the right to grant the tenant additional time to satisfy
the conditions or to require the tenant 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 tenant to purchase the
Property from the Company upon demand by the Company under the circumstances
specified above entitles the Company to declare the tenant in default under the
lease and to declare each guarantor in default under any guarantee of the
tenant's obligations to the Company.
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<PAGE>
In certain situations where construction or renovation is required for
a restaurant Property, the Company will pay a negotiated maximum amount upon
completion of construction or renovation rather than providing financing to the
tenant, with such amount to be based on the tenant's actual costs of 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 restaurant
Property is required, the Company also has 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 Company and 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 restaurant 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 restaurant 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 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
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 an Acquisition Fee not to exceed 4.5%
of the Gross Proceeds from the sale of Shares. See "Management Compensation."
The total of all Acquisition Fees (including Development/Construction Management
Fees to Affiliates and Construction Financing Fees to Affiliates described in
"Management Compensation" and any other Acquisition Fees to Affiliates or
nonaffiliates, but excluding development/management fees paid to any person or
entity not affiliated with the Advisor in connection with the actual development
and construction of any Property) 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 property.
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.
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<PAGE>
STANDARDS FOR INVESTMENT IN PROPERTIES
Selection of Restaurant Chains. The selection of Restaurant Chains by
the Advisor, as approved by the Board of Directors, is based on an evaluation of
the operations of restaurants in the Restaurant Chain, the number of restaurants
operated throughout the Restaurant Chain's system, the relationship of average
restaurant gross sales to the average capital costs of a restaurant, the
Restaurant Chain's relative competitive position among the same type of
restaurants offering similar types of food, name recognition, and market
penetration. The Restaurant Chains may not be affiliated with the Advisor, the
Company or an Affiliate.
Selection of Properties and Tenants. In making investments in
Properties, the Advisor considers 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 in the geographic area in which the Property is located, and
the management capability and financial condition of the tenant. The Company
obtains an independent appraisal for each Property it purchases. In selecting
tenants, the Advisor will consider the prior experience of the tenant in the
restaurant industry, the net worth of the tenant, past operating results of
other restaurants currently or previously operated by the tenant, and the
tenant's prior experience in managing restaurants within a particular Restaurant
Chain.
In selecting specific Properties within a particular Restaurant Chain
and in selecting lessees for the Company's Properties, the Advisor, as approved
by the Board of Directors, applies the following minimum standards.
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 typically also will provide for automatic increases in
base rent at specified times during the lease term and for payment of percentage
rent based on gross restaurant sales.
3. The initial lease term typically will be at least 15 to 20
years.
4. The Company will reserve the right to approve or reject any
tenant and restaurant site selected by a Restaurant Chain.
5. In evaluating prospective tenants, the Company will examine, among
other factors, the tenant's ranking in its market segment, trends in per store
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, as a
result, more than 25% of its Gross Proceeds would be invested in Properties of a
single Restaurant Chain or if more than 30% of its Gross Proceeds would be
invested in Properties in a single state.
DESCRIPTION OF PROPERTIES
The 84 Properties owned by the Company as of October 18, 1996 conform
generally to the following specifications of size, cost, and type of land and
buildings and based on these Properties and on past experience and knowledge of
the fast-food, family-style, and casual dining restaurant industry, the Advisor
expects that the Properties purchased by the Company with the remaining proceeds
of the Initial Offering and with the proceeds of this Offering will also conform
generally to the following specifications. These specifications may vary
substantially if the Company invests in any full-service restaurant Properties.
Land. 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 are 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 generally
range from $150,000 to $500,000, although the cost of the land for particular
Properties may be higher or lower in some cases.
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<PAGE>
Buildings. Either before or after construction or renovation, the
restaurant Properties acquired by the Company are one of a Restaurant Chain's
approved designs. Prior to purchase of all restaurant Properties, other than
those purchased prior to completion of construction, the Company receives 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,
and receives a certificate from the Restaurant Chain to the effect that (i) the
Property is operational and (ii) the Property and the tenant are in compliance
with all of the Restaurant Chain's requirements, including, but not limited to,
building plans and specifications approved by the Restaurant Chain. The Company
also receives a certificate of occupancy for each restaurant 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
restaurant Property.
The restaurant buildings generally are rectangular and constructed from
various combinations of stucco, steel, wood, brick, and tile. Building sizes
generally 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 range from $250,000 to $750,000 for each restaurant
Property.
Generally, Properties acquired by the Company consist of both land and
building, although in a number of cases the Company may acquire only the land
underlying the restaurant 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 are 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 than restaurant
operations.
A tenant generally is required by the lease agreement to make such
capital expenditures as may be reasonably necessary to refurbish restaurant
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. These capital expenditures are paid by the tenant
during the term of the lease.
DESCRIPTION OF PROPERTY LEASES
The terms and conditions of any lease entered into by the Company with
regard to a restaurant Property may vary from those described below. The Advisor
in all cases uses 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 considers such factors as the type and
location of the restaurant, 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 restaurant operator.
General. In general, the leases are "triple-net" leases, which means
that the tenants are required to pay for all repairs, maintenance, property
taxes, utilities, and insurance. The tenants also are 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. Properties are generally leased on a "triple-net" basis
for an initial term of either 15 or 20 years with up to five, five-year renewal
options. The minimum rental payment under the renewal option generally is
greater than that due for the final lease year of the initial term of the lease.
Upon 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 land underlying the building, the tenant may in certain cases
retain ownership of the building.
Computation of Lease Payments. During the initial term of the lease,
the tenant pays the Company, as lessor, minimum annual rent equal to a specified
percentage of the Company's cost of purchasing the Property. Typically, the
leases provide for automatic increases in the minimum annual rent at
predetermined intervals during
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the term of the lease. In the case of Properties that are to be constructed or
renovated pursuant to a development agreement, the Company's costs of purchasing
the Property 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
restaurant improvements. See "Site Selection and Acquisition of Properties --
Construction and Renovation" above.
In addition to minimum annual rent, the tenant pays the Company
"percentage rent." Percentage rent is computed as a percentage of the restaurant
gross sales at a particular Property. The leases generally provide that
percentage rent will commence in the first lease year in which gross sales
exceed a specified amount. Certain leases, however, provide that percentage rent
is to be paid quarterly beginning at the end of the first two years of the lease
and each succeeding quarter thereafter to the extent the restaurant gross sales
in that quarter exceed the average quarterly gross sales during the first two
lease years. The leases also generally provide that the tenant will receive a
credit against percentage rent for the amount of the escalations in the minimum
annual rent due under the lease. Gross sales include sales of all products and
services of the restaurant, excluding sales taxes, tips paid to serving people,
and sales from vending machines.
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, leases may not 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 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 has the right, without the
prior consent of the Company and at the tenant's own expense, to make certain
immaterial structural modifications to the restaurant building and improvements
(with a cost of up to $10,000) or, with the Company's prior written consent and
at the tenant's own expense, to make material structural modifications that may
include demolishing and rebuilding the restaurant. Under certain leases, the
tenant, at its own expense, may make any type of alterations to the leased
premises without the Company's consent but must provide the Company with plans
of any proposed structural modifications at least 30 days before construction of
the alterations commences. Certain leases may require the tenant to post a
payment and performance bond for any structural alterations with a cost in
excess of a certain amount.
Right of Tenant to Purchase. Generally, 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 has 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 has 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, at its
own expense, is entitled to operate another form of approved restaurant on the
Property as long as such approved restaurant 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.
In addition, certain leases 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 national or regional fast-food, family-style, or
casual dining restaurant 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
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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 national or regional fast-food,
family-style, or casual dining restaurant 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 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 provide that the lessee is not
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. All of the leases 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 all Properties in good order and repair.
Tenants generally are 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. All tenants,
other than those tenants with a substantial net worth, generally also will be
required to obtain "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 is 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.
The 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 tenants generally are 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 provide that, in the event of any
condemnation of the 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
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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 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
restaurant, 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 security deposit (which it is anticipated normally
would be equal to two months' base rent), 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 restaurant operator
acceptable to the Restaurant Chain involved or will discontinue operation of the
restaurant. In lieu of obtaining a replacement restaurant operator, some
Restaurant Chains may have the option and may elect to operate the restaurants
themselves. The Company will have no obligation to operate the restaurants, and
no Restaurant Chain will be obligated to permit the Company or a replacement
restaurant operator to operate the restaurants.
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 Company. Joint Ventures entered into to purchase and
hold a Property for investment generally will have an initial term of 15 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
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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 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.
MORTGAGE LOANS
The Company provides Mortgage Loans to operators of the Restaurant
Chains, or their affiliates, to enable them to acquire the building and
improvements on real property. Generally in these cases, the Company acquires
the underlying land and enters into a long-term ground lease for the Property
with the borrower as the tenant. The Mortgage Loan is secured by the building
and improvements on the land. Management believes that the criteria for
investing in the Mortgage Loans are substantially the same as those involved in
the Company's investments in Properties consisting of buildings only; therefore,
the Company uses the same underwriting criteria as described above in "Business
- - Standards for Investment in Properties."
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Generally, management believes the economic effects of these
transactions are substantially the same as those of the leases. The borrower is
responsible for all of the expenses of owning the building and improvements, as
with the "triple-net" leases, including expenses for insurance and repairs and
maintenance. The Mortgage Loans are fully amortizing loans, generally over a
period of 15 to 20 years (the same term as the initial term of the Property
leases), with payments of principal and interest due monthly. In addition, the
interest rates charged under the terms of the Mortgage Loans are fixed over the
term of the loan and generally are comparable to, or slightly lower than, lease
rates charged to tenants for the Properties.
Management also 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 is generally an
appreciating asset, 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.
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 their Affiliates.
MANAGEMENT SERVICES
The Advisor provides 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 provides information to the Company about the status of the leases, the
Properties, the Mortgage Loans, the Loan 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, the Advisor receives
the Asset Management Fee, which, generally, is payable monthly in an amount
equal to one-twelfth of .60% of Real Estate Asset Value as of the end of the
preceding month. For supervision of the Mortgage Loans, the Advisor will receive
the Mortgage Management Fee, which is payable monthly in an amount equal to
one-twelfth of .60% of the total 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 receives, upon
entering into each lease, a Secured Equipment Lease Servicing Fee, payable out
of the proceeds of the Loan, equal to 2% of the purchase price of the Equipment
subject to each Secured Equipment Lease. See "Management Compensation."
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BORROWING
The Company plans to obtain a Line of Credit in an amount up to
$20,000,000, the proceeds of which will be used to acquire Properties. The Line
of Credit will provide short-term financing which the Company anticipates will
be repaid using additional offering proceeds or refinanced on a long-term basis.
The Company will not encumber Properties in connection with the Line of Credit.
The Company has engaged in preliminary discussions with potential lenders but
has not yet received a commitment for the Line of Credit and there is no
assurance that the Company will obtain the Line of Credit on satisfactory terms.
Management believes that during the offering period the Line of Credit,
if obtained, will allow the Company to make investments in Properties that the
Company otherwise would be forced to delay until it raised a sufficient amount
of proceeds from the sale of Shares to allow the Company to make the
investments. 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,
Properties 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 Properties and reduce the amount of offering proceeds
available for investment in income-producing assets. Management believes that
the use of Line of Credit by the Company will enable the Company to reduce or
eliminate the instances in which the Company will be required to pay duplicate
closing costs.
On March 5, 1996, the Company entered into a line of credit and
security agreement with a bank to be used by the Company to offer Secured
Equipment Leases. The Loan provides that the Company will be able to receive
advances of up to $15,000,000 until March 4, 1998. Generally, advances under the
Loan will be fully amortizing term loans repayable in terms equal to the
duration of the Secured Equipment Leases, but in no event greater than 72
months. In addition, advances for short-term needs (to acquire equipment to be
leased under Secured Equipment Leases) may be requested in an aggregate amount
which does not exceed the Revolving Sublimit (defined in the Loan as $1,000,000)
and such advances may be repaid and readvanced; provided, however, that advances
made pursuant to the Revolving Sublimit shall be converted to term loans the
earlier of (i) the end of each 60 day period following the closing date of the
advance, or (ii) when the aggregate amount outstanding equals or exceeds
$1,000,000. Interest on advances made pursuant to the Revolving Sublimit shall
be paid monthly in arrears. In addition, principal amounts under advances
pursuant to the Revolving Sublimit, if not sooner paid or converted into term
loans, shall be paid, together with any unpaid interest relating to such
advances, to the bank on March 5, 1998. Generally, all advances under the Loan
will bear interest at either (i) a rate per annum equal to 215 basis points
above the Reserve Adjusted LIBOR Rate (as defined in the Loan) or (ii) a rate
per annum equal to the bank's prime rate, whichever the Company selects at the
time advances are made. As a condition of obtaining the Loan, the Company agreed
to grant to the bank a first security interest in the Secured Equipment Leases.
In the past, the Company generally has entered into agreements to effectively
convert the interest rate for the advance from a variable to a fixed rate. In
connection with the Loan, the Company incurred a commitment fee, legal fees and
closing costs of approximately $53,500 relating to the Loan. As of October 18,
1996, $2,417,572 had been advanced under the Loan to fund the Equipment for five
restaurant properties, the commitment fee, legal fees and closing costs related
to the Loan.
The Company, or Joint Venture in which the Company becomes a joint
venturer, will initially acquire Properties without borrowing. The Board of
Directors does not anticipate that the Company will borrow funds, other than the
Loan, the Line of Credit or 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 capital to the stockholders unless necessary to
eliminate corporate-level tax to the Company. Until Listing occurs, the Company
will not encumber Properties in connection with any borrowing. If Listing
occurs, however, the Board of Directors may elect to cause the Company to borrow
funds in connection with the purchase of additional Properties or for other
Company purposes and to encumber any or all of the Company's Properties in
connection with any such borrowing. 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 amount of any borrowing will
not exceed 50% of Real Estate Asset Value, although 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 (an amount which the Company anticipates will correspond to approximately
75% of Real Estate Asset
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Value). 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 three to eight years after the commencement of this
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. 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 Loan. At or prior to
the end of such eight-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
reinvest in additional Properties, Mortgage Loans, and Secured Equipment Leases
any Net Sales Proceeds not required to be distributed to stockholders in order
to preserve the Company's status as a REIT. 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 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 Restaurant Chain. The Company will not be an Affiliate
of any Restaurant Chain, 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 which franchise their operations are subject to
regulation by the Federal Trade Commission.
COMPETITION
The fast-food, family-style, and casual dining restaurant business is
characterized by intense competition. The operators of the restaurants located
on the Properties will compete with independently owned restaurants, restaurants
which are part of local or regional chains, and restaurants in other well-known
national chains, including those offering different types of food and service.
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-
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food, family-style, and casual dining restaurants frequently experience better
operating results when there are other restaurants in the same area.
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, and Equipment tenants.
REGULATION OF MORTGAGE LOANS AND SECURED EQUIPMENT LEASES
The Mortgage Loans and Secured Equipment Lease program 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 may 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 Loans and Secured Equipment Lease program.
Commencement of operations into these or other jurisdictions may be dependent
upon a finding of financial responsibility, character and fitness of the
Company. The Company may determine not to make Mortgage Loans or operate Secured
Equipment Lease program in any jurisdiction in which it believes the Company has
not complied in all material respects with applicable requirements.
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SELECTED FINANCIAL DATA
The following table sets forth certain financial information for CNL
American Properties Fund, Inc., 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 to this
Prospectus.
<TABLE>
<CAPTION> May 2,
1994 (Date
Six Months Ended of Inception)
June 30, Year Ended through
1996 December 31, December 31,
(Unaudited) 1995 1994
------------------- --------------- -------------
<S> <C>
Revenues $2,381,472 $ 659,131 $ -
Net earnings 1,689,042 368,779 -
Cash distributions declared (1) 1,868,487 638,618 -
Earnings per Share 0.30 0.19 -
Cash distributions declared per Share 0.33 0.34 -
Weighted average number of Shares
outstanding (2) 5,649,041 1,898,350 -
<CAPTION>
June 30,
1996 December 31, December 31,
(Unaudited) 1995 1994
----------- --------------- ---------------
<S> <C>
Total assets $70,597,609 $33,603,084 $929,585
Total equity 66,240,326 31,980,648 200,000
</TABLE>
(1) Approximately 15 percent and 40 percent of cash distributions
($0.05 and $0.14 per Share) for the six months ended June 30,
1996 and the year ended December 31, 1995, respectively,
represents 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 the
stockholders' Invested Capital and the Stockholders' 8%
Return, as described in the Prospectus.
(2) The weighted average number of Shares outstanding is based
upon the period the Company was operational.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION OF THE COMPANY
INTRODUCTION
The Company is a Maryland corporation that was organized on May 2,
1994, to acquire Properties, directly or indirectly through Joint Venture or
co-tenancy arrangements, to be leased on a long-term, "triple-net" basis to
operators of certain Restaurant Chains. In addition, the Company may provide
Mortgage Loans for the purchase of buildings, generally by tenants that lease
the underlying land from the Company. To a lesser extent, the Company intends to
offer Secured Equipment Leases to operators of Restaurant Chains. Secured
Equipment Leases will be funded from the proceeds of the Loan, in an amount up
to 10% of Gross Proceeds from the offering, which the Company has obtained.
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As of June 30, 1996, the Company owned 68 Properties (including one
Property through a joint venture arrangement consisting of land and building, 29
consisting of land and building, five consisting of building only and 33
consisting of land only and in connection with which the Company provided
Mortgage Loans to the tenant for the purchase of the buildings on the
Properties). Of the 68 Properties, 14 were under construction at June 30, 1996.
In addition, as of June 30, 1996, the Company had entered into one Secured
Equipment Lease.
LIQUIDITY AND CAPITAL RESOURCES
In April 1995, the Company commenced an offering of its Shares of
common stock. As of June 30, 1996, the Company had received subscription
proceeds of $76,816,648 (7,681,665 Shares) from the offering, including $243,167
(24,317 Shares) through the Reinvestment Plan.
As of June 30, 1996, 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
Offering Expenses, totalled $66,669,610. As of June 30, 1996, approximately
$63,189,000 had been used to invest, or committed for investment, in 68
Properties (14 of which were undeveloped land on which a restaurant was being
constructed), in providing mortgage financing of $12,363,000 to the tenants of
the 33 Properties consisting of land only and to pay Acquisition Fees to the
Advisor totalling $3,456,749 and certain Acquisition Expenses. The Company
acquired 11 of the 68 Properties from Affiliates, for purchase prices totalling
approximately $8,419,000. The Affiliates had purchased and temporarily held
title to these Properties in order to facilitate the acquisition of the
Properties by the Company. Each Property was acquired at a cost no greater than
the lesser of the cost of the Property to the Affiliate (including carrying
costs) or the Property's appraised value. The Company expects to use Net
Offering Proceeds from the sale of Shares to purchase additional Properties, to
fund construction costs relating to the Properties under construction and to
make Mortgage Loans. The number of Properties to be acquired and Mortgage Loans
to be entered into will depend upon the amount of Net Offering Proceeds
available to the Company.
On March 5, 1996, the Company entered into the Loan with a bank. The
Loan is to be used by the Company to offer Secured Equipment Leases. The Loan
provides that the Company will be able to receive advances limited to
$15,000,000 until March 4, 1998. Generally, advances under the Loan will be
fully amortizing term loans repayable in terms equal to the duration of the
Secured Equipment Leases, but in no event greater than 72 months. In addition,
advances for short-term needs (to acquire equipment to be leased under Secured
Equipment Leases) may be requested in an aggregate amount which does not exceed
the Revolving Sublimit (defined in the Loan as $1,000,000) and such advances may
be repaid and readvanced; provided, however, that advances made pursuant to the
Revolving Sublimit shall be converted to term loans the earlier of (i) the end
of each 60 day period following the closing date of the advance, or (ii) when
the aggregate amount outstanding equals or exceeds $1,000,000. Interest on
advances made pursuant to the Revolving Sublimit shall be paid monthly in
arrears. In addition, principal amounts under advances pursuant to the Revolving
Sublimit, if not sooner paid or converted into term loans, shall be paid,
together with any unpaid interest relating to such advances, to the bank on
March 5, 1998. Generally, all advances under the Loan will bear interest at
either (i) a rate per annum equal to 215 basis points above the Reserve Adjusted
LIBOR Rate (as defined in the Loan) or (ii) a rate per annum equal to the bank's
prime rate, whichever the Company selects at the time advances are made. As a
condition of obtaining the Loan, the Company agreed to grant to the bank a first
security interest in the Secured Equipment Leases. In connection with the Loan,
the Company incurred a commitment fee, legal fees and closing costs of $53,500
relating to the Loan. As of June 30, 1996, the Company had obtained two advances
totalling $603,745 relating to the Loan. The proceeds were used to fund a
Secured Equipment Lease at a cost of approximately $550,000, including a Secured
Equipment Lease Servicing Fee of $10,776 to the Advisor and to pay loan costs of
$53,500 described above. The Company expects to use the proceeds of the Loan to
fund the Secured Equipment Lease program, as described above.
The Company has entered into various development agreements with
tenants which provide terms and specifications for the construction of buildings
the tenants have agreed to lease once construction is completed. The agreements
provide a maximum amount of development costs (including the purchase price of
the land and closing costs) to be paid by the Company. The aggregate maximum
development costs the Company has agreed to pay is approximately $17,499,600, of
which approximately $11,111,000 in land and other costs had been incurred as of
June 30, 1996. The buildings under construction as of June 30, 1996, are
expected to be operational by October 1996. In connection with the purchase of
each Property, the Company, as lessor, entered into a long-term lease agreement.
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During the period July 1, 1996 through October 18, 1996, the Company
acquired 16 additional Properties (two Properties consisting of land and
building, 12 Properties consisting of undeveloped land on which restaurants are
being constructed and two Properties consisting of building only, one of which
is being constructed) for cash at a total cost of approximately $10,001,000,
excluding development and closing costs. The development costs (including the
purchase of the land, if applicable, and closing costs) to be paid by the
Company relating to the 13 Properties under construction are estimated to be
approximately $14,854,000. The buildings under construction are expected to be
operational by March 1997.
The Company presently is negotiating to acquire additional Properties,
but as of October 18, 1996, had not acquired any such Properties.
In addition, during the period July 1, 1996 through October 18, 1996,
the Company obtained four additional advances totalling approximately $1,814,000
under its $15,000,000 Loan. The proceeds of the advances were used to fund three
Secured Equipment Leases at a cost of approximately $1,814,000, including
Secured Equipment Lease Servicing Fees of $35,516 paid to the Advisor.
In connection with the Company's advances under the Loan, as of October
18, 1996, the Company had converted a total of approximately $2,271,000 from
variable rate advances to fixed rate advances (at rates ranging from 8.75% to
nine percent per annum).
As of October 18, 1996, the Company had received subscription proceeds
of $110,064,566 (11,006,457 Shares) from 6,048 stockholders, including $391,348
(39,135 Shares) issued pursuant to the Reinvestment Plan. As of October 18,
1996, the Company had invested, or committed for investment, approximately
$80,900,000 of such proceeds in 84 Properties, had provided mortgage financing
to the tenants of the 33 Properties consisting of land only through Mortgage
Loans, and had paid Acquisition Fees and Acquisition Expenses, leaving
approximately $16,200,000 in Net Offering Proceeds available for investment in
Properties and Mortgage Loans. As of October 18, 1996, the Company had incurred
$4,952,905 in Acquisition Fees due to the Advisor.
Properties are and will be leased on a 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 currently are anticipated by management.
Until Properties are acquired, or Mortgage Loans are entered into, by
the Company, all 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 Properties at such time as Properties
suitable for acquisition are located or to fund Mortgage Loans. At June 30,
1996, the Company had $13,369,577 invested in such short-term investments as
compared to $11,508,445 at December 31, 1995. 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, 1996. These funds will
be used primarily to purchase and develop or renovate Properties (directly or
indirectly through joint venture arrangements), to make Mortgage Loans, to pay
organization and offering and acquisition costs, to pay Distributions to
stockholders, to meet Company expenses and, in management's discretion, to
create cash reserves.
During the six months ended June 30, 1996 and 1995, Affiliates of the
Company incurred on behalf of the Company $495,800 and $222,894, respectively,
for certain Offering Expenses. In addition, during the six months ended June 30,
1996 and 1995, Affiliates of the Company incurred on behalf of the Company
$107,383 and $42,703 for certain Acquisition Expenses and $149,802 and $12,680
for certain Operating Expenses. As of June 30, 1996, the Company owed the
Advisor $121,283 for such amounts, accounting and administrative expenses and
Acquisition Fees. As of August 6, 1996, the Company had reimbursed all such
amounts. The Advisor has agreed to pay or reimburse to the Company all Offering
Expenses in excess of three percent of gross offering proceeds. Other
liabilities to unrelated parties increased to $3,852,773 at June 30, 1996, from
$1,173,776 at December 31, 1995, primarily as a result of the accrual of
construction costs incurred and unpaid as of June 30, 1996.
During the six months ended June 30, 1996 and 1995, the Company
generated cash from operations (which includes cash received from tenants and
interest and other income received, less cash paid for operating expenses) of
$1,568,399 and $7,970, respectively. Based on current and anticipated future
cash from operations, the Company declared Distributions to the stockholders of
$1,868,487 and $15,148 during the six months ended June 30, 1996 and 1995,
respectively ($1,100,354 and $15,148 for the quarters ended June 30, 1996 and
1995, respectively). On July 1, 1996, August 1, 1996, and September 1, 1996, the
Company declared Distributions to its stockholders
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totalling $458,646, $515,906 and $559,599, respectively, payable in September
1996. In addition, on October 1, 1996, the Company declared Distributions to its
stockholders totalling $615,914 payable in December 1996. For the six months
ended June 30, 1996, approximately 85 percent of the Distributions received by
stockholders were considered to be ordinary income and 15 percent were
considered a return of capital for federal income tax purposes. However, no
amounts distributed or to be distributed to the stockholders as of October 18,
1996, 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.
Management believes that the Properties are adequately covered by
insurance. The Advisor has obtained contingent liability and property coverage
for the Company. This insurance policy is intended to reduce the Company's
exposure in the unlikely event a tenant's insurance policy lapses or is
insufficient to cover a claim relating to the Property.
The Company's investment strategy of acquiring Properties for cash and
leasing them under triple-net leases to operators who meet specified financial
standards is expected to minimize the Company's Operating Expenses. Accordingly,
management believes that any anticipated decrease in the Company's liquidity in
1996, due to its investment of available Net Offering Proceeds in Properties and
Mortgage Loans, will not have an adverse effect on the Company's operations.
During the operational stage, management believes that the leases will generate
cash flow in excess of Operating Expenses. Since the leases are expected
generally to have an initial term of 15 to 20 years, with two or more five-year
renewal options, and provide for specified percentage rent in addition to the
annual base rent and, in certain cases, increases in the base rent at specified
times during the terms of the leases, it is anticipated that rental income will
increase over time.
Due to anticipated low Operating Expenses, rental income expected to be
obtained from Properties after they are acquired, the fact that as of October
18, 1996, the Company had entered into Secured Equipment Leases for amounts
borrowed under the Loan and the fact that payments due to the Company from the
Secured Equipment Leases are expected to exceed debt service requirements for
the Loan, 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 expects that the cash generated from operations will be
adequate to pay Operating Expenses.
RESULTS OF OPERATIONS
No significant operations commenced until the Company received the
minimum offering proceeds of $1,500,000 on June 1, 1995.
As of June 30, 1996, the Company and its consolidated joint venture had
purchased 68 Properties, including one which is owned through a Joint Venture
consisting of land and building, 29 Properties consisting of land and building,
five Properties consisting of building only and 33 Properties consisting of land
only, and entered into lease agreements relating to these Properties. The leases
provide for minimum base annual rental payments (payable in monthly
installments) ranging from approximately $89,700 to $467,500. In addition,
certain leases provide for percentage rent based on sales in excess of a
specified amount. The majority of the leases also provide that, commencing in
generally the sixth lease year, the annual base rent required under the terms of
the leases will increase.
During the six months ended June 30, 1996 and 1995, the Company and its
consolidated joint venture, CNL/Corral South Joint Venture, earned $1,704,185
and $369, respectively, in rental income from operating leases and earned income
from the direct financing lease from 54 Properties and "interim rent" for nine
of the 14 Properties under construction at June 30, 1996, $905,104 and $369 of
which was earned during the quarters ended June 30, 1996 and 1995, respectively.
No rental income was earned for five of the 14 Properties under construction as
of June 30, 1996, due to the fact that rent does not generally commence until
the earlier of (i) the date the restaurant opens for business to the public,
(ii) the date the certificate of occupancy for the restaurant is issued or (iii)
a specified time after the execution of the lease (ranging from 150 to 180
days). As of October 18, 1996, four of these Properties were operational and
rental payments had commenced. The fifth Property is expected to be operational
by April 1997. Because the Company did not commence significant operations until
it received the minimum offering proceeds on June 1, 1995, and has not yet
acquired all of its Properties, revenues for the six months ended June 30, 1996,
represent only a portion of revenues which the Company is expected to earn in
future periods in which the Company's Properties are operational.
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During the six months ended June 30, 1996, the Company entered into two
Mortgage Loans in the principal sum of $12,363,000, collateralized by a mortgage
on the buildings relating to 33 Pizza Hut Properties. The Mortgage Loans bear
interest at a rate of 10.75% per annum and are being collected in 240 equal
monthly installments totalling $125,513. In connection therewith, the Company
earned $465,498 in interest income relating to such Mortgage Loans during the
six months ended June 30, 1996, $280,549 of which was earned during the quarter
ended June 30, 1996.
During the quarter ended June 30, 1996, two lessees, or groups of
affiliated lessees of the Company, Golden Corral Corporation and Castle Hill
Holdings V, L.L.C. and Castle Hill Holdings VI, L.L.C. (hereinafter referred to
as Castle Hill), each contributed more than ten percent of the Company's total
rental income. Golden Corral Corporation is the lessee under leases relating to
five restaurants and Castle Hill is the lessee under leases relating to 33
restaurants. During the quarter ended June 30, 1996, the Company also earned
$280,549 in interest income from mortgage notes receivable under which Castle
Hill is the borrower. In addition, two restaurant chains, Golden Corral Family
Steakhouse and Pizza Hut each accounted for more than ten percent of the
Company's total rental income during the quarter ended June 30, 1996. Because
the Company has not yet completed its acquisition of Properties, it is not
possible to determine which lessees or Restaurant Chains will contribute more
than ten percent of the Company's rental income during the remainder of 1996 and
subsequent years, with the exception of Castle Hill, Pizza Hut and Boston
Market, all of which the Company anticipates will contribute more than ten
percent of the Company's income during the remainder of 1996. In the event that
certain lessees, borrowers or Restaurant Chains contribute more than ten percent
of the Company's total income in the current and future years, any failure of
such lessees, borrowers or Restaurants Chains could materially affect the
Company's income.
During the six months ended June 30, 1996 and 1995, the Company also
earned $211,789 and $7,828, respectively, in interest income from investments in
money market accounts or other short-term, highly liquid investments and other
income, $135,940 and $7,828 of which was earned during the quarters ended June
30, 1996 and 1995, respectively. Interest income from investing in money market
accounts or other short-term, highly liquid investments is expected to increase
as the Company invests subscription proceeds in highly liquid investments
pending the acquisition of Properties or investing in Mortgage Loans. However,
as Net Offering Proceeds are invested in Properties and used to make Mortgage
Loans, interest income from investments in money market accounts or other
short-term, highly liquid investments is expected to decrease.
Operating expenses, including depreciation and amortization expense,
were $670,107 and $3,742 for the six months ended June 30, 1996 and 1995,
respectively, of which $369,568 and $3,742 were incurred during the quarters
ended June 30, 1996 and 1995, respectively. Operating expenses increased during
the quarter and six months ended June 30, 1996, as compared to the quarter and
six months ended June 30, 1995, primarily as a result of the fact that the
Company did not commence operations until June 1, 1995. General and
administrative expenses as a percentage of total revenues is expected to
decrease as the Company acquires additional Properties and the Properties under
construction become operational. However, depreciation and amortization expense
is expected to increase as the Company acquires additional Properties.
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.
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
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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 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
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.
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."
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DIRECTORS AND EXECUTIVE OFFICERS
The Directors and executive officers of the Company are listed below:
<TABLE>
<CAPTION>
Name Age Position with the Company
<S> <C>
James M. Seneff, Jr. 50 Director, Chairman of the Board, and Chief Executive Officer
Robert A. Bourne 49 Director and President
G. Richard Hostetter 56 Independent Director
J. Joseph Kruse 63 Independent Director
Richard C. Huseman 57 Independent Director
John T. Walker 37 Chief Operating Officer and Executive Vice President
Jeanne A. Wall 38 Executive Vice President
Lynn E. Rose 47 Secretary and Treasurer
Edgar J. McDougall 48 Executive Vice President
</TABLE>
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 Fund Advisors, Inc., the
advisor to the Company. Mr. Seneff also serves as Chairman of the Board, Chief
Executive Officer and a director of CNL American Realty Fund, 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 and CNL Fund Advisors, Inc. Mr. Seneff has been
a director and registered principal of CNL Securities Corp. since its formation
in 1979. Mr. Seneff also has held the position of President and a director of
CNL Management Company, a registered investment advisor, since its formation in
1976, has served as Chief Executive Officer and Chairman of the Board of CNL
Investment Company, and Chief Executive Officer and Chairman of the Board of
Commercial Net Lease Realty, Inc. since 1992, has served as Chief Executive
Officer and Chairman of the Board of CNL Realty Advisors, Inc. since its
inception in 1991, and has held the position of Chief Executive Officer 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 $40 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
approximately 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 100 real estate ventures are
approximately 57 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 Fund Advisors, Inc., the advisor
to the Company. Mr. Bourne also serves as President and a director of CNL
American Realty Fund, Inc. Mr. Bourne is President and Treasurer of CNL Group,
Inc., President, a director, and a registered principal of CNL Securities Corp.
(the Managing Dealer of this offering), President and a director of CNL
Investment Company, and President, Chief Investment Officer and a director of
CNL Institutional Advisors, Inc., a registered investment advisor. Mr. Bourne
also has served as President and a director from July 1992 to February 1996, and
has served as Vice Chairman of the Board of Directors, Secretary and Treasurer
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 has served as a director of CNL Realty Advisors, Inc. since 1991, and
as Treasurer and Vice Chairman since February 1996. 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
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<PAGE>
venturer in approximately 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 100 real
estate ventures are approximately 57 privately offered real estate limited
partnerships with investment objectives similar to one or more of those 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 Realty Fund, Inc. Mr. Hostetter was a
senior partner at the law firm of Miller and Martin from 1966 through 1989. In
this capacity, he has 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., 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 Realty 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
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 Realty Fund, Inc. Mr. Huseman is presently a
professor in the College of Business, 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. 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.
John T. Walker. Chief Operating Officer and Executive Vice President.
Mr. Walker joined CNL Group, Inc. in September 1994, as Senior Vice President,
responsible for Research and Development. He currently serves as the Chief
Operating Officer and Executive Vice President of CNL Fund Advisors, Inc., the
advisor to the Company. Mr. Walker is also Chief Operating Officer and
Executive Vice President of CNL American Realty Fund, 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 Fund Advisors, Inc., the advisor to the Company.
Ms. Wall is also Executive Vice President of CNL American Realty Fund, Inc. Ms.
Wall has served as Chief Operating Officer of CNL Investment Company and of CNL
Securities Corp. since November 1994 and previously served as Executive Vice
President of CNL Investment Company since January 1991. In 1984, Ms. Wall
joined CNL Securities Corp. as its Partnership Administrator. In 1985, Ms. Wall
became Vice President of CNL Securities Corp. and, in 1987, she became a Senior
Vice President of CNL Securities Corp. In this capacity, Ms. Wall serves as
national marketing director and oversees the national marketing plan for the CNL
investment programs. In addition, Ms. Wall oversees partnership administration
and investor services for programs offered through participating brokers. 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; and as Vice President of
Commercial Net Lease Realty,
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<PAGE>
Inc. since 1992. Ms. Wall holds a B.A. in Business Administration from Linfield
College and is a registered 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 is also Secretary and
Treasurer of CNL American Realty Fund, Inc. Ms. Rose serves as Secretary and
Treasurer of CNL Fund Advisors, Inc., the advisor to the Company. Ms. Rose, a
certified public accountant, has served as Chief Financial Officer and Secretary
of CNL Group, Inc. since December 1993, and served as Controller and Secretary
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 of CNL Corporate Services,
Inc. since November 1994. Ms. Rose also has served as Chief Financial Officer
of CNL Institutional Advisors, Inc. since its inception in 1990, Secretary and a
director of CNL Realty Advisors, Inc. since its inception in 1991, and as a
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. In addition, Ms. Rose oversees the management
information services, administration, legal compliance, accounting, tenant
compliance, and reporting for over 200 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.
Edgar J. McDougall. Executive Vice President. Mr. McDougall currently
serves as Executive Vice President of CNL Fund Advisors, Inc., the advisor to
the Company. Mr. McDougall is also Executive Vice President of CNL American
Realty Fund, Inc. Mr. McDougall has served as Executive Vice President of CNL
Group, Inc. since August 1990. Mr. McDougall joined CNL Group, Inc. in May 1990
as Senior Vice President--Strategic Planning. Mr. McDougall also serves as
Chief Operating Officer of CNL Institutional Advisors, Inc. In addition, Mr.
McDougall has served as Vice President of CNL Realty Advisors, Inc. since its
inception in 1991 and Vice President of Commercial Net Lease Realty, Inc. since
1992. Prior to joining CNL in 1990, Mr. McDougall served as President of Colony
Land Company, in Orlando, Florida, beginning in November 1987. From 1985 to
1987, Mr. McDougall served as the Sales Manager of the Orlando office of
Coldwell Banker Commercial Real Estate, a diversified real estate company
involved in the sale and leasing of commercial properties. Mr. McDougall holds a
Doctor of Philosophy degree in Business Administration from the University of
Florida.
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 amongst 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.
At such time, if any, as the Shares are listed on a national securities
exchange or over-the-counter market, the Company will form a Compensation
Committee, the members of which will be 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.
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<PAGE>
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.
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 Fund Advisors, Inc. is a Florida corporation organized in March,
1994 to provide management, advisory and administrative services. The Company
entered into the Advisory Agreement with the Advisor effective April 19, 1996.
CNL Fund Advisors, Inc., as Advisor, has a fiduciary responsibility to the
Company and the stockholders.
The directors and officers of the Advisor are as follows:
<TABLE>
<S> <C>
James M. Seneff, Jr. ............................. Chairman of the Board, Chief Executive Officer, and Director
Robert A. Bourne ................................. President and Director
John T. Walker ................................... Chief Operating Officer and Executive Vice President
Steven D. Shackelford............................. Chief Financial Officer
Edgar J. McDougall ............................... Executive Vice President
Lynn E. Rose ..................................... Secretary, Treasurer and Director
Jeanne A. Wall ................................... Executive Vice President
</TABLE>
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. 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
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 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) 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
reimbursements, and legal and accounting fees, (iii) the actual cost of goods
and materials used by the Company and obtained from entities
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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), (v) Acquisition
Expenses, which are defined to include expenses related to the selection and
acquisition of Properties, 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 Operating Expenses that, in the four consecutive fiscal quarters then
ended (the "Expense Year") exceed (the "Excess Amount") the greater of 2% of
Average Invested Assets or 25% of Net Income (the "2%/25% Guidelines") for such
year. Any Excess Amount paid to the Advisor during a fiscal quarter shall be
repaid to the Company. If there is an Excess Amount in any Expense Year and the
Independent Directors determine that such excess was justified, based on unusual
and nonrecurring factors which they deem sufficient, the Excess Amount may be
carried over and included in Operating Expenses in subsequent Expense Years, and
reimbursed to the Advisor in one or more of such years, provided that Operating
Expenses in any Expense Year, including any Excess Amount to be paid to the
Advisor, shall not exceed the 2%/25% Guidelines. 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, there shall be sent to the
stockholders a written disclosure of such fact, together with an explanation of
the factors the Independent Directors considered in determining that such excess
expenses were justified. Such determination shall be reflected in the minutes of
the meetings of the Board of Directors. In the event the Independent Directors
do not determine that such Excess Amount was justified, the Advisor shall
reimburse the Company at the end of the Expense Year the amount by which the
total Operating Expenses paid or incurred by the Company exceed the limitations
herein provided.
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 -- 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 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
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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 April 19, 1997,
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 Properties and Secured Equipment
Leases on the date of termination of the Advisory Agreement (the "Termination
Date"), less the amount of all indebtedness secured by Properties and Secured
Equipment Leases, 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 Properties shall be an amount which
provides compensation to the terminated Advisor only for that portion of the
holding period for the respective Properties 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.
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.
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CERTAIN TRANSACTIONS
From January 1, 1996 to June 30, 1996, the Company incurred $100,526 in
Asset Management Fees due to the Advisor and, in 1995, the Company incurred
$27,950 in Asset Management Fees due to the Advisor.
From January 1, 1996 to June 30, 1996, the Company incurred $3,222,468
in Acquisition Fees due to the Advisor and, in 1995, the Company incurred
$1,730,437 in Acquisition Fees due to the Advisor.
From January 1, 1996 to October 18, 1996, the Company incurred
$5,370,780 in Selling Commissions due to the Managing Dealer and, in 1995, the
Company incurred $2,884,062 in Selling Commissions due to the Managing Dealer in
connection with the Initial Offering. The majority of such commissions were
reallowed to other Soliciting Dealers.
From January 1, 1996 to October 18, 1996, the Company incurred $358,052
in marketing support and due diligence expense reimbursement fees due to the
Managing Dealer and in 1995, the Company incurred $192,271 in marketing support
and due diligence expense reimbursement fees due to the Managing Dealer in
connection with the Initial Offering. The majority of such fees were reallowed
to other Soliciting Dealers.
From January 1, 1996 to June 30, 1996, the Company acquired two
Properties from Affiliates for an aggregate purchase price of approximately
$1,798,000 and, in 1995, the Company acquired nine Properties from Affiliates
for an aggregate purchase price of approximately $6,621,000. The Affiliates had
purchased and temporarily held title to these Properties in order to facilitate
the acquisition of the Properties by the Company. Each Property was acquired at
a cost no greater than the lesser of the cost of the Property to the Affiliate
(including carrying costs) or the Property's appraised value.
The Advisor, the Managing Dealer and the Affiliates from which the
Company acquired Properties are wholly owned subsidiaries of CNL Group, Inc., of
which James M. Seneff, Jr., Chairman of the Board and Chief Executive Officer of
the Company, and his spouse are the sole stockholders.
All of these fees were paid in accordance with the provisions of the
Company's Articles of Incorporation.
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. INVESTORS IN THE COMPANY SHOULD NOT ASSUME THAT THEY
WILL EXPERIENCE RETURNS, IF ANY, COMPARABLE TO THOSE EXPERIENCED BY INVESTORS IN
SUCH PRIOR REAL ESTATE PROGRAMS. INVESTORS WHO PURCHASE SHARES IN THE COMPANY
WILL NOT THEREBY ACQUIRE ANY OWNERSHIP INTEREST IN ANY PARTNERSHIPS TO WHICH THE
FOLLOWING INFORMATION RELATES.
Two Directors of the Company, Robert A. Bourne and James M. Seneff,
Jr., individually or with others have served as general partners of 86 and 89
real estate limited partnerships, respectively, including the 17 publicly
offered CNL Income Fund partnerships, which purchased properties similar to
those to be acquired by the Company, listed in the table below. None of these
limited partnerships 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 funds, casual dining restaurant properties similar to those that the Company
intends to acquire and have investment objectives similar to those of the
Company. As of June 30, 1996, 17 of these 18 partnerships had raised a total of
$571,132,863 from a total of 47,100 investors, and had invested in 645 fast-food
or family-style restaurant properties.
As of June 30, 1996, offerings by 16 of the 17 CNL public partnerships
that had commenced their offerings had been completed. As indicated in Exhibit
C, the seven public partnerships, the offerings of which closed since
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<PAGE>
October of 1991, had made annualized cash distributions to limited partners in
amounts equal to from 4.5% to 9.1% of invested capital. An average of
approximately .54% (ranging from zero to 2.4%) of the cumulative cash
distributions to limited partners from these partnerships constituted cash
distributions that exceeded accumulated net income on a GAAP basis primarily as
the result of depreciation deductions. Accumulated net income include deductions
for depreciation and amortization expense and income from certain non cash
items. The partnerships do not treat these amounts, which are presented as
"return of capital on a GAAP basis" in Table III of Prior Performance Tables
included in Exhibit C as a return of capital for any other purpose. Certain
additional information relating to the offerings and investment history of the
18 public partnerships is set forth below.
<TABLE>
<CAPTION>
Date 90% of Net
Number of Proceeds Fully
Maximum Limited Invested or
Name of Offering Partnership Committed to
Partnership Amount (1) Date Closed Units 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)
CNL Income $40,000,000 March 18, 1992 4,000,000 June 1992
Fund X, Ltd. (4,000,000 Units)
CNL Income $40,000,000 September 28, 1992 4,000,000 September 1992
Fund XI, Ltd. (4,000,000 Units)
CNL Income $45,000,000 March 15, 1993 4,500,000 July 1993
Fund XII, Ltd. (4,500,000 Units)
CNL Income $40,000,000 August 26, 1993 4,000,000 August 1993
Fund XIII, Ltd. (4,000,000 Units)
CNL Income $45,000,000 February 22, 1994 4,500,000 May 1994
Fund XIV, Ltd. (4,500,000 Units)
CNL Income $40,000,000 September 1, 1994 4,000,000 December 1994
Fund XV, Ltd. (4,000,000 Units)
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Number of Proceeds Fully
Maximum Limited Invested or
Name of Offering Partnership Committed to
Partnership Amount (1) Date Closed Units Sold Investment (2)
- ----------- ---------- ----------- ---------- --------------
<S> <C>
CNL Income $45,000,000 June 12, 1995 4,500,000 August 1995
Fund XVI, Ltd. (4,500,000 Units)
CNL Income $30,000,000 September 19, 1996 3,000,000 (3)
Fund XVII, Ltd. (3,000,000 Units)
CNL Income $35,000,000 (4) (4) (4)
Fund XVIII, Ltd. (3,500,000 Units)
</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., and CNL Income Fund XVI, Ltd.
(2) For a description of the property acquisitions by these limited
partnerships during the last nine years, see the table set forth on the
following page.
(3) As of June 30, 1996, CNL Income Fund XVII, Ltd. had purchased 13
properties.
(4) As of June 30, 1996, CNL Income Fund XVIII, Ltd. which is offering a
maximum of 3,500,000 limited partnership units ($35,000,000), had not
commenced its offering.
As of June 30, 1996, 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 67 of these 69 nonpublic
limited partnerships had terminated as of June 30, 1996. These 67 partnerships
raised a total of $147,344,266 from approximately 3,755 investors, and
purchased, directly or through participation in a joint venture or limited
partnership, interests in a total of 189 projects as of June 30, 1996. These 189
projects consist of 19 apartment projects (comprising 13% of the total amount
raised by all 67 partnerships), 13 office buildings (comprising 6% of the total
amount raised by all 67 partnerships), 143 fast-food or family-style restaurant
property and business investments (comprising 67% of the total amount raised by
all 67 partnerships), one condominium development (comprising .5% of the total
amount raised by all 67 partnerships), four hotels/motels (comprising 5% of the
total amount raised by all 67 partnerships), seven commercial/retail properties
(comprising 8% of the total amount raised by all 67 partnerships), and two
tracts of undeveloped land (comprising .5% of the total amount raised by all 67
partnerships). The offering of the remaining two nonpublic limited partnerships
(offerings aggregating $16,650,000) had raised $14,762,500 from 294 investors
(approximately 45% of the total offering amount) as of June 30, 1996.
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 86 real estate limited partnerships whose offerings had closed
as of June 30, 1996 (including 16 of the 17 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, 33 invested in restaurant properties
leased on a "triple-net" basis, including six which also invested in franchised
restaurant businesses (accounting for approximately 93% of the total amount
raised by all 86 real estate limited partnerships).
The following table sets forth summary information, as of June 30, 1996
regarding property acquisitions during the ten preceding years by the 17 limited
partnerships 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.
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<PAGE>
<TABLE>
<CAPTION>
Name of Type of Method of Type of
Partnership Property Location Financing Program
<S> <C>
CNL Income 20 fast-food or AL, AZ, CA, FL, All cash Public
Fund, Ltd. family-style GA, LA, MD, OK,
restaurants TX, VA
CNL Income 43 fast-food or AL, AZ, CO, FL, All cash Public
Fund II, Ltd. family-style GA, IL, IN, LA,
restaurants MI, MN, MO, NC,
NM, OH, TX, WY
CNL Income 32 fast-food or AZ, CA, FL, GA, All cash Public
Fund III, Ltd. family-style IA, IL, IN, KS,
restaurants KY, MD, MI, MN,
MO, NE, OK, TX
CNL Income 43 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 30 fast-food or FL, GA, IL, IN, All cash Public
Fund V, Ltd. family-style MI, NH, NY, OH,
restaurants SC, TN, TX, UT,
WA
CNL Income 46 fast-food or AR, AZ, FL, IN, All cash Public
Fund VI, Ltd. family-style MA, MI, MN, NC,
restaurants NE, NM, NY, OH,
OK, PA, TN, TX,
VA, WY
CNL Income 45 fast-food or AZ, CO, FL, GA, All cash Public
Fund VII, Ltd. family-style IN, LA, MI, MN,
restaurants OH, SC, TN, TX,
UT, WA
CNL Income 40 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 41 fast-food or AL, FL, GA, IL, All cash Public
Fund IX, Ltd. family-style IN, LA, MI, MN,
restaurants MS, NC, NH, NY,
OH, SC, TN, TX
CNL Income 49 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 39 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
</TABLE>
-64-
<PAGE>
<TABLE>
<CAPTION>
Name of Type of Method of Type of
Partnership Property Location Financing Program
<S> <C>
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
CNL Income 48 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 56 fast-food or AL, AZ, CO, FL, All cash Public
Fund XIV, Ltd. family-style GA, KS, LA, MO,
restaurants MS, NC, NJ, NV,
OH, SC, TN, TX,
VA
CNL Income 47 fast-food or CA, FL, GA, KS, All cash Public
Fund XV, Ltd. family-style KY, MO, MS, NC,
restaurants NJ, NM, OH, OK,
PA, SC, TN, TX,
VA
CNL Income 43 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 13 fast-food, CA, FL, IL, IN, All cash Public
Fund XVII, Ltd. family-style or MI, NV, SC, TN,
casual dining TX
restaurant
properties
CNL Income
Fund XVIII, Ltd. (1) (1) (1) (1)
</TABLE>
- ------------------------
(1) As of June 30, 1996, CNL Income Fund XVIII, Ltd. had not commenced
its offering and therefore had not purchased any properties.
A more detailed description of the acquisitions by real estate limited
partnerships 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
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., and CNL Income
Fund XVII, Ltd., 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,
including those set forth in the foregoing table, certain financial and other
information concerning those limited partnerships with investment objectives
similar to one or more of the Company's investment objectives in which Messrs.
Seneff and Bourne are general partners is provided in the Prior Performance
Tables included as Exhibit C. Information about the 16 previous public
partnerships 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.
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<PAGE>
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 receipt of percentage rent, and
obtaining fixed income through the receipt of payments on Mortgage Loans and
Secured Equipment Leases; (iii) qualifying and remaining qualified 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 three to eight
years after commencement of this offering, through (a) the Listing of the Shares
of the Company, 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 creditworthy operators of Restaurant Chains under leases requiring
the tenant to pay both base annual rental (including automatic increases in base
rent) and percentage rent based on gross restaurant sales, and (ii) offering
Mortgage Loans and Secured Equipment Leases to operators of Restaurant Chains.
In accordance with its investment policies, the Company intends to
invest its assets in Properties whose tenants are franchisors or franchisees of
one of the Restaurant Chains to be selected by the Company, based upon
recommendations by the Advisor. Although there is no limit on the number of
restaurants of a particular Restaurant Chain which the Company may acquire, the
Company currently does not expect to invest more than 25% of the Gross Proceeds
in Properties of any one Restaurant Chain or to invest more than 30% of the
Gross Proceeds in Properties located in any one state. Potential Mortgage Loan
borrowers and Secured Equipment Lease lessees will similarly be operators of
Restaurant 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, 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.
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<PAGE>
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.
5. 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 their Affiliates.
6. 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.
7. 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.
-67-
<PAGE>
8. 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.
9. The Company will not engage in underwriting or the agency
distribution of securities issued by others or in trading, as compared to
investment activities.
10. 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.
11. The Company will not invest in any foreign currency or bullion or
engage in short sales.
12. The Company will not issue senior securities except notes to banks
and other lenders and preferred shares.
13. The Company will not make loans to the Advisor or its Affiliates.
14. The Company will not operate so as to be classified as an
"investment company" under the Investment Company Act of 1940, as amended.
15. 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.
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 the total Distributions and Distributions
per Share declared by the Company for each month since the Company commenced
operations.
<TABLE>
<CAPTION>
Month Total Distributions Distributions Per Share
<S> <C>
June 1995 $ 15,148 $0.030000
July 1995 30,682 0.030000
August 1995 57,739 0.035000
September 1995 84,467 0.050000
October 1995 104,733 0.050000
November 1995 155,665 0.058300
December 1995 190,184 0.058300
January 1996 225,354 0.058300
February 1996 255,649 0.058300
March 1996 287,805 0.058300
April 1996 323,721 0.058300
May 1996 368,155 0.058300
June 1996 407,803 0.058300
July 1996 458,586 0.059375
August 1996 517,960 0.059375
September 1996 559,599 0.059375
October 1996 615,914 0.059375
</TABLE>
-68-
<PAGE>
The Company intends to make regular Distributions to stockholders. The payment
of Distributions commenced in July 1995. Distributions will be made to those
stockholders who are stockholders as of the record date selected by the
Directors. Distributions will be declared monthly and paid on a quarterly basis
during the 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. For the
year ended December 31, 1995, the Company declared and made Distributions
totalling $638,618 and for the six months ended June 30, 1996, the Company
declared and made Distributions totalling $1,868,487. For the year ended
December 31, 1995, 59.82% of such amounts were characterized as ordinary income
and 40.18% were characterized as return of capital for federal income tax
purposes, and for the six months ended June 30, 1996, 85% of such amounts were
characterized as ordinary income and 15% were characterized as return of capital
for federal income tax purposes. Due to the fact that the Company had not
acquired all of its Properties and was still in its offering period as of
December 31, 1995 and June 30, 1996, 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 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.
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.
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
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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 the offering.
DESCRIPTION OF CAPITAL STOCK
The Company has authorized a total of 46,000,000 shares of capital
stock, consisting of 20,000,000 shares of Common Stock, $.01 par value per
share, 3,000,000 shares of Preferred Stock ("Preferred Stock"), and 23,000,000
additional shares of excess stock ("Excess Shares"), $.01 par value per share.
Of the 23,000,000 Excess Shares, 20,000,000 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 October 18, 1996, the Company had
11,026,457 shares of Common Stock outstanding (including 20,000 issued to the
Advisor prior to the commencement of this offering and 39,135 Shares issued
pursuant to the Reinvestment Plan) and no Preferred Stock or Excess Shares
outstanding.
The Board of Directors has approved a resolution to amend the Articles
of Incorporation to increase the number of authorized shares of Common Stock
from 20,000,000 to 75,000,000 with a corresponding increase in the number of
authorized Excess Shares from 23,000,000 to 78, 000,000. Pursuant to the
Articles of Incorporation, this amendment must be approved by the affirmative
vote of the holders of not less than a majority of the shares of Common Stock
outstanding and entitled to vote thereon. The Board of Directors expects to
submit this matter to a vote of the stockholders at a special meeting expected
to be held for that purpose in March of 1997. In the event that the increase in
the number of authorized shares is not approved by the stockholders, this
offering will be limited to up to 4,800,000 Shares. In the event that the
increase in the number of authorized shares is approved by the stockholders,
this offering will be increased to up to 27,500,000 Shares. See "The Offering."
In addition, if the increase in the number of authorized shares is approved by
the stockholders, 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 the termination of this offering.
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.
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
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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 outstanding 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, 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 a majority of the shares of
Common Stock shall constitute a quorum, and the vote of the holders of a
majority 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.
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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, 2005, unless Listing occurs, in which
event the Company automatically will become a perpetual life entity.
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
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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, 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 Fund Advisors, Inc.,
during the period ending on December 31, 1995, 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
Fund 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
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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.
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 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.
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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
Company may require the stockholder requesting the stockholder list to represent
that he or she will not make any commercial distribution of such list or the
information disclosed through such inspection. 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.
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.
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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, 1995. 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 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.
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
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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 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 ended December
31, 1995, 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 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.
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.
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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 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 three 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 dividend 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
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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.
The Company has represented 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.
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 anticipates this will always be the
case.
The Company will also receive payments under the terms of the Secured
Equipment Leases. Although the Secured Equipment Leases will be structured as
leases, 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 30 Percent Test. In addition to the 75% and 95% tests for each
taxable year, a REIT must derive less than 30% of its gross income from the sale
or other disposition of (i) real property held for less than four years (other
than foreclosure property or property involuntarily or compulsorily converted
through destruction, condemnation or similar events); (ii) stock or securities
held for less than one year; and (iii) property sold or otherwise disposed of in
a prohibited transaction. The Company has represented that it does not expect
that it will recognize gross income of a type, in an amount or at a time which
would cause it to fail the 30% test. As noted above, the Company plans, if
Listing does not occur within ten years after the commencement of this offering,
to commence with the orderly Sale of its Properties and distribute the proceeds
thereof. In the event of such a Sale of Properties, it is possible that income
derived from the Sale could be treated as income from prohibited transactions
and taken into account in applying the 30% gross income test. The Company
believes that at the time any of the Properties are sold none of the Properties
will be primarily held for sale to customers and that any sale of the Properties
will not be in the ordinary course of business. However, whether property is
held primarily for sale to customers in the ordinary course of business depends
on the facts and circumstances in effect from time to time, including those
related to a particular property. In addition, no assurance can be given that
the Company can
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(a) comply with certain safe-harbor provisions of the Code which provide that
certain sales do not constitute prohibited transactions or (b) avoid owning
property that may be characterized as property held primarily for sale to
customers in the ordinary course of business.
(c) 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, and any income from a sale of such assets would
count as gain from the sale of assets for purposes of the 30% gross income test.
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 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. 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
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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.
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.
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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 524(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 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 524(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 tax adviser 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.
Dividends 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 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. The Company expects to withhold U.S.
income tax at the rate of 30% on the gross amount of any such dividends paid to
a Non-U.S. Stockholder unless (i) a lower treaty rate applies and the Non-U.S.
Stockholder has filed the required IRS Form 1001 with the Company or (ii) the
NonU.S. Stockholder files an IRS Form 4224 with the Company claiming that the
dividend is effectively connected income. Dividends in excess of the Company's
current and accumulated earnings and profits will not be taxable to a
stockholder to the extent that such dividends 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 dividends in excess of current and accumulated
earnings and profits exceed the adjusted basis of a Non-U.S. Stockholders'
Shares, such dividends 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 dividend is paid whether or not such dividend will be in excess of
current and accumulated earnings and profits, the dividends 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
dividend was, in fact, in excess of the Company's current and accumulated
earnings and profits.
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For any year in which the Company qualifies as a REIT, dividends 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, dividends 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,
dividends 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. 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. Stockholders' 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, in which case the Non-U.S. Stockholder
will be subject to the same treatment as U.S. Stockholders with respect to such
gain 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
either the individual has a "tax home" in the United States or the gain is
attributable to an office or other fixed place of business maintained by the
individual in the United States, in which case the nonresident alien individual
will be subject to a 30% tax on capital gains from sales of Shares. 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 shareholders
in such jurisdictions may differ from the federal income tax treatment described
above. Consequently, prospective shareholders 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 could have substantial 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 "Distribution Requirements," above.
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.
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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
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.
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 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. Counsel's opinion that the Company will be
organized in conformity with the requirements for qualification as a REIT and
that its proposed method of operation will enable it to meet the requirements
for qualification as a REIT is based, in part, on the assumption that each of
the Company's Property leases will conform to the conditions outlined in clauses
(i) and (ii) of the preceding sentence.
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 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 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
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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 "Asset Tests" and "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 accordance with generally accepted
accounting principals 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
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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 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.
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
GENERAL
A maximum of 27,500,000 Shares ($275,000,000) are being offered at a
purchase price of $10.00 per Share, with the sale of 23,000,000 of such Shares
subject to approval by the stockholders of a resolution to increase the number
of authorized Shares of the Company. See "Summary of the Articles of
Incorporation and Bylaws -Description of Capital Stock." Of the 27,500,000
Shares offered hereby, 2,500,000 Shares ($25,000,000) will be available only to
stockholders who elect to participate in the Reinvestment Plan and who purchase
Shares in this offering and receive a copy of this Prospectus, or who purchased
Shares in the Initial Offering of the Company and received a copy of the related
prospectus. Until such time, if any, as the stockholders approve an increase in
the number of authorized Shares, this offering will be limited to 4,800,000
Shares ($48,000,000), 100,000 Shares ($1,000,000) of which will be available
only to stockholders purchasing pursuant to 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."
A minimum investment of 250 Shares ($2,500) is required. 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). In
addition, Nebraska, New York, and North Carolina investors must make a minimum
investment of 500 Shares ($5,000). 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
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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."
The Company may, without the consent of or prior notice to the
subscribers, elect to extend the offering until ___________, 1999 (in states
that permit such an extension).
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 are 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 those 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.
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 may purchase Shares net of 7% commissions, at a per Share
purchase price of $9.30. In addition, Soliciting Dealers, 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>
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
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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.
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.
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 Article III, Section 44(c)(6)(B)(xi) of its Rules of Fair
Practice. Costs incurred in connection with such sales incentive programs, if
any, will be considered underwriting compensation. See "Estimated Use of
Proceeds."
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.
In addition, 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.
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. 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 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.
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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, 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.
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.
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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.
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
Subscription proceeds will be received in trust and deposited in a
separate account with SouthTrust Asset Management Company of Florida, N.A. (the
"Bank").
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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
TAXQUALIFIED 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 "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
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"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.
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 American Properties
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. Shaw, Pittman, Potts & Trowbridge has not reviewed any sticker
supplement to the Prospectus or amendment to the registration statement
subsequent to August 8, 1995. Certain members of the firm have invested in prior
programs sponsored
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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 consolidated financial statements (including the financial
statement schedule) of the Company, as of December 31, 1995 and 1994, and for
the year ended December 31, 1995 and for the period May 2, 1994 (date of
inception) through December 31, 1994, included in this Prospectus, have been
included herein in reliance on the report of Coopers & Lybrand, L.L.P.,
independent accountants, given on the authority of that firm as experts in
accounting and auditing.
ADDITIONAL INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations promulgated thereunder and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information filed by the Company with the Commission, may be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, Seven
World Trade Center, 13th Floor, New York, New York 10048 and Suite 1400,
Northwestern Atrium Center, 500 West Madison Street, Chicago, Illinois 60661.
Copies of such material also can be obtained form the Public Reference Section
of the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Commission maintains a Web site located at
http://www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission. Reports, proxy statements and other information concerning the
Company also may be inspected at the New York Stock Exchange, 20 Broad Street,
New York, New York 10005.
The Company has filed with the Commission a registration statement (the
"Registration Statement") (of which this Prospectus is a part) on Form S-11
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Shares. This Prospectus does not contain all of the information
set forth in the Registration Statement, including the exhibits and schedules
thereto, certain parts of which are omitted as permitted by the rules and
regulations of the Commission. Statements contained in this Prospectus as to the
contents of any document are necessarily summaries of such documents, and in
each instance reference is made to the copy of such documents filed with the
Commission, each such statement being qualified in all respects by such
reference. For further information regarding the Company and the Shares,
reference is hereby made to the Registration Statement and to the exhibits and
schedules filed or incorporated as a part thereof which may be obtained form the
Commission at its principal office in Washington, D.C. upon payment of the fees
prescribed by the Commission.
DEFINITIONS
"Acquisition Expenses" shall mean 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" shall mean 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, 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.
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"Advisor" shall mean CNL Fund Advisors, Inc., a Florida corporation,
any successor advisor to the Company, or any person or entity to which CNL Fund
Advisors, Inc. or any successor advisors subcontracts substantially all of its
functions.
"Advisory Agreement" shall mean 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" shall mean (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" shall mean the Articles of Incorporation,
as the same may be amended from time to time, of the Company.
"Asset Management Fee" shall mean the fee payable to the Advisor for
day-to-day professional management services in connection with the Company and
its Properties pursuant to the Advisory Agreement.
"Average Invested Assets" shall mean, for a specified period, the
average of the aggregate book value of the assets of the Company invested,
directly or indirectly, in Properties 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" shall mean SouthTrust Asset Management Company of Florida, N.A.,
escrow agent for the offering.
"Board of Directors" shall mean the Directors of the Company.
"Bylaws" shall mean the bylaws of the Company.
"CNL" shall mean CNL Group, Inc., the parent company of the Advisor and
the Managing Dealer.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Stock" shall mean the common stock, par value $.01 per share,
of the Company.
"Competitive Real Estate Commission" shall mean 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" shall mean tax counsel to the Company.
"Director" shall mean a member of the Board of Directors of the
Company.
"Distributions" shall mean 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" shall mean the furniture, fixtures and equipment used at
Restaurant Chains.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
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"ERISA Plan" shall mean a pension, profit-sharing, retirement, or other
employee benefit plan subject to ERISA.
"Excess Shares" shall mean 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" shall mean 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 the acquisition of Properties, including Selling
Commissions, marketing support and due diligence expense reimbursement fees,
Offering Expenses, Acquisition Expenses, Acquisition Fees, 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" shall mean 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.
"Independent Director" shall mean 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 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" shall mean 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" shall mean the amount calculated by multiplying the
total number of Shares purchased by stockholders by the issue price, reduced by
the portion of any Dividend 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.
"Investment in Properties" shall mean the amount of the Net Offering
Proceeds actually paid or allocated by the Company, either directly or through
joint venture arrangements or other partnerships, to the purchase, development,
construction, or improvement (including working capital reserves of up to five
percent of the Net Offering Proceeds) of Properties, and other cash payments
such as interest and taxes, but excluding Front-End Fees.
"IRA" shall mean an Individual Retirement Account.
"IRS" shall mean the Internal Revenue Service.
"Joint Ventures" shall mean 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" shall mean 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" shall mean the short-term financing in an amount up to
$20,000,000, the proceeds of which will be used to acquire Properties and make
Mortgage Loans and which will be repaid using the proceeds of this Offering.
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"Listing" shall mean the listing of the Shares of the Company on a
national securities exchange or over-the-counter market.
"Loan" shall mean a line of credit, the maximum principal amount of
which shall not exceed $15,000,000 and the proceeds of which will be used to
fund Secured Equipment Leases.
"Managing Dealer" shall mean 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" shall mean notes or other evidences of indebtedness or
obligations which are secured or collateralized by building or other
improvements in real property.
"Mortgage Management Fee" shall mean the fee payable to the Advisor for
the day-to-day professional management services in connection with the Company
and its Mortgage Loans.
"Net Assets" shall mean 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" shall mean 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" shall mean Gross Proceeds less (i) Selling
Commissions, (ii) Offering Expenses, and (iii) the marketing support and due
diligence expense reimbursement fee.
"Net Sales Proceeds" shall mean, 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 or any Secured Equipment Lease, any
amounts from tenants or lessees that the Company determines, in its discretion,
to be economically equivalent to proceeds of a Sale. Net Sales Proceeds shall
not include any reserves established by the Company in its sole discretion.
"Operating Expenses" shall include 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
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, (vi) the Secured
Equipment Lease Servicing Fee, and (vii) 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).
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Offering Expenses" shall mean 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
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 Offering Expenses paid by the
Company in connection with the offering, together with all 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 fifteen
percent (15%) of the proceeds raised in connection with this offering.
"Ownership Limit" shall mean, 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" shall mean those stockholders who elect to participate
in the Reinvestment Plan.
"Performance Fee" shall mean 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.
"Plan" shall mean ERISA Plans, IRAs, Keogh plans, stock bonus plans,
and certain other plans.
"Preferred Stock" shall mean 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" shall mean (i) the real properties, including the
buildings located thereon (ii) the real properties only, or (iii) the buildings
only, which are acquired by the Company, either directly or through joint
venture arrangements or other partnerships.
"Prospectus" shall mean 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" shall mean qualified pension, profit-sharing, and
stock bonus plans, including Keogh plans and IRAs.
"Real Estate Asset Value" shall mean 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" shall mean the independent agent, which
currently is MMS Escrow and Transfer Agency, Inc., for Participants in the
Reinvestment Plan.
"Reinvestment Plan" shall mean the Reinvestment Plan, in the form
attached hereto as Exhibit A.
"Reinvestment Proceeds" shall mean net proceeds available from the sale
of Shares under the Reinvestment Plan to redeem Shares or, under certain
circumstances, to purchase additional Properties.
"REIT" shall mean real estate investment trust, as defined pursuant
to Sections 856 through 860 of the Code.
"Related Party Tenant" shall mean a related party tenant, as defined
pursuant to Section 856(d)(2)(B) of the Code.
"Restaurant Chains" shall mean the national and regional restaurant
chains, primarily fast-food, familystyle, and casual dining chains, to be
selected by the Advisor who themselves or their franchisees will either (i)
lease the Properties purchased by the Company, (ii) become borrowers under
Mortgage Loans, or (iii) become lessees of Secured Equipment Leases.
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<PAGE>
"Roll-Up Entity" shall mean 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" shall mean 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.
"Sale" (i) shall mean 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), (i)(C) or (i)(D) above in
which the proceeds of such transaction or series of transactions are reinvested
in one or more Properties, Mortgage Loans, or Secured Equipment Leases within
180 days thereafter.
"Secured Equipment Leases" shall mean the Equipment financing made
available by the Company to operators of Restaurant Chains pursuant to which the
Company will finance, through direct financing leases, the Equipment.
"Secured Equipment Lease Servicing Fee" shall mean the fee payable to
the Advisor by the Company out of the proceeds of the Loan 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.
"Selling Commissions" shall mean 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" shall mean the shares of Common Stock of the Company,
including the up to 27,500,000 shares to be sold in the offering.
"Soliciting Dealer Servicing Fee" shall mean an annual fee of .20% of
Invested Capital on December 31 of each year following the year in which the
related offering terminates, payable to the Managing Dealer (or in certain
circumstances, directly to a Soliciting Dealer exempt from registration as a
broker-dealer), which in turn may reallow all or a portion of such fee to the
Soliciting Dealers whose clients hold Shares on such date.
"Soliciting Dealers" shall mean 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 wholly 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:
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<PAGE>
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;
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" shall mean the Subscription Agreement, in one
of the forms attached hereto as Exhibit D.
"Subordinated Incentive Fee" shall mean 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" shall mean the date of termination of the Advisory
Agreement.
"Unimproved Real Property" shall mean 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.
-99-
EXHIBIT A
FORM OF AMENDED
REINVESTMENT PLAN
<PAGE>
FORM OF AMENDED
REINVESTMENT PLAN
CNL AMERICAN PROPERTIES 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) For any period during which the Company is making a public
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. 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) If no public offering of Shares is ongoing, 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
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
A-1
<PAGE>
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.
(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.
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
A-2
<PAGE>
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 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 changes 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
A-3
<PAGE>
Mortgage Loans, will pay to CNL Fund 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 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.
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.
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<PAGE>
EXHIBIT B
FINANCIAL INFORMATION
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
INDEX TO UPDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Pro Forma Consolidated Financial Information (unaudited):
Pro Forma Consolidated Balance Sheet as of June 30, 1996 B-2
Pro Forma Consolidated Statement of Earnings for the six months ended June 30, 1996 B-3
Pro Forma Consolidated Statement of Earnings for the year ended December 31, 1995 B-4
Notes to Pro Forma Consolidated Financial Statements for the six months ended
June 30, 1996 and the year ended December 31, 1995 B-5
Updated Unaudited Condensed Consolidated Financial Statements:
Condensed Consolidated Balance Sheets as of June 30, 1996 and December 31, 1995 B-9
Condensed Consolidated Statements of Earnings for the six months ended June 30, 1996
and 1995 B-10
Condensed Consolidated Statements of Stockholders' Equity for the six months
ended June 30, 1996 and the year ended December 31, 1995 B-11
Condensed Consolidated Statements of Cash Flows for the six months ended June 30, 1996
and 1995 B-12
Notes to Condensed Consolidated Financial Statements for the six months ended June 30,
1996 and 1995 B-14
Audited Consolidated Financial Statements:
Report of Independent Accountants B-25
Consolidated Balance Sheets as of December 31, 1995 and 1994 B-26
Consolidated Statements of Earnings for the year ended December 31, 1995
and the period May 2, 1994 (date of inception) through December 31, 1994 B-27
Consolidated Statements of Stockholders' Equity for the year ended December
31, 1995 and the period May 2, 1994 (date of inception)
through December 31, 1994 B-28
Consolidated Statements of Cash Flows for the year ended December 31, 1995
and the period May 2, 1994 (date of inception) through December 31, 1994 B-29
Notes to Consolidated Financial Statements for the year ended December 31, 1995
and the period May 2, 1994 (date of inception) through December 31, 1994 B-32
Financial Statement Schedule:
Schedule III - Real Estate and Accumulated Depreciation as of December 31, 1995 B-47
Notes to Schedule III - Real Estate and Accumulated Depreciation as of December 31, 1995 B-49
</TABLE>
<PAGE>
PRO FORMA CONSOLIDATED FINANCIAL INFORMATION
The following Pro Forma Consolidated Balance Sheet of the Company gives
effect to (i) property acquisition transactions from inception through June 30,
1996, including the receipt of $76,816,648 in gross offering proceeds from the
sale of 7,681,665 shares of common stock pursuant to a Form S-11 under the
Securities Act of 1933, as amended, effective March 29, 1995, and the
application of such proceeds to purchase 68 properties (including 29 properties
which consist of land and building, one property through a joint venture
arrangement which consists of land and building, five properties which consist
of building only and 33 properties consisting of land only), 14 of which were
under construction at June 30, 1996, to provide mortgage financing to the
lessees of the 33 properties consisting of land only, and to pay organizational
and offering expenses, acquisition fees and miscellaneous acquisition expenses,
(ii) the receipt of $33,247,918 in gross offering proceeds from the sale of
3,324,792 additional shares of common stock during the period July 1, 1996
through October 18, 1996, and (iii) the application of such funds to purchase 16
additional properties acquired during the period July 1, 1996 through October
18, 1996 (12 of which are under construction and consist of land and building,
one which is under construction and consists of building only, two properties
which consist of land and building and one property which consists of building
only), to pay additional costs for the 14 properties under construction at June
30, 1996, 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, 1996,
includes the transactions described in (i) above from its historical
consolidated balance sheet, adjusted to give effect to the transactions in (ii)
and (iii) above, as if they had occurred on June 30, 1996.
The Pro Forma Consolidated Statements of Earnings for the six months
ended June 30, 1996 and the year ended December 31, 1995, include the historical
operating results of the properties described in (i) above from the dates of
their acquisitions plus operating results for the seven of the 84 properties
that were owned by the Company as of October 18, 1996, and had a previous rental
history prior to the Company's acquisition of such properties, from (A) the
later of (1) the date the property became operational as a rental property by
the previous owner or (2) June 2, 1995 (the date the Company became
operational), to (B) the earlier of (1) the date the property was acquired by
the Company or (2) the end of the pro forma period presented. No pro forma
adjustments have been made to the Pro Forma Consolidated Statements of Earnings
for the remaining 77 properties owned by the Company as of October 18, 1996, due
to the fact that these properties did not have a previous rental history.
This pro forma consolidated 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 consolidated financial information should not
be viewed as predictive of the Company's financial results or conditions in the
future.
B-1
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
UNAUDITED PRO FORMA CONSOLIDATED BALANCE SHEET
JUNE 30, 1996
<TABLE>
<CAPTION>
Pro Forma
ASSETS Historical Adjustments Pro Forma
<S> <C>
Land and buildings on operating
leases, less accumulated depreciation $39,754,572 $15,942,807 (a) $55,697,379
Net investment in direct
financing leases (b) 3,071,035 8,125,611 (a) 11,196,646
Cash and cash equivalents 13,369,577 3,149,714 (a) 16,519,291
Receivables 114,842 114,842
Mortgage notes receivable 12,432,362 12,432,362
Prepaid expenses 31,396 31,396
Organization costs, less accumulated
amortization 15,682 15,682
Loan costs, less accumulated amortization 44,871 44,871
Accrued rental income 215,222 215,222
Other assets 1,548,050 272,338 (a) 1,820,388
----------- ----------- -----------
$70,597,609 $27,490,470 $98,088,079
=========== =========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities:
Note payable $ 603,745 $ 603,745
Accrued interest payable 2,462 2,462
Accrued construction costs payable 3,097,615 $(3,097,615)(a) -
Accounts payable and accrued expenses 74,460 74,460
Escrowed real estate taxes payable 9,696 9,696
Due to related parties 206,702 206,702
Deferred financing income 42,518 42,518
Rents paid in advance 22,277 22,277
----------- ----------- -----------
Total liabilities 4,059,475 (3,097,615) 961,860
----------- ----------- -----------
Minority interest 297,808 - 297,808
----------- ----------- -----------
Stockholders' equity:
Preferred stock, without par value.
Authorized and unissued 3,000,000
shares - -
Excess shares, $.01 par value per
share. Authorized and unissued
23,000,000 shares - -
Common stock, $.01 par value per share.
Authorized 20,000,000 shares; issued
and outstanding 7,701,665 shares;
issued and outstanding, as adjusted,
11,026,457 shares 77,017 33,248 (a) 110,265
Capital in excess of par value 66,612,593 30,554,837 (a) 97,167,430
Accumulated distributions in excess
of net earnings (449,284) (449,284)
----------- ----------- -----------
66,240,326 30,588,085 96,828,411
----------- ----------- -----------
$70,597,609 $27,490,470 $98,088,079
=========== =========== ===========
</TABLE>
See accompanying notes to unaudited pro forma consolidated financial statements.
B-2
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF EARNINGS
SIX MONTHS ENDED JUNE 30, 1996
<TABLE>
<CAPTION>
Pro Forma
Historical Adjustments Pro Forma
<S> <C>
Revenues:
Rental income from
operating leases $1,618,001 $ 43,538 (1) $1,661,539
Earned income from
direct financing leases (2) 86,184 34,282 (1) 120,466
Interest income from
mortgage notes receivable 465,498 465,498
Other interest and income 211,789 (16,508)(3) 195,281
---------- ---------- ----------
2,381,472 61,312 2,442,784
---------- ---------- ----------
Expenses:
General operating and
administrative 269,319 269,319
Professional services 48,391 48,391
Asset and mortgage management
fees to related party 97,673 4,352 (4) 102,025
State and other taxes 12,384 1,129 (5) 13,513
Interest expense 3,578 3,578
Depreciation and amortization 238,762 3,300 (6) 242,062
---------- ---------- ----------
670,107 8,781 678,888
---------- ---------- ----------
Earnings Before Minority
Interest in Earnings of
Consolidated Joint Venture 1,711,365 52,531 1,763,896
Minority Interest in Earnings of
Consolidated Joint Venture (22,323) (22,323)
---------- ---------- ----------
Net Earnings $1,689,042 $ 52,531 $1,741,573
========== ========== ==========
Earnings Per Share of
Common Stock $ .30 $ .31
========== ==========
Weighted Average Number of
Shares of Common Stock
Outstanding 5,649,041 5,649,041
========== ==========
</TABLE>
See accompanying notes to unaudited pro forma consolidated financial statements.
B-3
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF EARNINGS
YEAR ENDED DECEMBER 31, 1995
<TABLE>
<CAPTION>
Pro Forma
Historical Adjustments Pro Forma
<S> <C>
Revenues:
Rental income from
operating leases $ 498,817 $ 96,945 (1) $ 595,762
Earned income from direct
financing leases (2) 28,935 28,935
Contingent rental income 12,024 12,024
Interest income 119,355 (29,664)(3) 89,691
--------- --------- ---------
659,131 67,281 726,412
--------- --------- ---------
Expenses:
General operating and
administrative 134,759 134,759
Professional services 8,119 8,119
Asset management fee to
related party 23,078 4,368 (4) 27,446
State taxes 20,189 1,769 (5) 21,958
Depreciation and amortization 104,131 14,700 (6) 118,831
--------- --------- ---------
290,276 20,837 311,113
--------- --------- ---------
Earnings Before Minority
Interest in Earnings of
Consolidated Joint Venture 368,855 46,444 415,299
Minority Interest in Earnings
of Consolidated Joint Venture (76) (76)
--------- --------- ---------
Net Earnings $ 368,779 $ 46,444 $ 415,223
========= ========= =========
Earnings Per Share of
Common Stock (7) $ .19 $ .22
========= =========
Weighted Average Number
of Shares of Common Stock
Outstanding (7) 1,898,350 1,905,970
========= =========
</TABLE>
See accompanying notes to unaudited pro forma consolidated financial statements.
B-4
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS
FOR THE SIX MONTHS ENDED JUNE 30, 1996
AND THE YEAR ENDED DECEMBER 31, 1995
Pro Forma Consolidated Balance Sheet:
(a) Represents gross proceeds of $33,247,918 from the issuance of 3,324,792
shares of common stock during the period July 1, 1996 through October
18, 1996, used (i) to acquire 16 properties for $17,031,408 (of which
two property consist of building only and 14 properties consist of land
and building), (ii) to fund estimated construction costs of $8,910,807
($3,097,615 of which was accrued as construction costs payable at June
30, 1996) relating to 14 wholly-owned properties under construction at
June 30, 1996, (iii) to pay acquisition fees of $1,496,156 ($1,223,818
of which was allocated to properties and $272,338 of which was
classified as other assets and will be allocated to future properties)
and to pay selling commissions and offering expenses (stock issuance
costs) of $2,659,833, which have been netted against capital in excess
of par value, leaving $3,149,714 in cash and cash equivalents available
for future investment.
The pro forma adjustments to land and buildings on operating leases and
net investment in direct financing leases as a result of the above
transactions were as follows:
<TABLE>
<CAPTION>
Estimated
purchase price
(including con-
struction and Acquisition
closing costs) fees
and additional allocated
construction costs to property Total
<S> <C>
Boston Market in Corvallis, OR $ 906,684 $ 48,573 $ 955,257
Jack in the Box in Houston, TX 893,681 47,876 941,557
Arby's in Kendallville, IN 738,326 39,553 777,879
Boston Market in Rockwall, TX 758,432 40,630 799,062
Boston Market in Upland, CA 969,780 51,953 1,021,733
Jack in the Box in Houston, TX 911,104 48,809 959,913
Applebee's in Montclair, CA 1,593,906 85,388 1,679,294
Golden Corral in Brooklyn, OH 986,780 52,863 1,039,643
Boston Market in La Quinta, CA 943,388 50,539 993,927
Boston Market in Merced, CA 923,356 49,465 972,821
Arby's in Avon, IN 789,676 42,304 831,980
Ryan's in Spring Hill, FL 1,852,027 99,215 1,951,242
Applebee's in Salinas, CA 1,325,026 70,983 1,396,009
Boston Market in Florissant, MO 1,253,881 67,172 1,321,053
Burger King in Chicago, IL 1,577,172 84,491 1,661,663
Wendy's in San Diego, CA 608,189 32,582 640,771
Fourteen wholly owned properties
under construction at
June 30, 1996 5,813,192 311,422 6,124,614
----------- ----------- -----------
$22,844,600 $ 1,223,818 $24,068,418
=========== =========== ===========
Adjustment classified
as follows:
Land and buildings on
operating leases $15,942,807
Net investment in
direct financing
leases 8,125,611
-----------
$24,068,418
===========
</TABLE>
B-5
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL
STATEMENTS - CONTINUED
FOR THE SIX MONTHS ENDED JUNE 30, 1996
AND THE YEAR ENDED DECEMBER 31, 1995
Pro Forma Consolidated Balance Sheet - Continued:
(b) In accordance with generally accepted accounting principles, leases in
which the present value of future minimum lease payments equals or
exceeds 90 percent of the value of the related properties are treated
as direct financing leases rather than as land and buildings. The
categorization of the leases has no effect on rental revenues received.
The building portions of 11 of the properties have been classified as
direct financing leases.
Pro Forma Consolidated Statements of Earnings:
(1) Represents rental income from operating leases and earned income from
direct financing leases for the seven of the 84 properties acquired
during the period June 2, 1995 (the date the Company began operations)
through October 18, 1996 which had a previous rental history prior to
the acquisition of the property by the Company (the "Pro Forma
Properties"), for the period commencing (A) the later of (i) the date
the Pro Forma Property became operational as a rental property by the
previous owner or (ii) June 2, 1995 (the date the Company became
operational), to (B) the earlier of (i) the date the Pro Forma Property
was acquired by the Company or (ii) the end of the pro forma period
presented. Each of the seven Pro Forma Properties was acquired from an
affiliate who had purchased and temporarily held title to the property.
The noncancellable leases for the Pro Forma Properties in place during
the period the affiliate owned the properties were assigned to the
Company at the time the Company acquired the properties. The following
presents the actual date the Pro Forma Properties were acquired 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 Statements of Earnings.
<TABLE>
<CAPTION>
Date Pro Forma
Date Placed Property Became
in Service Operational as
By the Company Rental Property
<S> <C>
Jack in the Box in
Los Angeles, CA June 1995 June 1995
Kenny Rogers Roasters in
Grand Rapids, MI August 1995 June 1995
Kenny Rogers Roasters in
Franklin, TN August 1995 June 1995
Denny's in Pasadena, TX September 1995 August 1995
Denny's in Shawnee, OK September 1995 August 1995
Denny's in Grand Rapids, MI March 1996 September 1995
Denny's in McKinney, TX June 1996 December 1995
</TABLE>
B-6
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL
STATEMENTS - CONTINUED
FOR THE SIX MONTHS ENDED JUNE 30, 1996
AND THE YEAR ENDED DECEMBER 31, 1995
Pro Forma Consolidated Statements of Earnings - Continued:
In accordance with generally accepted accounting principles, lease
revenue from leases accounted for under the operating method is
recognized over the terms of the leases. For operating leases providing
escalating guaranteed minimum rents, income is reported on a
straight-line basis over the terms of the leases. For leases accounted
for as direct financing leases, future minimum lease payments are
recorded as a receivable. The difference between the receivable and the
estimated residual values less the cost of the properties is recorded
as unearned income. The unearned income is amortized over the lease
terms to provide a constant rate of return. Accordingly, pro forma
rental income from operating leases and earned income from direct
financing leases does not necessarily represent rental payments that
would have been received if the properties had been operational for the
full pro forma period.
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 1996 and 1995 that the previous owners held the
properties, no pro forma adjustment was made for percentage rental
income for the six months ended June 30, 1996 and the year ended
December 31, 1995.
(2) See Note (b) under "Pro Forma Consolidated Balance Sheet" above for a
description of direct financing leases.
(3) 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 (A) on the later of (i) the dates the Pro
Forma Properties became operational as rental properties by the
previous owners or (ii) June 2, 1995 (the date the Company became
operational), through (B) the earlier of (i) the actual dates of
acquisition by the Company or 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 interest income on interest
bearing accounts was earned at a rate of approximately four percent per
annum by the Company during the six months ended June 30, 1996 and the
year ended December 31, 1995.
(4) Represents incremental increase in asset management fees relating to
the Pro Forma Properties for the period commencing (A) on the later of
(i) the date the Pro Forma Properties became operational as rental
properties by the previous owners or (ii) June 2, 1995 (the date the
Company became operational), through (B) the earlier of (i) the date
the Pro Forma Properties were acquired by the Company or (ii) 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 $6,219,000 and $5,241,000
for the Pro Forma Properties for the six months ended June 30, 1996 and
the year ended December 31, 1995, respectively), as defined in the
Company's prospectus.
(5) Represents adjustment to state tax expense due to the incremental
increase in rental revenues of Pro Forma Properties. Estimated pro
forma state tax expense was calculated based on an analysis of state
laws of the various states in which the Company has acquired the Pro
Forma Properties. The estimated pro forma state taxes consist primarily
of income and franchise taxes ranging from zero to approximately five
percent of the Company's pro forma rental income of each Pro Forma
Property. Due to the fact that the Company's leases are triple net, the
Company has not included any amounts for real estate taxes in the pro
forma statement of earnings.
B-7
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL
STATEMENTS - CONTINUED
FOR THE SIX MONTHS ENDED JUNE 30, 1996
AND THE YEAR ENDED DECEMBER 31, 1995
Pro Forma Consolidated Statements of Earnings - Continued:
(6) Represents incremental increase in depreciation expense of the building
portions of the Pro Forma Properties accounted for as operating leases
using the straight-line method over an estimated useful life of 30
years.
(7) Historical earnings per share were calculated based upon the weighted
average number of shares of common stock outstanding during the six
months ended June 30, 1996, and during the period the Company was
operational, June 2, 1995 (the date following when the Company received
the minimum offering proceeds and funds were released from escrow)
through December 31, 1995.
As a result of three of the six Pro Forma Properties being treated in
the Pro Forma Consolidated Statement of Earnings for the year ended
December 31, 1995, as placed in service on June 2, 1995 (the date the
Company became operational), the Company assumed approximately 347,100
shares of common stock were sold, and the net offering proceeds were
available for investment, on June 2, 1995. Due to the fact that
approximately 184,800 of these shares of common stock were actually
sold subsequently, during the period June 3, 1995 through June 20,
1995, 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, June 2, 1995 through December 31, 1995.
B-8
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
June 30, December 31,
ASSETS 1996 1995
----------- ------------
<S> <C>
Land and buildings on operating leases,
less accumulated depreciation $39,754,572 $19,723,726
Net investment in direct financing leases 3,071,035 1,373,882
Cash and cash equivalents 13,369,577 11,508,445
Receivables 114,842 113,613
Mortgage notes receivable 12,432,362 -
Prepaid expenses 31,396 8,090
Organization costs, less accumulated
amortization of $4,318 and $2,318 15,682 17,682
Loan costs, less accumulated amorti-
zation of $8,629 at June 30, 1996 44,871 -
Accrued rental income 215,222 39,142
Other assets 1,548,050 818,504
----------- -----------
$70,597,609 $33,603,084
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Note payable $ 603,745 $ -
Accrued interest payable 2,462 -
Accrued construction costs payable 3,097,615 1,058,825
Accounts payable and accrued expenses 74,460 79,904
Escrowed real estate taxes payable 9,696 9,696
Due to related parties 206,702 248,584
Deferred financing income 42,518 -
Rents paid in advance 22,277 25,351
----------- -----------
Total liabilities 4,059,475 1,422,360
----------- -----------
Minority interest 297,808 200,076
----------- -----------
Commitments (Note 13)
Stockholders' equity:
Preferred stock, without par value.
Authorized and unissued 3,000,000
shares - -
Excess shares, $.01 par value per share.
Authorized and unissued 23,000,000
shares - -
Common stock, $.01 par value per share.
Authorized 20,000,000 shares, issued
and outstanding 7,701,665 and 3,865,416,
respectively 77,017 38,654
Capital in excess of par value 66,612,593 32,211,833
Accumulated distributions in excess of
net earnings (449,284) (269,839)
----------- -----------
Total stockholders' equity 66,240,326 31,980,648
----------- -----------
$70,597,609 $33,603,084
=========== ===========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
B-9
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
CONDENSED CONSOLIDATED STATEMENTS OF EARNINGS
<TABLE>
<CAPTION>
Quarter Ended Six Months Ended
June 30, June 30,
1996 1995 1996 1995
---------- ---------- ---------- ---------
<S> <C>
Revenues:
Rental income from
operating leases $ 854,846 $ 369 $1,618,001 $ 369
Earned income from
direct financing
lease 50,258 - 86,184 -
Interest income from
mortgage notes
receivable 280,549 - 465,498 -
Other interest and
income 135,940 7,828 211,789 7,828
---------- ---------- ---------- ----------
1,321,593 8,197 2,381,472 8,197
---------- ---------- ---------- ----------
Expenses:
General operating and
administrative 140,371 3,352 269,319 3,352
Professional services 18,699 - 48,391 -
Asset and mortgage
management fees to
related party 57,303 - 97,673 -
State and other taxes 9,486 19 12,384 19
Interest expense 3,419 - 3,578 -
Depreciation and
amortization 140,290 371 238,762 371
---------- ---------- ---------- ----------
369,568 3,742 670,107 3,742
---------- ---------- ---------- ----------
Earnings Before Minority
Interest in Income of
Consolidated Joint
Venture 952,025 4,455 1,711,365 4,455
Minority Interest in
Income of Consolidated
Joint Venture (7,571) - (22,323) -
---------- ---------- ---------- ---------
Net Earnings $ 944,454 $ 4,455 $1,689,042 $ 4,455
========== ========== ========== ==========
Earnings Per Share of
Common Stock $ .14 $ .01 $ .30 $ .01
========== ========== ========== ==========
Weighted Average Number
of Shares of Common
Stock Outstanding 6,649,040 340,541 5,649,041 340,541
========== ========== ========== ==========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
B-10
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
CONDENSED CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
Six Months Ended June 30, 1996 and
Year Ended December 31, 1995
<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, 1994 20,000 $ 200 $ 199,800 $ - $ 200,000
Subscriptions
received for
common stock
through public
offering and
distribution
reinvestment
plan 3,845,416 38,454 38,415,704 - 38,454,158
Stock issuance
costs - - (6,403,671) - (6,403,671)
Net earnings - - - 368,779 368,779
Distributions
declared and
paid ($.03
to $.06 per
share) - - - (638,618) (638,618)
---------- ------- ----------- --------- -----------
Balance at
December 31, 1995 3,865,416 38,654 32,211,833 (269,839) 31,980,648
Subscriptions
received for
common stock
through public
offering and
distribution
reinvestment
plan 3,836,249 38,363 38,324,127 - 38,362,490
Stock issuance
costs - - (3,923,367) - (3,923,367)
Net earnings - - - 1,689,042 1,689,042
Distributions
declared and
paid ($.06
per share) - - - (1,868,487) (1,868,487)
---------- ------- ----------- ----------- -----------
Balance at
June 30, 1996 7,701,665 $77,017 $66,612,593 $ (449,284) $66,240,326
========== ======= =========== =========== ===========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
B-11
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Six Months Ended
June 30,
1996 1995
------------ ------------
<S> <C>
Increase (Decrease) in Cash and Cash
Equivalents:
Net cash provided by operating
activities $ 1,573,575 $ 7,970
------------ ------------
Cash Flows From Investing Activities:
Additions to land and buildings
on operating leases (18,316,555) (1,192,053)
Investment in direct financing
leases (1,555,641) -
Investment in mortgage notes
receivable (12,363,000) -
Collection of deferred financing
income 43,270 -
Collection of mortgage notes
payments 41,022 -
Increase in other assets (644,752) (168,293)
------------ ------------
Net cash used in investing
activities (32,795,656) (1,360,346)
------------ ------------
Cash Flows From Financing Activities:
Reimbursement of acquisition,
organization and stock issuance
costs paid by related parties
on behalf of the Company (556,511) (1,288,234)
Proceeds of borrowing on line
of credit 603,745 -
Payment of loan costs (53,500) -
Contribution from minority
interest of consolidated
joint venture 97,419 -
Subscriptions received from
stockholders 38,362,490 4,849,410
Distribution to minority interest (22,010) -
Distributions to stockholders (1,871,820) -
Payment of stock issuance costs (3,502,100) (377,764)
Other 25,500 -
------------ -----------
Net cash provided by
financing activities 33,083,213 3,183,412
------------ ------------
Net Increase in Cash and Cash Equivalents 1,861,132 1,831,036
Cash and Cash Equivalents at Beginning
of Period 11,508,445 945
------------ ------------
Cash and Cash Equivalents at End
of Period $ 13,369,577 $ 1,831,981
============ ============
</TABLE>
See accompanying notes to condensed consolidated financial statements.
B-12
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS - CONTINUED
<TABLE>
<CAPTION> Six Months Ended
June 30,
1996 1995
------------ ------------
<S> <C>
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 $ 107,383 $ 42,703
Organization costs - 20,000
Stock issuance costs 495,800 518,363
------------ ------------
$ 603,183 $ 581,066
============ ============
Land, building and other costs
incurred and unpaid at end of
period $ 3,155,108 $ 11,311
============ ============
Commissions, marketing support and
due diligence expense reimbursement
fee, and other stock issuance costs
incurred and unpaid at end of period $ 102,398 $ 565,954
============ ============
Distributions declared and unpaid at
end of period $ - $ 15,148
============ ============
</TABLE>
See accompanying notes to condensed consolidated financial statements.
B-13
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Quarters and Six Months Ended June 30, 1996 and 1995
1. Organization and Nature of Business:
CNL American Properties Fund, Inc. (the "Company") was organized in
Maryland on May 2, 1994, for the purpose of acquiring, directly or
indirectly through joint venture or co-tenancy arrangements, restaurant
properties (the "Properties") to be leased on a long-term, triple-net
basis to operators of certain national and regional fast-food,
family-style and casual dining restaurant chains. To a lesser extent,
the Company intends to offer furniture, fixtures and equipment
financing ("Secured Equipment Leases") to operators of restaurant
chains. Secured Equipment Leases will be funded from the proceeds of a
loan of up to ten percent of the gross offering proceeds.
2. Basis of Presentation:
The accompanying unaudited condensed consolidated 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 periods presented. Operating results for
the quarter and six months ended June 30, 1996, may not be indicative
of the results that may be expected for the year ending December 31,
1996. Amounts as of December 31, 1995, 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, 1995.
The Company was a development stage enterprise from May 2, 1994 through
June 1, 1995. Since operations had not begun, activities through June
1, 1995, were devoted to organization of the Company.
The Company accounts for its 85.47% interest in CNL/Corral South Joint
Venture using the consolidation method. Minority interest represents
the minority joint venture partner's proportionate share of the equity
in the Company's consolidated joint venture. All significant
intercompany accounts and transactions have been eliminated.
B-14
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Quarters and Six Months Ended June 30, 1996 and 1995
2. Basis of Presentation - Continued:
Effective January 1, 1996, the Company adopted Statement of Financial
Accounting Standards No. 121, "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to Be Disposed Of." The
Statement requires that an entity review long-lived assets and certain
identifiable intangibles, to be held and used, for impairment whenever
events or changes in circumstances indicate that the carrying amount of
the asset may not be recoverable. Adoption of this standard had no
material effect on the Company's financial position or results of
operations.
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, certificates of deposit 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, money market funds and certificates of deposit 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.
Earnings Per Share - Earnings per share are calculated based upon the
weighted average number of shares of common stock outstanding during
the period the Company was operational.
3. Leases:
The Company leases its land, buildings and equipment subject to Secured
Equipment Leases primarily to operators or franchisees of national and
regional fast-food, family-style and casual dining restaurants. The
leases are accounted for under the provisions of Statement of Financial
Accounting Standards No. 13, "Accounting for Leases." The leases
relating to 65 of the Company's Properties have been classified as
operating leases (including the leases relating to 14 Properties under
construction as of June 30, 1996) and the leases relating to three
Properties and one Secured Equipment Lease have been classified as
direct financing leases. For the leases classified as direct financing
leases,
B-15
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Quarters and Six Months Ended June 30, 1996 and 1995
3. Leases - Continued:
the building portions of the leases are accounted for as direct
financing leases while the land portion of one of these leases is
accounted for as an operating lease.
4. Land and Buildings on Operating Leases:
Land and buildings on operating leases consisted of the following at:
<TABLE>
<CAPTION>
June 30, December 31,
1996 1995
<S> <C>
Land $22,032,580 $ 8,890,471
Buildings 12,639,571 10,049,032
----------- -----------
34,672,151 18,939,503
Less accumulated
depreciation (300,179) (100,318)
----------- -----------
34,371,972 18,839,185
Construction in
progress 5,382,600 884,541
----------- -----------
$39,754,572 $19,723,726
=========== ===========
</TABLE>
Some leases provide for escalating guaranteed minimum rents throughout
the lease term. Income from these scheduled rent increases is
recognized on a straight-line basis over the terms of the leases. For
the quarter and six months ended June 30, 1996, the Company recognized
$63,175 and $176,080, respectively, and for the quarter and six months
ended June 30, 1995, the Company recognized $50, of such rental income.
The following is a schedule of future minimum lease payments to be
received on the noncancellable operating leases at June 30, 1996:
1996 $ 1,335,207
1997 2,949,196
1998 2,953,978
1999 2,960,672
2000 2,975,837
Thereafter 42,990,911
-----------
$56,165,801
These amounts do not include minimum lease payments that will become
due when Properties under development are completed (See Note 13).
B-16
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Quarters and Six Months Ended June 30, 1996 and 1995
5. Net Investment in Direct Financing Leases:
The following lists the components of the net investment in direct
financing leases at:
June 30, December 31,
1996 1995
Minimum lease payments
receivable $ 6,179,502 $ 2,498,881
Estimated residual
values 163,176 343,740
Less unearned income (3,271,643) (1,468,739)
----------- -----------
Net investment in
direct financing
leases $ 3,071,035 $ 1,373,882
=========== ===========
The following is a schedule of future minimum lease payments to be
received on the direct financing leases at June 30, 1996:
1996 $ 230,098
1997 456,288
1998 456,288
1999 456,288
2000 459,607
Thereafter 4,120,933
----------
$6,179,502
==========
6. Mortgage Notes Receivable:
In January 1996, in connection with the acquisition of land for 23
Pizza Hut restaurants in Ohio and Michigan, the Company accepted a
promissory note in the principal sum of $8,475,000, collateralized by a
mortgage on the buildings on the 23 Pizza Hut Properties. The
promissory note bears interest at a rate of 10.75% per annum and is
being collected in 240 equal monthly installments of $86,041. As of
June 30, 1996, $8,509,532 was outstanding relating to this note,
including $75,554 in accrued interest.
In addition, in May 1996, in connection with the acquisition of land
for 10 Pizza Hut restaurants in West Virginia and Ohio, the Company
accepted a promissory note in the principal sum of $3,888,000,
collateralized by a mortgage on the buildings on the 10 Pizza Hut
Properties. The promissory note bears interest at a rate of 10.75% per
annum and is being
B-17
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Quarters and Six Months Ended June 30, 1996 and 1995
6. Mortgage Notes Receivable - Continued:
collected in 240 equal monthly installments of $39,472. As of June 30,
1996, $3,922,830 was outstanding relating to this note, including
$34,830 in accrued interest.
Statement of Financial Accounting Standards No. 107, "Disclosures About
Fair Value of Financial Instruments," requires disclosure of the fair
value of significant financial instruments. Management believes, based
upon the current terms, that the estimated fair value of the Company's
mortgage notes receivable as of June 30, 1996, was $12,432,362, the
same as its carrying value.
7. Other Assets:
Other assets consisted of the following at:
June 30, December 31,
1996 1995
Acquisition fees and
miscellaneous acqui-
sition expenses to
be allocated to
future properties $ 844,419 $ 806,504
Deferred costs relating
to mortgage notes
receivable 642,506 -
Other 89,835 12,000
---------- ----------
$1,576,760 $ 818,504
========== ==========
8. Note Payable:
On March 5, 1996, the Company entered into a line of credit (the
"Loan") and security agreement with a bank. The Loan is to be used by
the Company to offer Secured Equipment Leases. The Loan provides that
the Company will be able to receive advances of up to $15,000,000 until
March 4, 1998. Generally, advances under the Loan will be fully
amortizing term loans repayable in terms equal to the duration of the
Secured Equipment Leases, but in no event greater than 72 months. In
addition, advances for short-term needs (to acquire equipment to be
leased under Secured Equipment Leases) may be requested in an aggregate
amount which does not exceed the Revolving Sublimit (defined in the
Loan as $1,000,000) and such advances may be repaid and readvanced;
provided, however, that advances made pursuant to the Revolving
Sublimit shall be converted to term loans the earlier of (i) the end of
each 60
B-18
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Quarters and Six Months Ended June 30, 1996 and 1995
8. Note Payable - Continued:
day period following the closing date (defined in the Loan as March 5,
1996), or (ii) when the aggregate amount outstanding equals or exceeds
$1,000,000. Interest on advances made pursuant to the Revolving
Sublimit shall be paid monthly in arrears. In addition, principal
amounts under advances pursuant to the Revolving Sublimit, if not
sooner paid or converted into term loans, shall be paid, together with
any unpaid interest relating to such advances, to the bank on March 5,
1998. Generally, all advances under the Loan will bear interest at
either (i) a rate per annum equal to 215 basis points above the Reserve
Adjusted LIBOR Rate (as defined in the Loan) or (ii) a rate per annum
equal to the bank's prime rate, whichever the Company selects at the
time advances are made. As a condition of obtaining the Loan, the
Company agreed to grant to the bank a first security interest in the
Secured Equipment Leases. In connection with the Loan, the Company
incurred a commitment fee, legal fees and closing costs of $53,500. As
of June 30, 1996, the Company had obtained two advances totalling
$603,745 relating to the Loan. The proceeds of the advances were used
to fund a Secured Equipment Lease at a cost of approximately $550,000
and to pay $53,500 in loan costs described above. As of June 30, 1996,
$606,207 was outstanding relating to the Loan, including $2,462 of
accrued interest. As of June 30, 1996, the Company had not yet
converted the outstanding principal amounts to term loans, as described
above. The Company intends to limit advances under the Loan to 10% of
gross proceeds of the offering.
9. 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
CNL Fund 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.
As of June 30, 1996 and December 31, 1995, the Company had incurred a
total of $10,347,038 and $6,423,671, respectively, in organizational
and offering costs, including $6,145,332 and $3,076,333, respectively,
in commissions and marketing support
B-19
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Quarters and Six Months Ended June 30, 1996 and 1995
9. Stock Issuance Costs - Continued:
and due diligence expense reimbursement fees (see Note 11). Of these
amounts as of June 30, 1996 and December 31, 1995, $10,327,038 and
$6,403,671, respectively, 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.
10. Distributions:
Distributions declared for the six months ended June 30, 1996,
represent approximately $1,574,000 of ordinary income and approximately
$294,000 of return of capital to stockholders for federal income tax
purposes. No amounts distributed to the stockholders for the six months
ended June 30, 1996, 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 distributions declared for the six months ended
June 30, 1996, may not be indicative of the results that may be
expected for the year ending December 31, 1996.
11. Related Party Transactions:
During the six months ended June 30, 1996, the Company incurred
$2,877,187 in selling commissions due to CNL Securities Corp. for
services in connection with the offering of shares. A substantial
portion of this amount ($2,603,613) was or will be paid 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, 1996, the Company incurred $191,812 of such fees.
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 equal to 4.5% of the total amount raised
from the sale of shares. During the six months ended June 30, 1996, the
Company incurred $1,726,312 of such fees. Such fees are included in
land and buildings on operating leases, net investment in direct
financing leases and other assets.
B-20
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Quarters and Six Months Ended June 30, 1996 and 1995
11. Related Party Transactions - Continued:
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 two
percent of the purchase price of the equipment that is the subject of a
Secured Equipment Lease. During the quarter and six months ended June
30, 1996, the Company incurred $10,776 in secured equipment lease
servicing fees. Such fees are included in net investment in direct
financing leases.
The Company and the Advisor have entered into an advisory agreement
pursuant to which the Advisor will receive a monthly asset and mortgage
management fee of one-twelfth of 0.60% of the Company's real estate
asset value (generally, the total amount invested in the Properties as
of the end of the preceding month, exclusive of acquisition fees and
acquisition expenses), plus one-twelfth of .60% of the Company's total
principal amount of the mortgage loans as of the end of the preceding
month. The management fee, which will not 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 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.
During the quarter and six months ended June 30, 1996, the Company
incurred $58,762 and $100,526, respectively, in total asset and
mortgage management fees, $1,459 and $2,853, respectively, of which was
capitalized as part of the cost of building for Properties under
construction. No asset or mortgage management fees were incurred for
the quarter and six months ended June 30, 1995.
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 six months ended June 30, 1996 and 1995, the expenses
incurred for these services were classified as follows:
1996 1995
-------- ------
Stock issuance costs $379,090 $200,492
General operating and
administrative expenses 154,018 330
-------- --------
$533,108 $200,822
======== ========
B-21
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Quarters and Six Months Ended June 30, 1996 and 1995
11. Related Party Transactions - Continued:
During the six months ended June 30, 1996, the Company acquired two
Properties for an aggregate purchase price of approximately $1,798,000
from affiliates of the Company. The affiliates had purchased and
temporarily held title to these Properties in order to facilitate the
acquisition of the Properties by the Company. Each Property was
acquired at a cost equal to the cost of the Property to the affiliate
(including carrying costs) due to the fact that these amounts were less
than each Property's appraised value.
The due to related parties consisted of the following at:
June 30, December 31,
1996 1995
Due to the Advisor:
Expenditures incurred
on behalf of the
Company and accounting
and administrative
services $ 73,221 $108,316
Acquisition fees 48,062 45,118
Asset and mortgage
management fees - 9,108
Distributions - 3,332
-------- --------
121,283 165,874
-------- --------
Due to CNL Securities Corp:
Commissions 80,079 75,197
Marketing support and due
diligence expense reim-
bursement fees 5,340 5,013
-------- --------
85,419 80,210
-------- --------
Other - 2,500
-------- --------
$206,702 $248,584
======== ========
B-22
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Quarters and Six Months Ended June 30, 1996 and 1995
12. Concentration of Credit Risk:
The following schedule presents total rental and earned income from
individual lessees, or affiliated groups of lessees, each representing
more than ten percent of the Company's total rental and earned income
for at least one of the quarters ended June 30:
1996 1995
-------- ------
Castle Hill Holdings V,
L.L.C. and Castle Hill
Holdings VI, L.L.C.
("Castle Hill") $160,536 $ -
Golden Corral Corporation 142,178 -
Foodmaker, Inc. 52,833 369
During the quarter ended June 30, 1996, the Company also earned
$280,549 in interest income from mortgage notes receivable under which
Castle Hill is the borrower.
In addition, the following schedule presents total rental and earned
income from individual restaurant chains, each representing more than
ten percent of the Company's total rental and earned income for at
least one of the quarters ended June 30:
1996 1995
-------- ------
Golden Corral
Family Steakhouse
Restaurants $313,694 $ -
Pizza Hut 160,536 -
Jack in the Box 52,833 369
Although the Company's Properties are geographically diverse and the
Company's lessees operate a variety of restaurant concepts, failure of
any one of these restaurant chains or any lessee or borrower that
contributes more than ten percent of the Company's total income could
significantly impact the results of operations of the Company. However,
management believes that the risk of such a default is reduced due to
the essential or important nature of these Properties for the on-going
operations of the lessees and borrowers.
It is expected that the percentage of total rental and earned income
contributed by these lessees, borrowers and restaurant chains will
decrease as additional Properties are acquired and leased in 1996 and
subsequent years.
B-23
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Quarters and Six Months Ended June 30, 1996 and 1995
13. Commitments:
The Company has entered into various development agreements with
tenants which provide terms and specifications for the construction of
buildings the tenants have agreed to lease once construction is
completed. The agreements provide a maximum amount of development costs
(including the purchase price of the land and closing costs) to be paid
by the Company. The aggregate maximum development costs the Company has
agreed to pay is approximately $17,499,600, of which approximately
$11,111,000 in land and other costs had been incurred as of June 30,
1996. The buildings currently under construction are expected to be
operational by October 1996. In connection with the purchase of each
Property, the Company, as lessor, entered into a long-term lease
agreement.
14. Subsequent Events:
During the period July 1, 1996 through August 6, 1996, the Company
received subscription proceeds for an additional 1,105,184 shares
($11,051,838) of common stock.
Subsequent to June 30, 1996, the Company declared distributions of
$458,646 and $515,906, respectively, or $.059375 per share of common
stock, payable in September 1996, to stockholders of record on July 1,
1996 and August 1, 1996, respectively.
During the period July 1, 1996 through August 6, 1996, the Company
acquired six Properties (five of which are undeveloped land on which
restaurants are being constructed) for cash at a total cost of
approximately $3,083,000, excluding closing and development costs. In
connection with the purchase of each Property, the Company, as lessor,
entered into a long-term lease agreement. The development costs
(including the purchase of the land and closing costs) to be paid by
the Company relating to the five properties under construction are
estimated to be approximately $4,578,000. The buildings under
construction are expected to be operational by February 1997.
During the period July 1, 1996 through August 6, 1996, the Company
obtained two additional advances totalling approximately $1,093,000
under its $15,000,000 Loan. The proceeds of the advances were used to
fund two Secured Equipment Leases at a cost of approximately
$1,093,000. In connection with the Company's advances under the Loan,
in July 1996, the Company converted a total of approximately $1,686,000
from variable rate advances to fixed rate advances (at a rate of nine
percent per annum) (See Note 8).
B-24
<PAGE>
Report of Independent Accountants
To the Board of Directors
CNL American Properties Fund, Inc.
We have audited the accompanying consolidated balance sheets of CNL American
Properties Fund, Inc. (a Maryland corporation) and its subsidiary as of December
31, 1995 and 1994, and the related consolidated statements of earnings,
stockholders' equity, and cash flows for the year ended December 31, 1995 and
for the period May 2, 1994 (date of inception) through December 31, 1994, and
the related financial statement schedule. These financial statements and
financial statement schedule are the responsibility of the Company's management.
Our responsibility is to express an opinion on these financial statements and
financial statement schedule based on our audits.
We conducted our audits 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 audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of CNL American
Properties Fund, Inc. and its subsidiary as of December 31, 1995 and 1994, and
the consolidated results of their operations and their cash flows for the year
ended December 31, 1995 and for the period May 2, 1994 (date of inception)
through December 31, 1994 in conformity with generally accepted accounting
principles. In addition, in our opinion, the financial statement schedule
referred to above, when considered in relation to the basic financial statements
taken as a whole presents fairly, in all material respects, the information
required to be included therein.
COOPERS & LYBRAND L.L.P.
Orlando, Florida
January 22, 1996
B-25
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
December 31,
ASSETS 1995 1994
------ ----------- ----------
<S> <C>
Land and buildings on operating leases,
less accumulated depreciation $19,723,726 $ -
Net investment in direct financing lease 1,373,882 -
Cash and cash equivalents 11,508,445 945
Receivables 113,613 -
Prepaid expenses 8,090 -
Organization costs, less accumulated
amortization of $2,318 in 1995 17,682 -
Accrued rental income 39,142 -
Deferred offering costs - 928,640
Other assets 818,504 -
----------- ----------
$33,603,084 $ 929,585
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Accrued construction costs payable $ 1,058,825 $ -
Accounts payable and accrued expenses 79,904 424,324
Escrowed real estate taxes payable 9,696 -
Due to related parties 248,584 305,261
Rents paid in advance 25,351 -
----------- ----------
Total liabilities 1,422,360 729,585
----------- -----------
Minority interest 200,076 -
----------- ----------
Commitments (Note 12)
Stockholders' equity:
Preferred stock, without par value.
Authorized and unissued 3,000,000
shares in 1995 - -
Excess shares, $.01 par value per share.
Authorized and unissued 23,000,000
shares in 1995 - -
Common stock, $.01 par value per share.
Authorized 20,000,000 and 100,000
shares, respectively, issued and
outstanding 3,865,416 and 20,000,
respectively 38,654 200
Capital in excess of par value 32,211,833 199,800
Accumulated distributions in excess of
net earnings (269,839) -
----------- ----------
Total stockholders' equity 31,980,648 200,000
----------- -----------
$33,603,084 $ 929,585
=========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
B-26
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF EARNINGS
<TABLE>
<CAPTION>
May 2, 1994
(Date of
Inception)
Year Ended through
December 31, December 31,
1995 1994
------------ -------------
<S> <C>
Revenues:
Rental income from operating
leases $ 498,817 $ -
Earned income from direct financing
lease 28,935 -
Contingent rental income 12,024 -
Interest 119,355 -
---------- ---------
659,131 -
---------- ---------
Expenses:
General operating and
administrative 134,759 -
Professional services 8,119 -
Asset management fee to
related party 23,078 -
State taxes 20,189 -
Depreciation and amorti-
zation 104,131 -
---------- ---------
290,276 -
---------- ---------
Earnings Before Minority Interest in
Income of Consolidated Joint Venture 368,855 -
Minority Interest in Income of
Consolidated Joint Venture (76) -
---------- ---------
Net Earnings $ 368,779 $ -
========== =========
Earnings Per Share of Common
Stock $ .19 $ -
========== =========
Weighted Average Number of
Shares of Common Stock
Outstanding 1,898,350 -
========== =========
</TABLE>
See accompanying notes to consolidated financial statements.
B-27
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
Year Ended December 31, 1995 and the
Period May 2, 1994 (Date of Inception) through
December 31, 1994
<TABLE>
<CAPTION>
Accumulated
Common stock distributions
------------------ Capital in in excess
Number Par excess of of net
of shares value par value earnings Total
<S> <C>
Balance at
May 2, 1994 - $ - $ - $ - $ -
Sale of common
stock to CNL
Fund Advisors,
Inc. 20,000 200 199,800 - 200,000
---------- ------- ----------- --------- -----------
Balance at
December 31, 1994 20,000 200 199,800 - 200,000
Subscriptions
received for
common stock
through public
offering and
distribution
reinvestment plan 3,845,416 38,454 38,415,704 - 38,454,158
Stock issuance costs - - (6,403,671) - (6,403,671)
Net earnings - - - 368,779 368,779
Distributions
declared ($.03
to $.06 per
share) - - - (638,618) (638,618)
---------- ------- ----------- --------- -----------
Balance at
December 31, 1995 3,865,416 $38,654 $32,211,833 $(269,839) $31,980,648
========== ======= =========== ========= ===========
</TABLE>
See accompanying notes to consolidated financial statements.
B-28
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
May 2, 1994
(Date of
Inception)
Year Ended through
December 31, December 31,
1995 1994
------------ ------------
<S> <C>
Increase (Decrease) in Cash and Cash
Equivalents:
Cash Flows From Operating Activities:
Cash received from tenants $ 492,488 $ -
Cash paid for expenses (113,384) -
Interest received 119,355 -
------------ -----------
Net cash provided by operating
activities 498,459 -
------------ -----------
Cash Flows From Investing Activities:
Additions to land and buildings on
operating leases (18,835,969) -
Increase in net investment in
direct financing lease (1,364,960) -
Increase in other assets (628,142) -
------------ -----------
Net cash used in investing
activities (20,829,071) -
------------ -----------
Cash Flows From Financing Activities:
Reimbursement of acquisition, organi-
zation and stock issuance costs paid
by related parties on behalf of the
Company (2,500,056) (199,036)
Contribution from minority interest
of consolidated joint venture 200,000 -
Sale of common stock to CNL Fund
Advisors, Inc. - 200,000
Subscriptions received from stock-
holders 38,454,158 -
Distributions to stockholders (635,286) -
Payment of stock issuance costs (3,680,704) (19)
------------ ------------
Net cash provided by financing
activities 31,838,112 945
------------ ------------
Net Increase in Cash and Cash Equivalents 11,507,500 945
Cash and Cash Equivalents at Beginning of
Period 945 -
------------ -----------
Cash and Cash Equivalents at End of Period $ 11,508,445 $ 945
============ ============
</TABLE>
See accompanying notes to consolidated financial statements.
B-29
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS - CONTINUED
<TABLE>
<CAPTION>
May 2, 1994
(Date of
Inception)
Year Ended through
December 31, December 31,
1995 1994
------------ ------------
<S> <C>
Reconciliation of Net Earnings to Net Cash
Provided by Operating Activities:
Net earnings $ 368,779 $ -
------------ -----------
Adjustments to reconcile net earnings
to net cash provided by operating
activities:
Depreciation 100,318 -
Amortization 3,813 -
Increase in receivables (44,749) -
Decrease in net investment in direct
financing lease 1,078 -
Increase in prepaid expenses (8,090) -
Increase in accrued rental income (39,142) -
Increase in accounts payable and
accrued expenses 38,461 -
Increase in escrowed real estate
taxes payable 9,696 -
Increase in due to related parties,
excluding reimbursement of acqui-
sition, organization and stock
issuance costs paid on behalf
of the Company 42,868 -
Increase in rents paid in advance 25,351 -
Increase in minority interest 76 -
------------ -----------
Total adjustments 129,680 -
------------ -----------
Net Cash Provided by Operating Activities $ 498,459 $ -
============ ===========
</TABLE>
See accompanying notes to consolidated financial statements.
B-30
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS - CONTINUED
<TABLE>
<CAPTION>
May 2, 1994
(Date of
Inception)
Year Ended through
December 31, December 31,
1995 1994
------------ ------------
<S> <C>
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 $ 131,629 $ -
Organization costs 20,000 -
Stock issuance costs 2,084,145 461,866
------------ ------------
$ 2,235,774 $ 461,866
============ ============
Land, building and other costs
incurred and unpaid at end of
period $ 1,127,167 $ -
============ ===========
Commissions, marketing support and
due diligence expense reimbursement
fee, and other stock issuance costs
incurred and unpaid at end of period $ 176,937 $ 729,585
============ ============
Distributions declared and unpaid at
end of period $ 3,332 $ -
============ ===========
</TABLE>
See accompanying notes to consolidated financial statements.
B-31
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Year Ended December 31, 1995 and the Period
May 2, 1994 (Date of Inception) through
December 31, 1994
1. Significant Accounting Policies:
Organization and Nature of Business - CNL Income Fund, Inc. (the
"Company") was organized in Maryland on May 2, 1994. Effective December
6, 1994, the Company changed its name to CNL Investment Fund, Inc. and
effective February 1, 1995, the Company changed its name to CNL
American Properties Fund, Inc. The Company was organized primarily for
the purpose of acquiring, directly or indirectly through joint venture
or co-tenancy arrangements, restaurant properties (the "Properties") to
be leased on a long-term, triple-net basis to operators of certain
national and regional fast-food, family-style and casual dining
restaurant chains. To a lesser extent, the Company intends to offer
furniture, fixtures and equipment financing ("Secured Equipment
Leases") to operators of restaurant chains. The Company may provide
financing (the "Mortgage Loans") for the purchase of buildings,
generally be tenants that lease the underlying land from the Company.
Secured Equipment Leases will be funded from the proceeds of a loan of
up to ten percent of the gross offering proceeds which the Company
intends to obtain.
The Company was a development stage enterprise from May 2, 1994 through
June 1, 1995. Since operations had not begun, activities through June
1, 1995, were devoted to organization of the Company.
Principles of Consolidation - The Company accounts for its expected 76
percent interest in CNL/Corral South Joint Venture, a Florida general
partnership, under the full consolidation method. Minority interest
represents the minority joint venture partner's proportionate share of
the equity in the Company's consolidated subsidiary. All significant
intercompany accounts and trans-actions have been eliminated.
Land and Buildings on Operating Leases - Land and buildings on
operating leases are stated at cost. Buildings are depreciated on the
straight-line method over their estimated useful life of 30 years. When
the Properties are sold, the related cost and accumulated depreciation
will be removed from the accounts and gains or losses from sale will be
reflected in income. The Properties will be written down to net
realizable value in the event management believes that the
B-32
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1995 and the Period
May 2, 1994 (Date of Inception) through
December 31, 1994
1. Significant Accounting Policies - Continued:
undepreciated cost cannot be recovered through operations. Management
determines whether an impairment in value has occurred by comparing the
estimated undiscounted cash flows with the carrying cost of the
individual Properties.
Acquisition Fees and Miscellaneous Acquisition Expenses Acquisition
fees and miscellaneous acquisitions expenses attributable to the
Company's investment in Properties are capitalized and allocated to
land and buildings on operating leases, net investment in direct
financing lease and other assets (See Note 6).
Lease Accounting - The leases are accounted for under either the direct
financing or the operating methods. Such methods are described below:
Direct financing method - The lease accounted for under the
direct financing method is recorded at its net investment(See
Note 5). Unearned income is deferred and amortized to income
over the lease term so as to produce a constant periodic rate
of return on the Company's net investment in the lease.
Operating method - Land and buildings are recorded at cost,
revenue is recognized as rentals are earned and depreciation
is charged to operations as incurred. When scheduled rentals
vary during the lease term, income is recognized on a
straight-line basis so as to produce a constant periodic rent.
Accrued rental income is the aggregate difference between the
scheduled rents which vary during the lease term and the
income recognized on a straight-line basis.
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.
B-33
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1995 and the Period
May 2, 1994 (Date of Inception) through
December 31, 1994
1. Significant Accounting Policies - Continued:
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.
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 commencing with its taxable year ended
December 31, 1995. If the Company qualifies as a REIT, the Company
generally will not be subject to federal corporate income tax 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.
Accordingly, no provision for federal income taxes has been made in the
consolidated financial statements. REITs are subject to a number of
other organizational and operational requirements. Even if the Company
qualifies 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 - Earnings per share are calculated based upon the
weighted average number of shares of common stock outstanding during
the period the Company was operational.
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.
B-34
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1995 and the Period
May 2, 1994 (Date of Inception) through
December 31, 1994
1. Significant Accounting Policies - Continued:
New Accounting Standard - In March 1995, the Financial Accounting
Standards Board issued Statement of Financial Accounting Standards No.
121, Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to Be Disposed Of. The Statement, which is effective
for fiscal years beginning after December 15, 1995, requires that an
entity review long-lived assets and certain identifiable intangibles,
to be held and used, for impairment whenever events or changes in
circumstances indicate that the carrying amount of the asset may not be
recoverable. The Company will adopt this standard in 1996. Adoption of
this standard currently would not have had 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 10,000,000 shares ($100,000,000) may be sold, and if the
managing dealer exercises its option (in the event the offering is
oversubscribed) to sell an additional 5,000,000 shares ($50,000,000), a
maximum of 15,000,000 shares ($150,000,000) may be sold. In addition,
the Company has registered an additional 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, 1995, the
Company had received subscription proceeds of $38,454,158 (3,845,416
shares), including $50,790 (5,079 shares) through the reinvestment
plan.
3. Leases:
The Company leases its land and buildings primarily to operators or
franchisees of national and regional fast-food, family-style and casual
dining restaurants. The leases are accounted for under the provisions
of the Statement of
B-35
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1995 and the Period
May 2, 1994 (Date of Inception) through
December 31, 1994
3. Leases - Continued:
Financial Accounting Standards No. 13, Accounting for Leases. As of
December 31, 1995, 17 of the leases have been classified as operating
leases and one lease has been classified as a direct financing lease.
Substantially all leases have initial terms of 15 to 20 years (expiring
between 2007 and 2015) and provide for minimum rentals. In addition,
all of the leases provide for contingent rentals and/or scheduled rent
increases over the terms of the leases. Each tenant also pays all
property taxes and assessments, fully maintains the interior and
exterior of the building and carries insurance coverage for public
liability, property damage, fire and extended coverage. The lease
options generally allow tenants to renew the leases for two to four
successive five-year periods subject to the same terms and conditions
as the initial lease.
4. Land and Buildings on Operating Leases:
Land and buildings on operating leases consisted of the following at
December 31:
1995 1994
----------- -----------
Land $ 8,890,471 $ -
Buildings 10,049,032 -
----------- ----------
18,939,503 -
Less accumulated depreci-
ation (100,318) -
----------- ----------
18,839,185 -
Construction in progress 884,541 -
----------- ----------
$19,723,726 $ -
=========== ==========
Some leases provide for escalating guaranteed minimum rents throughout
the lease term. Income from these scheduled rent increases is
recognized on a straight-line basis over the terms of the leases. For
the year ended December 31, 1995, the Company recognized $39,142 of
such rental income.
B-36
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1995 and the Period
May 2, 1994 (Date of Inception) through
December 31, 1994
4. Land and Buildings on Operating Leases - Continued:
The following is a schedule of future minimum lease payments to be
received on the noncancellable operating leases at December 31, 1995:
1996 $ 1,814,981
1997 1,820,348
1998 1,825,130
1999 1,831,824
2000 1,841,123
Thereafter 23,444,157
-----------
$32,577,563
===========
These amounts do not include minimum lease payments that will become
due when Properties under development or renovation are completed (See
Note 12).
5. Net Investment in Direct Financing Lease:
The following lists the components of the net investment in direct
financing lease at December 31:
1995 1994
----------- ----------
Minimum lease payments
receivable $ 2,498,881 $ -
Estimated residual value 343,740 -
Less unearned income (1,468,739) -
----------- ----------
Net investment in direct
financing lease $ 1,373,882 $ -
=========== ==========
The following is a schedule of future minimum lease payments to be
received on the direct financing lease at December 31, 1995:
1996 $ 196,183
1997 195,997
1998 195,997
1999 195,997
2000 199,264
Thereafter 1,515,443
----------
$2,498,881
B-37
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1995 and the Period
May 2, 1994 (Date of Inception) through
December 31, 1994
6. Other Assets:
Other assets totalling $818,504 at December 31, 1995, consisted of
acquisition fees and miscellaneous acquisition costs in the amount of
$806,504 which will be allocated to future Properties and $12,000 of
other assets.
7. Capitalization:
The Company's Board of Directors has authorized a total of 46,000,000
shares of capital stock, consisting of 20,000,000 shares of common
stock, $.01 par value per share, 3,000,000 shares of preferred stock,
and 23,000,000 shares of excess stock, $.01 par value per share. Of the
23,000,000 excess shares, 20,000,000 are issuable in exchange for
common stock and 3,000,000 are issuable in exchange for preferred
stock.
8. 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 Fund 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.
As of December 31, 1995, the Company had incurred $6,423,671 in
organizational and offering costs, including $3,076,333 in commissions
and marketing support and due diligence expense reimbursement fees (see
Note 10). Of this amount $6,403,671 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.
B-38
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1995 and the Period
May 2, 1994 (Date of Inception) through
December 31, 1994
9. Distributions:
For the year ended December 31, 1995, 59.82% of the distributions
received by stockholders were considered to be ordinary income and
40.18% were considered a return of capital for federal income tax
purposes. No amounts distributed to stockholders for the year ended
December 31, 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.
10. Related Party Transactions:
Certain directors and officers of the Company hold similar positions
with the Advisor and the managing dealer, CNL Securities Corp. In
addition, as of December 31, 1994, the Advisor was the sole stockholder
of the Company.
CNL Securities Corp. is entitled to receive selling commissions
amounting to 7.5% of the total amount raised from the sale of shares
for services in connection with the formation of the Company and the
offering of shares, a substantial portion of which has been or will be
paid as commissions to other broker-dealers. As of December 31, 1995,
the Company had incurred $2,884,062 of such fees, of which
approximately $2,682,303 was 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. As of December 31, 1995, the
Company had incurred $192,271 of such fees.
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 terminates in the amount
of 0.20% of the stockholders' investment in the Company. CNL Securities
Corp. in turn may reallow all or a portion of such fee to soliciting
dealers whose clients held shares on such date. The Company, however,
may pay the soliciting dealer servicing fee directly to any soliciting
dealer exempt from registration as a broker-dealer and whose clients
held shares on such date. As of December 31, 1995, no such fees had
been incurred.
B-39
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1995 and the Period
May 2, 1994 (Date of Inception) through
December 31, 1994
10. Related Party Transactions - Continued:
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 equal to 4.5% of the total amount raised
from the sale of shares. As of December 31, 1995, the Company had
incurred $1,730,437 of such fees.
In connection with the acquisition of Properties that have been
constructed or renovated by affiliates, subject to approval by the
Company's Board of Directors, the Company may incur
development/construction management fees of generally five to ten
percent of the cost of constructing or renovating a Property, payable
to affiliates of the Company as acquisition fees. Such fees will be
included in the purchase price of Properties purchased from developers
that are affiliates of the Company. As of December 31, 1995, no such
fees had been incurred by the Company.
In connection with the acquisition of Properties from affiliated or
unaffiliated developers, to whom affiliates of the Company have
provided construction financing, subject to approval by the Company's
Board of Directors, the Company may incur construction financing fees,
payable to affiliates of the Company as acquisition fees. Such fees
will be in an amount equal to generally one to two percent of the total
amount of each loan plus the difference determined by applying an
annual percentage rate of generally 1.5 to three percent throughout the
duration of the loan to the outstanding amount of the loan. Such fees
will be included in the purchase price of the Properties purchased from
developers that receive such loans. As of December 31, 1995, no such
fees had been incurred by the Company.
The total of all acquisition fees (including development/con- struction
management fees to affiliates and construction financing fees to
affiliates described above) and acquisition expenses shall be
reasonable and shall not exceed an amount equal to six percent of the
real estate asset value of a Property (as defined in the Company's
Articles of Incorporation), or in the case of a Mortgage Loan, six
percent of funds advanced, unless a majority of the Board of Directors
(including a majority of the independent directors) approves
B-40
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1995 and the Period
May 2, 1994 (Date of Inception) through
December 31, 1994
10. Related Party Transactions - Continued:
fees in excess of these limits subject to a determination that the
transaction is commercially competitive, fair and reasonable to the
Company.
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 two
percent of the purchase price of the Equipment that is the subject of a
Secured Equipment Lease. As of December 31, 1995, no secured equipment
lease servicing fees had been incurred.
The Company and the Advisor have entered into an advisory agreement
pursuant to which the Advisor will receive a monthly asset management
fee of one-twelfth of 0.60% of the Company's real estate asset value
(generally, the total amount invested in the Properties as of the end
of the preceding month, exclusive of acquisition fees and acquisition
expenses). The asset management fee, which will not 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 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. As
of December 31, 1995, the Company had incurred $27,950 of such fees,
$4,872 of which has been capitalized as part of the cost of building
for Properties under construction.
Prior to such time, if any, as shares of the Company's common stock are
listed on a national securities exchange or over-the-counter market,
the Advisor is entitled to receive a deferred, subordinated real estate
disposition fee, payable upon the sale of one or more Properties based
on the lesser of one-half of a competitive real estate commission or
three percent of the sales price if the Advisor provides a substantial
amount of services in connection with the sale. The real estate
disposition fee is payable only after the stockholders receive
distributions equal to the sum of an annual, aggregate, cumulative,
noncompounded eight percent return on their invested capital, excluding
distributions attributable to proceeds of the sale of a Property
B-41
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1995 and the Period
May 2, 1994 (Date of Inception) through
December 31, 1994
10. Related Party Transactions - Continued:
("Stockholders' 8% Return") plus their aggregate invested capital. No
deferred, subordinated real estate disposition fees have been incurred
to date.
A subordinated share of net sales proceeds will be paid to the Advisor
upon the sale of one or more Properties or Secured Equipment Leases in
an amount equal to ten percent of net sales proceeds. This amount will
be paid only after the stockholders receive distributions equal to the
sum of the stockholders' aggregate invested capital and the
Stockholders 8% Return. As of December 31, 1995, no such payments have
been made to the Advisor.
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, 1995 and the period May 2, 1994
(date of inception) through December 31, 1994, the expenses incurred
for these services were classified as follows:
May 2, 1994
(Date of
Inception)
Year Ended through
December 31, December 31,
1995 1994
------------ --------
Deferred offering
costs $ - $ 42,431
Stock issuance costs 714,674 -
General operating
and administrative
expenses 68,016 -
-------- -------
$782,690 $ 42,431
======== ========
During the year ended December 31, 1995, the Company acquired nine
Properties for an aggregate purchase price of approximately $6,621,000
from affiliates of the Company. The affiliates had purchased and
temporarily held title to these Properties in order to facilitate the
acquisition of the Properties by the Company. Each Property was
acquired at a
B-42
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1995 and the Period
May 2, 1994 (Date of Inception) through
December 31, 1994
10. Related Party Transactions - Continued:
cost no greater than the lesser of the cost of the Property to the
affiliate (including carrying costs) or the Property's appraised value.
The due to related parties consisted of the following at December 31:
1995 1994
-------- ------
Due to the Advisor:
Expenditures incurred on
behalf of the Company
and accounting and
administrative services $108,316 $305,261
Acquisition fees 45,118 -
Asset management fees 9,108 -
Distributions 3,332 -
-------- -------
165,874 305,261
-------- --------
Due to CNL Securities Corp:
Commissions 75,197 -
Marketing support and due
diligence expense reim-
bursement fees 5,013 -
-------- -------
80,210 -
-------- -------
Other 2,500 -
-------- -------
$248,584 $305,261
======== ========
B-43
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1995 and the Period
May 2, 1994 (Date of Inception) through
December 31, 1994
11. Concentration of Credit Risk:
The following schedule presents rental and earned income from
individual lessees and restaurant chains, each representing more than
ten percent of the Company's total rental and earned income for the
year ended December 31, 1995:
Golden Corral Corporation
(operates Golden Corral
restaurants) $212,406
Roasters Corp.
(operates Kenny Rogers'
Roasters restaurants) 82,136
Northstar Restaurants, Inc.
(operates Boston Market
restaurants) 73,219
Foodmaker, Inc.
(operates a Jack in the Box
restaurant) 66,813
Denwest Restaurant Corp.
(operates Denny's restaurants) 66,595
Although the Company's Properties are geographically diverse and the
lessees operate a variety of restaurant concepts, default by any one of
these lessees could significantly impact the results of the Company.
However, management believes that the risk of such a default is reduced
due to the essential or important nature of these Properties for the
on-going operations of the lessee.
It is expected that the percentage of total rental and earned income
contributed by these lessees and restaurant chains will decrease as
additional Properties are acquired and leased in 1996 and subsequent
years.
12. Commitments:
The Company has entered into various development agreements with
tenants which provide terms and specifications for the construction of
buildings the tenants have agreed to lease once construction is
completed. The agreements provide a maximum amount of development costs
(including the purchase price of the land and closing costs) to be paid
by the Company. The aggregate maximum development costs the Company
B-44
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1995 and the Period
May 2, 1994 (Date of Inception) through
December 31, 1994
12. Commitments - Continued:
has agreed to pay is approximately $3,214,700, of which approximately
$1,760,000 in land and other costs had been incurred as of December 31,
1995. The buildings currently under construction are expected to be
operational by May 1996. In connection with the purchase of each
Property, the Company, as lessor, entered into a long-term lease
agreement. The general terms of the lease agreements are substantially
the same as those described in Note 3.
In addition, in connection with the acquisition of two Properties
during the year ended December 31, 1995, the Company has committed to
fund an aggregate amount of $500,000 for the renovation of the
Properties. As of December 31, 1995, the Company had incurred
approximately $234,000 in such costs. Upon the completion of the
renovation of the Properties and the payment of such by the Company,
the base rent due under the terms of the lease will be adjusted upward.
The renovations are expected to be completed by March 1996.
The Company has obtained a commitment from a bank (the "Bank") for a
$15,000,000 line of credit (the "Commitment") to be used by the Company
to offer Secured Equipment Leases. The Commitment provides that the
Company will be able to receive advances under the line of credit for a
period of two years from the date of closing on the loan. Generally,
advances under the loan will be fully amortizing term loans repayable
in terms equal to the duration of the Secured Equipment Leases, but in
no event greater than 72 months. Advances under the loan will bear
interest at either (i) a rate per annum equal to 215 basis points above
the Reserve Adjusted LIBOR Rate (as defined in the Commitment) or (ii)
a rate per annum equal to the Bank's prime rate, whichever the Company
selects at the time advances are made. The Bank shall have a first
security interest in and a direct assignment of the Secured Equipment
Leases. In connection with such loan, at the date of closing, the
Company shall pay the Bank a commitment fee equal to $37,500 and shall
pay all of the Bank's expenses relating to the loan (of which $12,000
had been incurred by the Company as of December 31, 1995). The written
agreement between the Company and the Bank expired on July 31, 1995;
however, the Company has received an oral agreement from the Bank to
extend the terms of the Commitment
B-45
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
Year Ended December 31, 1995 and the Period
May 2, 1994 (Date of Inception) through
December 31, 1994
12. Commitments - Continued:
to the anticipated loan closing date. As of January 22, 1996, the loan
closing had not occurred. The Company anticipates closing on the loan
in the first quarter of 1996.
13. Subsequent Events:
During the period January 1, 1996 through January 22, 1996, the Company
received subscription proceeds for an additional 349,572 shares
($3,495,720) of common stock.
On January 1, 1996, the Company declared distributions of $225,354 or
$.0583 per share of common stock, payable on March 29, 1996, to
stockholders of record on January 1, 1996.
During the period January 1, 1996 through January 22, 1996, the Company
acquired 20 Properties (land only) for cash at a total cost of
approximately $3,761,000. The Company is leasing the parcels to a
single lessee pursuant to a master lease agreement. The general terms
of the master lease agreement are substantially the same as those
described in Note 3. The lessee owns the buildings located on the 20
Properties. In connection therewith, the Company provided $8,475,000 of
mortgage financing to the lessee pursuant to a master mortgage note
which is collateralized by the building improvements of the 20
Properties and three additional properties. The master mortgage note
bears interest at a rate of 10.75% per annum and principal and interest
will be collected in equal monthly installments over 20 years starting
March 1, 1996.
B-46
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC. AND SUBSIDIARY
SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1995
<TABLE>
<CAPTION> Costs Capitalized
Subsequent
Initial Cost To Acquisition
-------------------- ----------------------
Buildings
Encum- and Improve- Carrying
brances Land Improvements ments Costs
<S> <C>
Properties the Company
has Invested in Under
Operating Leases:
Boston Market Restaurants:
Grand Island, Nebraska - $ 234,685 $ 644,615 $ - $ -
Dubuque, Iowa - 353,608 663,968 - -
Chanhassen, Minnesota - 376,929 639,875 - -
Denny's Restaurant:
Pasadena, Texas - 467,140 240,925 - -
Shawnee, Oklahoma - 529,362 373,427 233,646 -
Golden Corral Family
Steakhouse Restaurants:
Dover, Delaware - 1,045,822 - 915,609 -
Universal City, Texas - 349,394 - 791,273 -
Cleburne, Texas - 351,505 - 766,463 -
Tampa, Florida - 816,121 - 641,129 -
Carlsbad, New Mexico - 376,075 - 740,814 -
Corsicana, Texas - 342,208 753,578 - -
Ft. Worth, Texas - 640,320 898,171 - -
Columbus, Ohio - 1,031,698 - 975,093 -
Jack in the Box Restaurants:
Los Angeles, California - 603,644 602,920 - -
Houston, Texas - 522,592 - 9,766 -
Kenny Rogers' Roasters
Restaurants:
Grand Rapids, Michigan - 282,806 599,309 - -
Franklin, Tennessee - 566,562 442,992 - -
----------- ----------- ---------- -------
$ 8,890,471 $ 5,859,780 $5,073,793 $ -
=========== =========== ========== =======
Property the Company has Invested
in Under Direct Financing Lease:
TGI Friday's Restaurant:
Orange, Connecticut - $ - $ - $1,374,960 $ -
=========== =========== ========== =======
</TABLE>
B-47
<PAGE>
<TABLE>
<CAPTION>
Gross Amount at Which Carried
at Close of Period (c)
---------------------------------
Buildings
and
Land Improvements Total
<S> <C>
Properties the Company
has Invested in Under
Operating Leases:
Boston Market Restaurants:
Grand Island, Nebraska $ 234,685 $ 644,615 $ 879,300
Dubuque, Iowa 353,608 663,968 1,017,576
Chanhassen, Minnesota 376,929 639,875 1,016,804
Denny's Restaurant:
Pasadena, Texas 467,140 240,925 708,065
Shawnee, Oklahoma 529,362 607,073 1,136,435
Golden Corral Family
Steakhouse Restaurants:
Dover, Delaware 1,045,822 915,609 1,961,431
Universal City, Texas 349,394 791,273 1,140,667
Cleburne, Texas 351,505 766,463 1,117,968
Tampa, Florida 816,121 641,129 1,457,250
Carlsbad, New Mexico 376,075 740,814 1,116,889
Corsicana, Texas 342,208 753,578 1,095,786
Ft. Worth, Texas 640,320 898,171 1,538,491
Columbus, Ohio 1,031,698 975,093 2,006,791
Jack in the Box Restaurants:
Los Angeles, California 603,644 602,920 1,206,564
Houston, Texas 522,592 9,766 532,358
Kenny Rogers' Roasters
Restaurants:
Grand Rapids, Michigan 282,806 599,309 882,115
Franklin, Tennessee 566,562 442,992 1,009,554
----------- ----------- -----------
$ 8,890,471 $10,933,573 $19,824,044
=========== =========== ===========
Property the Company has Invested
in Under Direct Financing Lease:
TGI Friday's Restaurant:
Orange, Connecticut (h) (f) (f)
</TABLE>
<TABLE>
<CAPTION>
Life
on Which
Depreciation
in Latest
Date Income
Accumulated of Con- Date Statement is
Depreciation struction Acquired Computed
<S> <C>
Properties the Company
has Invested in Under
Operating Leases:
Boston Market Restaurants:
Grand Island, Nebraska $ 6,078 1995 09/95 (e)
Dubuque, Iowa 5,397 1995 10/95 (e)
Chanhassen, Minnesota 3,214 1995 11/95 (e)
Denny's Restaurant:
Pasadena, Texas 2,558 1981 09/95 (e)
Shawnee, Oklahoma 3,964 1987 09/95 (e)
Golden Corral Family
Steakhouse Restaurants:
Dover, Delaware 8,781 1995 08/95 (e)
Universal City, Texas 8,294 1995 08/95 (e)
Cleburne, Texas 5,566 1995 08/95 (e)
Tampa, Florida (d) (b) 08/95 (d)
Carlsbad, New Mexico 8,536 1995 08/95 (e)
Corsicana, Texas 9,901 1995 08/95 (e)
Ft. Worth, Texas 11,094 1995 08/95 (e)
Columbus, Ohio 3,193 1995 11/95 (e)
Jack in the Box Restaurants:
Los Angeles, California 10,101 1986 06/95 (e)
Houston, Texas (d) (b) 11/95 (d)
Kenny Rogers' Roasters
Restaurants:
Grand Rapids, Michigan 8,169 1995 08/95 (e)
Franklin, Tennessee 5,472 1995 08/95 (e)
--------
$100,318
========
Property the Company has Invested
in Under Direct Financing Lease:
TGI Friday's Restaurant:
Orange, Connecticut (g) 1995 07/95 (g)
</TABLE>
B-48
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC. AND SUBSIDIARY
NOTES TO SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 1995
(a) Transactions in real estate and accumulated depreciation during 1995
are summarized as follows:
Accumulated
Cost Depreciation
Properties the Partnership
has Invested in Under
Operating Leases:
Balance, December 31, 1994 $ - $ -
Acquisitions 19,824,044 -
Depreciation expense (f) - 100,318
----------- -----------
Balance, December 31, 1995 $19,824,044 $ 100,318
=========== ===========
(b) Scheduled for completion in 1996.
(c) As of December 31, 1995, the aggregate cost of the Properties owned
by the Company and its subsidiary for federal income tax purposes was
$21,199,004. All of the leases are treated as operating leases for
federal income tax purposes.
(d) Property was not placed in service as of December 31, 1995;
therefore, no depreciation was taken.
(e) Depreciation expense is computed for buildings and improvements based
upon estimated lives of 30 years.
(f) For financial reporting purposes, the lease relating to this building
has been recorded as a direct financing lease. Accordingly, costs
relating to the building are not shown.
(g) For financial reporting purposes, the lease has been recorded as a
direct financing lease. The cost of the building has been included in
net investment in direct financing lease; therefore, depreciation is
not applicable.
(h) The Company owns the building only relating to this Property. This
property is subject to a ground lease between the tenant and an
unaffiliated third party. In connection therewith, the Company
entered into a tri-party agreement with the tenant and the owner of
the land. The tri-party agreement provides that the tenant is
responsible for all obligations under the ground lease and provides
certain rights to the Company to help protect its interest in the
building in the event of a default by the tenant under the terms of
the ground lease.
B-49
<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 partnerships 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 Partnerships") 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.
A more detailed description of the acquisitions by the Prior Public
Partnerships 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. and CNL Income Fund XVIII,
Ltd., as well as a copy, for a reasonable fee, of the exhibits filed with such
reports.
The investment objectives of the Prior Public Partnerships (like those
of the Company) 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 Partnerships 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 PARTNERSHIPS.
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, 1996. 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 Partnerships, the offerings of
which closed between October 1991 and September 1996.
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 Partnerships.
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 Partnerships, the offerings
of which closed between October 1991 and September 1996. 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 Partnerships on a cumulative basis
commencing with inception and ending June 30, 1996.
Table III - Operating Results of Prior Programs
Table III presents a summary of operating results for the period from
inception through June 30, 1996, of the Prior Public Partnerships, the offerings
of which closed between October 1991 and September 1996.
The Table includes a summary of income or loss of the Prior Public
Partnerships, 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 Partnerships, 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
Partnerships, 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 public
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 Partnerships between October 1991 and June
1996.
This 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 CNL Income
Fund X, Fund XI, Fund XII, Fund XIII, Fund XIV,
Ltd. Ltd. Ltd. Ltd. Ltd.
<S> <C>
Dollar amount offered $40,000,000 $40,000,000 $45,000,000 $40,000,000 $45,000,000
=========== =========== =========== =========== ===========
Dollar amount raised 100.0% 100.0% 100.0% 100.0% 100.0%
----------- ----------- ----------- ----------- -----------
Less offering expenses:
Selling commissions
and discounts (8.5) (8.5) (8.5) (8.5) (8.5)
Organizational expenses (3.0) (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) (0.5)
----------- ----------- ----------- ----------- -----------
(12.0) (12.0) (12.0) (12.0) (12.0)
----------- ----------- ----------- ----------- -----------
Reserve for operations -- -- -- -- --
----------- ----------- ----------- ----------- ----------
Percent available for
investment 88.0% 88.0% 88.0% 88.0% 88.0%
=========== =========== =========== =========== ===========
Acquisition costs:
Cash down payment 83.0% 83.0% 83.0% 82.5% 82.5%
Acquisition fees paid
to affiliates 5.0 5.0 5.0 5.5 5.5
Loan costs -- -- -- -- --
----------- ----------- ----------- ----------- ----------
Total acquisition costs 88.0% 88.0% 88.0% 88.0% 88.0%
=========== =========== =========== =========== ===========
Percent leveraged
(mortgage financing
divided by total
acquisition costs) -- -- -- -- --
Date offering began 9/09/91 3/18/92 9/29/92 3/31/93 8/27/93
Length of offering (in
months) 6 6 6 5 6
Months to invest 90% of
amount available for
investment measured
from date of offering 7 6 11 10 11
</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. and CNL Income Fund XVIII, Ltd. each registered for sale
$30,000,000 of units of limited partnership interest (the "Units"). The
offering of Units of CNL Income Fund XVII, Ltd. commenced September 2,
1995. Pursuant to the Registration Statement, the offering of Units of
CNL Income Fund XVIII, Ltd. would not commence until the offering of
Units of CNL Income Fund XVII, Ltd. had terminated. As of June 30,
1996, CNL Income Fund XVII, Ltd. was in the offering stage; therefore,
CNL Income Fund XVIII, Ltd. had not commenced its offering of Units.
C-3
<PAGE>
<TABLE>
<CAPTION>
CNL Income CNL Income
CNL Income CNL Income Fund XVII, Fund XVIII,
Fund XV, Fund XVI, Ltd. Ltd.
Ltd. Ltd. (Note 1) (Note 1)
<S> <C>
Dollar amount offered $40,000,000 $45,000,000
Dollar amount raised 100.0% 100.0%
----------- -----------
Less offering expenses:
Selling commissions
and discounts (8.5) (8.5)
Organizational expenses (3.0) (3.0)
Marketing support and
due diligence expense
reimbursement fees
(includes amounts
reallowed to
unaffiliated
entities) (0.5) (0.5)
----------- -----------
(12.0) (12.0)
----------- -----------
Reserve for operations -- --
----------- ----------
Percent available for
investment 88.0% 88.0%
=========== ===========
Acquisition costs:
Cash down payment 82.5% 82.5%
Acquisition fees paid
to affiliates 5.5 5.5
Loan costs -- --
----------- ----------
Total acquisition costs 88.0% 88.0%
=========== ===========
Percent leveraged
(mortgage financing
divided by total
acquisition costs) -- --
Date offering began 2/23/94 9/02/94
Length of offering (in
months) 6 9
Months to invest 90% of
amount available for
investment measured
from date of offering 10 11
C-4
</TABLE>
<PAGE>
TABLE II
COMPENSATION TO SPONSOR
<TABLE>
<CAPTION>
CNL Income CNL Income CNL Income CNL Income CNL Income
Fund X, Fund XI, Fund XII, Fund XIII, Fund XIV,
Ltd. Ltd. Ltd. Ltd. Ltd.
<S> <C>
Date offering commenced 9/09/91 3/18/92 9/29/92 3/31/93 8/27/93
Dollar amount raised $40,000,000 $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 3,400,000 3,825,000 3,400,000 3,825,000
Real estate commissions - - - - -
Acquisition fees 2,000,000 2,000,000 2,250,000 2,200,000 2,475,000
Marketing support and
due diligence expense
reimbursement fees
(includes amounts
reallowed to
unaffiliated entities) 200,000 200,000 225,000 200,000 225,000
----------- ----------- ----------- ----------- -----------
Total amount paid to sponsor 5,600,000 5,600,000 6,300,000 5,800,000 6,525,000
=========== =========== =========== =========== ===========
Dollar amount of cash generated
from operations before
deducting payments to
sponsor:
1996 (6 Months) 1,877,818 1,866,649 1,986,907 1,701,335 1,857,023
1995 3,603,470 3,758,271 3,928,473 3,482,461 3,823,939
1994 3,828,234 3,574,474 3,933,486 3,232,046 2,897,432
1993 3,499,905 3,434,512 3,320,549 1,148,550 329,957
1992 3,141,123 1,525,462 63,401 - -
1991 204,240 - - - -
1990 - - - - -
1989 - - - - -
1988 - - - - -
1987 - - - - -
1986 - - - - -
1985 - - - - -
1984 - - - - -
1983 - - - - -
1982 - - - - -
1981 - - - - -
1980 - - - - -
1979 - - - - -
1978 - - - - -
Amount paid to sponsor from operations
(administrative, accounting and
management fees):
1996 (6 Months) 55,272 55,339 55,932 53,682 57,121
1995 76,108 106,086 109,111 103,083 114,095
1994 42,741 76,533 84,524 83,046 84,801
1993 38,999 78,926 73,789 27,003 8,220
1992 39,505 30,237 2,031 - -
1991 2,834 - - - -
1990 - - - - -
1989 - - - - -
1988 - - - - -
1987 - - - - -
1986 - - - - -
1985 - - - - -
1984 - - - - -
1983 - - - - -
1982 - - - - -
1981 - - - - -
1980 - - - - -
1979 - - - - -
1978 - - - - -
Dollar amount of property sales and
refinancing before deducting payments
to sponsor:
Cash 1,057,386 - 1,640,000 286,411 696,012
Notes - - - - -
Amount paid to sponsors
from property sales and
refinancing:
Real estate commissions - - - - -
Incentive fees - - - - -
Other - - - - -
</TABLE>
Note 1: During the year ended December 31, 1995, CNL Income Fund X, Ltd.
received proceeds of $7,200 for a small parcel of land as a result of
an easement relating to a certain property.
C-5
<PAGE>
<TABLE>
<CAPTION>
CNL Income CNL Income CNL Income CNL Income
Fund XV, Fund XVI, Fund XVII, Fund XVIII,
Ltd. Ltd. Ltd. Ltd.
(Note 2) (Note 2)
<S> <C>
Date offering commenced 2/23/94 9/02/94
Dollar amount raised $40,000,000 $45,000,000
Amount paid to sponsor from
proceeds of offering:
Selling commissions and
discounts 3,400,000 3,825,000
Real estate commissions - -
Acquisition fees 2,200,000 2,475,000
Marketing support and
due diligence expense
reimbursement fees
(includes amounts
reallowed to
unaffiliated entities) 200,000 225,000
Total amount paid to sponsor 5,800,000 6,525,000
Dollar amount of cash generated
from operations before
deducting payments to
sponsor:
1996 (6 Months) 1,741,150 1,936,583
1995 3,361,477 2,619,840
1994 1,154,454 212,171
1993 - -
1992 - -
1991 - -
1990 - -
1989 - -
1988 - -
1987 - -
1986 - -
1985 - -
1984 - -
1983 - -
1982 - -
1981 - -
1980 - -
1979 - -
1978 - -
Amount paid to sponsor from operations
(administrative, accounting and
management fees):
1996 (6 Months) 53,223 74,887
1995 122,107 138,445
1994 37,620 7,023
1993 - -
1992 - -
1991 - -
1990 - -
1989 - -
1988 - -
1987 - -
1986 - -
1985 - -
1984 - -
1983 - -
1982 - -
1981 - -
1980 - -
1979 - -
1978 - -
Dollar amount of property sales and
refinancing before deducting payments
to sponsor:
Cash 811,706 775,000
Notes - -
Amount paid to sponsors
from property sales and
refinancing:
Real estate commissions - -
Incentive fees - -
Other - -
</TABLE>
Note 2: 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. and CNL Income Fund XVIII, Ltd. each registered for sale
$30,000,000 of units of limited partnership interest (the "Units"). The
offering of Units of CNL Income Fund XVII, Ltd. commenced September 2,
1995. Pursuant to the Registration Statement, the offering of Units of
CNL Income Fund XVIII, Ltd. would not commence until the offering of
Units of CNL Income Fund XVII, Ltd. had terminated. As of June 30,
1996, CNL Income Fund XVII, Ltd. was in the offering stage; therefore,
CNL Income Fund XVIII, Ltd. had not commenced its offering of Units. As
of June 30, 1996, CNL Income Fund XVII, Ltd. had sold 2,113,286 Units,
representing $21,132,863 of capital contributed by limited partners,
and 13 properties had been acquired. From commencement of the offering
through June 30, 1996, total selling commissions and discounts were
$1,796,293, due diligence expense reimbursement fees were $105,665, and
acquisition fees were $950,978, for a total amount paid to sponsor of
$2,852,936. CNL Income Fund XVII, Ltd. had cash generated from
operations for the period November 3, 1995 (the date funds were
originally released from escrow) through June 30, 1996, of $266,033.
CNL Income Fund XVII, Ltd. made payments of $47,754 to the sponsor from
operations for this period.
C-6
<PAGE>
TABLE III
Operating Results of Prior Programs CNL
INCOME FUND X, LTD.
<TABLE>
<CAPTION>
1990
(Note 1) 1991 1992 1993
------------ ------------ ------------ ------------
<S> <C>
Gross revenue $ 0 $ 80,723 $ 2,985,620 $ 3,729,533
Equity in earnings of unconsolidated
joint venture 0 0 184,425 273,564
Profit from sale of properties 0 0 0 0
Interest income 0 77,424 149,051 35,072
Less: Operating expenses 0 (7,078) (147,094) (178,294)
Interest expense 0 0 0 0
Depreciation and amortization 0 (5,603) (261,058) (215,143)
Minority interest in income of
consolidated joint venture 0 0 (4,902) (8,159)
------------ ------------ ------------ ------------
Net income - GAAP basis 0 145,466 2,906,042 3,636,573
============ ============ ============ ============
Taxable income
- from operations 0 187,164 2,652,037 2,936,325
============ ============ ============ ============
- from gain on sale 0 0 0 0
============ ============ ============ ============
Cash generated from operations
(Notes 2 and 5) 0 201,406 3,101,618 3,460,906
Cash generated from sales (Note 4) 0 0 0 0
Cash generated from refinancing 0 0 0 0
------------ ------------ ------------ ------------
Cash generated from operations, sales
and refinancing 0 201,406 3,101,618 3,460,906
Less: Cash distributions to investors
(Note 6)
- from operating cash flow 0 (163,012) (2,760,446) (2,659,655)
- 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 38,394 341,172 801,251
Special items (not including sales and
refinancing):
Limited partners' capital
contributions 0 19,972,663 20,027,337 0
General partners' capital
contributions 1,000 0 0 0
Organization costs 0 (10,000) 0 0
Syndication costs 0 (1,942,339) (1,880,824) 0
Acquisition of land and buildings 0 (7,317,942) (12,095,378) (316)
Investment in direct financing
leases 0 (3,024,796) (8,018,153) (46,364)
Investment in joint ventures 0 0 (3,687,069) 0
Return of capital from joint
ventures 0 0 0 0
Deposit received for sale of land
and building 0 0 0 0
Increase in other assets (78) (482,466) 0 0
Reimbursement of syndication and
acquisition costs paid on behalf
of CNL Income Fund X, Ltd. by
related parties 0 (815,938) (313,196) (544)
Distributions to holder of minority
interest 0 0 (5,729) (5,543)
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions and special items 922 6,417,576 (5,631,840) 748,484
============ ============ ============ ============
TAX AND DISTRIBUTION DATA PER
$1,000 INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 0 17 70 73
============ ============ ============ ============
- from recapture 0 0 0 0
============ ============ ============ ============
Capital gain (loss) 0 0 0 0
============ ============ ============ ============
</TABLE>
C-7
<PAGE>
<TABLE>
<CAPTION>
6 Months
1994 1995 1996
------------ ------------ -----------
<S> <C>
Gross revenue $ 3,710,792 $ 3,544,446 $ 1,763,069
Equity in earnings of unconsolidated
joint venture 271,512 267,799 134,133
Profit from sale of properties 0 67,214 0
Interest income 46,456 72,600 30,695
Less: Operating expenses (138,507) (189,230) (116,253)
Interest expense 0 0 0 0
Depreciation and amortization (208,941) (201,696) (95,126)
Minority interest in income of
consolidated joint venture (8,471) (9,066) (3,986)
------------ ------------ ------------
Net income - GAAP basis 3,672,841 3,552,067 1,712,532
============ ============ ============
Taxable income
- from operations 3,212,304 2,956,800 1,447,328
============ ============ ============
- from gain on sale 0 50,819 0
============ ============ ============
Cash generated from operations
(Notes 2 and 5) 3,785,493 3,527,362 1,822,546
Cash generated from sales (Note 4) 0 1,057,386 0
Cash generated from refinancing 0 0 0
------------ ------------ ------------
Cash generated from operations, sales
and refinancing 3,785,493 4,584,748 1,822,546
Less: Cash distributions to investors
(Note 6)
- from operating cash flow (3,500,017) (3,527,362) (1,822,546)
- from sale of properties 0 0 0
- from cash flow from prior period 0 (172,641) (17,454)
------------ ------------ ------------
Cash generated (deficiency) after cash
distributions 285,476 884,745 (17,454)
Special items (not including sales and
refinancing):
Limited partners' capital
contributions 0 0 0
General partners' capital
contributions 0 0 0
Organization costs 0 0 0
Syndication costs 0 0 0
Acquisition of land and buildings 0 (359,506) (978)
Investment in direct financing
leases 0 (566,097) (1,542)
Investment in joint ventures 0 0 (129,503)
Return of capital from joint
ventures 0 0 0
Deposit received for sale of land
and building 0 69,000 0
Increase in other assets 0 0 0
Reimbursement of syndication and
acquisition costs paid on behalf
of CNL Income Fund X, Ltd. by
related parties 0 0 0
Distributions to holder of minority
interest (7,909) (7,998) (3,677)
------------ ------------ ------------
Cash generated (deficiency) after cash
distributions and special items 277,567 20,144 (153,154)
============ ============ ============
TAX AND DISTRIBUTION DATA PER
$1,000 INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 80 73 36
============ ============ ============
- from recapture 0 0 0
============ ============ ============
Capital gain (loss) 0 1 0
============ ============ ============
</TABLE>
C-8
<PAGE>
TABLE III - CNL INCOME FUND X, LTD. (continued)
<TABLE>
<CAPTION>
1990
(Note 1) 1991 1992 1993
------------ ------------ ------------ ------------
<S> <C>
Cash distributions to investors
Source (on GAAP basis)
- from investment income 0 13 73 66
- from capital gain 0 0 0 0
- from investment income from
prior period 0 0 0 0
- from return of capital (Note 3) 0 2 0 0
------------ ------------ ------------ ------------
Total distributions on GAAP basis
(Note 6) 0 15 73 66
============ ============ ============ ============
Source (on cash basis)
- from sales 0 0 0 0
- from refinancing 0 0 0 0
- from operations 0 15 73 66
- from cash flow from prior
period 0 0 0 0
------------ ------------ ------------ ------------
Total distributions on cash basis
(Note 6) 0 15 73 66
============ ============ ============ ============
Total cash distributions as a
percentage of original $1,000
investment (Notes 7 and 8) 0.00% 5.75% 7.38% 8.75%
Total cumulative cash distributions
per $1,000 investment from inception 0 15 88 154
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: Pursuant to a registration statement on Form S-11 under the Securities
Act of 1933, as amended, CNL Income Fund X, Ltd. ("CNL X") and CNL
Income Fund IX, Ltd. each registered for sale $35,000,000 units of
limited partnership interests ("Units"). The offering of Units of CNL
Income Fund IX, Ltd. commenced March 20, 1991. Pursuant to the
registration statement, CNL X's offering of Units could not commence
until the offering of Units of CNL Income Fund IX, Ltd. was terminated.
CNL Income Fund IX, Ltd. terminated its offering of Units on September
6, 1991, at which time the maximum offering proceeds of $35,000,000 had
been received. Upon the termination of the offering of Units of CNL
Income Fund IX, Ltd., CNL X commenced its offering of Units.
Activities through September 24, 1991, 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 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 CNL Income
Fund X, Ltd. has not treated this amount as a return of capital for any
other purpose.
Note 4: In August 1995, CNL Income Fund X, Ltd. sold one of its properties
and received net sales proceeds of $1,050,186. In September 1995, the
partnership reinvested $928,122 in an additional property. In addition,
in January 1996, the partnership reinvested the remaining net sales
proceeds in an additional property as tenants-in-common with affiliates
of the general partners.
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 CNL Income Fund X, Ltd.
Note 6: 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 and 1995, are reflected in the 1994, 1995 and 1996 columns,
respectively, for distributions on a cash basis due to the payment of
such distributions in January 1994, 1995 and 1996, respectively. As a
result of 1994, 1995 and 1996 distributions being presented on a cash
basis, distributions declared and unpaid as of December 31, 1994 and
1995, and June 30, 1996 are not included in the 1994, 1995 and 1996
totals, respectively.
C-9
<PAGE>
<TABLE>
<CAPTION>
6 Months
1994 1995 1996
------------ ------------ ------------
<S> <C>
Cash distributions to investors
Source (on GAAP basis)
- from investment income 88 87 42
- from capital gain 0 2 0
- from investment income from
prior period 0 4 4
- from return of capital (Note 3) 0 0 0
------------ ------------ ------------
Total distributions on GAAP basis
(Note 6) 88 93 46
============ ============ ============
Source (on cash basis)
- from sales 0 0 0
- from refinancing 0 0 0
- from operations 88 88 46
- from cash flow from prior
period 0 5 0
------------ ------------ ------------
Total distributions on cash basis
(Note 6) 88 93 46
============ ============ ============
Total cash distributions as a
percentage of original $1,000
investment (Notes 7 and 8) 9.06% 9.03% 9.00%
Total cumulative cash distributions
per $1,000 investment from inception 242 335 381
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% 99% 100%
</TABLE>
Note 7: On December 31, 1994 and December 31, 1995, CNL Income Fund X, Ltd.
declared a special distribution of cumulative excess operating reserves
equal to .25% and .10%, respectively, of the total invested capital.
Accordingly, the total yield for 1994 and 1995 was 9.06% and 9.03%,
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 6 above)
Note 9: Certain data for columns representing less than 12 months have been
annualized.
C-10
<PAGE>
TABLE III
Operating Results of Prior Programs CNL
INCOME FUND XI, LTD.
<TABLE>
<CAPTION>
1991
(Note 1) 1992 1993 1994
------------ ------------ ------------ --------
<S> <C>
Gross revenue $ 0 $ 1,269,086 $ 3,831,648 $ 3,852,107
Equity in earnings of unconsolidated
joint ventures 0 33,367 121,059 119,370
Profit from sale of properties 0 0 0 0
Interest income 0 150,535 24,258 30,894
Less: Operating expenses 0 (63,390) (206,987) (179,717)
Interest expense 0 0 0 0
Depreciation and amortization 0 (180,631) (469,127) (481,226)
Minority interests in income of
consolidated joint ventures 0 (23,529) (68,399) (68,936)
------------ ------------ ------------ ------------
Net income - GAAP basis 0 1,185,438 3,232,452 3,272,492
============ ============ ============ ============
Taxable income
- from operations 0 1,295,104 2,855,026 2,947,445
============ ============ ============ ============
- from gain on sale 0 0 0 0
============ ============ ============ ============
Cash generated from operations
(Notes 2 and 4) 0 1,495,225 3,355,586 3,497,941
Cash generated from sales 0 0 0 0
Cash generated from refinancing 0 0 0 0
------------ ------------ ------------ ------------
Cash generated from operations, sales
and refinancing 0 1,495,225 3,355,586 3,497,941
Less: Cash distributions to investors
(Note 5)
- from operating cash flow 0 (1,205,030) (2,495,002) (3,400,001)
- from sale of properties 0 0 0 0
- from cash flow from prior period 0 0 0 0
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions 0 290,195 860,584 97,940
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
Minority interests' capital
contributions 0 426,367 0 0
Organization costs 0 (10,000) 0 0
Syndication costs 0 (3,922,875) 0 0
Acquisition of land and buildings 0 (26,428,556) (276,157) 0
Investment in direct financing
leases 0 (6,716,561) (276,206) 0
Investment in joint ventures 0 (1,658,925) (772) 0
Reimbursement of syndication and
acquisition costs paid on behalf
of CNL Income Fund XI, Ltd. by
related parties 0 (1,011,487) (900) 0
Increase in other assets 0 (122,024) 0 0
Distributions to holders of minority
interests 0 (17,467) (51,562) (57,641)
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions and special items 1,000 828,667 254,987 40,299
============ ============ ============ ============
TAX AND DISTRIBUTION DATA PER
$1,000 INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 0 45 71 73
============ ============ ============ ============
- from recapture 0 0 0 0
============ ============ ============ ============
Capital gain (loss) 0 0 0 0
============ ============ ============ ============
C-11
<PAGE>
</TABLE>
<TABLE>
<CAPTION>
6 Months
1995 1996
------------ --------
<S> <C>
Gross revenue $ 3,820,990 $ 1,905,317
Equity in earnings of unconsolidated
joint ventures 118,384 56,598
Profit from sale of properties 0 0
Interest income 51,192 24,214
Less: Operating expenses (237,126) (148,842)
Interest expense 0 0
Depreciation and amortization (481,226) (240,613)
Minority interests in income of
consolidated joint ventures (70,038) (34,437)
---------- -----------
Net income - GAAP basis 3,202,176 1,562,237
=========== ===========
Taxable income
- from operations 2,985,221 1,414,282
=========== ===========
- from gain on sale 0 0
============ ===========
Cash generated from operations
(Notes 2 and 4) 3,652,185 1,811,310
Cash generated from sales 0 0
Cash generated from refinancing 0 0
----------- -----------
Cash generated from operations, sales
and refinancing 3,652,185 1,811,310
Less: Cash distributions to investors
(Note 5)
- from operating cash flow (3,500,023) (1,790,012)
- from sale of properties 0 0
- from cash flow from prior period 0 0
------------- -----------
Cash generated (deficiency) after cash
distributions 152,162 21,298
Special items (not including sales and
refinancing):
Limited partners' capital
contributions 0 0
General partners' capital
contributions 0 0
Minority interests' capital
contributions 0 0
Organization costs 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 0
Reimbursement of syndication and
acquisition costs paid on behalf
of CNL Income Fund XI, Ltd. by
related parties 0 0
Increase in other assets 0 0
Distributions to holders of minority
interests (54,227) (27,839)
---------- -------------
Cash generated (deficiency) after cash
distributions and special items 97,935 (6,541)
========== ============
TAX AND DISTRIBUTION DATA PER
$1,000 INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 74 35
============ ============
- from recapture 0 0
============ ============
Capital gain (loss) 0 0
============ ============
</TABLE>
C-12
<PAGE>
TABLE III - CNL INCOME FUND XI, LTD. (continued)
<TABLE>
<CAPTION>
1991
(Note 1) 1992 1993 1994
------------ ------------ ------------ --------
<S> <C>
Cash distributions to investors
Source (on GAAP basis)
- from investment income 0 41 62 81
- from capital gain 0 0 0 0
- from investment income from
prior period 0 0 0 4
- from return of capital (Note 3) 0 1 0 0
------------ ------------ ------------ ------------
Total distributions on GAAP basis
(Note 5) 0 42 62 85
============ ============ ============ ============
Source (on cash basis)
- from sales 0 0 0 0
- from refinancing 0 0 0 0
- from operations 0 42 62 85
- from cash flow from prior
period 0 0 0 0
------------ ------------ ------------ ------------
Total distributions on cash basis
(Note 5) 0 42 62 85
============ ============ ============ ============
Total cash distributions as a
percentage of original $1,000
investment (Notes 6 and 7) 0.00% 6.17% 8.31% 8.56%
Total cumulative cash distributions
per $1,000 investment from inception 0 42 104 189
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 100% 100% 100%
</TABLE>
Note 1: The registration statement relating to the offering of Units by CNL
Income Fund XI, Ltd. became effective on March 12, 1992. Activities
through April 22, 1992, 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 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 CNL Income
Fund XI, Ltd. has not treated this amount as a return of capital for
any other purpose.
Note 4: 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 XI, Ltd.
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 and 1995, are reflected in the 1994, 1995 and 1996 columns,
respectively, for distributions on a cash basis due to the payment of
such distributions in January 1994, 1995 and 1996, respectively. As a
result of 1994, 1995 and 1996 distributions being presented on a cash
basis, distributions declared and unpaid as of December 31, 1994 and
1995, and June 30, 1996 are not included in the 1994, 1995 and 1996
totals, respectively.
Note 6: On December 31, 1995, CNL Income Fund XI, Ltd. declared a special
distribution of cumulative excess operating reserves equal to .10% of
the total invested capital. Accordingly, the total yield for 1995 was
8.78%.
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: Certain data for columns representing less than 12 months have been
annualized.
C-13
<PAGE>
<TABLE>
<CAPTION>
6 Months
1995 1996
------------ --------
<S> <C>
Cash distributions to investors
Source (on GAAP basis)
- from investment income 79 39
- from capital gain 0 0
- from investment income from
prior period 9 5
- from return of capital (Note 3) 0 1
------------ ------------
Total distributions on GAAP basis
(Note 5) 88 45
============ ============
Source (on cash basis)
- from sales 0 0
- from refinancing 0 0 0
- from operations 88 45
- from cash flow from prior
period 0 0
------------ ------------
Total distributions on cash basis
(Note 5) 88 45
============ ============
Total cash distributions as a
percentage of original $1,000
investment (Notes 6 and 7) 8.78% 8.75%
Total cumulative cash distributions
per $1,000 investment from inception 277 322
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) 100% 100%
</TABLE>
C-14
<PAGE>
TABLE III
Operating Results of Prior Programs CNL
INCOME FUND XII, LTD.
<TABLE>
<CAPTION>
1991
(Note 1) 1992 1993 1994
------------ ------------ ------------ --------
<S> <C>
Gross revenue $ 0 $ 25,133 $ 3,374,640 $ 4,397,881
Equity in earnings of joint ventures 0 46 49,604 85,252
Profit (Loss) from sale of properties 0 0 0 0
Interest income (Note 7) 0 45,228 190,082 65,447
Less: Operating expenses 0 (7,211) (193,804) (192,951)
Interest expense 0 0 0 0
Depreciation and amortization 0 (3,997) (286,293) (327,795)
------------ ------------ ------------ ------------
Net income - GAAP basis 0 59,199 3,134,229 4,027,834
============ ============ ============ ============
Taxable income
- from operations 0 58,543 2,749,072 3,301,005
============ ============ ============ ============
- from gain (loss) on sale 0 0 0 0
============ ============ ============ ============
Cash generated from operations
(Notes 2 and 5) 0 61,370 3,246,760 3,848,962
Cash generated from sales (Note 7) 0 0 0 0
Cash generated from refinancing 0 0 0 0
------------ ------------ ------------ ------------
Cash generated from operations, sales
and refinancing 0 61,370 3,246,760 3,848,962
Less: Cash distributions to investors
(Note 6)
- from operating cash flow 0 (61,370) (1,972,769) (3,768,754)
- from sale of properties 0 0 0 0
- from return of capital (Note 4) 0 (60,867) 0 0
- from cash flow from prior period 0 0 0 0
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions 0 (60,867) 1,273,991 80,208
Special items (not including sales and
refinancing):
Limited partners' capital
contributions 0 21,543,270 23,456,730 0
General partners' capital
contributions 1,000 0 0 0
Organization costs 0 (10,000) 0 0
Syndication costs 0 (2,066,937) (2,277,637) 0
Acquisition of land and buildings 0 (7,536,009) (15,472,737) (230)
Investment in direct financing
leases 0 (2,503,050) (11,875,100) (591)
Loan to tenant of joint venture,
net of repayments 0 0 (207,189) 6,400
Investment in joint ventures 0 (372,045) (468,771) (4,400)
Increase in restricted cash 0 0 0 0
Reimbursement of syndication and
acquisition costs paid on behalf
of CNL Income Fund XII, Ltd. by
related parties 0 (704,923) (432,749) 0
Increase in other assets 0 (654,497) 0 0
Other 0 0 0 973
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions and special items 1,000 7,634,942 (6,003,462) 82,360
============ ============ ============ ============
TAX AND DISTRIBUTION DATA PER
$1,000 INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 0 5 64 73
============ ============ ============ ============
- from recapture 0 0 0 0
============ ============ ============ ============
Capital gain (loss) 0 0 0 0
============ ============ ============ ============
</TABLE>
C-15
<PAGE>
<TABLE>
<CAPTION>
6 Months
1995 1996
------------ --------
<S> <C>
Gross revenue $ 4,404,792 $ 2,171,212
Equity in earnings of joint ventures 81,582 55,297
Profit (Loss) from sale of properties 0 (15,355)
Interest income (Note 7) 84,197 49,199
Less: Operating expenses (228,404) (150,511)
Interest expense 0 0
Depreciation and amortization (327,795) (156,420)
------------ -------------
Net income - GAAP basis 4,014,372 1,953,422
============ =============
Taxable income
- from operations 3,262,046 1,591,118
============ =============
- from gain (loss) on sale 0 (66,395)
============ =============
Cash generated from operations
(Notes 2 and 5) 3,819,362 1,930,975
Cash generated from sales (Note 7) 0 1,640,000
Cash generated from refinancing 0 0
----------- -----------
Cash generated from operations, sales
and refinancing 3,819,362 3,570,975
Less: Cash distributions to investors
(Note 6)
- from operating cash flow (3,819,362) (1,930,975)
- from sale of properties 0 0
- from return of capital (Note 4) 0 0
- from cash flow from prior period (5,645) (26,529)
------------ ------------
Cash generated (deficiency) after cash
distributions (5,645) 1,613,471
Special items (not including sales and
refinancing):
Limited partners' capital
contributions 0 0
General partners' capital
contributions 0 0
Organization costs 0 0
Syndication costs 0 0
Acquisition of land and buildings 0 0
Investment in direct financing
leases 0 0
Loan to tenant of joint venture,
net of repayments 7,008 3,774
Investment in joint ventures 0 (1,655,928)
Increase in restricted cash 0 0
Reimbursement of syndication and
acquisition costs paid on behalf
of CNL Income Fund XII, Ltd. by
related parties 0 0
Increase in other assets 0 0
Other 0 0
------------ ------------
Cash generated (deficiency) after cash
distributions and special items 1,363 (38,683)
============ =============
TAX AND DISTRIBUTION DATA PER
$1,000 INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 72 35
============ ============
- from recapture 0 0
============ ============
Capital gain (loss) 0 (1)
============ ============
</TABLE>
C-16
<PAGE>
TABLE III - CNL INCOME FUND XII, LTD. (continued)
<TABLE>
<CAPTION>
1991
(Note 1) 1992 1993 1994
------------ ------------ ------------ --------
<S> <C>
Cash distributions to investors
Source (on GAAP basis)
- from investment income 0 5 46 84
- from capital gain 0 0 0 0
- from investment income from
prior period 0 0 0 0
- from return of capital (Note 3) 0 7 0 0
------------ ------------ ------------ ------------
Total distributions on GAAP basis
(Note 6) 0 12 46 84
============ ============ ============ ============
Source (on cash basis)
- from sales 0 0 0 0
- from refinancing 0 0 0 0
- from operations 0 6 46 84
- from return of capital (Note 4) 0 6 0 0
- from cash flow from prior period 0 0 0 0
------------ ------------ ------------ ------------
Total distributions on cash basis
(Note 6) 0 12 46 84
============ ============ ============ ============
Total cash distributions as a
percentage of original $1,000
investment (Notes 8 and 9) 0.00% 5.00% 6.75% 8.50%
Total cumulative cash distributions
per $1,000 investment from inception 0 12 58 142
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 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 XII, Ltd. ("CNL XII") and CNL
Income Fund XI, Ltd. each registered for sale $40,000,000 units of
limited partnership interests ("Units"). The offering of Units of CNL
Income Fund XI, Ltd. commenced March 12, 1992. Pursuant to the
registration statement, CNL XII could not commence until the offering
of Units of CNL Income Fund XI, Ltd. was terminated. CNL Income Fund
XI, Ltd. terminated its offering of Units on September 28, 1992, 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 XI, Ltd., CNL XII commenced its offering of Units. Activities
through October 8, 1992, 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 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 CNL Income Fund
XII, Ltd. has not treated this amount as a return of capital for any
other purpose.
Note 4: CNL Income Fund XII, Ltd. makes its distributions in the current period
rather than in arrears based on estimated operating results. In cases
where distributions exceed cash from operations in the current period,
once finally determined, subsequent distributions are lowered
accordingly in order to avoid any return of capital. This amount is not
required to be presented as a return of capital except for purposes of
this table, and CNL Income Fund XII, Ltd. has not treated this amount as
a return of capital for any other purpose.
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 CNL Income Fund XII, Ltd.
Note 6: 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 and 1995, are reflected in the 1994, 1995 and 1996 columns,
respectively, for distributions on a cash basis due to the payment of
such distributions in January 1994, 1995 and 1996, respectively. As a
result of 1994, 1995 and 1996 distributions being presented on a cash
basis, distributions declared and unpaid as of December 31, 1994 and
1995, and June 30, 1996 are not included in the 1994, 1995 and 1996
totals, respectively.
C-17
<PAGE>
<TABLE>
<CAPTION>
6 Months
1995 1996
------------ --------
<S> <C>
Cash distributions to investors
Source (on GAAP basis)
- from investment income 85 44
- from capital gain 0 0
- from investment income from
prior period 0 0
- from return of capital (Note 3) 0 0
------------ ------------
Total distributions on GAAP basis
(Note 6) 85 44
============ ============
Source (on cash basis)
- from sales 0 0
- from refinancing 0 0
- from operations 85 43
- from return of capital (Note 4) 0 0
- from cash flow from prior period 0 1
------------ ------------
Total distributions on cash basis
(Note 6) 85 44
============ ============
Total cash distributions as a
percentage of original $1,000
investment (Notes 8 and 9) 8.53% 8.50%
Total cumulative cash distributions
per $1,000 investment from inception 227 271
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) 100% 100%
</TABLE>
Note 7: In April 1996, CNL Income Fund XII, Ltd. sold one of its properties to
an unrelated third party for $1,640,000. As a result of this
transaction, CNL Income Fund XII, Ltd. recognized a loss of $15,355 for
financial reporting purposes primarily due to acquisition fees and
miscellaneous acquisition expenses CNL Income Fund XII, Ltd. had
allocated to this property. In May 1996, CNL Income Fund XII, Ltd.
reinvested the proceeds from this sale, along with additional funds,
for a total of $1,655,928 in Middleburg Joint Venture.
Note 8: On December 31, 1995, CNL Income Fund XII, Ltd. declared a special
distribution of cumulative excess operating reserves equal to .10% of
the total invested capital. Accordingly, the total yield for 1995 was
8.53%.
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 6 above)
Note 10: Certain data for columns representing less than 12 months have been
annualized.
C-18
<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
(Note 4) 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 (Note 4) 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 5)
- 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)
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
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) (Note 4) 0 0 0 0
============ ============ ============ ============
</TABLE>
C-19
<PAGE>
6 Months
1996
--------------
Gross revenue $ 1,773,791
Equity in earnings of joint ventures 52,525
Profit (Loss) from sale of properties
(Note 4) 0
Interest income 18,430
Less: Operating expenses (173,194)
Interest expense 0
Depreciation and amortization (196,717)
--------------
Net income - GAAP basis 1,474,835
==============
Taxable income
- from operations 1,427,419
==============
- from gain (loss) on sale 0
==============
Cash generated from operations
(Notes 2 and 3) 1,647,653
Cash generated from sales (Note 4) 0
Cash generated from refinancing 0
--------------
Cash generated from operations, sales
and refinancing 1,647,653
Less: Cash distributions to investors
(Note 5)
- from operating cash flow (1,647,653)
- from sale of properties 0
- from cash flow from prior period (52,351)
-------------
Cash generated (deficiency) after
cash distributions (52,351)
Special items (not including sales
and refinancing):
Limited partners' capital
contributions 0
General partners' capital
contributions 0
Syndication costs 0
Acquisition of land and buildings 0
Investment in direct financing leases 0
Investment in joint ventures 0
Reimbursement of organization,
syndication and acquisition costs
paid on behalf of CNL Income Fund
XIII, Ltd. by related parties 0
Increase in other assets 0
Other 0
----------
Cash generated (deficiency) after cash
distributions and special items (52,351)
----------
TAX AND DISTRIBUTION DATA PER
$1,000 INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 35
==========
- from recapture 0
==========
Capital gain (loss) (Note 4) 0
==========
C-20
<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
------------ ------------ ------------ ------------
Total distributions on GAAP basis (Note 5) 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 5) 0 18 70 84
============ ============ ============ ============
Total cash distributions as a percentage
of original $1,000 investment (Note 6) 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) 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: 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 and 1995, are reflected in the 1994, 1995 and 1996 columns,
respectively, for distributions on a cash basis due to the payment of
such distributions in January 1994, 1995 and 1996, respectively. As a
result of 1994, 1995 and 1996 distributions being presented on a cash
basis, distributions declared and unpaid as of December 31, 1994 and
1995, and June 30, 1996, are not included in the 1994, 1995 and 1996
totals, respectively.
Note 6: 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 7: Certain data for columns representing less than 12 months have been
annualized.
C-21
<PAGE>
6 Months
1996
--------------
[S] [C]
Cash distributions to investors
Source (on GAAP basis)
- from investment income 37
- from capital gain 0
- from investment income from prior
period 6
----------
Total distributions on GAAP basis (Note 5) 43
==========
Source (on cash basis)
- from sales 0
- from refinancing 0
- from operations 41
- from cash flow from prior period 2
----------
Total distributions on cash basis (Note 5) 43
===========
Total cash distributions as a percentage
of original $1,000 investment (Note 6) 8.50%
Total cumulative cash distributions per
$1,000 investment from inception 215
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) 100%
C-22
<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
(Note 4) 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 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 (Note 4) 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
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) (Note 4) 0 0 0 0
============ ============ ============ ============
</TABLE>
C-23
<PAGE>
6 Months
1996
--------
Gross revenue $ 1,987,463
Equity in earnings of joint ventures 177,099
Profit (Loss) from sale of properties
(Note 4) 0
Interest income 21,659
Less: Operating expenses (138,978)
Interest expense 0
Depreciation and amortization (170,044)
--------------
Net income - GAAP basis 1,877,199
===============
Taxable income
- from operations 1,570,651
============
- from gain on sale 0
============
Cash generated from operations
(Notes 2 and 3) 1,799,902
Cash generated from sales (Note 4) 0
Cash generated from refinancing 0
------------
Cash generated from operations, sales
and refinancing 1,799,902
Less: Cash distributions to investors
(Note 5)
- from operating cash flow (1,799,902)
- from sale of properties 0
- from cash flow from prior period (56,358)
-------------
Cash generated (deficiency) after cash
distributions (56,358)
Special items (not including sales and
refinancing):
Limited partners' capital
contributions 0
General partners' capital
contributions 0
Syndication costs 0
Acquisition of land and buildings 0
Investment in direct financing leases 0
Investment in joint ventures 0
Return of capital from joint venture 0
Reimbursement of organization,
syndication and acquisition costs
paid on behalf of CNL Income Fund
XIV, Ltd. by related parties 0
Increase in other assets 0
Other 0
---------
Cash generated (deficiency) after cash
distributions and special items (56,358)
==========
TAX AND DISTRIBUTION DATA PER
$1,000 INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 35
==========
- from recapture 0
==========
Capital gain (loss) (Note 4) 0
==========
C-24
<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
------------ ------------ ------------ ------------
Total distributions on GAAP basis (Note 5) 0 1 51 79
============ ============ ============ ============
Source (on cash basis)
- from sales 0 0 0 0
- from refinancing 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 6) 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
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 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.
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 and 1995, are reflected in the 1994, 1995 and 1996 columns,
respectively, for distributions on a cash basis due to the payment of
such distributions in January 1994, 1995 and 1996, respectively. As a
result of 1994, 1995 and 1996 distributions being presented on a cash
basis, distributions declared and unpaid as of December 31, 1994 and
1995, and June 30, 1996 are not included in the 1994, 1995 and 1996
totals, respectively.
Note 6: 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 7: Certain data for columns representing less than 12 months have been
annualized.
C-25
<PAGE>
6 Months
1996
------------
Cash distributions to investors
Source (on GAAP basis)
- from investment income 41
- from capital gain 0
- from return of capital 0
--------------
Total distributions on GAAP basis (Note 5) 41
==============
Source (on cash basis)
- from sales 0
- from refinancing 0
- from operations 40
- from cash flow from prior period 1
==============
Total distributions on cash basis (Note 5) 41
==============
Total cash distributions as a percentage
of original $1,000 investment (Note 6) 8.25%
Total cumulative cash distributions
per $1,000 investment from inception 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) 100%
C-26
<PAGE>
TABLE III
Operating Results of Prior Programs CNL
INCOME FUND XV, LTD.
<TABLE>
<CAPTION>
1993 6 Months
(Note 1) 1994 1995 1996
------------ ------------ ------------ --------
<S> <C>
Gross revenue $ 0 $ 1,143,586 $ 3,546,320 $ 1,799,609
Equity in earnings of joint venture 0 8,372 280,606 144,539
Profit (Loss) from sale of properties
(Note 4) 0 0 (71,023) 0
Interest income 0 167,734 88,059 21,155
Less: Operating expenses 0 (62,926) (228,319) (138,719)
Interest expense 0 0 0 0
Depreciation and amortization 0 (70,848) (243,175) (124,093)
------------ ------------ ------------ ------------
Net income - GAAP basis 0 1,185,918 3,372,468 1,702,491
============ ============ ============ ============
Taxable income
- from operations 0 1,026,715 2,861,912 1,399,634
============ ============ ============ ============
- from gain on sale 0 0 0 0
============ ============ ============ ============
Cash generated from operations
(Notes 2 and 3) 0 1,116,834 3,239,370 1,687,927
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 1,687,927
Less: Cash distributions to investors
(Note 5)
- from operating cash flow 0 (635,944) (2,650,003) (1,600,000)
- from sale of properties 0 0 0 0
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions 0 480,890 1,401,073 87,927
Special items (not including sales and
refinancing):
Limited partners' capital contra-
bunions 0 40,000,000 0 0
General partners' capital contra-
bunions 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 venture 0 (1,564,762) (720,552) (145,526)
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) (57,599)
============ ============ ============ ============
TAX AND DISTRIBUTION DATA PER $1,000
INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 0 33 71 35
============ ============ ============ ============
- from recapture 0 0 0 0
============ ============ ============ ============
Capital gain (loss) (Note 4) 0 0 0 0
============ ============ ============ ============
</TABLE>
C-27
<PAGE>
TABLE III - CNL INCOME FUND XV, LTD. (continued)
<TABLE>
<CAPTION>
1993 6 Months
(Note 1) 1994 1995 1996
------------ ------------ ------------ --------
<S> <C>
Cash distributions to investors
Source (on GAAP basis)
- from investment income 0 21 66 40
- from capital gain 0 0 0 0
------------ ------------ ------------ ------------
Total distributions on GAAP basis (Note 5) 0 21 66 40
============ ============ ============ ============
Source (on cash basis)
- from sales 0 0 0 0
- from refinancing 0 0 0 0
- from operations 0 21 66 40
------------ ------------ ------------ ------------
Total distributions on cash basis (Note 5) 0 21 66 40
============ ============ ============ ============
Total cash distributions as a percentage
of original $1,000 investment (Note 6) 0.00% 5.00% 7.25% 8.00%
Total cumulative cash distributions per
$1,000 investment from inception 0 21 87 127
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 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.
Note 5: Distributions declared for the quarters ended December 31, 1994 and 1995
are reflected in the 1995 and 1996 columns, respectively, due to the
payment of such distributions in January 1995 and 1996, respectively. As
a result of distributions being presented on a cash basis, distributions
declared and unpaid as of December 31, 1994 and 1995, and June 30, 1996
are not included in the 1994, 1995 and 1996 totals, respectively.
Note 6: 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 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 XVI, LTD.
<TABLE>
<CAPTION>
1993 6 Months
(Note 1) 1994 1995 1996
------------ ------------ ------------ --------
<S> <C>
Gross revenue $ 0 $ 186,257 $ 2,702,504 $ 2,143,589
Profit from sale of properties (Note 5) 0 0 0 124,305
Interest income 0 21,478 321,137 43,562
Less: Operating expenses 0 (10,700) (274,595) (148,823)
Interest expense 0 0 0 0
Depreciation and amortization 0 (9,458) (318,205) (270,831)
------------ ------------ ------------ ------------
Net income - GAAP basis 0 187,577 2,430,841 1,891,802
============ ============ ============ ============
Taxable income
- from operations 0 189,864 2,139,382 1,550,241
============ ============ ============ ============
- from gain on sale (Note 5) 0 0 0 0
============ ============ ============ ============
Cash generated from operations
(Notes 2 and 3) 0 205,148 2,481,395 1,861,696
Cash generated from sales (Note 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 2,636,696
Less: Cash distributions to investors
(Note 4)
- from operating cash flow 0 (2,845) (1,798,921) (1,631,251)
- from sale of properties 0 0 0 0
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions 0 202,303 682,474 1,005,445
Special items (not including sales and
refinancing):
Limited partners' capital contra-
bunions 0 20,174,172 24,825,828 0
General partners' capital contra-
bunions 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) (2,392,562)
Investment in direct financing
leases 0 (975,853) (5,595,236) (382,372)
Increase in restricted cash 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) 0
Collection of overpayment of acquit-
cyton and syndication costs paid
by related parties on behalf of the
partnership 0 0 0 1,204
Increase in other assets 0 (443,625) (58,720) 0
Other (36) (20,714) 20,714 0
------------ ------------ ------------ ------------
Cash generated (deficiency) after cash
distributions and special items 964 2,982,532 1,004,290 (2,543,285)
============ ============ ============ ============
TAX AND DISTRIBUTION DATA PER $1,000
INVESTED
Federal income tax results:
Ordinary income (loss)
- from operations 0 17 53 34
============ ============ ============ ============
- from recapture 0 0 0 0
============ ============ ============ ============
Capital gain (loss) (Note 5) 0 0 0 0
============ ============ ============ ============
</TABLE>
C-29
<PAGE>
TABLE III - CNL INCOME FUND XVI, LTD. (continued)
<TABLE>
<CAPTION>
1993 6 Months
(Note 1) 1994 1995 1996
------------ ------------ ------------ --------
<S> <C>
Cash distributions to investors
Source (on GAAP basis)
- from investment income 0 1 45 33
- from capital gain 0 0 0 3
- from investment income from
prior period 0 0 0 0
------------ ------------ ------------ ------------
Total distributions on GAAP basis (Note 4) 0 1 45 36
============ ============ ============ ============
Source (on cash basis)
- from sales 0 0 0 0
- from refinancing 0 0 0 0
- from operations 0 1 45 36
------------ ------------ ------------ ------------
Total distributions on cash basis (Note 4) 0 1 45 36
============ ============ ============ ============
Total cash distributions as a percentage
of original $1,000 investment (Note 6) 0.00% 4.50% 6.00% 8.00%
Total cumulative cash distributions per
$1,000 investment from inception 0 1 46 82
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 5) N/A 100% 100% 98%
</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: Distributions declared for the quarters ended December 31, 1994 and 1995
are reflected in the 1995 and 1996 columns, respectively, due to the
payment of such distributions in January 1995 and 1996, respectively. As
a result of distributions being presented on a cash basis, distributions
declared and unpaid as of December 31, 1994 and 1995, and June 30, 1996
are not included in the 1994, 1995 and 1996 totals, respectively.
Note 5: In April 1996, CNL Income Fund XVI, Ltd. sold one of its properties for
$775,000, resulting in a gain for financial reporting purposes of
$124,305. As of June 30, 1996, the net sales proceeds of $775,000, plus
accrued interest of $3,526, were being held in an interest-bearing
escrow account. The general partners believe that the sale of this
property will qualify as a like-kind exchange transaction in accordance
with Section 1031 of the Internal Revenue Code. As a result, no gain or
loss was recognized for federal income tax purposes. The remaining net
sales proceeds are expected to be invested in an additional property or
used for other Partnership purposes.
Note 6: 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 7: 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 02/05/87 06/12/92 $1,169,021 0 0 0 1,169,021
Wendy's -
Fairfield, CA 07/01/87 10/03/94 1,018,490 0 0 0 1,018,490
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 11/18/87 11/30/94 626,582 0 0 0 626,582
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
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
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
</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 0 $955,000 $955,000 $214,021
Wendy's -
Fairfield, CA 0 861,500 861,500 156,990
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 0 743,000 743,000 (116,418)
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
CNL Income Fund V, Ltd.:
Perkins -
Myrtle Beach, SC (2) 0 986,418 986,418 53,582
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
</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>
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
Church's Fried Chicken -
Jacksonville, FL (4) 04/30/90 12/01/95 0 0 240,000 0 240,000
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) 09/28/90 12/01/95 0 0 240,000 0 240,000
Church's Fried Chicken -
Jacksonville, FL (5) 09/28/90 12/01/95 0 0 220,000 0 220,000
CNL Income Fund X, Ltd.:
Shoney's -
Denver, CO 03/04/92 08/11/95 1,050,186 0 0 0 1,050,186
CNL Income Fund XII, Ltd.:
Golden Corral -
Houston, TX 12/28/92 04/10/96 1,640,000 0 0 0 1,640,000
CNL Income Fund XIII, Ltd.:
Checkers -
Houston, TX 03/31/94 04/24/95 286,411 0 0 0 286,411
</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 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
Church's Fried Chicken -
Jacksonville, FL (4) 0 233,728 233,728 6,272
CNL Income Fund VIII, Ltd.:
Denny's -
Ocoee, FL 0 949,199 949,199 235,666
Church's Fried Chicken -
Jacksonville, FL (4) 0 238,153 238,153 1,847
Church's Fried Chicken -
Jacksonville, FL (5) 0 215,845 215,845 4,155
CNL Income Fund X, Ltd.:
Shoney's -
Denver, CO 0 987,679 987,679 62,507
CNL Income Fund XII, Ltd.:
Golden Corral -
Houston, TX 0 1,636,643 1,636,643 3,357
CNL Income Fund XIII, Ltd.:
Checkers -
Houston, TX 0 286,411 286,411 0
</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>
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
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
CNL Income Fund XVI, Ltd.:
Long John Silver's -
Appleton, WI 06/24/95 04/24/96 775,000 0 0 0 775,000
</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>
CNL Income Fund XIV, Ltd.:
Checkers -
Knoxville, TN 0 339,031 339,031 0
Checkers -
Dallas, TX 0 356,981 356,981 0
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
CNL Income Fund XVI, Ltd.:
Long John Silver's -
Appleton, WI 0 613,838 613,838 161,162
</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.
C-33
Exhibit D
Subscription Agreement
<PAGE>
CNL AMERICAN PROPERTIES FUND, INC.
-------------------------------------------------------------------
Up to 27,500,000 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 Financial Advisor. 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, Suite 500 Post Office Box 1033
Orlando, Florida 32801 Orlando, Florida 32802-1033
For Telephone Inquiries:
CNL SECURITIES CORP.
(407) 422-1574 OR (800) 522-3863
<PAGE>
CNL AMERICAN PROPERTIES FUND, 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).
<TABLE>
<S> <C>
|_| ADDITIONAL PURCHASE |_| REINVESTMENT PLAN - Investor elects to participate in Plan (See prospectus for details.)
</TABLE>
2. SUBSCRIBER INFORMATION
Name (1st)___________________________ Date of Birth (MM/DD/YY) _______________
Name (2nd)___________________________ 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 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. Daytime 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 (3)
|_| TENANTS BY THE ENTIRETY-two
signatures required (31)
|_|CORPORATIONS
|_| S-Corporation (22)
|_| C-Corporation (5)
|_| IRA-custodian signature required (23)
|_| SEP-custodian signature required (38)
|_| TAXABLE TRUST (7)
|_| TAX-EXEMPT TRUST (28)
|_| IRREVOCABLE TRUST-trustee signature required (21)
|_| 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)
|_| 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 Properties 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 X
---------------------------- ------ ---------------------------- ----------
Signature of 1st Subscriber Date Signature of 2nd Subscriber Date
7. BROKER/DEALER INFORMATION
Broker/Dealer NASD Firm Name
--------------------------------------------------
Financial Advisor
------------------------------------------------------------
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 (check here): If an owner or principal or any
member of the RIA firm is an 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
<TABLE>
<S> <C>
X
------------------------------------------------------------ ----------------------- -------------------------------------
Principal, Branch Manager or Other Authorized Signature Date Print or Type Name of Person Signing
X
------------------------------------------------------------ ----------------------- -------------------------------------
Registered Representative/Investment Advisor Signature Date Print or Type Name of Person Signing
</TABLE>
<TABLE>
<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.
Attn: Investor Services Attn: Investor Services
P. O. Box 1033 400 E. South Street, Suite 500
Orlando, FL 32802-1033 Orlando, FL 32801
(800) 522-3863 (407) 422-1574
(800) 522-3863
Sub. #
-----------------
Admit Date
-------------
Amount
-----------------
Region
-----------------
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
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 Rules of Fair
Practice, and hereby further certify as follows: (i) a copy of the Prospectus,
including the Subscription Agreement attached thereto as Exhibit C, 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>
<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 individual(s) shall be my Beneficiary(ies):
Beneficiary(ies)
Name______________________________________________________________ Social Security #___________________
Address___________________________________________________________ Date of Birth__________ Share______
__________________________________________________________________ Relationship________________________
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).
</TABLE>
- ------------------------------------------------- ---------------
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 #___________________________________________________________________
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 30. Other Expenses of Issuance and Distribution.
Amount
SEC registration fee............................ $83,334
NASD filing fee................................. 28,000
Accounting fees and expenses.................... *
Escrow Agent's Fees............................. *
Sales and advertising
expenses.................................... *
Legal fees and expenses......................... *
Blue Sky fees and expenses...................... *
Printing expenses............................... *
Miscellaneous................................... *
Total............................... *
- ----------------------
*To be supplied by amendment.
Item 31. Sales to Special Parties.
The registrant was capitalized through the purchase by the Advisor
of 20,000 Shares for aggregate consideration of $200,000.
Item 32. Recent Sales of Unregistered Securities.
See response to Item 31. The offer and sale of the shares is
claimed to be exempt from the registration provisions of the Securities Act of
1933, as amended, by virtue of Section 4(2) thereunder.
Item 33. Indemnification of Directors and Officers.
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
II-1
<PAGE>
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.
Any indemnification may be paid only out of Net Assets of the
Company, and no portion may be recoverable from the stockholders.
The Company will enter 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
incurred by officers and Directors seeking to enforce their rights under the
indemnification agreements.
Item 34. Treatment of Proceeds from Securities Being Registered.
Not applicable.
Item 35. Financial Statements and Exhibits.
(a) Financial Statements:
The following financial statements are included in the Prospectus.
(1) Pro Forma Consolidated Balance Sheet as of June 30, 1996
(2) Pro Forma Consolidated Statement of Earnings for the six
months ended June 30, 1996
(3) Pro Forma Consolidated Statement of Earnings for the year
ended December 31, 1995
II-2
<PAGE>
(4) Notes to Pro Forma Consolidated Financial Statements for
the six months ended June 30, 1996 and the year ended
December 31, 1995
(5) Condensed Consolidated Balance Sheets as of June 30, 1996
and December 31, 1995
(6) Condensed Consolidated Statements of Earnings for the six
months ended June 30, 1996 and 1995
(7) Condensed Consolidated Statements of Stockholders' Equity
for the six months ended June 30, 1996 and the year ended
December 31, 1995
(8) Condensed Consolidated Statements of Cash Flows for the
six months ended June 30, 1996 and 1995
(9) Notes to Condensed Consolidated Financial Statements for
the six months ended June 30, 1996 and 1995
(10) Report of Independent Accountants
(11) Consolidated Balance Sheets as of December 31, 1995 and
1994
(12) Consolidated Statements of Earnings for the year ended
December 31, 1995 and the period May 2, 1994 (date of
inception) through December 31, 1994
(13) Consolidated Statements of Stockholders' Equity for the
year ended December 31, 1995 and the period May 2, 1994
(date of inception) through December 31, 1994
(14) Consolidated Statements of Cash Flows for the year ended
December 31, 1995 and the period May 2, 1994 (date of
inception) through December 31, 1994
(15) Notes to Consolidated Financial Statements for the year
ended December 31, 1995 and the period May 2, 1994 (date
of inception) through December 31, 1994
(16) Schedule III - Real Estate and Accumulated Depreciation
as of December 31, 1995
(17) Notes to Schedule III - Real Estate and Accumulated
Depreciation as of December 31, 1995
(b) Exhibits:
1.1 Form of Managing Dealer Agreement (Filed herewith.)
1.2 Form of Participating Broker Agreement (Filed herewith.)
3.1 CNL American Properties Fund, Inc. Amended and Restated
Articles of Incorporation (Previously filed as Exhibit 3.4
to the Registrant's Registration Statement on Form S-11
(Registration No. 33-78790) (the "1995 Form S-11") and
incorporated herein by reference.)
II-3
<PAGE>
3.2 CNL American Properties Fund, Inc. Bylaws (Previously
filed as Exhibit 3.5 to the 1995 Form S-11 and
incorporated herein by reference.)
4.1 CNL American Properties Fund, Inc. Amended and Restated
Articles of Incorporation (Previously filed as Exhibit 3.4
to the 1995 Form S-11 and incorporated herein by
reference.)
4.2 CNL American Properties Fund, Inc. Bylaws (Previously
filed as Exhibit 3.5 to the 1995 Form S-11 and
incorporated herein by reference.)
4.3 Form of Amended Reinvestment Plan (Included in the
Prospectus as Exhibit A and incorporated herein by
reference.)
4.4 Form of Stock Certificate (Previously filed as Exhibit 4.5
to the 1995 Form S-11 and incorporated herein by
reference.)
*5.1 Opinion of Shaw, Pittman, Potts & Trowbridge as to the
legality of the securities being registered by CNL
American Properties Fund, Inc.
*8.1 Opinion of Shaw, Pittman, Potts & Trowbridge regarding
certain material tax issues relating to CNL American
Properties Fund, Inc.
10.1 Form of Escrow Agreement between CNL American Properties
Fund, Inc. and SouthTrust Asset Management Company of
Florida, N.A. (Filed herewith.)
10.2 Advisory Agreement (Previously filed as Exhibit 10.2 to
the 1995 Form S-11 and incorporated herein by reference.)
10.3 Form of Joint Venture Agreement (Filed herewith.)
10.4 Form of Indemnification and Put Agreement (Filed
herewith.)
10.5 Form of Unconditional Guaranty of Payment and Performance
(Filed herewith.)
10.6 Form of Purchase Agreement (Filed herewith.)
10.7 Form of Lease Agreement including Rent Addendum,
Construction Addendum and Memorandum of Lease (Filed
herewith.)
10.8 Form of Reinvestment Plan (Included in the Prospectus as
Exhibit A and incorporated herein by reference.)
10.9 Form of Indemnification Agreement dated as of April 18,
1995 by and among CNL American Properties Fund, Inc. and
each of James M. Seneff, Jr., Robert A. Bourne, G. Richard
Hostetter, J. Joseph Kruse, Richard C. Huseman, John T.
Walker, Jeanne A. Wall, Lynn E. Rose and Edgar J.
McDougall.
23.1 Consent of Coopers & Lybrand L.L.P., Certified Public
Accountants, dated October 31, 1996 (Filed herewith.)
*23.2 Consent of Shaw, Pittman, Potts & Trowbridge (To be
contained in its opinion filed as Exhibit 5.1 and
incorporated herein by reference.)
- ------------------------------------
* To be filed by amendment.
II-4
<PAGE>
Item 36. Undertakings.
The registrant undertakes (a) to file any prospectus required by
Section 10(a)(3) as post-effective amendments to this registration statement,
(b) during any period in which offers or sales are being made, to file a
post-effective amendment to this registration statement (i) to reflect in the
prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement, and (ii) to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement, (c) that, for the purpose of
determining any liability under the Securities Act of 1933, as amended, each
such post-effective amendment may be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof, (d)
that all post-effective amendments will comply with the applicable forms, rules
and regulations of the Commission in effect at the time such post-effective
amendments are filed, and (e) to remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
The registrant undertakes to send to each stockholder, at least on
an annual basis, a detailed statement of any transactions with the Advisor or
its Affiliates, and of fees, commissions, compensation, and other benefits paid
or accrued to the Advisor or its Affiliates, for the fiscal year completed,
showing the amount paid or accrued to each recipient and the services performed.
The registrant undertakes to provide to the stockholders the
financial statements required by Form 10-K for the first full fiscal year of
operations.
The registrant undertakes to file a sticker supplement pursuant to
Rule 424(b)(3) under the Act during the distribution period describing each
property not identified in the Prospectus at such time as there arises a
reasonable probability that such property will be acquired and to consolidate
all such stickers into a post-effective amendment filed at least once every
three months, with the information contained in such amendment provided
simultaneously to the existing stockholders. Each sticker supplement will
disclose all compensation and fees received by the Advisor and its Affiliates in
connection with any such acquisition. The post-effective amendment will include
audited financial statements meeting the requirements of Rule 3-14 of
Registration S-X only for properties acquired during the distribution period.
The registrant also undertakes to file, after the end of the
distribution period, a current report on Form 8-K containing the financial
statements and any additional information required by Rule 3-14 of Regulation
S-X, to reflect each commitment (i.e., the signing of a binding purchase
agreement) made after the end of the distribution period involving the use of
10% or more (on a cumulative basis) of the net proceeds of the offering and to
provide the information contained in such report to the stockholders at least
once each quarter after the distribution period of the offering has ended.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers, and
controlling persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any such action, suit, or
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being
II-5
<PAGE>
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned registrant hereby undertakes that (a) for purposes
of determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement as of the time it was
declared effective, and (b) for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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 sponsored by
Affiliates of the Company in the ten years ended June 30, 1996. 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.
II-7
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,DC,FL,GA,
AL,AZ,CO,FL, AZ,CA,FL,GA, IL,IN,KS,MA,
AL,AZ,CA,FL, GA,IL,IN,LA, IA,IL,IN,KS, MD,MI,MS,NC,
GA,LA,MD,OK, MI,MN,MO,NC, KY,MD,MI,MN, OH,PA,TN,TX,
Locations TX,VA NM,OH,TX,WY MO,NE,OK,TX VA
Type of property Restaurants Restaurants Restaurants Restaurants
Gross leasable space
(sq. ft.) or number
of units and 20 units 43 units 32 units 43 units
total square feet
of units 67,645 s/f 149,829 s/f 131,992 s/f 156,317 s/f
Dates of purchase 6/17/86 - 2/11/87- 10/04/87- 6/24/88-
12/17/87 12/08/94 6/30/88 1/24/96
Cash down payment (Note 1) $12,296,264 $23,182,624 $19,637,008 $26,594,469
Contract purchase price
plus acquisition fee $12,222,062 $23,022,783 $19,512,548 $26,479,912
Other cash expenditures
expensed - - - -
Other cash expenditures
capitalized 74,202 159,841 124,460 114,557
Total acquisition cost
(Note 1) $12,296,264 $23,182,624 $19,637,008 $26,594,469
</TABLE>
Note 1: This amount was derived from capital contributions from partners 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.
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% interest in one restaurant
property held as tenants-in-common with an affiliate.
Note 4: The partnership owns a 73.4% and 69.07% interest in two separate joint
ventures. Each joint venture owns one restaurant property.
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,IN,
FL,GA,IL,IN, MA,MI,MN,NC, AZ,CO,FL,GA,
MI,NH,NY,OH, NE,NM,NY,OH, IN,LA,MI,MN, AZ,FL,IN,LA,
SC,TN,TX,UT, OK,PA,TN,TX, OH,SC,TN,TX, MI,MN,NC,NY,
Locations WA VA,WY UT,WA OH,TN,TX,VA
Type of property Restaurants Restaurants Restaurants Restaurants
Gross leasable space
(sq. ft.) or number
of units and 30 units 46 units 45 units 40 units
total square feet
of units 117,652 s/f 173,841 s/f 160,939 s/f 179,705 s/f
Dates of purchase 2/06/89- 7/13/89- 3/30/90- 9/13/90-
1/05/90 1/24/96 7/29/94 5/31/96
Cash down payment (Note 1) $22,113,522 $32,679,181 $27,310,125 $31,985,071
Contract purchase price
plus acquisition fee $21,706,859 $32,146,520 $26,638,040 $31,450,507
Other cash expenditures
expensed - - - -
Other cash expenditures
capitalized 406,663 532,661 672,085 534,564
Total acquisition cost
(Note 1) $22,113,522 $32,679,181 $27,310,125 $31,985,071
</TABLE>
Note 6: The partnership owns a 43%, 49% and 66.5% interest in three separate
joint ventures. Each joint venture owns one restaurant property.
Note 7: The partnership owns a 3.9%, 14.5%, 36% and a 66.14% interest in four
separate joint ventures. Each joint venture owns one restaurant
property. In addition, the partnership owns a 51.67% and a 17.93%
interest in two restaurant properties held separately as
tenants-in-common with affiliates.
Note 8: The partnership owns a 51%, 83.3%, 4.79% and a 18% 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. In addition, the partnership owns a 48.33% interest in one
restaurant property held as tenants-in-common with an affiliate.
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,CA,CO,FL, CT,FL,KS,LA,
AL,FL,GA,IL, ID,IL,LA,MI, MA,MI,MS,NC, AL,AZ,CA,FL,
IN,LA,MI,MN, MO,MT,NC,NH, NH,NM,OH,OK, GA,LA,MO,MS,
MS,NC,NH,NY, NM,NY,OH,PA, PA,SC,TX,VA, NC,NM,OH,SC,
Locations OH,SC,TN,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 41 units 49 units 39 units 49 units
total square feet
of units 177,469 s/f 203,466 s/f 168,418 s/f 206,865 s/f
Dates of purchase 5/31/91- 10/01/91- 5/18/92- 11/20/92-
10/01/92 1/24/96 10/16/92 5/31/96
Cash down payment (Note 1) $30,748,694 $36,036,814 $35,200,825 $40,840,795
Contract purchase price
plus acquisition fee $30,021,833 $35,320,865 $34,595,348 $40,339,796
Other cash expenditures
expensed - - - -
Other cash expenditures
capitalized 726,861 715,949 605,477 500,999
Total acquisition cost
(Note 1) $30,748,694 $36,036,814 $35,200,825 $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.
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%
interest in one restaurant property held 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.
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)
<S> <C>
AL,AR,AZ,CA, AL,AZ,CO,FL, CA,FL,GA,KS, AZ,CA,CO,DC,
CO,FL,GA,IN, GA,KS,LA,MO, KY,MO,MS,NC, FL,GA,ID,IN,
KS,LA,MD,NC, MS,NC,NJ,NV, NJ,NM,OH,OK, KS,MN,MO,NC,
OH,PA,SC,TN, OH,SC,TN,TX, PA,SC,TN,TX, NM,NV,OH,TN,
Locations TX,VA VA VA TX,UT,WI
Type of property Restaurants Restaurants Restaurants Restaurants
Gross leasable space
(sq. ft.) or number
of units and 48 units 56 units 48 units 43 units
total square feet
of units 156,156 s/f 161,913 s/f 143,473 s/f 166,793 s/f
Dates of purchase 5/18/93- 9/27/93- 4/28/94- 10/21/94-
4/24/95 3/16/95 1/24/96 3/15/96
Cash down payment (Note 1) $34,905,219 $39,943,098 $35,778,136 $39,421,376
Contract purchase price
plus acquisition fee $34,535,596 $39,515,928 $35,388,860 $39,030,014
Other cash expenditures
expensed - - - -
Other cash expenditures
capitalized 369,623 427,170 389,276 391,362
Total acquisition cost
(Note 1) $34,905,219 $39,943,098 $35,778,136 $39,421,376
</TABLE>
Note 14: The partnership owns a 50% and 28% interest in two separate joint
ventures. Each joint venture owns one restaurant property. In
addition, the Partnership owns a 66.13% interest in one restaurant
property held as tenants-in-common with an affiliate.
Note 15: The partnership owns a 50% interest in two separate joint ventures
and a 72% interest in one joint venture. Two of the joint
ventures each own one restaurant property and the other joint
venture owns two restaurant properties.
Note 16: The partnership owns a 50% interest in a joint venture which owns
two restaurant properties. In addition, the partnership owns a
15.02% interest in one restaurant property held as
tenants-in-common with affiliates.
<PAGE>
TABLE VI - ACQUISITIONS OF PROPERTIES BY PROGRAMS (continued)
CNL Income
Fund XVII,
Ltd.
CA,FL,IL,IN,
MI,NV,SC,TN,
Locations TX
Type of property Restaurants
Gross leasable space
(sq. ft.) or number
of units and 13 units
total square feet
of units 62,488 s/f
Dates of purchase 12/20/95 -
6/30/96
Cash down payment (Note 1) $12,616,047
Contract purchase price
plus acquisition fee $12,574,025
Other cash expenditures
expensed -
Other cash expenditures
capitalized 42,022
Total acquisition cost
(Note 1) $12,616,047
<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
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Orlando, State of Florida, on October 30, 1996.
CNL AMERICAN PROPERTIES FUND, INC.
(Registrant)
By: /s/ James M. Seneff, Jr.
----------------------------
James M. Seneff, Jr.
Chairman of the Board and Chief
Executive Officer
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints Robert A. Bourne and James M. Seneff, Jr. and each of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, with full power to act alone, to sign any and all
documents (including both pre- and post-effective amendments in connection with
the registration statement), and to file the same, with all exhibits thereto,
and all documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agent, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or either of them, or
their or his substitutes or substitute, may lawfully do or cause to be done by
virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
<S> <C>
/s/ James M. Seneff, Jr. Chairman of the Board and Chief October 30, 1996
- --------------------------- Executive Officer
James M. Seneff, Jr. (Principal Executive Officer)
/s/ Robert A. Bourne Director and President October 30, 1996
- --------------------------- (Principal Financial and
Robert A. Bourne Accounting Officer)
/s/ G. Richard Hostetter Director October 30, 1996
- --------------------------
G. Richard Hostetter
/s/ J. Joseph Kruse Director October 30, 1996
- --------------------------
J. Joseph Kruse
/s/ Richard C. Huseman Director October 30, 1996
- ---------------------------
Richard C. Huseman
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibits Page #
1.1 Form of Managing Dealer Agreement (Filed herewith.)
1.2 Form of Participating Broker Agreement (Filed herewith.)
3.1 CNL American Properties Fund, Inc. Amended and Restated Articles of
Incorporation (Previously filed as Exhibit 3.4 to the Registrant's
Registration Statement on Form S-11 (Registration No. 33-78790) (the
"1995 Form S-11") and incorporated herein by reference.)
3.2 CNL American Properties Fund, Inc. Bylaws (Previously filed as Exhibit
3.5 to the 1995 Form S-11 and incorporated herein by reference.)
4.1 CNL American Properties Fund, Inc. Amended and Restated Articles of
Incorporation (Previously filed as Exhibit 3.4 to the 1995 Form S-11
and incorporated herein by reference.)
4.2 CNL American Properties Fund, Inc. Bylaws (Previously filed as Exhibit
3.5 to the 1995 Form S-11 and incorporated herein by reference.)
4.3 Form of Amended Reinvestment Plan (Included in the Prospectus as
Exhibit A and incorporated herein by reference.)
4.4 Form of Stock Certificate (Previously filed as Exhibit 4.5 to the 1995
Form S-11 and incorporated herein by reference.)
*5.1 Opinion of Shaw, Pittman, Potts & Trowbridge as to the legality of the
securities being registered by CNL American Properties Fund, Inc.
*8.1 Opinion of Shaw, Pittman, Potts & Trowbridge regarding certain material
tax issues relating to CNL American Properties Fund, Inc.
10.1 Form of Escrow Agreement between CNL American Properties Fund, Inc. and
SouthTrust Asset Management Company of Florida, N.A. (Filed herewith.)
10.2 Advisory Agreement (Previously filed as Exhibit 10.2 to the 1995 Form
S-11 and incorporated herein by reference.)
10.3 Form of Joint Venture Agreement (Filed herewith.)
10.4 Form of Indemnification and Put Agreement (Filed herewith.)
10.5 Form of Unconditional Guaranty of Payment and Performance (Filed
herewith.)
10.6 Form of Purchase Agreement (Filed herewith.)
10.7 Form of Lease Agreement including Rent Addendum, Construction Addendum
and Memorandum of Lease (Filed herewith.)
<PAGE>
10.8 Form of Reinvestment Plan (Included in the Prospectus as Exhibit A and
incorporated herein by reference.)
10.9 Form of Indemnification Agreement dated as of April 18, 1995 by and
among CNL American Properties Fund, Inc. and each of James M. Seneff,
Jr., Robert A. Bourne, G. Richard Hostetter, J. Joseph Kruse, Richard
C. Huseman, John T. Walker, Jeanne A. Wall, Lynn E. Rose and Edgar J.
McDougall.
23.1 Consent of Coopers & Lybrand L.L.P., Certified Public Accountants,
dated October 31, 1996 (Filed herewith.)
*23.2 Consent of Shaw, Pittman, Potts & Trowbridge (To be contained in its
opinion filed as Exhibit 5.1 and incorporated herein by reference.)
- ------------------------------------
* To be filed by amendment.
Exhibit 1.1
Form of Managing Dealer Agreement
<PAGE>
FORM OF MANAGING DEALER AGREEMENT
THIS AGREEMENT, dated as of ___________, 1996, is made by and between
CNL AMERICAN PROPERTIES FUND, INC., a Maryland corporation (the "Company"); and
CNL SECURITIES CORP., a Florida corporation (the "Managing Dealer").
WHEREAS, the Company proposes to offer and sell up to an aggregate of
27,500,000 shares of common stock in the Company (the "Shares") to the public
pursuant to a public offering;
WHEREAS, the Managing Dealer is registered with the National Association
of Securities Dealers, Inc. as a broker-dealer, and is presently or, prior to
any offers or sales of Shares, will be licensed in all fifty states, the
District of Columbia, and the Commonwealth of Puerto Rico as a broker-dealer
qualified to offer and sell to the public securities of the type represented by
the Shares; and
WHEREAS, the Company desires to retain the Managing Dealer to use its
best efforts to sell the Shares and to manage the sale by others of the Shares,
and the Managing Dealer is willing and desires to serve as the Managing Dealer
for the Company for the sale of the Shares upon the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Company and the Managing
Dealer agree as follows:
SECTION 1
DEFINITIONS
Whenever used in this Agreement, the following terms shall have the
following specified meanings.
1.1 "NASD" means the National Association of Securities Dealers, Inc.
1.2 "Offering" means the offering of up to 27,500,000 Shares of CNL
AMERICAN PROPERTIES FUND, INC. to the public pursuant to the terms and
conditions of the Registration Statement.
1.3 "Offering Period" means the period commencing on the effective date
of the Registration Statement and ending on the earliest of the following: (i)
the later of one year after the initial date of the Prospectus or, at the
Company's election, two years after the initial date of the Prospectus; (ii) the
acceptance by the Company of subscriptions for 27,500,000 Shares, with 2,500,000
of such Shares available only to investors who participate in the Company's
dividend reinvestment plan, subject to Paragraph 3.8 hereof; (iii) the
termination of the Offering by the Company; (iv) the termination of the
effectiveness of the Registration Statement; or (v) the termination of the
Company.
<PAGE>
1.4 "Participating Brokers" mean those broker-dealers engaged by the
Managing Dealer to participate in the Offering pursuant to Paragraph 3.2.
1.5 "Prospectus" means the final prospectus included in the Registration
Statement, 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 the Registration Statement.
1.6 "Registration Statement" means the registration statement pursuant
to which the Company has registered the Shares with the SEC as provided in the
Securities Act of 1933, as amended, as such registration statement may be
amended or supplemented from time to time.
1.7 "SEC" means the Securities and Exchange Commission.
1.8 "Shares" mean the shares of Common Stock of the Company, par value
$.01 per share, with a purchase price of $10.00 per share. An aggregate of up to
27,500,000 Shares will be offered pursuant to the Registration Statement.
1.9 "State Regulatory Authorities" mean the commissions, departments,
agencies or other authorities in the fifty states, the District of Columbia, and
the Commonwealth of Puerto Rico which regulate the offer and sale of securities.
1.10 "Company" means CNL American Properties Fund, Inc., a Maryland
corporation.
SECTION 2
APPOINTMENT
Subject to the terms and conditions set forth in this Agreement,
including Paragraph 3.8 hereof, the Company hereby appoints the Managing Dealer
as the managing dealer of the Offering to use its best efforts to sell up to
27,500,000 Shares of the Company and to manage the sale by others of such Shares
for the Company's account. The Managing Dealer hereby accepts such appointment.
SECTION 3
SALE OF SHARES
3.1 Best Efforts. The Managing Dealer shall use its best efforts during
the Offering Period to sell or cause to be sold the Shares in such quantities
and to such persons and in accordance with such terms as are set forth in this
Agreement, the Prospectus and the Registration Statement. Notwithstanding
anything herein to the contrary, the Managing Dealer shall have no obligation
under this Agreement to purchase any of the Shares for its own account.
3.2 Association of Other Broker-Dealers. The Company hereby acknowledges
and agrees that the Managing Dealer may engage Participating Brokers to
participate in the Offering, provided that (i) all Participating Brokers are
registered with the NASD and are duly licensed by the State Regulatory
Authorities in the jurisdictions in which they will offer and sell Shares or
exempt from broker-dealer registration with the NASD and the State Regulatory
Authorities, and (ii) all such engagements are
-2-
<PAGE>
evidenced by written agreements, the terms and conditions of which substantially
conform to the form of Participating Broker Agreement approved by the Company
and attached hereto as Exhibit A (the "Participating Broker Agreement"). The
Managing Dealer is authorized to reallow so much of the commissions which it
receives under Paragraph 4.1 to Participating Brokers as it sees fit.
3.3 Telephonic Subscriptions.
(a) The Managing Dealer may permit certain Participating Brokers
to accept telephonic or other oral subscriptions for Shares; provided,
however, that any such Participating Broker agrees that: (i) the
registered representative and branch manager of the Participating Broker
shall execute the subscription agreement on behalf of any investor who
telephonically or orally subscribes for Shares; (ii) the Participating
Broker shall not charge investors who telephonically or orally subscribe
for Shares any additional fees, including but not limited to fees
relating to opening an account with the Participating Broker; and (iii)
the Participating Broker shall not accept telephonic or oral
subscriptions for Shares from any investor unless such investor has
received a copy of the Company's Prospectus prior to making a decision
to invest. The Managing Dealer shall enter into a written agreement with
each Participating Broker who wishes to accept telephonic or other oral
subscriptions for Shares from investors in certain states more
particularly identified in the Prospectus, pursuant to which the
Participating Broker shall agree to explain to such investor that: (i)
the investor shall have the right to rescind such subscription for a
period of ten days following the receipt of the Confirmation (as
hereinafter defined); and (ii) unless the investor rescinds such
subscription within the applicable period of time, the investor shall be
bound by the subscription agreement. The Managing Dealer shall confirm
the receipt of subscriptions for Shares which have been subscribed for
by telephone or other oral instructions by written notice to the
investor (the "Confirmation"). Such Confirmation shall be mailed to the
investor not later than seven (7) days after the date on which the
investor's funds are deposited, shall contain a statement that the
investor has a right to rescind his subscription, and shall be
accompanied by a Prospectus and a Subscriber's Signature Page.
(b) Notwithstanding anything to the contrary contained in
Paragraph 4.3(a) of this Agreement, in the event that the Company pays
any commission to the Managing Dealer for sale by a Participating Broker
of one or more Shares pursuant to a telephonic or other oral
subscription where representatives of such Participating Broker execute
the subscription agreement relating to such Shares, and the subscription
is rescinded as to one or more of the Shares covered by such
subscription, the Company shall decrease the next payment of commissions
or other compensation otherwise payable to the Managing Dealer by the
Company under this Agreement by an amount equal to the commission rate
established in Paragraph 4.1 of this Agreement, multiplied by the number
of Shares as to which the subscription is rescinded. In the event that
no payment of commissions or other compensation is due to the Managing
Dealer after such withdrawal occurs, the Managing Dealer shall pay the
amount specified in the preceding sentence to the Company within ten
(10) days following receipt of notice by the Managing Dealer from the
Company stating the amount owed as a result of rescinded subscriptions.
3.4 Suitability and Minimum Purchase Requirements.
(a) The Managing Dealer will use every reasonable effort, to the
extent it sells Shares to investors, to assure that any such Shares are
sold only to investors who:
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<PAGE>
(i) meet the investor suitability standards, including the
minimum income and net worth standard established by the Company,
and minimum purchase requirements set forth in the Registration
Statement;
(ii) can reasonably benefit from the Company based on the
prospective investor's overall investment objectives and
portfolio structure;
(iii) is able to bear the economic risk of the investment
based on the prospective investor's overall financial situation;
and
(iv) has apparent understanding of: (A) the fundamental
risks of the investment; (B) the risk that the prospective
investor may lose the entire investment; (C) the lack of
liquidity of the Shares; (D) the restrictions on transferability
of the Shares; (E) the background and qualifications of the
officers and directors of CNL Fund Advisors, Inc., the advisor to
the Company (the "Advisor"); and (F) the tax consequences of an
investment in the Shares.
(b) The Managing Dealer will make the determinations required to
be made by it pursuant to Paragraph 3.4(a) above based on information it
has obtained from a prospective investor, including, at a minimum, but
not limited to, the prospective investor's age, investment objectives,
investment experience, income, net worth, financial situation, other
investments of the prospective investor, as well as any other pertinent
factors deemed by the Managing Dealer to be relevant.
(c) The Managing Dealer shall maintain such records evidencing
compliance with the determination of the investor suitability standards
and minimum purchase requirements set forth in the Registration
Statement, as required by Paragraphs 3.4(a) and 3.4(b) above for a
period of not less than six years, or for such greater time period as
shall comply with all applicable federal, state and other regulatory
requirements.
(d) In addition to the foregoing, the Managing Dealer shall
comply fully with all the applicable provisions of the NASD Rules of
Fair Practice and the following provisions:
(i) the Managing Dealer shall have reasonable grounds to
believe, based upon information provided by the investor
concerning his investment objectives, other investments,
financial situation and needs, and upon any other information
known by the Managing Dealer, that (A) each investor to whom the
Managing Dealer sells Shares is or will be in a financial
position appropriate to enable him to realize to a significant
extent the benefits (including tax benefits) of an investment in
the Shares, (B) each investor to whom the Managing Dealer sells
Shares has a fair market net worth sufficient to sustain the
risks inherent in an investment in the Shares (including
potential loss and lack of liquidity), and (C) the Shares
otherwise are or will be a suitable investment for each investor
to whom the Managing Dealer sells Shares, and the Managing Dealer
shall maintain files disclosing the basis upon which the
determination of suitability was made;
(ii) the Managing Dealer shall not execute any transaction
involving the purchase of Shares in a discretionary account
without prior written approval of the transaction by the
investor;
-4-
<PAGE>
(iii) the Managing Dealer shall have reasonable grounds to
believe, based upon the information made available to it, that
all material facts are adequate and accurately disclosed in the
Registration Statement and provide a basis for evaluating the
Shares;
(iv) in making the determination set forth in item (iii)
above, the Managing Dealer shall evaluate items of compensation,
properties, tax aspects, financial stability and experience of
the sponsor, conflicts of interest and risk factors, and any
other information deemed pertinent by it; and
(v) prior to executing a purchase transaction in the
Shares, the Managing Dealer shall have informed the prospective
investor of all pertinent facts relating to the liquidity and
marketability of the Shares.
(e) The Managing Dealer shall comply with the requirements for
determining the suitability of investors who elect to participate in the
Dividend Reinvestment Plan (the "Reinvestment Plan") in accordance with
the procedure set forth in Paragraph 6 of such Reinvestment Plan in the
form of Exhibit A to the Prospectus.
3.5 Sales Literature. The Managing Dealer shall use and distribute in
conjunction with the offer and sale of any Shares only the Prospectus and such
sales literature and advertising as shall have been previously approved in
writing by the Company.
3.6 Jurisdictions. The Managing Dealer shall cause Shares to be offered
and sold only in those jurisdictions specified in writing by the Company for
whose account Shares are then offered for sale, and such list of jurisdictions
shall be updated by the Company as additional states are added. The Company
shall specify only such jurisdictions in which the offering and sale of its
Shares has been authorized by appropriate State Regulatory Authorities. No
Shares shall be offered or sold for the account of the Company in any other
states.
3.7 Escrow. All funds received by the Managing Dealer for the sale of
Shares shall be deposited in an escrow account established by the Company at
SouthTrust Asset Management Company of Florida, N.A. (the "Escrow Agent"), by
the close of the first business day following receipt of such funds by the
Managing Dealer. Such escrow account shall be denominated "ESCROW ACCOUNT FOR
THE BENEFIT OF SUBSCRIBERS FOR COMMON STOCK OF CNL AMERICAN PROPERTIES FUND,
INC." Until such time (if any) as the funds held in escrow are deliverable to
the Company pursuant to the Escrow Agreement between the Company and the Escrow
Agent, the Managing Dealer shall, and shall cause Participating Brokers to,
instruct subscribers to make checks for subscriptions payable to the order of
"SOUTHTRUST ASSET MANAGEMENT COMPANY OF FLORIDA, N.A., ESCROW AGENT," and shall
return checks made payable to another party to the Participating Broker or
subscriber who submitted the check. Thereafter, checks may be made payable to
either the Escrow Agent or the Company. The Managing Dealer may authorize
certain Participating Brokers which are "$250,000 broker-dealers" to instruct
their customers to make their checks for Shares subscribed for payable directly
to the Participating Broker. In such case, the Soliciting Dealer will collect
the proceeds of the subscribers' checks and issue a check made payable to the
order of the Escrow Agent for the aggregate amount of the subscription proceeds.
-5-
<PAGE>
SECTION 4
COMPENSATION
4.1 Commissions.
(a) The Company shall pay to the Managing Dealer, as compensation
for all services to be rendered by the Managing Dealer pursuant to this
Agreement, a commission equal to seven and one-half percent (7.5%) of
the selling price of each Share for which a sale is completed,
regardless of whether such Share is sold by the Managing Dealer or a
Participating Broker; provided, however, that the Company will pay
reduced commissions or may eliminate commissions on certain sales of
Shares, including the reduction or elimination of commissions in
accordance with, and on the terms set forth in, the Prospectus and the
following paragraph of this Paragraph 4.1, which reduction or
elimination of commissions will not change the net proceeds to the
Company. Shareholders who elect to participate in the Reinvestment Plan
will be charged commissions on Shares purchased for their accounts on
the same basis as investors who otherwise purchase Shares in the
Offering.
(b) A registered principal or representative of the Managing
Dealer or a Participating Broker, employees, officers, and directors of
the Company or the Advisor, any of their Affiliates (and the families of
any of the foregoing persons), and any Plan (as defined in the
Prospectus) 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. In addition, 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 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 commissions.
4.2 Marketing Support and Due Diligence. The Company shall pay to the
Managing Dealer a nonaccountable fee for expenses incurred in selling and
marketing the Shares and for bona fide expenses incurred in connection with due
diligence activities. This marketing support and due diligence expense
reimbursement fee shall be equal to one-half of one percent (0.5%) of the
selling price of each Share for which a sale is completed, regardless of whether
such Share is sold by the Managing Dealer or a Participating Broker. All due
diligence expense reimbursements shall be paid by the Managing Dealer from this
fee.
4.3 Completed Sale.
(a) A sale of a Share shall be deemed to be completed under
Paragraph 4.1 if and only if (i) the Company has received a properly
completed and executed subscription agreement, together with payment of
the full purchase price of each purchased Share, from or, in accordance
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<PAGE>
with Paragraph 3.3(a), on behalf of an investor who satisfies the
applicable suitability standards and minimum purchase requirements set
forth in the Registration Statement as determined by the Managing Dealer
in accordance with the provisions of this Agreement, (ii) the Company
has accepted such subscription, and (iii) such investor has been
admitted as a shareholder of the Company.
(b) The Managing Dealer hereby acknowledges and agrees that the
Company, in its sole and absolute discretion, may accept or reject any
subscription, in whole or in part, for any reason whatsoever, and no
commission will be paid to the Managing Dealer with respect to that
portion of any subscription which is rejected.
4.4 Payment. The commissions specified in Paragraph 4.1 for the sale of
any Share shall be payable in cash by the Company, as specified in Paragraph
4.1, no later than the end of the calendar month in which the investor
subscribing for the Share is admitted as a shareholder of the Company.
Investors whose subscriptions for Shares are accepted shall be
admitted no later than the end of the calendar month in which such subscriptions
are accepted. The Company will accept or reject all subscriptions within 30 days
after receipt. Notwithstanding anything to the contrary contained herein, in the
event that the Company pays any commission to the Managing Dealer for sale by a
Participating Broker of one or more Shares and the subscription is rescinded as
to one or more of the Shares covered by such subscription, the Company
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<PAGE>
shall decrease the next payment of commissions or other compensation otherwise
payable to the Managing Dealer by the Company under this Agreement by an amount
equal to the commission rate established in Paragraph 4.1 of this Agreement,
multiplied by the number of Shares as to which the subscription is rescinded. In
the event that no payment of commissions or other compensation is due to the
Managing Dealer after such withdrawal occurs, the Managing Dealer shall pay the
amount specified in the preceding sentence to the Company within ten (10) days
following receipt of notice by the Managing Dealer from the Company stating the
amount owed as a result of rescinded subscriptions.
4.5 Sales Incentives. The Company or its Affiliates also may provide
incentive items for registered representatives of the Managing Dealer and the
Participating Brokers, 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 Participating
Brokers, they will only be paid in cash and such payments will only be made to
the Managing Dealer or the Participating Brokers rather than their registered
representatives. Before any such sales incentive program is offered, the Company
agrees to obtain prior approval of the terms of such program from the NASD.
4.6 Wholesaling Compensation. The Company hereby acknowledges that the
Managing Dealer may pay each of its wholesalers 1% of the gross sales price
(computed at $10.00 per Share) of all Shares sold in such wholesaler's
geographic territory (as the same may be established from time to time by
agreement between the Managing Dealer and one or more of its wholesalers) but
not in excess, in the aggregate, of 1% of the gross sales price (computed at
$10.00 per Share) of all Shares sold, or a maximum of 27,500,000 Shares. The
Company and the Managing Dealer hereby agree that the Company shall have no
obligation to pay any portion of such amounts. The Company hereby agrees to
reimburse reasonable out-of-pocket expenses that such wholesalers incur in
connection with the distribution of its Shares from and after such time as at
least 250,000 Shares have been sold for the account of the Company; provided,
however, that in no event will the Managing Dealer or the Company pay any
amounts to any person if (i) such amounts constitute "underwriting
compensation," and (ii) payment of such amounts could cause total underwriting
compensation paid to underwriters, broker-dealers, or affiliates thereof from
any source, and deemed to be in connection with or related to the distribution
of the Offering, to exceed then-applicable compensation NASD guidelines.
4.7 Soliciting Dealer Servicing Fee. The Company shall pay to the
Managing Dealer an annual servicing fee (the "Soliciting Dealer Servicing Fee")
of .20% of the Company's Invested Capital (as defined below) on December 31 of
each year, commencing in the year following the year in which the Offering
terminates. The Managing Dealer may reallow all or a portion of the Soliciting
Dealer Servicing Fee to Participating Brokers whose clients hold Shares on
December 31 of the applicable year. The Company may also pay the Soliciting
Dealer Servicing Fee directly to any Participating Broker exempt from
registration as a broker-dealer whose clients hold Shares on December 31 of the
applicable year. In general, Invested Capital is the amount of cash contributed
by shareholders to the Company, reduced by certain prior capital distributions
to the shareholders from the sale of Company's properties. The Soliciting Dealer
Servicing Fee will terminate as of the beginning of any year in which the
Company is liquidated or the Shares become listed on a national securities
exchange or over-the-counter market.
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<PAGE>
SECTION 5
TERM OF AGREEMENT
5.1 Commencement and Expiration. This Agreement shall commence as of the
date first above written and, unless sooner terminated pursuant to Paragraph 5.2
or by operation of law or otherwise, shall expire at the end of the Offering
Period.
5.2 Termination. Any party may terminate this agreement at any time and
for any reason by giving 30 days' prior written notice of intention to terminate
to each other party hereto.
5.3 Obligations Surviving Expiration or Termination.
(a) In addition to any other obligations of the Managing Dealer
that survive the expiration or termination of this Agreement, the
Managing Dealer, upon the expiration or termination of this Agreement,
shall (i) promptly deposit any and all funds in its possession which
were received from investors for the sale of Shares into the appropriate
escrow account specified in Paragraph 3.7 into such other account as the
Company may designate, and (ii) promptly deliver to the Company all
records and documents in its possession which relate to the Offering and
are not designated as dealer copies. The Managing Dealer, at its sole
expense, may make and retain copies of all such records and documents,
but shall keep all such information confidential. The Managing Dealer
shall use its best efforts to cooperate with the Company to accomplish
an orderly transfer of management of the Offering to a party designated
by the Company.
(b) In addition to any other obligations of the Company that
survive the expiration or termination of this Agreement, the Company,
upon expiration or termination of this Agreement, shall pay to the
Managing Dealer all commissions to which the Managing Dealer is or
becomes entitled under Section 4 at such time or times as such
commissions become payable pursuant to Paragraph 4.3.
SECTION 6
COVENANTS OF THE MANAGING DEALER
The Managing Dealer covenants, warrants and represents, during the full
term of this Agreement, that:
(a) it is (i) a corporation duly organized and validly existing
under the laws of the State of Florida, (ii) a member of the NASD, and
(iii) a broker-dealer registered under the securities laws of all fifty
states, the District of Columbia, and the Commonwealth of Puerto Rico.
(b) it will use its best efforts to assure that all Shares are
offered and sold in accordance with (i) the terms of the Registration
Statement, the Prospectus and this Agreement, (ii) the requirements of
applicable federal and state securities laws and regulations, and (iii)
the applicable rules of the NASD, including, without limitation, the
NASD Rules of Fair Practice;
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<PAGE>
(c) it will cause the Shares to be offered or sold only in those
jurisdictions specified in writing by the Company;
(d) it will not use any offering or selling materials other than
materials furnished or previously approved in writing by the Company;
and
(e) it either (i) will not purchase Shares for its own account or
(ii) will hold all such Shares for investment.
SECTION 7
COVENANTS OF THE COMPANY
The Company covenants, warrants and represents, during the full term of
this Agreement, that:
(a) it will use its best efforts to maintain the effectiveness of
the Registration Statement, and will file, or cause to be filed, such
amendments to the Registration Statement as may be reasonably necessary
for that purpose;
(b) It will use its best efforts to (i) prevent the issuance of
any order by the SEC, any State Regulatory Authority or any other
regulatory authority which suspends the effectiveness of the
Registration Statement, prevents the use of the Prospectus, or otherwise
prevents or suspends the Offering, and (ii) obtain the lifting of any
such order if issued;
(c) it will give the Managing Dealer written notice when the
Registration Statement becomes effective and shall deliver to the
Managing Dealer a signed copy of the Registration Statement, including
its exhibits, and such number of copies of the Registration Statement,
without exhibits, and the Prospectus, and any supplements and amendments
thereto which are finally approved by the SEC, as the Managing Dealer
may reasonably request for sale of the Shares, which Prospectus shall
not contain any untrue statement of a material fact required to be
stated therein or omit any material statement necessary to make the
statements therein, in light of the circumstances under which they are
made, not misleading;
(d) if at any time any event occurs and becomes known to the
Company prior to the end of the Offering Period, as a result of which
the Registration Statement or Prospectus would include an untrue
statement of a material fact or, in view of the circumstances under
which they were made, omit to state any material fact necessary to make
the statements therein not misleading, the Company will effect the
preparation of an amended or supplemented Registration Statement or
Prospectus which will correct such statement or omission;
(e) it will promptly notify the Managing Dealer of any
post-effective amendments or supplements to the Registration Statement
or Prospectus;
(f) it will, during the full term of this Agreement, abide by all
applicable provisions of its governing instruments, as the same may be
amended; and
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<PAGE>
(g) it will use its best efforts to cause, at or prior to the
time the Registration Statement becomes effective, the qualification or
registration of the Shares for offering and sale under the securities
laws of such jurisdictions as shall be determined by the Company.
SECTION 8
PAYMENT OF COSTS AND EXPENSES
8.1 Managing Dealer. The Managing Dealer shall pay all costs and
expenses incident to the performance of its obligations under this Agreement
which are not expressly assumed by the Company under Paragraph 8.2 below.
8.2 Company. The Company shall pay all costs and expenses related to:
(a) the registration of the offer and sale of the Shares with the
SEC, including the cost of preparation, printing, filing and delivery of
the Registration Statement and all copies of the Prospectus used in the
Offering, and any amendments or supplements to such documents;
(b) the preparation and printing of the form of subscription
agreement to be used in the sale of the Shares;
(c) the qualification or registration of the Shares under state
securities or "blue sky" laws of states where the Shares are to be
offered or sold;
(d) the filing of the Registration Statement and any related
documents, including any amendments or supplements to such documents,
with the NASD;
(e) any filing fees, and fees and disbursements to counsel,
accountants and escrow agents which are in any way related to any of the
above items; and
(f) the preparation, printing and filing of all advertising
originated by it relating to the sale of Shares.
SECTION 9
INDEMNIFICATION
The Managing Dealer agrees to indemnify, defend and hold harmless the
Company from all losses, claims, demands, liabilities and expenses, including
reasonable legal and other expenses incurred in defending such claims or
liabilities, whether or not resulting in any liability to the Company, which the
Company may incur in connection with the offer or sale of any Shares, either by
the Managing Dealer pursuant to this Agreement or any Participating Broker
acting on the Managing Dealer's behalf pursuant to the Participating Broker
Agreement which arise out of or are based upon (i) an untrue statement or
alleged untrue statement of a material fact, or any omission or alleged omission
of a material fact, other than a statement or omission contained in the
Prospectus, the Registration Statement, or any state securities filing which was
not based on information supplied to the Company by the Managing Dealer or a
Participating Broker, or (ii) the breach by the Managing Dealer or any
Participating Broker acting
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<PAGE>
on its behalf of any of the terms and conditions of this Agreement or any
Participating Broker Agreement, including, but not limited to, alleged
violations of the Securities Act of 1933, as amended.
SECTION 10
MISCELLANEOUS
10.1 Notices. Any notice, approval, request, authorization, direction or
other communication under this Agreement shall be given in writing and shall be
deemed to be delivered when delivered in person or deposited in the United
States mail, properly addressed and stamped with the required postage,
registered or certified mail, return receipt requested, to the intended
recipient as set forth below.
If to the Company: 400 East South Street, Suite 500
Orlando, Florida 32801
Attention: James M. Seneff, Jr.,
Chairman of the Board
If to the Managing Dealer: CNL Securities Corp.
400 East South Street, Suite 500
Orlando, Florida 32801
Attention: Robert A. Bourne, President
Any party may change its address specified above by giving each other party
notice of such change in accordance with this Paragraph 10.1.
10.2 Invalid Provision. The invalidity or unenforceability of any
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
10.3 No Partnership. Nothing in this Agreement shall be construed or
interpreted to constitute the Managing Dealer as in association with or in
partnership with the Company, and instead, this Agreement only shall constitute
the Managing Dealer as a dealer authorized by the Company to sell and to manage
the sale by others of the Shares according to the terms set forth in the
Registration Statement, the Prospectus or this Agreement.
10.4 No Third Party Beneficiaries. No provision of this Agreement is
intended to be for the benefit of any person or entity not a party to this
Agreement, and no third party shall be deemed to be a beneficiary of any
provision of this Agreement. Further, no third party shall by virtue of any
provision of this Agreement have a right of action or an enforceable remedy
against either party to this Agreement.
10.5 Survival. Paragraph 5.3 and Section 9 and all provisions of this
Agreement which may reasonably be interpreted or construed as surviving the
expiration or termination of this Agreement shall survive the expiration or
termination of this Agreement.
10.6 Entire Agreement. This Agreement constitutes the complete
understanding among the parties hereto, and no variation, modification or
amendment to this Agreement shall be deemed valid or effective unless and until
it is signed by all parties hereto.
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<PAGE>
10.7 Successors and Assigns. No party shall assign (voluntarily, by
operation of law or otherwise) this Agreement or any right, interest or benefit
under this Agreement without the prior written consent of each other party.
Subject to the foregoing, this Agreement shall be fully binding upon, inure to
the benefit of, and be enforceable by, the parties hereto and their respective
successors and assigns.
10.8 Nonwaiver. The failure of any party to insist upon or enforce
strict performance by any other party of any provision of this Agreement or to
exercise any right under this Agreement shall be construed as a waiver or
relinquishment to any extent of such party's right to assert or rely upon any
such provision or right in that or any other instance; rather, such provision or
right shall be and remain in full force and effect.
10.9 Applicable Law. This Agreement shall be interpreted, construed and
enforced in all respects in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Company: CNL AMERICAN PROPERTIES FUND, INC.
By:
JAMES M. SENEFF, JR., Chairman of the Board
Managing Dealer: CNL SECURITIES CORP.
By:
ROBERT A. BOURNE, President
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EXHIBIT 1.2
Form of Participating Broker Agreement
<PAGE>
FORM OF PARTICIPATING BROKER AGREEMENT
CNL AMERICAN PROPERTIES FUND, INC.
THIS PARTICIPATING BROKER AGREEMENT (the "Agreement") is made and
entered into as of the day indicated on Exhibit A attached hereto and by this
reference incorporated herein, between CNL SECURITIES CORP., a Florida
corporation (the "Managing Dealer"), and the Participating Broker (the "Broker")
identified in Exhibit A hereto.
WHEREAS, CNL AMERICAN PROPERTIES FUND, INC. is a Maryland corporation
(the "Company"); and
WHEREAS, the Company proposes to offer and sell up to 27,500,000 shares
of Common Stock of the Company (the "Shares") to the general public, pursuant to
a public offering (the "Offering") of the Shares pursuant to a prospectus (the
"Prospectus") filed with the Securities and Exchange Commission ("SEC"); and
WHEREAS, the Managing Dealer, which has heretofore entered into a
Managing Dealer Agreement with the Company pursuant to which it has been
designated the managing dealer to sell and manage the sale by others of the
Shares pursuant to the terms of such agreement and the Offering, is a
corporation incorporated in and presently in good standing in the State of
Florida, and is presently registered with the Florida Securities Commission and
with the National Association of Securities Dealers, Inc. ("NASD") as a
securities broker-dealer qualified to offer and sell to members of the public
securities of the type represented by the Shares; and
WHEREAS, the Broker is an entity, as designated in Exhibit A hereto,
organized and presently in good standing in the state or states designated in
Exhibit A hereto, presently registered as a broker-dealer with the NASD, and
presently licensed by the appropriate regulatory agency of each state in which
it will offer and sell the Shares as a securities broker-dealer qualified to
offer and sell to members of the public securities of the type represented by
the Shares or exempt from all such registration requirements; and
WHEREAS, the Company has filed with the SEC a registration statement on
Form S-11, including a preliminary or final prospectus, for the registration of
the Shares under the Securities Act of 1933, as amended (such registration
statement, as it may be amended, and the prospectus and exhibits on file with
the SEC at the time the registration statement becomes effective, including any
post-effective amendments or supplements to such registration statement or
prospectus after the effective date of registration, being herein respectively
referred to as the "Registration Statement" and the "Prospectus"); and
WHEREAS, the offer and sale of the Shares shall be made pursuant to the
terms and conditions of the Registration Statement and the Prospectus and,
further, pursuant to the terms and conditions of all applicable securities laws
of all states in which the Shares are offered and sold; and
WHEREAS, the Managing Dealer desires to retain the Broker to use its
best efforts to sell the Shares, and the Broker is willing and desires to serve
as a broker for the Managing Dealer for the sale of the Shares upon the
following terms and conditions;
NOW, THEREFORE, in consideration of the premises and terms and
conditions thereof, it is agreed between the Managing Dealer and the Broker as
follows.
1. Employment.
(a) Subject to the terms and conditions herein set forth, the Managing
Dealer hereby employs the Broker to use its best efforts to sell for the account
of the Company a portion of the Shares described in the Registration Statement,
as specified on Exhibit A hereto. The Broker hereby accepts such employment and
covenants, warrants and agrees to sell the Shares according to all of the terms
and conditions of the Registration Statement, all applicable state and federal
laws, including the Securities Act of 1933, as amended, and any and all
regulations and rules pertaining thereto, heretofore or hereafter issued by the
SEC and the NASD. Neither the Broker nor any other
<PAGE>
person shall have any authority to give any information or make any
representations in connection with any offer or sale of the Shares other than as
contained in the Prospectus, as amended and supplemented, and as is otherwise
expressly authorized in writing by the Managing Dealer.
(b) The Broker shall use its best efforts, promptly following receipt of
written notice from the Managing Dealer of the effective date of the
Registration Statement, to sell the Shares in such quantities and for the
account of Company as shall be agreed between the Broker and the Managing Dealer
and specified on Exhibit A hereto, and to such persons and according to all such
terms as are contained in the Registration Statement and the Prospectus. The
Broker shall comply with all requirements set forth in the Registration
Statement and the Prospectus. The Broker shall use and distribute, in connection
with the offer and sale of the Shares, only the Prospectus and such sales
literature and advertising as shall conform in all respects to any restrictions
of local law and the applicable requirements of the Securities Act of 1933, as
amended, and which has been approved in writing by the Company or the Managing
Dealer. The Managing Dealer reserves the right to establish such additional
procedures as it may deem necessary to ensure compliance with the requirements
of the Registration Statement, and the Broker shall comply with all such
additional procedures to the extent that it has received written notice thereof.
(c) The Broker shall be permitted to accept subscriptions for the Shares
by telephone from residents of those states identified on Schedule A attached
hereto and made a part hereof provided that: (1) the registered representative
and branch manager of the Broker execute the subscription agreement on behalf of
any investor who subscribes for Shares by telephone; and (2) the Broker does not
charge any additional fees, including but not limited to fees relating to
opening an account with the Broker, to any investor who telephonically or orally
subscribes for Shares. It is understood and agreed between the Managing Dealer
and the Broker that the Managing Dealer may, in its discretion, change, modify,
add to or delete from the list of states identified on Schedule A. Any such
modification shall be effective ten days from the date written notice to the
Broker has been mailed by the Managing Dealer. The Broker shall not execute a
subscription agreement on behalf of any investor who subscribes for Shares by
telephone unless such investor has specifically authorized the registered
representative and the branch manager of the Broker to execute the subscription
agreement on behalf of such investor and has made or agreed to make full payment
for all Shares covered by such subscription agreement. Notwithstanding anything
contained herein to the contrary, the Broker shall have no authority to make
representations on behalf of an investor or to initial representations contained
in the subscription agreement on behalf of an investor. In connection with
telephonic or other oral subscriptions for Shares, the Broker represents and
warrants as follows: (i) that a Prospectus was delivered to the investor before
the investor made a decision to invest; (ii) that the investor meets the
suitability requirements set forth in the Prospectus; and (iii) that, in
compliance with the NASD's Rules of Fair Practice, the Broker has reasonable
grounds to believe that the investment in the Company is suitable for the
investor, based upon information supplied by the investor to such Broker.
Further, the Broker shall explain to any investor from a state identified in the
Prospectus as having such additional requirements, that: (i) the investor has
the right to rescind such subscription for a period of at least ten days
following the date written confirmation of the subscription has been received by
the investor from the Managing Dealer; and (ii) unless the investor rescinds
such subscription within the applicable period of time, the investor shall be
bound by the subscription agreement.
(d) Notwithstanding anything to the contrary contained in Section 2 of
this Agreement, in the event that the Managing Dealer pays any commission to the
Broker for sale of one or more Shares, including, but not limited to, those
Shares sold pursuant to a telephonic or other oral subscription therefor, where
representatives of the Broker execute the subscription agreement relating to
such Shares, and the subscription is rescinded as to one or more of the Shares
covered by such subscription, the Managing Dealer shall decrease the next
payment of commissions or other compensation otherwise payable to the Broker by
the Managing Dealer under this Agreement by an amount equal to the commission
rate established in Section 2 and Exhibit A of this Agreement, multiplied by the
number of Shares as to which the subscription is rescinded. In the event that no
payment of commissions or other compensation is due to the Broker after such
withdrawal occurs, the Broker shall pay the amount specified in the preceding
sentence to the Managing Dealer within ten (10) days following mailing of notice
to the Broker by the Managing Dealer stating the amount owed as a result of
rescinded subscriptions.
(e) All monies received for purchase of any of the Shares shall be
forwarded by the Broker to the Managing Dealer for delivery to SouthTrust Asset
Management Company of Florida, N.A. (the "Escrow Agent"), where such monies will
be deposited in an escrow account established by the Company solely for such
subscriptions.
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<PAGE>
The Broker may accept checks made payable to either the Company or the Escrow
Agent. Subscriptions will be executed as described in the Registration Statement
or as directed by the Managing Dealer. The monies shall be deposited or
transmitted by the Broker to the Managing Dealer no later than the close of
business of the first business day after receipt of the subscription documents
by the Broker; provided, however, that if the Broker maintains a branch office,
the branch office shall transmit the subscription documents and check to the
Broker by the close of business on the first business day following their
receipt by the branch office and the Broker shall review the subscription
documents and 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 their receipt by the Broker. Pursuant to the
terms of the Managing Dealer Agreement, the Managing Dealer will transmit the
check or monies to the Escrow Agent by no later than the close of business on
the first business day after the check is received from the Broker.
(f) During the full term of this Agreement the Managing Dealer shall
have full authority to take such action as it may deem advisable in respect to
all matters pertaining to the performance of the Broker under this Agreement.
(g) The Shares shall be offered and sold by the Broker only where the
Shares may be legally offered and sold, and only to such persons in such states
who shall be legally qualified to purchase the Shares. The Managing Dealer shall
give the Broker written notice at the time of effectiveness of those states in
which the offering and sale of Shares may be made, and shall amend such notice
thereafter as additional states are added; no Shares shall be offered or sold in
any other states.
(h) The Broker shall have no obligation under this Agreement to purchase
any of the Shares for its own account.
(i) The Broker will use every reasonable effort to assure that Shares
are sold only to investors who:
(1) meet the investor suitability standards, including the
minimum income and net worth standard established by the Company, and
minimum purchase requirements set forth in the Registration Statement;
(2) can reasonably benefit from the Company based on the
prospective investor's overall investment objectives and portfolio
structure;
(3) are able to bear the economic risk of the investment based on
the prospective investor's overall financial situation; and
(4) have apparent understanding of: (a) the fundamental risks of
the investment; (b) the risk that the prospective investor may lose the
entire investment; (c) the lack of liquidity of the Shares; (d) the
restrictions on transferability of the Shares; (e) the background and
qualifications of the officers and directors of CNL Fund Advisors, Inc.,
the advisor to the Company (the "Advisor"); and (f) the tax consequences
of an investment in the Shares.
The Broker will make the determinations required to be made by it
pursuant to subparagraph (i) based on information it has obtained from a
prospective investor, including, at a minimum, but not limited to, the
prospective investor's age, investment objectives, investment experience,
income, net worth, financial situation, other investments of the prospective
investor, as well as any other pertinent factors deemed by the Broker to be
relevant.
(j) In addition to the complying with the provisions of subparagraph (i)
above, and not in limitation of any other obligations of the Broker to determine
suitability imposed by state or federal law, the Broker agrees that it will
comply fully with all of the applicable provisions of the NASD's Rules of Fair
Practice, and the following provisions:
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<PAGE>
(1) The Broker shall have reasonable grounds to believe, based
upon information provided by the investor concerning his investment
objectives, other investments, financial situation and needs, and upon
any other information known by the Broker, that (A) each investor to
whom the Broker sells Shares is or will be in a financial position
appropriate to enable him to realize to a significant extent the
benefits (including tax benefits) of an investment in the Shares, (B)
each investor to whom the Broker sells Shares has a fair market net
worth sufficient to sustain the risks inherent in an investment in the
Shares (including potential loss and lack of liquidity), and (C) the
Shares otherwise are or will be a suitable investment for each investor
to whom it sells Shares, and the Broker shall maintain files disclosing
the basis upon which the determination of suitability was made;
(2) The Broker shall not execute any transaction involving the
purchase of Shares in a discretionary account without prior written
approval of the transactions by the investor;
(3) The Broker shall have reasonable grounds to believe, based
upon the information made available to it, that all material facts are
adequately and accurately disclosed in the Registration Statement and
provide a basis for evaluating the Shares;
(4) In making the determination set forth in subparagraph (3)
above, the Broker shall evaluate items of compensation, physical
properties, tax aspects, financial stability and experience of the
sponsor, conflicts of interest and risk factors, appraisals, as well as
any other information deemed pertinent by it;
(5) If the Broker relies upon the results of any inquiry
conducted by another member of the NASD with respect to the obligations
set forth in subparagraphs (3) or (4) above, the Broker shall have
reasonable grounds to believe that such inquiry was conducted with due
care, that the member or members conducting or directing the inquiry
consented to the disclosure of the results of the inquiry and that the
person who participated in or conducted the inquiry is not a sponsor or
an affiliate of the sponsor of the Company; and
(6) Prior to executing a purchase transaction in the Shares, the
Broker shall have informed the prospective investor of all pertinent
facts relating to the liquidity and marketability of the Shares.
(k) The Broker agrees that it will comply with Sections 8, 24 and 36 of
Article III of the NASD's Rules of Fair Practice.
(l) The Broker agrees to retain in its files, for a period of at least
six years, information which will establish that each purchaser of Shares falls
within the permitted class of investors.
(m) The Broker shall not, directly or indirectly, pay or award any
finder's fees, commissions or other compensation to any persons engaged by a
potential investor for investment advice as an inducement to such advisor to
advise the potential investor to purchase Shares in the Company.
(n) The Broker either (i) shall not purchase Shares for its own account
or (ii) shall hold for investment any Shares purchased for its own account.
(o) The Broker hereby confirms that it is familiar with Securities Act
Release No. 4968 and Rule 15c2-8 under the Securities Exchange Act of 1934,
relating to the distribution of preliminary and final prospectuses, and confirms
that it has and will comply therewith.
(p) The Broker shall deliver a copy of the Articles of Incorporation of
the Company with each Prospectus that is delivered to potential investors in
Mississippi.
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<PAGE>
2. Compensation of Broker.
The Managing Dealer shall pay the Broker, as compensation for all
services to be rendered by the Broker hereunder, a commission equal to 7.0% on
sales of Shares by such Broker, as set forth in Exhibit A hereto, subject to
reduction as specified in this Section 2 and the Prospectus. The Managing
Dealer, in its sole discretion, may reallow to the Broker, from its marketing
support and due diligence expense reimbursement fee, up to an additional 0.5% on
sales of Shares by such Broker, based on such factors as the number of Shares
sold by the Broker, the assistance of the Broker in marketing the Offering, and
bona fide due diligence expenses incurred by the Broker. Such commission rates
shall remain in effect during the full term of this Agreement unless otherwise
changed by a written agreement between the parties hereto. A sale of Shares
shall be deemed to be completed only after the Company receives a properly
completed subscription agreement for Shares from the Broker evidencing the fact
that the investor had received a final Prospectus for a period of not less than
five full business days, together with payment of the full purchase price of
each purchased Share from a buyer who satisfies each of the terms and conditions
of the Registration Statement and Prospectus, and only after such subscription
agreement has been accepted in writing by the Company. Such compensation shall
be payable to the Broker by the Managing Dealer after such acceptance of the
subscription agreement; provided, however, that compensation or commissions
shall not be paid by the Managing Dealer: (i) other than from funds received as
compensation or commissions from the Company for the sale of its Shares; (ii)
until any and all compensation or commissions payable by the Company to the
Managing Dealer have been received by the Managing Dealer; and (iii) if the
commission payable to any broker-dealer or salesman exceeds the amount allowed
by any regulatory agency. The Broker shall not reallow any commissions to
non-NASD members. The Company (and the Managing Dealer) may pay reduced
commissions or may eliminate commissions on certain sales of Shares, including
the reduction or elimination of commissions in accordance with the following
paragraph of this Section 2. Any such reduction or elimination of commissions
will not, however, change the net proceeds to the Company.
A registered principal or representative of the Managing Dealer or a
Broker, employees, officers, Directors, and directors of the Company or the
Advisor, or any of their Affiliates (and the families of any of the foregoing
persons), and any Plan (as defined in the Prospectus) established exclusively
for the benefit of such persons may purchase Shares net of 7% commissions, at a
per Share purchase price of $9.30. In addition, 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 commissions.
In addition to the commissions described above in this Section 2, the
Managing Dealer may reallow to the Broker all or a portion of its annual fee
received from the Company of .20% of the Company's Invested Capital (as defined
below) on December 31 of each year, commencing in the year following the year in
which the Offering terminates. The Managing Dealer may reallow this fee only to
a Broker whose clients hold Shares on December 31 of the applicable year. In
general, Invested Capital is the amount of cash contributed by the shareholders
to the Company, reduced by certain prior capital distributions to the
shareholders from the sale of Company properties. This fee will terminate as of
the beginning of any year in which the Company is liquidated or the Shares
become listed on a national securities exchange or over-the-counter market.
The Managing Dealer shall pay the Broker commissions on Shares purchased
pursuant to the Company's Dividend Reinvestment Plan on the same basis as
commissions paid for Shares otherwise purchased in the Offering.
3. Association with Other Dealers.
It is expressly understood between the Managing Dealer and the Broker
that the Managing Dealer may cooperate with other broker-dealers who are
registered as broker-dealers with the NASD and duly licensed by the appropriate
regulatory agency of each state in which they will offer and sell the Shares or
with broker-dealers exempt
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<PAGE>
from all such registration requirements. Such other participating broker-dealers
may be employed by the Managing Dealer as brokers on terms and conditions
identical or similar to this Agreement and shall receive such rates of
commission as are agreed to between the Managing Dealer and the respective other
participating broker-dealers and as are in accordance with the terms of the
Registration Statement. The Broker understands that, to that extent, such other
participating broker-dealers shall compete with the Broker in the sale of the
Shares.
4. Conditions of the Broker's Obligations.
The Broker's obligations hereunder are subject, during the full term of
this Agreement and the Offering, to (a) the performance by the Managing Dealer
of its obligations hereunder; and (b) the conditions that: (i) the Registration
Statement shall become and remain effective; and (ii) no stop order shall have
been issued suspending the effectiveness of the Offering.
5. Conditions to the Managing Dealer's Obligations.
The obligations of the Managing Dealer hereunder are subject, during the
full term of this Agreement and the Offering, to the conditions that: (a) at the
effective date of the Registration Statement and thereafter during the term of
this Agreement while any Shares remain unsold, the Registration Statement shall
remain in full force and effect authorizing the offer and sale of the Shares;
(b) no stop order suspending the effectiveness of the Offering or other order
restraining the offer or sale of the Shares shall have been issued nor
proceedings therefor initiated or threatened by any state regulatory agency or
the SEC; and (c) the Broker shall have satisfactorily performed all of its
obligations hereunder.
6. Covenants of the Managing Dealer.
The Managing Dealer covenants, warrants and represents, during the full
term of this Agreement, that:
(a) It shall use its best efforts to prevent the sale of the Shares
through persons other than registered NASD broker-dealers.
(b) It shall use its best efforts to cause the Company to maintain the
effectiveness of the Registration Statement and to file such applications or
amendments to the Registration Statement as may be reasonably necessary for that
purpose.
(c) It shall advise the Broker whenever and as soon as it receives or
learns of any order issued by the SEC, any state regulatory agency or any other
regulatory agency which suspends the effectiveness of the Registration Statement
or prevents the use of the Prospectus or which otherwise prevents or suspends
the offering or sale of the Shares, or receives notice of any proceedings
regarding any such order.
(d) It shall use its best efforts to prevent the issuance of any order
described herein at subparagraph (c) hereof and to obtain the lifting of any
such order if issued.
(e) It shall give the Broker written notice when the Registration
Statement becomes effective and shall deliver to the Broker such number of
copies of the Prospectus, and any supplements and amendments thereto, which are
finally approved by the SEC, as the Broker may reasonably request for sale of
the Shares.
(f) It shall promptly notify the Broker of any post-effective amendments
or supplements to the Registration Statement or Prospectus, and shall furnish
the Broker with copies of any revised Prospectus and/or supplements and
amendments to the Prospectus.
(g) To the extent to which the Managing Dealer has knowledge, it shall
keep the Broker fully informed of any material development to which the Company
is a party or which concerns the business and condition of the Company.
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<PAGE>
(h) In conjunction with the Company, it shall use its best efforts to
cause, at or prior to the time the Registration Statement becomes effective, the
qualification of the Shares for offering and sale under the securities laws of
such states as the Company shall elect.
7. Payment of Costs and Expenses.
The Broker shall pay all costs and expenses incident to the performance
of its obligations under this Agreement, including:
(a) All expenses incident to the preparation, printing and filing of all
advertising originated by it related to the sale of the Shares; and
(b) All other costs and expenses incurred in connection with its sales
efforts related to the sales of the Shares which are not expressly assumed by
the Company in its Managing Dealer Agreement with the Managing Dealer.
8. Indemnification.
(a) The Broker agrees to indemnify, defend and hold harmless the
Company, its affiliates and their or its officers, directors, trustees,
employees and agents, including the Managing Dealer, against all losses, claims,
demands, liabilities and expenses, joint or several, including reasonable legal
and other expenses incurred in defending such claims or liabilities, whether or
not resulting in any liability to the Company, its affiliates and their or its
officers, directors, trustees, employees or agents, which they or any of them
may incur arising out of the offer or sale by the Broker, or any person acting
on its behalf, of any Shares pursuant to this Agreement if such loss, claim,
demand, liability, or expense arises out of or is based upon (i) an untrue
statement or alleged untrue statement of a material fact, or any omission or
alleged omission of a material fact, other than a statement, omission, or
alleged omission by the Broker which is also, as the case may be, contained in
or omitted from the Prospectus or the Registration Statement and which statement
or omission was not based on information supplied to the Company or the Managing
Dealer by such Broker, or (ii) the breach by the Broker, or any person acting on
its behalf, of any of the terms and conditions of this Agreement. This indemnity
provision shall survive the termination of this Agreement.
(b) The Managing Dealer agrees to indemnify, defend and hold harmless
the Broker, its officers, directors, employees and agents, against all losses,
claims, demands, liabilities and expenses, including reasonable legal and other
expenses incurred in defending such claims or liabilities, which they or any of
them may incur, including, but not limited to, alleged violations of the
Securities Act of 1933, as amended, but only to the extent that such losses,
claims, demands, liabilities and expenses shall arise out of or be based upon
(i) any untrue statement of a material fact contained in the Prospectus or the
Registration Statement, as filed and in effect with the SEC, or in any amendment
or supplement thereto, or in any application prepared or approved in writing by
counsel to the Company and filed with any state regulatory agency in order to
register or qualify the Shares under the securities laws thereof (the "Blue Sky
applications"), or (ii) any omission or alleged omission to state therein a
material fact required to be stated in the Prospectus or the Registration
Statement or the Blue Sky applications, or necessary to make such statements,
and any part thereof, not misleading; provided, further, that any such untrue
statement, omission or alleged omission is not based on information included in
any such document which was supplied to the Managing Dealer, the Company, or any
officer of the Company by such Broker. This indemnity provision shall survive
the termination of this Agreement.
(c) No indemnifying party shall be liable under the indemnity agreements
contained in subparagraphs (a) and (b) above unless the party to be indemnified
shall have notified such indemnifying party in writing promptly after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon the party to be indemnified, but failure to
notify an indemnifying party of any such claim shall not relieve it from any
liabilities which it may have to the indemnified party against whom action is
brought other than on account of its indemnity agreement contained in
subparagraphs (a) and (b) above. In the case of any such claim, if the party to
be indemnified notified the indemnifying party of the commencement thereof as
aforesaid, the indemnifying party shall be entitled to participate at its own
expense in the defense of such claim. If it so elects, in accordance with
-7-
<PAGE>
arrangements satisfactory to any other indemnifying party or parties similarly
notified, the indemnifying party has the option to assume the entire defense of
the claim, with counsel who shall be satisfactory to such indemnified party and
all other indemnified parties who are defendants in such action; and after
notice from the indemnifying party of its election so to assume the defense
thereof and the retaining of such counsel by the indemnifying party, the
indemnifying party shall not be liable to such indemnified party under
subparagraphs (a) and (b) above for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof, other
than for the reasonable costs of investigation.
9. Term of Agreement.
This Agreement shall become effective at 8:00 A.M. (Eastern Standard
Time) on the first full business day following the day on which the Registration
Statement becomes effective, or if later, the date on which this Agreement is
executed by the Managing Dealer and the Broker. The Broker and the Managing
Dealer may each prevent this Agreement from becoming effective, without
liability to the other, by written notice before the time this Agreement would
otherwise become effective. After this Agreement becomes effective, either party
may terminate it at any time for any reason by giving thirty (30) days' written
notice to the other party; provided, however, that this Agreement shall in any
event automatically terminate at the first occurrence of any of the following
events: (a) the Registration Statement for offer and sale of the Shares shall
cease to be effective; (b) the Company shall be terminated; or (c) the Broker's
license or registration to act as a broker-dealer shall be revoked or suspended
by any federal, self-regulatory or state agency and such revocation or
suspension is not cured within ten (10) days from the date of such occurrence.
In any event, this Agreement shall be deemed suspended during any period for
which such license is revoked or suspended.
10. Notices.
All notices and communications hereunder shall be in writing and shall
be deemed to have been given and delivered when deposited in the United States
mail, postage prepaid, registered or certified mail, to the applicable address
set forth below.
If sent to the Managing Dealer:
CNL SECURITIES CORP.
400 East South Street, Suite 500
Orlando, Florida 32801
Attention: Robert A. Bourne, President
If sent to the Broker: to the person whose name and address are
identified in Exhibit A hereto.
11. Successors.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto, and shall not be assigned or transferred by the Broker by
operation of law or otherwise.
12. Miscellaneous.
(a) This Agreement shall be construed in accordance with the applicable
laws of the State of Florida.
(b) Nothing in this Agreement shall constitute the Broker as in
association with or in partnership with the Managing Dealer. Instead, this
Agreement shall only authorize the Broker to sell the Shares according to the
terms as expressly set forth herein; provided, further, that the Broker shall
not in any event have any authority to act as the agent or broker of the
Managing Dealer except according to the terms expressly set forth herein.
-8-
<PAGE>
(c) This Agreement, including Exhibit A and Schedule A hereto, embodies
the entire understanding between the parties to the Agreement, and no variation,
modification or amendment to this Agreement shall be deemed valid or effective
unless it is in writing and signed by both parties hereto.
(d) If any provision of this Agreement shall be deemed void, invalid or
ineffective for any reason, the remainder of the Agreement shall remain in full
force and effect.
(e) This Agreement may be executed in counterpart copies, each of which
shall be deemed an original but all of which together shall constitute one and
the same instrument comprising this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year indicated on Exhibit A hereto.
BROKER: MANAGING DEALER:
CNL SECURITIES CORP.
(Name of Broker)
By: By:
Print Name: Print Name:
Title: Title:
Witness: Witness:
-9-
<PAGE>
EXHIBIT A
TO
PARTICIPATING BROKER AGREEMENT
OF
CNL AMERICAN PROPERTIES FUND, INC.
This Exhibit A is attached to and made a part of that certain
Participating Broker Agreement, dated as of the ___ day of ___________________,
19__, by and between CNL SECURITIES CORP., as Managing Dealer, and
_______________________________________________, as Broker.
1. Date of Agreement:
2. Identity of Broker:
Name:
Firm NASD (CRD) No:
Type of Entity:
(To be completed by Broker, e.g., corporation, partnership or sole
proprietorship.)
State Organized in:
(To be completed by Broker)
Qualified To Do Business and in Good Standing in the Following
Jurisdictions (including your state of organization) (Note:
Qualification to do business in any jurisdiction is generally a
requirement imposed by the secretary of state or other authority of
jurisdictions in which you do business, and is not related to your
holding a license as a securities broker-dealer in such jurisdictions.
Questions concerning this matter should be directed to you your legal
counsel.):
(To be completed by Broker)
Licensed as Broker-Dealer in The Following States:
(To be completed by Broker)
3. Schedule of Commissions Payable to Participating Broker (see Section 2
of Agreement):
<TABLE>
<CAPTION>
Number of Shares Sales Price As a Percentage
Purchased In To Subscriber of the Sales Price(1) Dollar Amount
Individual Order
<S> <C> <C> <C>
1 or more $10.00 7.0% $0.70
</TABLE>
(1) Subject to reduction as set forth in Section 2 of the Participating Broker
Agreement.
Exhibit A
Page 1 of 2
<PAGE>
4. Name and Address for Notice Purposes (see Paragraph 10 of Agreement):
Name:
Title:
Company:
Address:
City, State and Zip Code:
Telephone Number (including area code):
5. Please complete the following for our records:
(a) Please name those individuals who hold the following positions:
President:
Due Diligence Officer:
Marketing Director:
In-House Editor:
(b) Does your company hold national or regional conferences?
Yes No
If so, when?
Who is the coordinator?
(c) How many representatives are registered with your broker-dealer?
PLEASE ENCLOSE A CURRENT LIST. ALL INFORMATION WILL BE HELD IN
CONFIDENCE.
(d) Does your firm publish a newsletter? Yes No
What is/are the frequency of the publication(s)?
Weekly Monthly Quarterly
Bi-weekly Bi-monthly Other (please specify)
PLEASE PLACE CNL ON YOUR MAILING LIST AND PROVIDE A SAMPLE OF THE
PUBLICATION IF AVAILABLE.
(e) Does your firm have regular internal mailings, or bulk package
mailings to representatives?
Yes No
PLEASE PLACE CNL ON YOUR MAILING LIST AND PROVIDE A SAMPLE OF THE
PUBLICATION IF AVAILABLE.
(f) Does your firm have a computerized electronic mail (E-Mail) system
for your representatives?
Yes No
Exhibit A
Page 2 of 2
<PAGE>
SCHEDULE A
TO
PARTICIPATING BROKER AGREEMENT
OF
CNL AMERICAN PROPERTIES FUND, INC.
This Schedule A is attached to and made a part of that certain
Participating Broker Agreement, dated as of the ___ day of ____________________,
19____, by and between CNL SECURITIES CORP., as Managing Dealer, and ,_________
_______________________________________________ as Broker.
TELEPHONIC SUBSCRIPTION AUTHORIZATION
The list of states in which the Broker is permitted to accept telephonic
subscriptions shall be those states identified by Item 2 of Exhibit A, as
amended from time to time, to the Broker Agreement between the parties hereto,
as states in which the Broker is licensed as a Broker-Dealer, except for the
following states in which the Broker is specifically prohibited from accepting
telephonic subscriptions: Florida, Iowa, Maine, Massachusetts, Michigan,
Minnesota, Missouri, Nebraska, New Mexico, North Carolina, Oregon, South Dakota,
and Washington.
Initials: -- CNL SECURITIES CORP.
-- PARTICIPATING BROKER
Exhibit 10.1
Form of Escrow Agreement between CNL American Properties Fund, Inc.
and SouthTrust Asset Management Company of Florida, N.A.
<PAGE>
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement") is dated this ___ day of
_____________, 1996, by and among CNL AMERICAN PROPERTIES FUND, INC., a Maryland
corporation (the "Company"), CNL SECURITIES CORP., a Florida corporation (the
"Managing Dealer"), and SOUTHTRUST ASSET MANAGEMENT COMPANY OF FLORIDA, N.A.
(the "Escrow Agent"). This Agreement shall be effective as of the effective date
of the Company's Registration Statement filed with the Securities and Exchange
Commission (the "Effective Date").
WHEREAS, the Company proposes to offer and sell, on a best-efforts basis
through the Managing Dealer and selected broker-dealers registered with the
National Association of Securities Dealers, Inc. (the Managing Dealer and such
selected broker-dealers are hereinafter referred to collectively as the
"Soliciting Dealers") up to 27,500,000 shares of common stock of the Company
(the "Shares") to investors at $10.00 per Share pursuant to a registration
statement (the "Registration Statement") filed with the Securities and Exchange
Commission; and
WHEREAS, the Company and the Managing Dealer desire to establish an
escrow in which funds received from subscribers will be deposited and the Escrow
Agent is willing to serve as Escrow Agent upon the terms and conditions herein
set forth;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties, the parties covenant and agree as follows.
1. Establishment of Escrow Accounts. On or prior to the Effective
Date, the Company and the Managing Dealer shall establish an interest-bearing
escrow account with the Escrow Agent, which escrow account shall be entitled
"ESCROW ACCOUNT FOR THE BENEFIT OF SUBSCRIBERS FOR COMMON STOCK OF CNL AMERICAN
PROPERTIES FUND, INC. (the "Escrow Account"). All monies deposited in the Escrow
Account are hereinafter referred to as the "Escrowed Funds." The Managing Dealer
will, and will cause selected broker-dealers acting as Soliciting Dealers to,
instruct subscribers to make checks for subscriptions payable to either the
Escrow Agent or the Company. The Managing Dealer may authorize certain
Soliciting Dealers which are "$250,000 broker-dealers" to instruct their
customers to make their checks for Shares subscribed for payable directly to the
Soliciting Dealer. In such case, the Soliciting Dealer will collect the proceeds
of the subscribers' checks and issue a check made payable to the order of the
Escrow Agent for the aggregate amount of the subscription proceeds.
2. Deposits into the Escrow Account. The Managing Dealer will
promptly deliver all monies received from subscribers for the payment of Shares
to the Escrow Agent for deposit in the Escrow Account.
<PAGE>
3. Collection Procedure.
(a) The Escrow Agent is hereby authorized to forward each check for
collection and, upon collection of the proceeds of each check, to
deposit the collected proceeds in the Escrow Account or, alternatively,
the Escrow Agent may telephone the bank on which the check is drawn to
confirm that the check has been paid.
(b) Any check returned unpaid to the Escrow Agent shall be returned
to the Soliciting Dealer that submitted the check. In such cases the
Escrow Agent will promptly notify the Company of such return.
(c) In the event that (i) the Company rejects any subscription for
Shares or (ii) an investor who has telephonically subscribed for Shares
properly withdraws such subscription as provided in the Registration
Statement, and, in either such event, the Escrow Agent has already
collected funds for such subscription, the Escrow Agent shall promptly
issue a refund check to the drawer of the check submitted by or on
behalf of the rejected or withdrawing subscriber. If either of the
events specified in the clauses (i) or (ii) of the preceding sentence
occur and, in either such event, the Escrow Agent has not yet collected
funds for such subscription but has submitted the check relating to such
subscription for collection, the Escrow Agent shall promptly issue a
check in the amount of such check to the rejected or withdrawing
subscriber after the Escrow Agent has cleared such funds. If the Escrow
Agent has not yet submitted the check relating to the subscription of
the rejected or withdrawing subscriber, the Escrow Agent shall promptly
remit such check directly to the drawer of the check submitted by or on
behalf of the subscriber.
4. Investment of Escrowed Funds. The Escrow Agent, immediately upon
receipt of each check remitted to it, shall deposit such check in
interest-bearing savings accounts, in short-term certificates of deposit issued
by a bank, or in other short-term securities directly or indirectly issued or
guaranteed by the United States government, all as directed by the Company.
5. Distribution of Escrowed Funds. The Escrow Agent shall release from
the Escrow Account to the Company any and all Escrowed Funds therein, together
with all interest earned thereon, upon the written request of an officer of the
Company.
6. Liability of Escrow Agent.
(a) In performing any of its duties under this Agreement, or upon
the claimed failure to perform its duties hereunder, the Escrow Agent
shall not be liable to anyone for any damages, losses, or expenses which
it may incur as a result of the Escrow Agent so acting, or failing to
act; provided, however, the Escrow Agent shall be liable for damages
arising out of its willful default or misconduct or its gross negligence
under this Agreement. Accordingly, the Escrow Agent shall not incur any
such liability with respect to (i) any action taken or omitted to be
taken in good faith upon advice of its counsel or counsel for the
Company which is given with respect to any questions relating to the
duties and responsibilities of the Escrow Agent hereunder, or (ii) any
action taken or omitted to be taken in reliance upon any document,
including any written notice or instructions provided for in this Escrow
Agreement, not only as to its due execution and to the validity and
effectiveness of its provisions but also as to the truth and accuracy of
any information contained therein, if the Escrow Agent shall in good
faith believe such document to be genuine, to have been signed or
presented by a proper person or persons, and to conform with the
provisions of this Agreement.
(b) The Company hereby agrees to indemnify and hold harmless the
Escrow Agent against any and all losses, claims, damages, liabilities
and expenses, including, without limitation, reasonable costs of
investigation and counsel fees and disbursements which may be incurred
by it resulting from any act or
-3-
<PAGE>
omission of the Company; provided, however, that the Company shall not
indemnify the Escrow Agent for any losses, claims, damages, or expenses
arising out of the Escrow Agent's willful default, misconduct, or gross
negligence under this Agreement.
(c) If a dispute ensues between any of the parties hereto which, in
the opinion of the Escrow Agent, is sufficient to justify its doing so,
the Escrow Agent shall be entitled to tender into the registry or
custody of any court of competent jurisdiction, including the Circuit
Court of Orange County, Florida, all money or property in its hands
under the terms of this Agreement, and to file such legal proceedings as
it deems appropriate, and shall thereupon be discharged from all further
duties under this Agreement. Any such legal action may be brought in any
such court as the Escrow Agent shall determine to have jurisdiction
thereof. The Company shall indemnify the Escrow Agent against its court
costs and attorneys' fees incurred in filing such legal proceedings.
7. Inability to Deliver. In the event that checks for subscriptions
delivered to the Escrow Agent by the Company pursuant to this Agreement are not
cleared through normal banking channels within 120 days after such delivery, the
Escrow Agent shall deliver such uncleared checks to the Company.
8. Notice. All notices, requests, demands and other communications or
deliveries required or permitted to be given hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally, given by
prepaid telegram or deposited for mailing, first class, postage prepaid,
registered or certified mail, as follows:
If to the subscribers for Shares: To their respective addresses as
specified in their Subscription
Agreements.
If to the Company: 400 East South Street, Suite 500
Orlando, Florida 32801
Attention: Mr. James M. Seneff, Jr.,
Chairman of the Board
If to the Managing Dealer: 400 East South Street, Suite 500
Orlando, Florida 32801
Attention: Mr. Robert A. Bourne,
President
If to the Escrow Agent: SOUTHTRUST ASSET MANAGEMENT COMPANY
OF FLORIDA, N.A.
135 West Central Boulevard, Suite 1200
Orlando, Florida 32801
Attention: Mr. John Ross
9. Fees to Escrow Agent. In consideration of the services to be
provided by the Escrow Agent hereunder, the Company will pay the Escrow Agent a
fee for its services hereunder (the "Escrow Fee"). The Escrow Fee shall be $350
for each month or any portion thereof that the Escrow Account continues for the
Company. Payments by the Company shall be due on the earlier of (i) the date on
which the Escrowed Funds become distributable to the Company pursuant to
Paragraph 5 hereof, or (ii) six months from the effective date of this
Agreement; or (iii) the closing of the offering of Shares in the Company.
Subsequent payments by the Company, if any, shall be due and payable no less
frequently
-4-
<PAGE>
than six-month intervals while the escrow continues for the Company. In
no event shall the total Escrow Fees payable by the Company pursuant to
this Agreement be less than $2,100, nor more than $4,200, for any
12-month period. Notwithstanding anything contained in this Agreement to
the contrary, in no event shall any fee, reimbursement for costs and
expenses, indemnification for any damages incurred by the Escrow Agent,
or monies whatsoever be paid out of or chargeable to the Escrowed Funds
in the Escrow Account.
11. General.
(a) This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of Florida.
(b) The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(c) This Agreement sets forth the entire agreement and
understanding of the parties with regard to this escrow transaction and
supersedes all prior agreements, arrangements and understandings
relating to the subject matter hereof.
(d) This Agreement may be amended, modified, superseded or
cancelled, and any of the terms or conditions hereof may be waived, only
by a written instrument executed by each party hereto or, in the case of
a waiver, by the party waiving compliance. The failure of any party at
any time or times to require performance of any provision hereof shall
in no manner affect the right at a later time to enforce the same. No
waiver in any one or more instances by any party of any condition, or of
the breach of any term contained in this Agreement, whether by conduct
or otherwise, shall be deemed to be, or construed as, a further or
continuing waiver of any such condition or breach, or a waiver of any
other condition or of the breach of any other terms of this Agreement.
(e) This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(f) This Agreement shall inure to the benefit of the parties hereto
and their respective administrators, successors, and assigns.
12. Representation of the Company. The Company hereby acknowledges that
the status of the Escrow Agent with respect to the offering of the Shares is
that of agent only for the limited purposes herein set forth, and hereby agrees
it will not represent or imply that the Escrow Agent, by serving as the Escrow
Agent hereunder or otherwise, has investigated the desirability or advisability
of an investment in the Shares, or has approved, endorsed or passed upon the
merits of the Shares, nor shall the Company use the name of the Escrow Agent in
any manner whatsoever in connection with the offer or sale of the Shares, other
than by acknowledgement that it has agreed to serve as Escrow Agent for the
limited purposes herein set forth.
-5-
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
"Company"
CNL AMERICAN PROPERTIES FUND, INC.
By:
JAMES M. SENEFF, JR., Chairman of the Board
"MANAGING DEALER"
CNL SECURITIES CORP.
Attest: By:
ROBERT A. BOURNE, President
"ESCROW AGENT"
SOUTHTRUST ASSET MANAGEMENT COMPANY
OF FLORIDA, N.A.
Attest: By:
Name:
Title:
-6-
Exhibit 10.3
Joint Venture Agreement
<PAGE>
JOINT VENTURE AGREEMENT
(For Joint Ventures With
Affiliated Programs)
THIS AGREEMENT made this day of , 19 , by and between CNL ,
a , hereinafter sometimes referred to as "Co-Venturer", and
CNL , a , hereinafter sometimes referred to as "CNL"; both
Co-Venturer and CNL, being hereinafter sometimes referred to as "Partner", are
undertaking this joint venture (the "Joint Venture" or the "Venture") with
reference to the following:
A. The Joint Venture will acquire that certain real property (the "Real
Property") located in , County, , described on Exhibit "A" attached hereto and
incorporated herein by reference. The Real Property shall be acquired in
accordance with the terms and conditions of that certain Real Estate Sale and
Leaseback Contract (the "Leaseback Contract") attached hereto as Exhibit "B".
B. Co-Venturer and CNL believe that the Real Property can be profitably
owned, held, leased, used, sold and otherwise dealt with and that it would be to
the mutual advantage of the Partners to form the Joint Venture for such
purposes.
C. It is further intended by the Partners hereto that the Joint Venture
created by this Agreement shall constitute for federal income tax purposes a
Partnership (as such term is defined under Sub-Chapter K of the Internal Revenue
Code of 1986, as amended).
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants and agreements hereinafter contained, the Partners do hereby agree and
covenant with each other as follows:
ARTICLE I
BASIC STRUCTURE
1.1 Form. The Partners hereby agree to associate themselves together as
a Partnership and do hereby form a Partnership pursuant to the provisions of the
Revised Uniform Partnership Act of the State of Florida upon the terms and
conditions herein set forth.
1.2 Name. The business of the Joint Venture shall be conducted under
the name of ________________________________________________________________.
1.3 Place of Business. The principal office and place of business of the
Venture shall be located at 400 East South Street, Suite 500, Orlando, Florida
32801.
2
<PAGE>
1.4 Term. The Venture shall commence on the execution of this Agreement
and shall continue for twenty (20) years and thereafter from year to year unless
either Partner shall elect to terminate the Venture by six (6) months prior
written notice to the other Partner, unless earlier terminated in the following
manner:
(a) By the completion of the Venture's purposes, or
(b) Pursuant to this Agreement, or
(c) By applicable law.
1.5 Purpose. The purpose for which the Venture is organized is to own
the Real Property and to lease the same to pursuant to the Lease attached to the
Leaseback Contract, or in the event of termination thereof, to lease the Real
Property to any other appropriate tenant and to otherwise manage, improve,
repair, rent, lease, assign, mortgage, hypothecate, sell or otherwise deal with
the Real Property, its appurtenances, improvements and fixtures.
1.6 Investment Representations of Partners. Each Partner represents and
warrants that it is acquiring its interest in this Venture for its own account,
for investment and not with a view to the sale, disposition or distribution
thereof. The interests of the Partners represented by this Agreement have not
been registered or qualified under the Securities Act of 1933, as amended, and
may not be sold, assigned, pledged or transferred where permitted by this
Agreement, without an effective registration under said Act, or delivery to the
other Partner of an opinion of counsel acceptable to the other Partner and the
Joint Venture that an exemption from registration under said Act is available.
ARTICLE II
FINANCIAL ARRANGEMENTS
2.1 Capital Contributions. Each of the Partners has contributed
capital (the "Capital Contribution") to the Joint Venture as follows:
Co-Venturer
CNL
2.2 Percentage Interests. Each Partner's undivided percentage interest
in the Venture (individually, "Percentage Interest" and jointly "Percentage
Interests") shall be equal to the ratio that its Capital Contribution bears to
the aggregate Capital Contributions of all Partners in the Joint Venture.
2.3 Capital Accounts. As used herein, the term "Capital Account"
shall mean the book account which shall be maintained and determined for each
Partner in a manner which
3
<PAGE>
complies with Treasury Regulation Section 1.704-1(b)(2)(iv), as amended. Each
Partner's Capital Account shall reflect, among other items, (i) all
contributions made by such Partner to the Joint Venture, (ii) all allocations of
Joint Venture profits and losses to such Partner, and (iii) all distributions
made to such Partner. No Partner shall have the right to withdraw capital from
the Joint Venture without the prior written consent of the other Partners.
2.4 Allocation of Profits, Losses and Distributions.
(a) Net Operating Profits and Losses. The net operating profits
and losses of the Joint Venture shall be determined as of the end of each fiscal
year and shall be allocated to Co-Venturer and CNL in accordance with their
respective Percentage Interests. The "net operating profits and losses" of the
Joint Venture to be allocated pursuant to this Article 2.4(a) for any fiscal
year or other period shall mean (i) the gross operating income of the Joint
Venture from all sources, excluding all gains and losses recognized by the Joint
Venture with respect to a sale, exchange or other disposition of all or a
substantial part of the Joint Venture's property, as calculated for federal
income tax purposes, plus (ii) any income of the Joint Venture that is exempt
from federal income tax and not otherwise taken into account in computing gross
income for federal income tax purposes, and reduced by (a) all items of expense
or deduction that are allowable as deductions to the Joint Venture for such
period for federal income tax purposes, including, without limitation,
depreciation and amortization, (b) any expenditures of the Joint Venture
described in Section 705(a)(2)(B) of the Internal Revenue Code of 1986, as
amended, or treated as expenditures described in such section pursuant to
Treasury Regulation Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into
account in computing taxable income, and (c) any income, gain or loss specially
allocated to any Partner under Articles 2.4(d) or (e) below.
(b) Non-operating Profits. Subject to Articles 2.4(d) and (e),
taxable gain recognized by the Joint Venture with respect to a sale, exchange or
other disposition of all or a substantial part of the Joint Venture's property
(as determined for federal income tax purposes in accordance with the Joint
Venture's accounting method and Section 703 of the Internal Revenue Code of
1986, as amended) shall be allocated as follows:
(i) First to the Partners having negative balances in
their Capital Accounts, in the proportion that the negative balance in
each such Partner's Capital Account bears to the aggregate negative
balances in the Capital Accounts of all such Partners, until the
balances in their Capital Accounts are increased to zero; and
(ii) The balance, if any, shall be allocated to
Co-Venturer and CNL in accordance with their respective Percentage
Interests.
(c) Non-operating Losses. Subject to Articles 2.4(d) and (e),
taxable loss recognized by the Joint Venture with respect to a sale, exchange or
other disposition of all or a substantial part of the Joint Venture's property
(as determined for federal income tax purposes in accordance with the Joint
Venture's accounting method and Section 703 of the Internal Revenue Code of
1986, as amended) shall be allocated as follows:
4
<PAGE>
(i) First to the Partners with positive balances in their
Capital Accounts, in the proportion that the positive balance in
each such Partner's Capital Account bears to the aggregate
positive balances in the Capital Accounts of all such Partners,
until the balances in their Capital Accounts are reduced to zero;
and
(ii) The balance, if any, shall be allocated to
Co-Venturer and CNL in accordance with their respective
Percentage Interest.
(d) General Provisions. Whenever a proportionate part of the
Joint Venture profits, gains or losses is credited or charged to a Partner's
Capital Account, every item of income, gain, loss, deduction or credit entering
into the computation of such profit, gain or loss, as applicable to the period
during which such profit, gain or loss is realized, shall be considered credited
or charged, as the case may be, to such account in the same proportion. For
purposes of allocating gains or losses arising from a sale, exchange or other
disposition of all or a substantial part of the Joint Venture's property, the
Capital Accounts of the Partners shall be determined as if the Joint Venture's
taxable year had ended immediately prior to the sale or other disposition giving
rise to such gains or losses. Notwithstanding anything contained in this
Agreement to the contrary, income, gain, loss and deduction with respect to
property contributed to the Joint Venture by any partner shall be shared between
the Partners so as to take 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 Internal Revenue Code of 1986, as amended. As between
a Partner and its transferee, net operating profits and losses for any fiscal
year (or portion thereof, as the case may be), shall be apportioned between the
transferor and transferee in accordance with the ratio that the number of days
in the Joint Venture's fiscal year prior to the effective date of transfer bears
to the number of such days thereafter (including the effective date of
transfer).
(e) Depreciation Recapture. Any depreciation recapture under
Sections 1245 or 1250 of the Internal Revenue Code of 1986, as amended, shall be
allocated to the Partners in the proportions in which the original depreciation
deductions being recaptured were allocated to them.
(f) Distributions of Net Cash Flow. "Net Cash Flow" shall mean
all cash receipts of the Joint Venture (other than Capital Contributions and
proceeds from a sale, exchange or other disposition of all or a substantial part
of the Joint Venture's property in connection with, or which results in, the
liquidation of the Joint Venture pursuant to Article VI below), plus any amounts
which the Partners, in their sole discretion, agree shall be released from
reserves or otherwise made available for distribution, and less all expenses and
current obligations of the Joint Venture (including payments of principal and
interest on any loans, including loans from Partners) and amounts which the
Partners, in their sole discretion, agree shall be added to Joint Venture
reserves. Subject to Article 2.4(g) below, distributions of Net Cash Flow shall
be made from time to time in the discretion of the Partners, but at least
monthly, to CNL and Co-Venturer in accordance with their respective Percentage
Interests.
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<PAGE>
(g) Limitations on Cash Distributions. Any distributions of
Net Cash Flow shall be subject to the following limitations, restrictions and
conditions:
(i) At the time of any distribution the Joint Venture must
have available to it cash funds sufficient for such distribution
after taking into account the amounts which the Partners agree
should be set aside to provide a reasonable reserve for expenses
of conducting the business of the Joint Venture; and
(ii) No distribution shall be made by the Joint Venture
if, immediately after such distribution, the Joint Venture's
assets do not exceed all of its liabilities, exclusive of
liabilities to the Partners on account of their Capital
Contributions.
ARTICLE III
MANAGEMENT AND DUTIES OF PARTNERS
3.1 Rights, Power and Restrictions of Payments. Except as expressly
provided to the contrary in this Article 3.1, no Partner, without the consent of
all the other Partners, shall:
(a) Do any act which would make it impossible to carry on the
ordinary business of the Venture;
(b) Confess judgment against the Venture;
(c) Possess Venture property, or assign its interest or rights
in specific Venture property, for other than a Venture purpose;
(d) Borrow any funds or incur any liability on behalf of the
Venture;
(e) Encumber any Venture property, including, without
limitation, the Real Property;
(f) Sell or lease any Venture property; and
(g) Lend any money on behalf of the Venture.
3.2 Day to Day Management. Because the Real Property will be net leased,
it is not anticipated that substantial management responsibilities on the part
of the Venture will exist. However, the Partners agree that CNL, through its
designee, CNL Investment Company, 400 East South Street, Suite 500, Orlando,
Florida 32801, shall receive the monthly rental payments from the tenant and
place such payments into a new bank account established in the name of the Joint
Venture. From such account, distributions shall be made pursuant to Article
2.4(f) hereof. No fees or other charges shall be made by CNL for these
administrative duties except actual out-of-pocket costs for establishing the
bank account and acquisition of checks therefor, service charges and other
charges of like nature.
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In addition, CNL shall be responsible for maintaining landlord/tenant
relationships with tenant and for monitoring gross sales of the tenant and such
other analysis as shall be necessary to determine whether additional percentage
rental is due from tenant, and for performing or supervising all functions
incident to the day-to-day management of the Real Property.
No charges shall be made by CNL for such services rendered to the Joint
Venture. However, the Joint Venture shall reimburse CNL for its actual
out-of-pocket costs incurred which relate to the management of the Real
Property, and such costs shall be a Venture expense.
3.3 Joint Venture Real Property. The Real Property of the Joint Venture
shall be held in the name of the Joint Venture for the sole exclusive benefit of
the Joint Venture. Any and all leases and amendments thereto, sales tax
application forms, tangible personal property tax returns, Joint Venture income
tax returns or other documents requiring the signature of the Joint Venture
shall be signed by CNL on behalf of the Joint Venture. Additionally, any deed or
other document required to be signed by the Joint Venture with respect to the
sale, lease or mortgaging of the property (only as permitted hereunder) may be
executed in the name of the Joint Venture by CNL, acting by itself and without
the joinder of Co-Venturer or, alternatively, by all Partners.
ARTICLE IV
ACCOUNTING; BANK ACCOUNTS
4.1 Books and Records. At all times during the term hereof, the Venture
shall maintain, at a place mutually agreed by the Partners, accurate books and
records of account in which shall be entered all matters relating to the
Venture, including all income, expenditures, assets and liabilities thereof.
Such books of account shall be maintained on the accrual basis (unless otherwise
agreed by the Partners) and shall be adequate to provide either Partner with all
financial information as may be needed by any Partner or any affiliate of such
Partner for the purpose of satisfying the financial reporting obligations of
such Partner or its respective affiliate or affiliates.
Each Partner shall be entitled to any additional information necessary
for the Partner to adjust his financial basis statement to a tax basis as the
Partner's individual needs may dictate.
Each Partner, its authorized representatives, and any supervisory or
regulatory authority (through its appropriate representatives) shall have the
right to inspect, examine and copy the books, records, files and other documents
of the Venture at all reasonable times at the expense of the party requiring
such information.
4.2 Fiscal Year. The fiscal year of the Venture shall end on
December 31 of each year.
4.3 Bank Accounts. Funds of the Venture shall be deposited in an account
in the name of the Venture in a bank approved by the Partners. Subject to the
provisions of Article 3.2, withdrawals from such bank account shall be made upon
the signature of any of the persons designated by the Joint Venture upon the
opening of the account.
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4.4 Tax Returns. Tax returns of the Venture shall be prepared by the
certified public accounting firm selected and approved by the Partners. Copies
of tax returns of the Venture shall be furnished for review and approval by each
of the Partners at least thirty (30) days prior to the statutory date for
filing, including extensions thereof, if any. Prompt notice shall be given to
all Partners upon receipt of advice that the Internal Revenue Service intends to
examine the Venture income tax return for any year.
ARTICLE V
VOLUNTARY WITHDRAWAL, ASSIGNMENT OR SALE OF
PARTNERSHIP INTERESTS
5.1 Right to Withdraw. Except as otherwise provided in Articles 5.2 and
5.3 hereof, either Partner shall have the limited right to withdraw from the
Joint Venture and sell its interest in the Venture to the remaining Partner only
upon such terms and conditions as may be agreed upon in writing by the Partners.
5.2 Bona Fide Third Party Offer. In the event one Partner desires to
withdraw from the Venture but no agreement can be reached between the Partners
as to the terms and conditions of sale for such Partner's interest within ten
(10) days from such time as the Partner desiring to withdraw from the Venture
notifies in writing the remaining Partner of its desire to withdraw and sell its
interest in the Venture, then the Partner desiring to withdraw from the Venture
shall be entitled to solicit and obtain a bona fide offer from an unrelated
third party to purchase its entire interest in the Venture. In such event, the
following provisions shall apply:
(a) If the Partner desiring to withdraw has obtained a bona fide
offer to purchase its interest in the Venture from an unrelated third party, and
if it desires to accept such offer, then that Partner shall cause such offer to
be reduced to writing and delivered to the remaining Partner.
(b) The remaining Partner then, within sixty (60) days after
delivery of such bona fide offer to the remaining Partner, may elect to purchase
the Venture interest of the Partner desiring to withdraw from the Venture at the
price and on the terms set forth in such offer. In the event the remaining
Partner shall fail to timely exercise its option described in the immediately
preceding sentence, then the Partner desiring to dispose of its interest in the
Venture may transfer its inerest to the person or persons who made the bona fide
third party offer, provided that such sale is made strictly in accordance with
the terms set forth in such offer and the person or persons or entity so
acquiring such interest shall hold such interest subject to all the terms and
conditions of this Agreement.
(c) In the event of a sale of a Partner's Venture interest to a
third party in accordance with this Article V, a duly executed and acknowledged
instrument of assignment shall be filed with the Joint Venture. Further, the
selling Partner and assignee shall execute and acknowledge such other instrument
or instruments as the other Partner shall deem reasonably necessary or desirable
to effectuate such sale and the admission of the assignee of the interest to
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<PAGE>
the Joint Venture, including the written acceptance and adoption by the assignee
of all of the terms and conditions of this Agreement as the same may have been
theretofore amended. Further, such assignee shall pay to the Joint Venture all
reasonable expenses incurred by the Venture and the other Partner in connection
with such assignment and substitution. Finally, in the event of such a sale and
substitution, the selling Partner shall pay to the Joint Venture any and all
sums owed by it to the Joint Venture.
(d) If for any reason the sale of a Partner's entire interest in
the Venture which is the subject of a bona fide third party offer is not
concluded by the Partner desiring to withdraw from the Venture and the third
party on or before the closing date which is set forth in the original bona fide
third party offer, then the provisions contained in this Article V shall be
reimposed in their entirety, and such bona fide third party offer, as well as
any other offer(s) for such Partner's entire interest in the Venture, must again
be submitted to the remaining Partner pursuant to the terms hereof.
(e) For the purpose of this Article V, a bona fide third party
offer shall not include any offer which is assignable by the prospective
purchaser.
5.3 Buy-Sell Agreement. In the event that one Partner desires to sell
the Real Property and the other Partner does not desire to sell the Real
Property, then in that event either Partner (sometimes hereinafter referred to
as the "Offering Partner") may deliver a written notice (the "Notification") to
the other Partner (sometimes hereinafter referred to as the "Non-Offering
Partner"). The Notification shall state that the Offering Partner intends to
purchase the entire Joint Venture interest of the Non-Offering Partner, the
purchase price (which shall be stated in terms of a specific dollar amount per
each one percent (1%) in Percentage Interest) which the Offering Partner will
pay for such Joint Venture interest, the terms of payment, whether for cash or
credit, and if on credit, the term, dates of payment, interest rate and security
or collateral arrangements, as well as any and all other consideration being
received or paid in connection with the proposed transaction, and any and all
other terms, conditions, and details of such offer. The Notification shall also
state that the Non-Offering Partner shall have ninety (90) days from the date of
delivery of the Notification either to sell its entire Joint Venture interest to
the Offering Partner, or to purchase the entire Joint Venture interest of the
Offering Partner, with such purchase or sale to be consummated strictly upon the
terms and conditions, and for the price per Percentage Interest, set forth in
the Notification.
5.4 No Assignment, Pledge or Encumbrance. Except as otherwise provided
in Sections 5.1, 5.2 and 5.3, no Partner shall have the right to sell, assign,
pledge, encumber or otherwise hypothecate its interest in this Joint Venture
without the prior written consent of the remaining Partner. In the event any
person or entity shall obtain a lien, charging order or similar right as a
creditor against any Partner's Venture interest, the person or entity obtaining
such status shall be in the status of a prospective purchaser of such Partner's
interest but with no right to be admitted to the Venture as a joint venturer or
Partner. In the event the Partner against whom such lien, charging order or
similar right exists shall fail to discharge (by bond, full payment or
otherwise) such lien, charging order or similar right within sixty (60) days
subsequent to its
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<PAGE>
effective date and such Partner's knowledge thereof, the remaining Partner shall
be entitled to purchase such other Partner's Venture interest for a sum equal to
the amount of the lien, charging order or similar right. Payment of such sum to
the creditor by the remaining Partner and discharge of such lien, charging order
or similar right shall simultaneously cause a termination in full of the Venture
interest of the Partner against whom such lien, charging order or similar right
as a creditor existed.
5.5 No Partition. Each of the Partners does hereby waive any and all
rights that it may have to maintain any action for partition with respect to any
Joint Venture property or to compel any sale thereof, it being understood that
this Article 5.5 shall not act to limit the right of any Partner to sell or
convey its interest in accordance with the terms and conditions of this
Agreement.
ARTICLE VI
DISSOLUTION
6.1 Events. The Joint Venture shall be dissolved upon the occurrence
of any of the following events:
(a) The expiration of the term of the Joint Venture as set
forth herein.
(b) Upon mutual written agreement of the Partners.
(c) Except as otherwise provided in this Agreement, the
adjudication of bankruptcy, insolvency or cessation of the existence as a legal
entity of any of the Partners.
(d) Issuance of a final order by a court of competent
jurisdiction ordering the dissolution of the Joint Venture after time for all
rights of appeal have elapsed or have been finally concluded upholding the
dissolution order.
(e) Sale, exchange or other disposition of all, or any
substantial part, of the Joint Venture's property.
6.2 Liquidation. Upon the dissolution of the Joint Venture, the Partners
shall cause the Joint Venture's affairs to be wound up, its receivables
collected and its assets liquidated within a reasonable period of time, a final
accounting made and the books of the Joint Venture closed, with the proceeds,
after expenses of such liquidation, to be distributed as follows:
(a) First, to the satisfaction of all debts and obligations of
the Joint Venture, other than debts and obligations to Partners;
(b) Next, to the payment of amounts owed the Partners for
loans;
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<PAGE>
(c) Next, to the setting up of any reserves which are
reasonably necessary to satisfy any contingent or unforeseen liabilities or
obligations of the Joint Venture; and
(d) After allocations of all profits, gains and losses (including
both net operating profits and losses and gains and losses arising from the
sale, exchange, or other disposition of all or any substantial part of the Joint
Venture's property) have been made pursuant to Section 2.4 hereof, any proceeds
then remaining shall be distributed to the Partners to the extent of, and in
proportion to, their respective positive Capital Account balances.
ARTICLE VII
INDEMNIFICATION
Each Partner shall indemnify and hold harmless the other Partner against
any and all claims, demands, losses, damages, liabilities, lawsuits or other
proceedings, judgments or awards, costs and expenses (including but not limited
to reasonable attorneys' fees) arising directly or indirectly by reason of such
indemnifying Partner's breach of this Agreement or acting outside the scope of
its authority hereunder.
ARTICLE VIII
GENERAL PROVISIONS; MISCELLANEOUS
8.1 Separate Businesses. Partners may engage in any other business,
investment or profession, including the investment and the ownership, financing,
development, operation and management of real property, and neither the Joint
Venture nor any other Partner shall have any rights in and to any said business,
profession or investment or the income or the profits derived therefrom by
reason of this Agreement.
8.2 Scope of Authority. Neither of the Partners shall, without the
approval of the other Partner, take any action on behalf of or in the name of
the Venture, or enter into any commitment or obligation binding upon the
Venture, except for actions expressly provided for in this Agreement or actions
authorized by the other Partner in the manner set forth herein.
8.3 Arbitration. No civil action concerning any dispute arising under
this Agreement shall be instituted before any court and all such disputes shall
be submitted to final and binding arbitration under the auspices of the American
Arbitration Association. Such arbitration shall be conducted in accordance with
the rules of such association before a single arbitrator. The Partners agree
that the interests of the Joint Venture cannot be readily sold in the open
market, and for that reason, among others, the Partners will be irreparably
damaged in the event that this Agreement is not specifically enforced.
Therefore, in addition to any award of damages, any such award shall, if the
Partner entitled to the same demands it, grant specific performance of this
Agreement. All costs and expenses of the arbitration, including actual
attorney's fees, shall be allocated among the Partners according to the
arbitrator's discretion. The arbitrator's award resulting from such arbitration
may be confirmed and entered as a final judgment in any court of competent
jurisdiction and enforced accordingly. Further, the Partners hereto expressly
agree
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that proceeding to arbitration and obtaining an award thereunder shall be a
condition precedent to the bringing or maintaining of any action in any court
with respect to any dispute arising under this Agreement, except for the
institution of a civil action to maintain the status quo during the pendency of
any arbitration proceeding.
8.4 Venture Acts. In no event shall this Agreement grant unto any
Partner the authority to act on behalf of the other Partners with respect to
matters not directly related to the purpose of the Venture as set forth herein.
This Agreement shall not grant unto any Partner any interest, claim or liability
whatsoever with respect to any other assets or liabilities of the other
Partners.
8.5 Representative of each Partner. CNL is a Florida limited
partnership. Co-Venturer is a Florida limited partnership. The general
partner(s) of each Partner shall designate to the other, in writing, a single
individual or entity to speak on its behalf with respect to all Joint Venture
matters. In no event shall any individual limited partner or general partner not
so designated be entitled to make any independent demands of the Joint Venture
whatsoever.
8.6 Notices. All written notices or demands of any kind which any
Partner may be required or may desire to serve on the other in connection with
this Agreement may be served by personal service or by registered or certified
mail and shall be deposited in the United States Mail with postage thereon fully
prepaid, registered or certified, and addressed to the Partners so to be served
as follows:
If the Partner to be served is CNL, address CNL at:
CNL ,
400 East South Street, Suite 500
Orlando, Florida 32801
Attention: James M. Seneff, Jr.
If the Partner to be served is Co-Venturer, address Co-Venturer at:
CNL ,
400 East South Street, Suite 500
Orlando, Florida 32801
Attention: James M. Seneff, Jr.
Service of any such notice or demand so made by mail shall be deemed
complete on the day of actual delivery as shown by the addressee's registry or
certification receipt or at the expiration of the third day after the date of
mailing, whichever is earlier in time. Either Partner hereto may from time to
time, by notice in writing served on the other as herein set forth, designate a
different mailing address or a different person to which all such notices or
demands are thereafter to be addressed.
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8.7 Entire Agreement. This Agreement is the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior oral or written agreements between them with respect hereto. This
Agreement may not be altered or amended except by written agreement duly
executed by all Partners of the Joint Venture.
8.8 Successors and Assigns. The provisions of this Agreement shall,
subject to the terms and conditions hereof, be binding upon and inure to the
benefit of the successors and assigns of each of the Partners.
8.9 Governing Law. This Agreement and the Joint Venture shall be
governed by and construed in accordance with the laws of the State of Florida.
8.10 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and such counterparts
shall together constitute one and the same agreement, binding upon each of the
Partners hereto, notwithstanding each of the Partners are not signatory to the
original or the same counterpart.
8.11 Paragraph Titles. Titles of the paragraphs and sub-paragraphs are
placed herein for convenient reference only and shall not to any extent have the
effect of modifying, amending or changing the express terms and provisions of
this Agreement.
8.12 Severability. In the event any of the parts of this Agreement are
found to be void, the remaining provisions of this Agreement shall nevertheless
be binding with the same effect as though the void parts were deleted.
8.13 Effective Date. This Agreement shall be effective upon execution
by both of the Partners.
8.14 Waivers. No waiver of any provision of or obligation under this
Agreement shall be valid unless in writing and signed by the Partner to be
bound.
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<PAGE>
IN WITNESS WHEREOF, the Partners hereto have executed this Agreement as
of the day and year first above written.
Signed, Sealed and Delivered
in the presence of: "LANDLORD"
, a
BY: CNL , a
, as
general partner
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<PAGE>
BY: CNL ,
a ,
as general partner
15
Exhibit 10.4
Form of Indemnification and Put Agreement
<PAGE>
INDEMNIFICATION AND PUT AGREEMENT
THIS AGREEMENT is made as of the day of __________, 19__, by and among
CNL __________________________, a _________________ (the "Owner"),
____________________________________, a ______________________________
("Developer"), and __________________________________________ (the
"Guarantors").
PRELIMINARY STATEMENT
The Owner has entered into that certain Purchase Agreement dated as of
even date herewith (the "Purchase Agreement") with Developer. Pursuant to the
Purchase Agreement, the Owner will purchase the land described on Exhibit "A"
attached hereto (the "Property"). In addition the Owner has entered into a Lease
Agreement with Developer (the "Lease Agreement") and a Construction Addendum to
the Lease Agreement with Developer (the "Construction Addendum"), both of even
date herewith. Pursuant to the Construction Addendum, Developer has agreed and
undertakes to construct new improvements on the Property and deliver a turn-key
restaurant to Owner. The Lease Agreement provides that Developer shall lease the
Property and improvements now or hereafter on the Property from the Owner.
AGREEMENT
In consideration of the mutual covenants contained herein and as an
inducement to the Owner to enter into the Lease Agreement, the Construction
Addendum and the Purchase Agreement, the parties agree as follows:
1. If within: (a) sixty (60) days after the date hereof, all permits,
approvals and consents have not been obtained to permit the commencement of
construction or renovation of the restaurant on the Property; or (b) in the
event the condition set forth in (a) has been fulfilled, one hundred fifty (150)
days after the date hereof the construction of the restaurant has not been
completed as evidenced by the issuance of a certificate of occupancy, then the
Owner shall have the right and option to convey the Property and the
improvements completed to the date of such conveyance (the "Premises") to
Developer subject to the terms and conditions set forth herein. The Owner shall
notify Developer that the 60-day or 150-day period has expired, or is about to
expire and that Owner is exercising its option to sell Developer the Property.
2. In the event the Owner notifies Developer of its election to convey
the Premises to Developer, the Owner shall deliver to Developer or its designee
a quitclaim deed conveying all of the Owner's right, title and interest in the
Premises. Developer shall pay or cause to be paid to the Owner an amount equal
to the total amount disbursed by Owner through the date of such reconveyance
plus interest thereon from the date of disbursement at the rate of 11.5% per
annum, in cash or its equivalent. All costs associated with such conveyance,
including but not limited to title insurance fees, recording costs or fees,
attorneys' fees, appraisal fees, stamp taxes and transfer fees shall be borne by
Developer.
<PAGE>
3. All notices, demands, requests, consents, approvals or other
instruments required or permitted to be given by either party pursuant hereto
shall be in writing and shall be deemed to have been properly given if sent by
registered or certified mail, Federal Express, Airborne, Emery, DHL, Express
Mail, Purolator, or by other recognized overnight courier service (the "Courier
Service"), postage prepaid, to the parties at the addresses set forth in the
Lease Agreement or the Guaranty of even date. All notices shall be deemed
received when delivered but in no event later than ten (10) days after they are
deposited with either the United States Postal Service or the Courier Service,
whichever shall first occur.
4. If Developer or the Guarantors shall fail or refuse to perform
pursuant to the terms and conditions of this Agreement, then the Owner shall
have the right, upon giving written notice to Developer to declare a default
under the Lease Agreement and to exercise all remedies available at law or in
equity against Developer or the Guarantors.
5. Developer and Guarantors, jointly and severally, hereby agree to
indemnify and hold harmless Owner from any loss, cause of action, claim, cost,
expense or fee (including but not limited to attorney's fees) suffered or
occasioned by the failure of Developer or the Guarantors to satisfy its or their
obligations under this Agreement. The obligations of Developer and Guarantors
under this section shall be independent, primary, joint and several obligations
of Developer and the Guarantors hereunder.
6. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original.
[Signatures on Next Page]
2
<PAGE>
IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first written above.
WITNESSES:
Signed, Sealed and Delivered
in the presence of: "OWNER"
CNL ______________________, a
__________________ corporation
By: --------------------------
- ------------------------------------------
Name: ------------------------------------
- ------------------------------------------
Name: ------------------------------------
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this ____ day of
_______________, 1996 by ____________________, as ______________________ of CNL
_____________________, a ____________________, on behalf of the
_______________________. He is personally known to me and did not take an oath.
--------------------------------------------
Notary Signature
--------------------------------------------
Printed Name
Notary Public, State of Florida
Commission Number: ---------------------------
My Commission Number: -----------------------
3
<PAGE>
Signed, Sealed and Delivered
in the presence of: "DEVELOPER"
_________________________________, a
-----------------
- -------------------------------
By: ----------------------------------------
Name: -------------------------
Name: --------------------------------------
As Its: ------------------------------------
- -------------------------------
Name:--------------------------
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this ____ day of
_______________, 1996 by , as ____________ of ______________________________., a
___________________ corporation, on behalf of the corporation. He is personally
known to me and did not take an oath.
--------------------------------------------
Notary Signature ---------------------------
Printed Name
Notary Public, State of Florida
Commission Number: ---------------------------
My Commission Number: -----------------------
(SEAL)
4
<PAGE>
"GUARANTORS"
WITNESSES:
Address:
Address:
5
<PAGE>
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this ________ day of
_______, 19___ by ________________________, who has produced _________________
or other picture identification, a copy of which is attached hereto, which I
hereby certify and verify to be the same person who executed this instrument and
who did/did not take an oath.
Printed Name:
Address:
Phone Number:
Notary Public, State of
Commission #
Commission expires:
SEAL:
STATE OF FLORIDA
COUNTY OF
The foregoing instrument was acknowledged before me this ________ day of
________, 19__ by ________________________, who has produced ___________________
or other picture identification, a copy of which is attached hereto, which I
hereby certify and verify to be the same person who executed this instrument and
who did/did not take an oath.
Printed Name:
Address:
Phone Number:
Notary Public, State of
Commission #
Commission expires:
SEAL:
EXHIBITS ATTACHED
Exhibit "A" - Legal Description
6
Exhibit 10.5
Form of Unconditional Guaranty of Payment and Performance
<PAGE>
UNCONDITIONAL GUARANTY
OF PAYMENT AND PERFORMANCE
TO: CNL __________
1. FOR VALUABLE CONSIDERATION, the undersigned ("Guarantor")
unconditionally guarantees and promise to pay to CNL __________, a (State of
Registration) (Landlord Entity Type) ("Landlord"), all sums, including without
limitation Interim Rent, Annual Rent, Percentage Rent, taxes, insurance
premiums, impounds, late charges and interest, damages, costs, fees and all
other sums which may at any time be due to Landlord pursuant to the following
agreements (the "Documents"):
A. Lease Agreement of even date herewith between Landlord and
(TENANT NAME), a (State of Incorporation) (Tenant Entity Type)(the "Tenant").
2. Guarantor hereby further unconditionally guarantees the truth and
accuracy of all representations, warranties, and certifications of Tenant, the
satisfaction of all conditions by Tenant and the full and timely performance of
all obligations to be performed by Tenant under or pursuant to the Documents.
3. The obligation of Guarantor hereunder is primary, joint and several
and independent of the obligation of any and every other guarantor, if any,
whether or not such action is brought against Tenant or any other guarantor and
whether or not Tenant or any other guarantor be joined in such action or
actions. With respect to these persons and the subject matter of any dispute
wherein Landlord may be attempting to enforce any of the obligations guaranteed
hereby against any other person, party or Guarantor, Guarantor jointly and
severally hereby irrevocably consents to the jurisdiction of (i) the state where
the real property which is the subject of the Lease Agreement referenced in
Paragraph 1.A hereof is located and (ii) any other jurisdiction where Tenant
engages in business.
4. Guarantor authorizes Landlord, without notice or demand and without
affecting their liability hereunder, from time to time, to: (a) renew,
compromise, extend, accelerate, reduce the amount of, change the time for
payment of or otherwise change the terms of the obligations guaranteed hereby;
(b) take and hold security for the payment of this Guaranty or the obligations
guaranteed, and exchange, enforce, waive and release any such security; (c)
apply such security and direct the order or manner of sale thereof as Landlord
in its discretion may determine; (d) release or substitute Tenant or any one or
more guarantor; and (e) assign this Guaranty in whole or in part.
5. Guarantor hereby waives the benefit of any defense against the
enforcement of this Guaranty against Guarantor or any defense which Tenant might
have against Landlord (except such defenses as, by law, cannot be expressly
waived), including without limitation: (a) any right to require Landlord to (i)
proceed against Tenant, (ii) proceed against or exhaust any security, (iii)
proceed against any other guarantor, or (iv) pursue any other remedy in
Landlord's power
<PAGE>
whatsoever; (b) any defense arising by reason of any disability or other defense
of Tenant or by reason of the cessation from any cause whatsoever (other than
payment in full) of the liability of Tenant; and (c) all rights and/or
privileges Guarantor might otherwise have to require Landlord to pursue any
other remedy available to Landlord in any particular manner or order under the
legal or equitable doctrine or principle of marshalling and/or suretyship and
further agree that Landlord may proceed against any or all security in such
order and manner as Landlord in its sole discretion may determine.
6. Guarantor shall have no right of subrogation, and does hereby waive
any right to participate in any security now or hereafter held by Landlord.
Guarantor hereby waives all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, notice of
acceptance of this Guaranty and all other notices whatsoever.
7. Any indebtedness of Tenant now or hereafter held by any or all
Guarantor is hereby subordinated to the indebtedness of Tenant to Landlord. Any
such indebtedness of Tenant to Guarantor, if Landlord so requests, shall be
collected, enforced and received by Guarantor as trustee for Landlord and be
paid over to Landlord on account of the obligations guaranteed hereby, but
without reducing or affecting in any manner the liability of Guarantor under the
other provisions of this Guaranty.
8. It is not necessary for Landlord to inquire into the powers of Tenant
or its officers, directors, partners or agents acting or purporting to act on
its behalf, and Guarantor shall be liable for the obligations of Tenant in
accordance with their terms notwithstanding any lack of authorization or defect
in execution or delivery by Tenant.
9. Guarantor agrees to pay all Landlord's reasonable attorneys' fees and
other costs and expenses which may be incurred by Landlord in the enforcement of
this Guaranty.
10. This Guaranty shall apply to the parties hereto and their successors
and assigns according to the context hereof and without regard to the number of
gender of words or expressions used herein.
11. Guarantor, jointly and severally, hereby agrees to indemnify and
hold harmless Landlord from any loss, cause of action, claim, cost, expense or
fee (including but not limited to attorney's fees) suffered or occasioned by the
failure of Tenant to satisfy its obligations under the Documents or such other
documents contemplated thereby. The obligations of Guarantor under this section
shall be independent, primary, joint and several obligations of Guarantor and
any other guarantor. The agreement to indemnify Landlord contained in this
section shall be enforceable notwithstanding the invalidity or unenforceability
of the Documents or such other documents contemplated thereby or any of them or
the invalidity or unenforceability of any other section or sections contained
herein.
2
<PAGE>
IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty
this ___ day of ____________, 1996.
Signed, sealed and delivered
in the presence of: "GUARANTOR"
_____________________, a _____________
corporation
- -----------------------------------
By: -------------------------------------
Name: -----------------------------
Name: -----------------------------------
As Its: ---------------------------------
- -----------------------------------
Name:------------------------------
[NOTARY ACKNOWLEDGMENT]
<PAGE>
3
Exhibit 10.6
Form of Purchase Agreement
<PAGE>
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made as of _____________________, 19__, by
and between CNL ___________________________ ("Buyer") whose address is 400 East
South Street, Suite 500 Orlando, Florida 32801-2878 and ____________________, a
_____________ corporation ("Seller") with a mailing address at
_____________________________.
PRELIMINARY STATEMENT
WHEREAS, CNL ___________________________ ("CNL") and Seller have entered
into that certain Commitment (the "Commitment") dated ______________, 19___
given by CNL and accepted by Seller on ______________, 1996 for the purchase,
sale and leaseback of certain properties presently operated or to be constructed
and operated as _____________ restaurants; and
WHEREAS, Seller is the owner of that certain parcel of real estate
located in ______________, __________ County, ___________ and more particularly
described on Exhibit "A" attached hereto (hereinafter referred to as the
"Property"), which Buyer desires to purchase and to lease to Seller pursuant to
the Commitment and a Lease Agreement (the "Lease"), and Buyer and Seller have
entered into this Agreement for such purchase and as a part of the obligations
of CNL and Seller under the Commitment.
AGREEMENT
In consideration of the mutual covenants and provisions of this
Agreement, Buyer and Seller agree as follows:
1. Commitment. In the event of a conflict between the terms of this
Purchase Agreement and the Commitment, the Commitment shall prevail. In the
event of any conflict between the terms of the Commitment and the Lease, the
Lease shall prevail.
2. Definitions. The following terms shall have the following meanings
for all purposes of this Agreement.
"Buyer" means CNL ___________________, and/or its affiliates.
"Closing Date" means the date specified in Section 5.
"Escrow Agent" means Lawyers Title Insurance Corporation, Tampa
National Division.
"Property" means the parcel of real estate described on Exhibit
"A" attached hereto, together with all buildings, fixtures and other
improvements now located thereon or to be constructed thereon.
<PAGE>
"Purchase Price" means the amount set forth in Section 4 of this
Agreement.
"Seller" means _________________, a _______________ corporation.
"Title Company" means Lawyers Title Insurance Corporation, Tampa
National Division.
"Title Commitment" means the title insurance commitment for the
Property provided to Buyer from Title Company, in accordance with the terms of
Paragraph 8.A. of the Commitment.
3. Purchase and Sale of the Property. On the terms and subject to the
conditions set forth in this Agreement, Seller shall sell and Buyer shall
purchase the Property, and Buyer and Seller shall enter into a Lease by which
Buyer shall lease to Property to Seller.
4. Purchase Price. The Purchase Price for the Property shall be $ , plus
closing adjustments in accordance with the Commitment, which shall be payable in
cash or via wire transfer on the Closing Date.
5. Closing Date. The Closing Date for this Agreement shall be on or
before , 19__.
6. Condition of Title. Prior to the Closing Date, Buyer shall be
provided with the Title Commitment from the Title Company in the form required
by the Commitment, together with copies of all exceptions and requirements
listed therein. Within ten (10) business days after the receipt by Buyer of both
the Title Commitment and the other items to be delivered by Seller pursuant to
the terms of Paragraph 7 of this Agreement or five (5) days after the parties
execution of this Agreement, whichever is later, Buyer shall give Seller written
notice of (a) Buyer's objections, if any, as to the status of title with respect
to the Property as reflected in the Title Commitment and (b) what remedial
actions, if any, must be taken by Seller in order to eliminate such objections
of Buyer. Within ten (10) days after the receipt by Seller of Buyer's notice,
Seller shall either (i) take (or cause others to take) such remedial actions to
eliminate Buyer's objections to title prior to the Closing Date, or (ii)
terminate this Agreement by written notice to Buyer, in which event Seller and
Buyer shall have only those liabilities and obligations to each other which are
specified in the Commitment. Except for the Schedule B-I requirements, the
"standard" Schedule B-II exceptions and the "gap" exception in Schedule B-II of
the Commitment, which shall be deleted by the Title Company at closing, and
subject to issuance by the Title Company of all endorsements requested by the
Buyer, pursuant to Buyer's written instructions pursuant to Paragraph 8.B.
below, all matters reflected in the Title Commitment with respect to which Buyer
does not give Seller notice in accordance with the provisions of this Paragraph
shall be deemed to be "Permitted Exceptions."
7. Seller's Delivery of Certain Documents. Not less than five (5) days
prior to the Closing Date, Seller shall obtain and deliver to Buyer certain
items with respect to the Property,
2
<PAGE>
as described in and required by the terms of Paragraph 8 of the Commitment
(except any of the foregoing items which Buyer has agreed in writing to order on
its own behalf).
8. Closing. On or before the Closing Date:
A. Seller's Closing Documents. Seller shall deliver to Title Company or
Buyer, as may be appropriate:
(i) a Warranty Deed, duly executed by Seller, free of all
liens, encumbrances, restrictions, encroachment and
easements, except for Permitted Exceptions;
(ii) an executed and acknowledged Lease;
(iii) an executed and acknowledged Memorandum of Lease;
(iv) written confirmation to Title Company directing it to close
this transaction; and
(v) such other documents and affidavits as Buyer or the Title
Company may reasonably require, including appropriate corporate certificates of
status and authorizing resolutions for Seller.
B. Buyer.
(i) Deposit of Funds. Buyer shall deposit the Purchase Price in
escrow with Title Company, together with any other amounts required to be paid
by Buyer pursuant to the terms of this Agreement.
(ii) Buyer's Closing Documents. Buyer shall deliver to Title
Company or Seller, as may be appropriate:
(a) an executed and acknowledged Lease;
(b) an executed and acknowledged Memorandum of Lease;
(c) written instructions to Title Company directing it
to close this transaction; and
(d) such other documents as Seller or the Title Company
may reasonably require.
All closing documents shall be dated as of the Closing Date.
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<PAGE>
9. Costs and Expenses. Seller and Buyer agree to pay their respective
costs as specified in the Commitment, including without limitation, title
insurance premiums and fees, survey costs, recording fees, stamp taxes and
transfer fees. Taxes, assessments and other charges shall not be prorated as of
the Closing Date but shall be borne by Seller, as Lessee, under the Lease.
10. Escrow Agent. Seller and Buyer hereby employ Title Company to act
as escrow agent in connection with this transaction upon the following terms and
conditions:
A. Seller and Buyer will deliver to Title Company all documents,
pay to Title Company all sums and do or cause to be done all other things
necessary or required by this Agreement, in the reasonable judgment of Title
Company, to enable it to comply herewith and to enable any title insurance
policy provided for herein to be issued.
B. Title Company is authorized to pay from any funds held by it
for Buyer's or Seller's respective credit all amounts necessary to procure the
delivery of such documents and to pay, on their behalf, all charges and
obligations payable by them respectively. Seller and Buyer will each pay all
charges payable by them to Title Company.
C. Title Company is authorized, in the event any demand is made
upon it concerning these instructions or the escrow, at its election, to hold
any money and documents deposited hereunder until an action shall be brought in
a court of competent jurisdiction to determine the rights of Seller and Buyer or
to interplead said parties by an action brought in any such court. Deposit by
Title Company of said documents and funds shall relieve Title Company of all
further liability and responsibility.
D. Buyer and Seller will indemnify and save harmless Title
Company against all costs, damages, attorney's fees, expenses and liabilities,
which it may incur or sustain in connection with these instructions or the
escrow or any court action arising therefrom and will pay the same upon demand.
E. Payment of any funds into escrow prior to the Closing Date
shall be made by wire transfer. Disbursement of any funds from the closing for
the benefit of Seller shall be made as directed by Seller. Title Company shall
be under no obligation to disburse any funds represented by check or draft, and
no check or draft shall be payment to Title Company in compliance with any of
the requirements hereof, until it is advised by the bank in which deposited that
such check or draft has been honored.
F. Title Company is authorized to act upon any statement
furnished by the holder or payee, or a collection agent for the holder or payee,
of any lien on or charge or assessment in connection with a Property, concerning
the amount of such charge or assessment or the amount secured by such lien
without liability or responsibility for the accuracy of such statement.
4
<PAGE>
G. The employment of Title Company, as escrow agent, shall not
affect any rights of subrogation under the terms of any title insurance policy
issued pursuant to the provisions thereof.
11. Conditions of Closing for Buyer. The obligations of Buyer are
subject to the fulfillment or waiver of each of the following conditions set
forth below:
A. Closing Documents. At or prior to the Closing Date, Seller
shall have executed and delivered Seller's closing documents in accordance with
Paragraph 8 of this Agreement.
B. Compliance with Commitment. At the Closing Date, Seller shall
be in compliance with its obligations under the Commitment.
12. Conditions of Closing for Seller. The obligations of Seller are
subject to the fulfillment or waiver of each of the following conditions set
forth below:
A. Closing Documents. At or prior to the Closing Date, Buyer
shall have executed and delivered Buyer's closing documents in accordance with
Paragraph 8 of this Agreement.
B. Compliance with Commitment. At the Closing Date, Buyer shall
be in compliance with its obligations under the Commitment.
13. Representations and Warranties of Buyer. Buyer represents and
warrants to Seller as follows:
A. Buyer is duly organized, validly existing and in good standing
under the laws of its state of its registration and qualified to do business in
the jurisdiction in which the Property is located. All necessary action has been
taken to authorize the execution, delivery and performance of this Agreement and
of the other documents, instruments and agreements provided for herein.
B. The person or persons who have executed this Agreement on
behalf of Buyer are duly authorized to do so.
14. Representation and Warranties of Seller. Seller represents and
warrants to Buyer as follows:
A. Seller is a corporation duly organized, validly existing and
in good standing under the laws of its state of incorporation and qualified as a
foreign corporation to do business in the jurisdiction in which the Property is
located. All necessary corporate action has been taken to authorize the
execution, delivery and performance of this Agreement and of the other
documents, instruments and agreements provided for herein.
5
<PAGE>
B. The person or persons who have executed this Agreement on
behalf of Seller are duly authorized to do so.
C. The Property and the existing use thereof and the condition
thereof does not violate any applicable deed restrictions, zoning or subdivision
regulations, urban redevelopment plans, local, state or federal environmental
law or regulation or any building or fire code applicable to the Property.
D. 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.
E. 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.
F. 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 Property.
G. The Property is a separate parcel for real estate tax
assessment purposes.
H. To the best of Seller's knowledge, all of the information
furnished to Buyer pursuant to the terms of the Commitment regarding the
Property is true, complete and correct.
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.
15. Assignment. Buyer may assign in whole or in part its rights under
this Agreement without Seller's prior written consent to an affiliate of Buyer,
but Buyer agrees to give Seller notice thereof prior to Closing.
16. Default. In the event that a party defaults in the performance of
its obligations hereunder, the party not in default shall have the option (s) to
cancel this Agreement by delivering the defaulting party and to the Title
Company a written notice of cancellation or (b) to deliver to the defaulting
party and to Title Company a written notice demanding that the defaulting party
comply with the terms hereof within ten (10) days from the receipt of said
notice by the defaulting party. If this Agreement is so cancelled, Seller and
Buyer shall have only those liabilities and obligations to each other which are
specified in the Commitment. Upon such termination, the Title Company is
authorized to return all documents deposited hereunder to the party who
delivered the same except documents executed by Seller and Buyer, which shall be
marked "cancelled" and retained in the files of Title Company.
17. Miscellaneous Provisions.
6
<PAGE>
A. Notices. All notices, consents, approvals, or other
instruments required or permitted to be given by either party shall be in
writing and shall be deemed to have been properly given if sent by registered or
certified mail, return receipt requested, Federal Express, Airborne, Emery, DHL,
Express Mail, or by other recognized overnight courier service, postage and
other charges prepaid, to the parties at the addresses set forth in the first
Paragraph hereof or to such other address as either party may give notice
pursuant to this section from time to time. All notices shall be deemed received
when delivered to the address specified.
B. Risk of Loss. Seller shall assume the risk of loss, damage or
destruction of the Property or any part thereof prior to the Closing Date.
C. Condemnation. In the event of a taking of any part or all of
the Property prior to closing, Buyer at its option shall have the right to
either (i) receive the proceeds of any condemnation award and proceed to close
with respect to the Property or (ii) withdraw the Property from this
transactions.
D. Real Estate Commission. Buyer and Seller shall not be
obligated to pay any commission or finder's fee to any broker, real estate
broker or agent in connection with this transaction. To the extent Seller or
Buyer has engaged the services of any such broker, real estate broker or agent,
Seller or Buyer, as the case may be, hereby indemnify and agree to hold the
other harmless from and against any and all costs, expense, loss, and damage,
including but not limited to attorney's fees and court costs, arising or
resulting directly or indirectly out of any claim by any broker, real estate
broker or agent in connection with this transaction.
E. Amendment and Waiver. Upon execution by the parties, this
Agreement may not be altered or amended. Waiver of any matter by either party
shall not be deemed a waiver of the same or any other matter on any future
occasion.
F. Other Documents. Each of the parties agrees to sign such other
and further documents as may be appropriate to carry out the intentions
expressed in this Agreement.
G. Attorney's Fees. In the event of any judicial or other
adversarial proceeding between the parties concerning this Agreement, the
prevailing party shall be entitled to recover its reasonable attorneys' fees in
addition to any other relief to which it may be entitled.
H. Entire Agreement. This Agreement, together with the Commitment
and any other instruments or agreements referred to herein constitute the entire
agreement between the parties with respect to the Property.
I. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
7
<PAGE>
IN WITNESS WHEREOF, Seller and Buyer have entered into this Agreement as
of the date shown hereinabove.
Signed, Sealed and Delivered
in the presence of: "BUYER"
CNL , a
corporation
- ----------------------------------
By:----------------------------------------
Name:-----------------------------
- ----------------------------------
Name:-----------------------------
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this ____ day of
_______________, 1996 by ____________________, as ______________________ of CNL
_____________________, a ____________________, on behalf of the
_______________________. He is personally known to me and did not take an oath.
--------------------------------------------
Notary Signature
--------------------------------------------
Printed Name
Notary Public, State of Florida
Commission Number:
---------------------------
My Commission Number:
-----------------------
8
<PAGE>
Signed, Sealed and Delivered
in the presence of: "SELLER"
_________________________________, a
-----------------
- ----------------------------------
By: ----------------------------------------
Name: ----------------------------
Name:
As Its:
---------------------------------
Name:-----------------------------
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this ____ day of
_______________, 1996 by , as ____________ of ______________________________., a
___________________ corporation, on behalf of the corporation. He is personally
known to me and did not take an oath.
--------------------------------------------
Notary Signature
--------------------------------------------
Printed Name
Notary Public, State of Florida
Commission Number:
---------------------------
My Commission Number:
-----------------------
(SEAL)
9
Exhibit 10.7
Form of Lease Agreement including Rent Addendum,
Construction Addendum and Memorandum of Lease
<PAGE>
_________ #(Site Number)/(City), (County) County, (State)
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into as of (Closing Date), by
and between:
(i) CNL __________, a (State of Registration) (Landlord Entity
Type) with principal office and place of business at 400 E. South
Street, Suite 500, Orlando, Florida 32801 ("Landlord"), and
(ii) (TENANT NAME), a (State of Incorporation) (Tenant Entity
Type), with a mailing address of (Tenant Street Address), (Tenant
Street Address), (Tenant City), (Tenant State) (Tenant Zip)
("Tenant").
WITNESSETH:
Landlord leases to Tenant, for the purpose of [[developing, constructing
and]] operating a _________ Restaurant and for no other use or purpose
whatsoever [[and subject to the terms and conditions of the Construction
Addendum attached hereto]], and Tenant rents from Landlord the following
described premises, (hereinafter "Premises") located at (Site Address), (City),
(County) County, (State) and being more particularly described in Exhibit "A"
attached hereto and made a part hereof, together with all rights and privileges
in and about the Premises as may be necessary or convenient to Tenant's
business, inclusive of all easements benefitting the real property described in
Exhibit "A". Premises shall include all improvements and structures whether now
existing or hereafter constructed thereon.
The following additional stipulations are hereby declared to be
covenants of this Lease and shall, unless otherwise expressly stated, be
applicable at all times throughout the term of this Lease and any extension or
renewal thereof:
1. DEFINITIONS
For purposes of this Lease, the following terms are hereby defined to
mean:
"Effective Date" shall mean the first date set forth at the beginning of
this Lease.
"Landlord" shall mean CNL __________, a (State of Registration)
(Landlord Entity Type), its successors and assigns.
"Lease" shall include this Lease Agreement and all amendments hereto, if
any, entered into from time to time hereafter.
"Lease Year" shall mean a fiscal period beginning on the Effective Date
(and each anniversary thereof) and expiring twelve (12) months
thereafter.
<PAGE>
"Rent" shall mean the Rent payable under this Lease as set forth in the
Rent Addendum attached hereto and incorporated herein, and shall include
[[Interim Rent]], Annual Rent and Percentage Rent (all as defined in the
Rent Addendum).
2. TERM AND RENT
(a) Term. The term of this Lease shall begin on the Effective Date and
shall expire on a date ________ (__) years thereafter unless previously
terminated or renewed or extended as provided herein.
(b) Rent. Rent shall be due and payable as provided in the Rent Addendum
attached hereto and incorporated herein.
3. ALTERATIONS AND IMPROVEMENTS, INVESTMENT TAX CREDIT,
MECHANIC'S LIENS, LANDLORD'S DISCLAIMER
(a) Tenant shall be permitted to install, use on and about, and remove
from the Premises at any time and from time to time all trade fixtures and other
personal property (exclusive of lighting, electrical, heating and air
conditioning improvements) which are not a component of the building located or
to be located on the Premises (hereinafter referred to as the "Tenant's
Property"), all of which at all times shall remain the property of Tenant with
the right of removal (subject to paragraph (d) below) at the expiration of this
Lease. Trade fixtures shall include: (1) removable decor items and office
equipment; (2) building lettering, signs, sign posts and sign standards; (3)
unattached food and customer service equipment; and (4) food and customer
service equipment attached to the building by bolts and screws and/or by utility
connections, including without limitation, walk-in refrigerators and freezers,
remote refrigeration systems, exhaust systems and hoods. Tenant shall also have
the right, at its option and expense, to redecorate or otherwise remodel the
Premises upon any termination hereof or upon subletting or assignment in such
manner as will, without reducing the fair market value thereof, avoid the
appearance of the ________ Restaurant operated under this Lease; provided,
however, Tenant shall not impair the structural condition of the Premises or
reduce the size thereof. Tenant shall have the right to make any additions,
alterations, changes and improvements, structural and nonstructural, including
but not limited to construction of additional buildings and additions to the
then existing buildings, as Tenant shall desire; provided, however, (i) Tenant
shall submit plans of all structural changes to Landlord at least thirty (30)
days in advance of the proposed construction date, (ii) Tenant shall provide
Landlord with evidence of Tenant's financial ability to pay for such changes,
(iii) if the cost of structural changes exceeds TEN THOUSAND AND NO/100 DOLLARS
($10,000.00), Tenant shall post payment and performance bonds for such work
naming Landlord and Tenant as dual obligees, (iv) all such construction shall be
completed in a workmanlike manner and in full compliance with all building laws
and ordinances applicable thereto, at Tenant's expense, and (v) such additions,
alterations, changes and improvements shall not reduce the fair market value of
the Premises. All such additions, alterations, changes and improvements shall be
deemed to be a part of the Premises.
2
<PAGE>
(b) Landlord hereby grants Tenant the right and privilege of applying
for and receiving all investment tax credits, if any, under the Internal Revenue
Code which may be available with respect to the building and other improvements
to be constructed. To this end, Landlord agrees to execute all such further
documents and supply such additional information as may be required to make such
election effective.
(c) Tenant shall not do or suffer anything to be done whereby the
Premises, or any part thereof, may be encumbered by a mechanic's lien or similar
lien, and, if, whenever and as often as any mechanic's lien or similar lien is
filed against the Premises, or any part thereof, purporting to be for or on
account of any labor done, materials or services furnished in connection with
any work in or about the Premises, done by, for or under the authority of
Tenant, or anyone claiming by, through or under Tenant, Tenant shall discharge
the same of record within ten (10) days after service upon Tenant of notice of
the filing thereof; provided, however, Tenant shall have the right to remove the
lien by bonding same in accordance with applicable law and to contest any such
lien; provided further that Tenant shall diligently prosecute any such contest,
at all times effectively staying or preventing any official or judicial sale of
the Premises under execution or otherwise, and, if unsuccessful, satisfy any
final judgment against Tenant adjudging or enforcing such lien or, if
successful, procuring record satisfaction or release thereof.
(d) All of Tenant's Property placed in or upon the Premises by Tenant
shall remain the property of Tenant with the right to remove the same at any
time during the term of this Lease. Landlord, if requested by Tenant, agrees to
execute such documentation subordinating its lien rights (vis a vis any
equipment lender or landlord) to Tenant's personalty and to all rights of levy
for distraint for rent against same as shall be reasonably required by any
equipment lender or lessor of Tenant; provided any damage caused by, or
resulting from the removal of any trade fixtures, equipment or other personal
property shall be promptly repaired by Tenant or the party entitled to remove
same.
4. DESTRUCTION OF PREMISES; INSURANCE
(a) If the Premises are damaged or destroyed by fire, flood, tornado or
other element, or by any other casualty and such damage or destruction does not
occur within the last twenty-four (24) months of the original or of any extended
or renewed term of this Lease, this Lease shall continue in full force and
effect and Tenant shall, as promptly as possible, restore, repair or rebuild the
Premises to substantially the same condition as it existed before the damage or
destruction. Tenant shall for this purpose use all, or such part as may be
necessary, of the insurance proceeds received from insurance policies carried on
the Premises under the provision of subparagraph 4(b) hereinbelow. If such
insurance proceeds are not sufficient to pay such costs, Tenant shall pay such
deficit. Should the Premises be damaged or destroyed by any of the foregoing
described casualties within the last twenty-four (24) months of the original
term or of any extended or renewed term of this Lease, to the extent that they
are untenantable or unsuitable, in Tenant's opinion for continued use in the
normal conduct of Tenant's business, Tenant shall have the right, exercisable by
written notice to Landlord given within thirty (30) days after the date of such
damage or destruction, of terminating this Lease effective upon the date of such
3
<PAGE>
damage or destruction. If Tenant terminates this Lease as thus provided Landlord
shall be entitled to all of the insurance proceeds on the Premises, but not to
the proceeds of insurance carried by Tenant on Tenant's Property; provided,
however, Tenant shall not have the right to terminate this Lease unless (i) the
damage or destruction of the Premises was caused by a peril which was insured
against by the provisions of subparagraph 4(b) of this Lease; (ii) at the time
of such damage and destruction the said insurance policies to be carried by
Tenant were in the amount of the full replacement cost of such improvements
(without deduction or co-insurance) and in full force and effect; and (iii) the
insurer has confirmed coverage and its obligation to pay. If Tenant defaults in
its obligation to carry insurance in the amount required under subparagraph
4(b), then Tenant shall be obligated to pay toward said reconstruction or to
Landlord, if this Lease is cancelled but prior thereto, the difference between
the amount actually carried and the amount required to be carried under this
paragraph.
(b) Tenant, at its expense and as additional rent hereunder, shall
throughout the term of this Lease and any extension or renewal thereof, keep the
Premises insured with "all risk" coverage, including builder's risk if
applicable, ("all risk" as such term is used in the insurance industry) for the
full replacement value, with any deductible to be approved by Landlord (and
without any co-insurance provision (Agreed Value endorsement)). If Tenant serves
alcoholic beverages, or if the Premises are located in a flood or earthquake
zone, then additional coverage shall be obtained by Tenant in amounts and in
forms acceptable to Landlord. Tenant shall provide Landlord with copies of such
policies or certificates of such coverage, and the policy or policies shall name
Landlord and any mortgagee designated by Landlord as an additional insured (or,
if elected by Landlord, loss payee) and shall provide that all losses shall be
payable as herein provided. All such policies of insurance shall provide that
the amount thereof shall not be reduced and that none of the provisions,
agreements or covenants contained therein shall be modified or cancelled by the
insuring company or companies without thirty (30) days prior written notice
being given to Landlord; and that all insurance proceeds shall be paid by check
payable to Landlord. Such policy or policies of insurance may also cover loss or
damage to Tenant's Property, and the insurance proceeds applicable to Tenant's
Property shall not be paid to Landlord or any mortgagee but shall accrue and be
payable solely to Tenant. In the event of a casualty, Tenant shall be
responsible for any deficiency between the replacement cost of the Premises and
the amount actually paid by the insurance company.
(c) Tenant shall maintain, at its own expense and as additional Rent,
public liability insurance covering the Premises, for the joint benefit of and
insuring Tenant and Landlord, with coverage of not less than $2,000,000.00 per
occurrence, with any deductible to be approved by Landlord, and with a general
aggregate limit of not less than $__0,000,000.00. Landlord (and if Landlord is
either a general or limited partnership, all general partners) shall be named as
an additional insured (or, if elected by Landlord, loss payee). All such
policies of insurance shall provide that the amount thereof shall not be reduced
and that none of the provisions, agreements or covenants contained therein shall
be modified or cancelled by the insuring company or companies without thirty
(30) days prior written notice being given to all parties to this Lease. A copy
of the policy or certificate of such insurance shall be delivered to Landlord
and shall be
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issued by a company or companies licensed to do business in the state where the
Premises are located.
(d) Tenant shall maintain, at its own expense, rental value insurance
covering risk of loss due to the occurrence of any of the hazards insured
against under Tenants' "all risk" coverage insurance and providing coverage in
an amount sufficient to permit the payment of rents payable hereunder for a
period (in such case) of not less than six (6) months. All such policies of
insurance shall provide that Landlord is additional insured (or, if elected by
Landlord, loss payee); and that the amount thereof shall not be reduced and that
none of the provisions, agreements or covenants contained therein shall be
modified or cancelled by the insuring company or companies without thirty (30)
days prior written notice being given to all parties to this Lease. A copy of
the policy or certificate of such insurance shall be delivered to Landlord and
shall be issued by a company or companies licensed to do business in the state
where the Premises are located.
(e) All insurance companies providing the coverage required under this
Paragraph 4 shall be selected by Tenant and shall be rated A minus (A-) or
better by Best's Insurance Rating Service, shall be licensed to write insurance
policies in the state in which the Premises is located, and shall be acceptable
to Landlord in Landlord's reasonable discretion.
5. MAINTENANCE AND REPAIR
(a) Tenant shall maintain the Premises and all buildings and
improvements thereon (interior and exterior, structural and otherwise) in good
order and repair and, subject to the provisions of paragraph 4(a) with respect
to damage within the last twenty-four (24) months of the Lease, and paragraph 6
herein, return the Premises and all buildings and improvements thereon at the
expiration of the term of this Lease or any extension thereof in as reasonably
as good condition as when received, ordinary wear and tear excepted.
(b) Tenant agrees that Landlord shall have no obligation under this
Lease to make any repairs or replacements (including the replacement of obsolete
components) to the Premises or the buildings or improvements thereon, or any
alteration, addition, change, substitution or improvement thereof or thereto,
whether structural or otherwise. The terms "repair" and "replacement" include
the replacement of any portions of the Premises which have outlived their useful
life during the term of the Lease (or any extensions thereof). Landlord and
Tenant intend that the rent received by Landlord shall be free and clear of any
expense to Landlord for the construction, care, maintenance (including common
area maintenance charges and charges accruing under easements or other
agreements relating to the Premises), operation, repair, replacement,
alteration, addition, change, substitution and improvement of or to the Premises
and any building and improvement thereon. Upon the expiration or earlier
termination of this Lease, Tenant shall remain responsible for, and shall pay to
Landlord, any cost, charge or expense for which Tenant is otherwise responsible
for hereunder attributable to any period (prorated on a daily basis) prior to
the expiration or earlier termination of this Lease.
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6. CONDEMNATION
(a) In the event that the whole or any material part of the building on
the Premises or such a material portion of the land (for purposes hereof,
"material" shall mean more than 20% of the building on the Premises or more than
40% of the land) shall be taken during the term of this Lease or any extension
or renewal thereof for any public or quasi-public use under any governmental
law, ordinance, regulation or by right of eminent domain, or shall be sold to
the condemning authority under threat of condemnation with the result that the
Premises cannot continue to be operated as the type of restaurant contemplated
herein, or if all reasonable access to the adjacent roadways from the existing
or comparable curb cuts shall be taken (any of such events being hereinafter
referred to as a "taking"), Tenant shall have the option of terminating this
Lease as of a date no earlier than the date of such taking, such termination
date to be specified in a notice of termination to be given by Tenant to
Landlord not fewer than fourteen (14) days prior to the date on which possession
of the Premises, or part thereof, must be surrendered to the condemning
authority or its designee.
(b) In the event of any taking which does not give rise to an option to
terminate or in the event of a taking which does give rise to an option to
terminate and Tenant does not elect to terminate, Landlord shall make its award
available to Tenant and Tenant shall, to the extent of the award from such
taking (which word "award" shall mean the net proceeds after deducting expenses
of any settlement, or net purchase price under a sale in lieu of condemnation
but shall exclude the value of Landlord's reversionary interest), promptly
restore or repair the Premises and all improvements thereon (except the items
which Tenant is entitled to remove) to the same condition as existed immediately
prior to such taking insofar as is reasonably possible. If the estimated cost of
restoration or repair shall exceed the amount of Landlord's award, Tenant shall
deposit with Landlord the amount of such excess. The award and any excess shall
be held in trust by Landlord and used, to the extent required, for the purpose
of such restoration or repair. A just and proportionate part of the Rent payable
hereunder shall be abated from the date of such taking until ten (10) days after
Tenant has restored same and thereafter the Rent shall be reduced in proportion
to the reduction in the then rental value of the Premises after the taking in
comparison with the rental value prior to the taking. If the award shall exceed
the amount spent or to be spent promptly to effect such restoration, repair or
replacement, such excess shall unconditionally belong to Landlord and shall be
paid to Landlord.
(c) In the event of any partial taking where this Lease is not
terminated, Tenant shall not be entitled (except for use in reconstruction) to
any part of the compensation or award given Landlord for the taking of the fee
of the Premises, but Tenant shall have the right to recover from the condemning
authority such compensation as is specifically awarded to Tenant (i) to
reimburse Tenant for any cost which Tenant may incur in removing Tenant's
Property from the Premises and (ii) for loss of Tenant's business.
(d) If this Lease is terminated by reason of a taking then Landlord
shall be entitled to receive the entire award in any such condemnation or
eminent domain proceedings or purchase in lieu thereof and Tenant hereby assigns
to Landlord all of its right, title and interest in and to
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all and any part of such award, provided, however, Tenant shall be entitled to
receive any award specifically made to reimburse Tenant.
7. TAXES AND ASSESSMENTS
Tenant shall pay prior to delinquency all taxes and assessments which
may be levied upon or assessed against the Premises and all taxes and
assessments of every kind and nature whatsoever arising in any way from the use,
occupancy or possession of the Premises or assessed against the improvements
situated thereon, together with all taxes levied upon or assessed against
Tenant's Property. To that end Landlord shall not be required to pay any taxes
or assessments whatsoever which relate to or may be assessed against this Lease,
the Rent and other amounts due hereunder, the Premises, improvements and
Tenant's Property. Provided, however, that any taxes or assessments which may be
levied or assessed against the Premises for a period ending after the
termination hereof shall be prorated between Landlord and Tenant as of such
date. Within thirty (30) days after Tenant receives the paid receipted tax
bills, Tenant shall furnish Landlord with copies of a paid receipt for such tax
bills. Upon demand by Landlord, Tenant shall deliver and pay over to Landlord
such additional sums as are necessary to satisfy any deficiency in the amount
necessary to pay the taxes before the same become due. Tenant may, at its
option, contest in good faith and by appropriate and timely legal proceedings
any such tax and assessment; provided, however, that Tenant shall indemnify and
hold harmless Landlord from any loss or damage resulting from any such contest,
and all expenses of same (including, without limitation, all attorneys' fees,
court and other costs) are paid solely by Tenant.
8. COMPLIANCE, UTILITIES, SURRENDER
(a) Tenant at its expense shall promptly comply with all governmental
requirements, whether or not compliance therewith shall require structural
changes in the Premises; will procure and maintain all permits, licenses and
other authorizations required for the use of the Premises or any part thereof
then being made and for the lawful and proper installation, operation and
maintenance of all equipment and appliances necessary or appropriate for the
operation and maintenance of the Premises, and shall comply with all easements,
restrictions, reservations and other instruments of record applicable to the
Premises. Tenant shall indemnify and save Landlord harmless from all expenses
and damages by reason of any notices, orders, violations or penalties filed
against or imposed upon the Premises, or against Landlord as owner thereof,
because of Tenant's failure to comply with this paragraph.
(b) Tenant shall pay all charges for heat, water, gas, sewage,
electricity and other utilities used or consumed on the Premises and shall
contract for the same in its own name. Landlord shall not be liable for any
interruption or failure in the supply of any such utility service to the
Premises.
(c) Tenant shall peacefully surrender possession of the Premises, the
buildings and other improvements thereon, to Landlord at the expiration, or
earlier termination, of the original term or any extended or renewed term of
this Lease.
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9. QUIET ENJOYMENT
Landlord covenants and warrants that Landlord has full power and
authority to make this Lease, and that Tenant shall have and enjoy full, quiet
and peaceful possession of the Premises, their appurtenances and all rights and
privileges incidental thereto during the term hereof and any renewals or
extensions, subject to the provisions of this Lease and any easements,
restrictions, reservations and other instruments of record applicable to the
Premises and in existence at the time of the conveyance of the Premises to
Landlord by Tenant.
10. OPTION TO RENEW
Tenant shall have ___ (_) successive five (5) year options to extend
this Lease for up to an additional _____ (__) years upon the same terms,
covenants, conditions and rental as set forth herein provided that Tenant is not
in default hereunder at the commencement of such option period. Tenant may
exercise each such five (5) year option by giving written notice to Landlord not
less than six (6) months prior to the expiration of the then current term of
this Lease. Should Tenant fail to give Landlord such timely written notice
during the required period, all remaining rights of renewal shall automatically
expire.
11. FIRST RIGHT OF REFUSAL TO PURCHASE; OPTION TO PURCHASE
(a) So long as Tenant is not in default under this Lease, Tenant shall
have the right to purchase the Premises in accordance with the terms of this
paragraph. If Landlord receives and desires to accept a bona fide offer to
purchase (excluding any transfer to an affiliate of Landlord) the Premises
during the term of this Lease or any extension or renewal thereof, Landlord
shall serve a notice on Tenant stating the name of such offeror with a copy of
the terms and conditions of such offer attached and Tenant shall have the right
to purchase the Premises on the same terms and conditions set forth in
Landlord's notice, provided Tenant delivers written notice to Landlord of its
election to do so within twenty (20) days after receipt of such notice from
Landlord. If Tenant does not elect to exercise its right to purchase as
aforesaid, Landlord may sell the Premises, provided the sale is consummated with
the offeror and on the terms and conditions set forth in Landlord's notice to
Tenant. The foregoing preemptive right shall remain in existence notwithstanding
its non-exercise in respect to any sale and shall be binding upon Landlord's
successors in title.
(b) Tenant shall have the option to purchase the Premises at any time
after the _____________ (__th) Lease Year, as follows:
(i) Tenant shall exercise its option hereunder by giving written
notice in writing to Landlord in accordance with the requirements of paragraph
20 of this Lease. At the time of the exercise of the option, Tenant shall also
pay to Landlord (or if required by Landlord, to the qualified intermediary
described in Paragraph 19(b) of this Lease Agreement) a non-refundable deposit
of FIVE HUNDRED AND NO/100 DOLLARS ($500.00).
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(ii) The purchase price to be paid by Tenant shall be the greater
of (A) the fair market value of the Premises as of the date of the exercise of
the option, as determined by an appraisal of an M.A.I. qualified appraiser
selected by Landlord, or (B) Landlord's cost for the Premises, plus ___________
percent (__%).
(iii) The closing pursuant to the option shall be held in the
office of Landlord's attorneys on or before a date which is thirty (30) days
after Landlord and Tenant have received the above mentioned appraisal from the
appraiser, or at such other place as shall be acceptable to Landlord.
(iv) Tenant shall receive a credit for the deposit required under
(i) above and the balance of the purchase price shall be paid at closing in
cash, by cashier's check on cleared local funds or by wire transfer to
Landlord's account.
(v) All expenses of closing shall be paid equally by Tenant and
Landlord.
(vi) The option granted to Tenant pursuant to this subparagraph
(b) shall terminate and become null and void (A) in the event Tenant shall
purport to exercise said option at a time when Tenant shall then be in default
under any term or condition of this Lease, or (B) in the event Tenant's right of
first refusal becomes operative, Tenant fails to exercise such right of first
refusal, and the offer triggering such right of first refusal closes.
(c) Tenant's rights and options granted in (a) and (b) above shall be
subject and subordinate to any rights or options currently of record or those
existing under Tenant's franchise agreement, if any.
12. NONCOMPETE
Tenant shall not own an interest in, or operate, another __________
Restaurant within a _________ (__) mile radius of the Premises. Violation of
this covenant shall constitute a default hereunder and, because the parties
agree that damages would not be an adequate remedy, Tenant hereby agrees that
Landlord shall be entitled to equitable relief, including injunctive relief and
specific performance in addition to any remedy available at law.
13. DEFAULT
(a) If any one or more of the following events occur, said event or
events shall hereby be classified as a "Default":
(i) If Tenant fails to pay Interim Rent (if applicable), Annual
Rent, Percentage Rent, any additional rent, or any other charges required
hereunder or under any other lease with Landlord or an affiliate of Landlord
when same shall become due and payable, and such failure continues for ten (10)
days after written notice from Landlord.
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(ii) If Tenant shall fail to perform or observe any term,
condition, covenant, agreement, or obligation of this Lease or any other lease
with Landlord or an affiliate of Landlord, and such failure continues for
fifteen (15) days after written notice from Landlord (except that such fifteen
(15) day period shall be automatically extended for such additional period of
time as is reasonably necessary to cure such Default, if such Default cannot be
cured within such period, provided Tenant is in the process of diligently curing
the same).
(iii) If any default or event of default shall occur and remain
uncured under that certain Franchise Agreement (the "Franchise Agreement")
between Tenant and _________________ following any cure period applicable
thereto and established in the Franchise Agreement, or if such Franchise
Agreement is terminated for any reason. Notwithstanding the foregoing, Tenant
shall have the right to engage in good faith disputes with the franchisor under
the Franchise Agreement without such dispute constituting a default under this
Lease, provided that such dispute shall not prevent Tenant from performing its
obligation to continuously operate a _______ Restaurant at the Premises.
(iv) If Tenant fails to continuously operate its business within
the Premises except for temporary periods of closure caused by casualty, or
temporary and reasonable periods of remodeling not to exceed ninety (90) days in
any Lease Year without first obtaining Landlord's written approval.
(v) If Tenant shall make an assignment for the benefit of
creditors or file a petition, in any federal or state court, in bankruptcy,
reorganization, composition, or make an application in any such proceedings for
the appointment of a trustee or receiver for all or any portion of its property.
(vi) If any petition shall be filed under federal or state law
against Tenant in any bankruptcy, reorganization, or insolvency proceedings, and
said proceedings shall not be dismissed or vacated within thirty (30) days after
such petition is filed.
(vii) If a receiver or trustee shall be appointed under federal
or state law for Tenant, or any guarantor of Tenant's obligations hereunder, for
all or any portion of the property of either of them, and such receivership or
trusteeship shall not be set aside within thirty (30) days after such
appointment.
(b) Upon the happening of any one or more of the aforementioned Defaults
which are not cured within the cure period applicable thereto, if any, Landlord
shall have the right, in addition to any other rights and remedies, to terminate
this Lease by giving written notice of same to Tenant. Upon such notice, this
Lease shall cease and expire, and Tenant shall surrender the Premises to
Landlord. Notwithstanding such termination, Tenant's liability and obligation
under all provisions of this Lease, including the obligation to pay Rent and any
and all other amounts due hereunder shall survive and continue. In addition, in
the event of Tenant's Default under this Lease, Landlord may, by notice to
Tenant, accelerate the monthly installments due hereunder for the remaining term
of this Lease, in which event such amount, together with any
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sums then in arrears, shall immediately be due and payable to Landlord. Tenant
hereby expressly agrees that its occupation of the Premises after default
constitutes forcible detainer (or equivalent) as is defined by the law in force
in the jurisdiction in which the Premises are located.
(c) If this Lease shall terminate as provided hereinabove, Landlord may
re-enter the Premises and remove Tenant, its agents and sub-tenants, together
with all or any of Tenant's Property, by suitable action at law, or by force.
Tenant waives any right to the service of any notice of Landlord's intention to
re-enter and Landlord shall not be liable in any way in connection with any
action it takes pursuant to this paragraph. Notwithstanding such re-entry or
removal, Tenant's liability under the provision of this Lease shall survive and
continue.
(d) In case of re-entry, repossession or termination of this Lease,
Tenant shall remain liable for Rent (with any Percentage Rent described in the
Rent Addendum to be paid at the rate paid during the prior Lease Year), any
additional rent and all other charges provided for in this Lease for the
otherwise remaining term of this Lease, and any and all expenses which Landlord
may have incurred in re-entering the Premises including, but not limited to,
allocable overhead, alterations to the building, leasing, construction,
architectural, legal and accounting fees. In addition, Tenant shall pay to
Landlord any and all attorneys' fees, legal costs and expenses incurred with
respect to enforcement of the provisions hereof. Landlord shall have the right,
but not the obligation, to relet the whole or part of the Premises upon terms
which Landlord, in its sole discretion, deems appropriate and Tenant shall be
responsible for all expenses incurred by Landlord in re-letting or attempting to
re-let and all rent collected for reletting shall be credited against all of
Tenant's obligations hereunder.
(e) The rights and remedies of Landlord set forth herein shall be in
addition to any other right and remedy now or hereinafter provided by law, and
all such rights and remedies shall be cumulative. No action or inaction by
Landlord shall constitute a waiver of a Default, and no waiver of Default shall
be effective unless it is in writing, signed by Landlord.
14. HOLDING OVER
In the event Tenant remains in possession of the Premises after the
expiration of this Lease, without executing a new lease, Tenant shall occupy the
Premises as a tenant from month to month subject to all the terms hereof, but
such possession shall not limit Landlord's rights and remedies by reason thereof
nor constitute a holding over.
15. WAIVER OF SUBROGATION
Notwithstanding anything in this Lease to the contrary, other than
Tenant's obligations to repair, restore or rebuild described in paragraph 4
hereinabove, neither party shall be liable to the other for any damage or
destruction of the property of the other resulting from fire or other casualty
covered by insurance required of either party hereunder, whether or not such
loss, damage or destruction of property is caused by or results from the
negligence of such party (which term includes such party's officers, employees,
agents and invitees), and each party hereby
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expressly releases the other from all total liability for or on account of any
said loss, damage or destruction, whether or not the party suffering the loss is
insured against such loss, and if insured whether fully or partially. Each party
shall procure all endorsements of insurance policies carried by it necessary to
protect the other from any right of subrogation and/or liability in the event of
such loss.
16. LIEN FOR RENTS
As security for Tenant's payment of Rent and all other payments required
to be made by Tenant hereunder (including, by way of illustration only, taxes,
damage to the Premises, court costs, and attorneys' fees) Tenant hereby grants
to Landlord a lien upon all of Tenant's Property now or hereafter located upon
the Premises. The lien herein provided shall be subordinate to the lien of any
chattel mortgage, collateral assignment or security interest given by Tenant to
any seller of such property. If default is made by Tenant in the payment of any
sum which may become due hereunder and said sum is not paid within ten (10) days
after written notice is given by Landlord to Tenant for Tenant's default,
Landlord may enter upon the Premises and take possession of Tenant's Property,
or any part thereof, and may sell all or any part of Tenant's Property at public
or private sale in one or successive sales, with or without notice, to the
highest bidder for cash and on behalf of Tenant. Landlord may sell and convey
Tenant's Property, or any part thereof, to such bidder, delivering to such
bidder all of Tenant's title and interest in such property sold to him. The
proceeds of such sale shall be applied by Landlord toward the costs thereof and
then toward the payment of all sums when due by Tenant to Landlord hereunder.
17. ASSIGNMENT AND SUBLETTING
(a) The Tenant shall not have the right, without first obtaining
Landlord's prior written consent which will not be unreasonably withheld, to
assign or sublet any part or all of the Premises to any party for any purpose. A
change in ownership of the controlling interest of Tenant shall also constitute
an assignment subject to this subparagraph. Landlord, without being deemed
unreasonable, may withhold its consent to any proposed assignment or subletting
where (i) the financial capacity of such assignee or subtenant is materially
less than that of tenant or (ii) such assignee or subtenant does not intend to
operate a national or regionally recognized restaurant on the Premises or (iii)
even if such assignee or subtenant intends to operate a restaurant on the
Premises, the type of restaurant or the operating history of such assignee or
subtenant or the operating history of such type of restaurant reflects an
inability to generate Gross Sales and potential sales growth equal to or greater
than that of the Tenant. Even if such consent to assignment or subletting is
given by Landlord, such assignment or subletting shall not relieve Tenant of its
liability for the continued performance of all terms, covenants and conditions
of this Lease, including without limitation the payment of all rent, additional
rent and Percentage Rent and other charges thereunder. Likewise, as a condition
of any such assignment by Tenant, the assignee shall be required to execute and
deliver to Landlord, upon the effective date of such assignment, an agreement,
in recordable form, whereby such assignee assumes and agrees to discharge all
obligations of Tenant under this Lease.
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(b) In the event of the subletting or assignment of this Lease, any
monetary consideration obtained from an assignee or transferee upon such
subletting or assignment shall be paid to Landlord. In the event of the
subletting or assignment of this Lease, if Tenant derives funds or rental income
greater than what it is paying to Landlord under this Lease, the Annual Rent
provided for herein shall be increased to that amount received by Tenant from
sublessee or assignee of this Lease.
(c) Prior to any assignment allowed hereunder, Tenant shall deliver to
Landlord (i) a copy of the assignment documents (including copies of any
recorded documents), and (ii) the name, address and telephone number of such
assignee and a designated contact person for such assignee, and (iii) a new
insurance policy and binder complying with the terms of this Lease and naming
such assignee as the tenant of the Premises. Notwithstanding anything herein to
the contrary, in the event of any assignment of this Lease or subletting of the
Premises, Tenant shall not be released from its obligations under this Lease
unless specifically released by virtue of a separate written instrument executed
by Landlord, which may be withheld in Landlord's sole discretion.
(d) The Landlord shall have the right without limitation (subject to
paragraph 11 hereof) to sell, convey, transfer or assign its interest in the
Premises or its interest in this Lease, and upon such conveyance being completed
all covenants and obligations of Landlord under this Lease accruing thereafter
shall cease, but such covenants and obligations shall run with the land and
shall be binding upon the subsequent landlord or owners of the Premises or of
this Lease.
18. SUBORDINATION, NON-DISTURBANCE, ATTORNMENT, ESTOPPEL CERTIFICATE.
(a) Upon written request of the holder of any mortgage (which term
"mortgage" shall also include deeds of trust) now or hereafter relating to the
Premises, Tenant will subordinate its rights under this Lease to the lien
thereof and to all advances made or hereafter to be made upon the security
thereof, and Tenant shall execute, acknowledge and deliver an instrument in the
form customarily used by such encumbrance holder to effect such subordination;
provided, however, as a condition of all such subordinations, the holder of such
mortgage shall be first required to agree with Tenant that, notwithstanding the
foreclosure or other exercise of rights under any such first or other mortgage,
Tenant's possession and occupancy of the Premises and the improvements and its
leasehold estate shall not be disturbed or interfered with nor shall Tenant's
rights and obligations under this Lease be altered or adversely affected thereby
so long as Tenant is not in default hereunder.
(b) Notwithstanding anything set out in subparagraph (a) above to the
contrary, in the event the holder of any such mortgage elects to have this Lease
be superior to its mortgage, then upon Tenant's being notified to that effect by
such encumbrance holder, this Lease shall be deemed prior to the lien of said
mortgage, whether this Lease is dated prior or subsequent to the
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date of said mortgage, and Tenant shall execute, acknowledge and deliver an
instrument, in the form customarily used by such encumbrance holder, effecting
such priority.
(c) In the event proceedings are brought for the foreclosure of, or in
the event of the exercise of the power of sale under any mortgage made by
Landlord covering the Premises, or in the event of delivery of a deed in lieu of
foreclosure under such a mortgage Tenant will attorn to the purchaser upon any
such foreclosure or sale and recognize such purchaser as Landlord under this
Lease, and upon the request of the purchaser, Tenant shall execute, acknowledge
and deliver an instrument, in form and substance satisfactory to such purchaser,
evidencing such attornment.
(d) Each party agrees, within seven (7) days after written request by
the other, to execute, acknowledge and deliver to and in favor of any proposed
mortgagee or purchaser of the Premises, an estoppel certificate, in the form
customarily used by such proposed mortgagee or purchaser, stating, among other
things (i) whether this Lease is in full force and effect, (ii) whether this
Lease has been modified or amended and, if so, identifying and describing any
such modification or amendment, (iii) the date to which rent and other charge
has been paid, and (iv) whether the party furnishing such certificate knows of
any default on the part of the other party or has any claim against such party
and, if so, specifying the nature of such default or claims.
(e) Upon written demand by the holder of any mortgage covering the
Premises, Tenant shall forthwith execute, acknowledge and deliver an agreement
in favor of and in the form customarily used by such encumbrance holder, by the
terms of which Tenant will agree to give prompt written notice to such
encumbrance holder in the event of any casualty damage to the Premises or in the
event of any default on the part of Landlord under this Lease, and will agree to
allow such encumbrance holder a reasonable length of time after notice to cure
or cause the curing of such default before exercising Tenant's rights under this
Lease, or terminating or declaring a default under this Lease.
19. COOPERATION
(a) Landlord shall fully cooperate with Tenant throughout the term of
this Lease to secure or maintain proper zoning, building and other permits and
compliance with all applicable laws. Landlord shall execute any petitions,
requests, applications and the like as Tenant shall reasonably request in order
to obtain any permit, license, variances and approvals which, in the reasonable
judgment of Tenant, are necessary for the lawful construction and/or operation
of Tenants business on the Premises, provided, however, that Tenant shall
indemnify and save Landlord harmless from any and all expenses, costs, charges,
liabilities, losses, obligations, damages and claims of any type which may be
imposed upon, asserted against or incurred by Landlord by reason of same.
(b) In the event that Tenant elects to purchase the Premises pursuant to
the terms and conditions of paragraph 11 hereof, Landlord shall have the right,
in Landlord's sole discretion, to enter into an exchange agreement (the
"Exchange Agreement") with a qualified intermediary
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(the "Intermediary") in order to effectuate a like-kind exchange of the Premises
for one or more other properties (the "Replacement Property"). In that event,
Landlord shall assign to the Intermediary all of Landlord's right, title and
interest in the written contract for purchase and sale of the Premises entered
into between Landlord and Tenant as required by paragraph 11 hereof (the
"Purchase Contract"), and any deposit paid by Tenant in connection with the
purchase of the Premises shall be placed directly with the Intermediary, subject
to the terms and conditions of the Purchase Contract and the Exchange Agreement.
Landlord and Tenant agree that, at Landlord's option, Tenant shall cooperate
with Landlord in effecting a like-kind exchange of the Premises by Landlord
pursuant to and in accordance with the provisions of Section 1031 of the
Internal Revenue Code of 1986, as amended, and the Treasury Regulations
promulgated thereunder, which cooperation shall include, without limitation,
Tenant's consent to Landlord's assignment of its interest in the Purchase
Contract to the Intermediary and Tenant receiving or taking title to the
Premises from the Intermediary or another third party utilized in the
transaction in order to facilitate the like-kind exchange on behalf of Landlord.
20. NOTICES
All notices and other communications required or permitted to be given
hereunder shall be in writing and shall be delivered by a nationally recognized
overnight courier or mailed by registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
If to Landlord: CNL __________
400 East South Street
Suite 500
Orlando, Florida 32801
with copy to: DALE A. BURKET, ESQUIRE
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 North Eola Drive
Post Office Box 2809
Orlando, Florida 32802
If to Tenant: (TENANT NAME), a (State of Incorporation)
(Tenant Entity Type)
(Tenant Street Address)
(Tenant Street Address)
(Tenant City), (Tenant State) (Tenant Zip)
Any party may change its address for notices by written notice in like
manner as provided in this paragraph and such change of address shall be
effective seven (7) days after the date notice of such change of address is
given. Notice for purposes of this Lease shall be deemed given when it shall
have been deposited in the mail by the party who is giving such notice with
sufficient postage prepaid.
21. INDEMNIFICATION
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Tenant does hereby indemnify and exonerate Landlord against and from all
liabilities, losses, obligations, damages, penalties, claims, costs, charges and
expenses, including reasonable architects' and attorneys' fees, which may be
imposed upon or asserted against or incurred by Landlord by reason of any of the
following occurring:
(a) any work or thing done in respect of construction of, in or to the
Premises or any part of the improvements now or hereafter constructed on the
Premises;
(b) any use, possession, occupation, operation, maintenance or
management of the Premises or any part hereof;
(c) any failure to, or to properly, use, possess, occupy, operate,
maintain or manage the Premises or any part thereof;
(d) the condition, including environmental conditions, of the Premises
or any part thereof;
(e) any negligence on the part of Tenant or any of its agents,
contractors, servants, employees, licensees or invitees;
(f) any accident, injury or damage to any person or property occurring
in, on or about the Premises or any part thereof including any sidewalk adjacent
thereto; or
(g) any failure on the part of Tenant to perform or comply with any of
the covenants, agreements, terms or conditions contained in this Lease on its
part to be performed or complied with.
22. HOLD HARMLESS
Tenant agrees to hold Landlord harmless against any and all claims,
damages, accidents and injuries to persons or property caused by or resulting
from or in connection with anything in or pertaining to or upon the Premises
during the term of this Lease or while Tenant is occupying the Premises, except
if such claim, damage, accident or injury shall be caused by the negligence of
Landlord or its agents. Landlord shall not be liable to Tenant, Tenant's
employees, agents, invitees, licensees or any other person whomsoever for any
injury to person or damage to property on or about the Premises caused by the
negligence or misconduct of Tenant, its agents, servants or employees or of any
other person entering the building under expressed or implied invitation by
Tenant or due to any other cause whatsoever, unless caused by the negligence or
neglect of Landlord, its employees or its authorized representatives.
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<PAGE>
23. LANDLORD'S LIABILITIES
The term "Landlord" as used in this Lease means the owner from time to
time of the Premises. Neither Landlord nor any partner, shareholder or
beneficiary thereof shall have any personal liability with respect to any of the
provisions of this Lease and if Landlord is in default with respect to its
obligations hereunder Tenant shall look solely to the equity of Landlord in the
Premises.
24. SUCCESSORS
The covenants, conditions and agreements contained in this Lease shall
bind and inure to the benefit of Landlord and Tenant and their respective heirs,
legal representatives, successors and assigns.
25. ENTIRE AGREEMENT/MEMORANDUM OF LEASE
This Lease contains the entire agreement between the parties hereto and
may not be modified in any manner other than in writing signed by the parties
hereto or their successors in interest. A memorandum of this Lease shall be
executed by the parties and shall be recorded in the official records of the
county where the Premises are located.
26. GENDER
Whenever the context hereof permits or requires, words in the singular
may be regarded as in the plural and vice-versa, and personal pronouns may be
read as masculine, feminine and neuter.
27. BROKERAGE FEES
It is understood and agreed that neither party has incurred any real
estate brokerage fees or commissions arising out of this Lease and each party
agrees to hold the other harmless from and against all such fees and commissions
incurred, and costs related thereto including legal fees, as a result of its own
conduct or alleged conduct.
28. CAPTIONS
The captions of this Lease are for convenience only, and do not in any
way define, limit, disclose, or amplify terms or provisions of this Lease or the
scope or intent thereof.
29. LANDLORD'S RIGHT TO CURE
In the event Tenant shall fail, refuse or neglect to perform, observe or
comply with any term, condition, covenant, agreement or obligation contained in
the Lease on its part to be performed or complied with, then Landlord may, at
its sole option, enter upon the Premises, if
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<PAGE>
deemed necessary by Landlord in its sole discretion, and/or do whatever may be
deemed necessary by Landlord in its sole discretion to cure such failure by
Tenant. Tenant shall pay to Landlord within five (5) days of Landlord's request,
all costs incurred by Landlord in connection with Landlord's curing of such
failure by Tenant including, but not limited to, reasonable attorney and
paralegal fees whether or not judicial proceedings are involved. In addition to
the above costs, in the event Landlord does not receive payment from Tenant when
due hereunder, interest at the rate of eighteen percent (18%) per annum or the
highest rate allowable by law shall be due and payable with respect to such
payment from the due date thereof until Landlord receives such payment.
30. COMMITMENT LETTER
That certain commitment letter dated ______________, 199_ is hereby
incorporated herein by reference and the terms and conditions thereof shall
survive closing with respect to the transaction contemplated by this Lease. In
the event any terms of the commitment letter are inconsistent with the terms
contained in this Lease, the terms of this Lease shall control.
31. NOT A SECURITY ARRANGEMENT
The parties hereto agree and acknowledge that this transaction is not
intended as a security arrangement or financing secured by real property, but
shall be construed for all purposes as a true lease.
32. NET LEASE
It is the intention of the parties hereto that this Lease is and shall
be treated as a triple net lease. Any present or future law to the contrary
notwithstanding, this Lease shall not terminate (except as expressly provided in
paragraph 4(a)) nor shall Tenant be entitled to any abatement, suspension,
deferment, reduction (except as expressly provided in paragraph 6(b) hereof),
setoff, counterclaim, or defense with respect to the rent, nor shall the
obligations of Tenant hereunder be affected by reason of: any damage to or
destruction of the Premises or any part thereof; any taking of any Premises or
any part thereof or interest therein by Condemnation or otherwise (except as
expressly provided in paragraph 6(b) hereof); any prohibition, limitation,
restriction or prevention of Tenant's use, occupancy or enjoyment of the
Premises or any part thereof, or any interference with such use, occupancy or
enjoyment by any person or for any other reason; any title defect or encumbrance
or any matter affecting title to the Premises or any part thereof; any eviction
by paramount title or otherwise; any default by Landlord hereunder; any
proceeding relating to Landlord; the impossibility or illegality of performance
by Landlord, Tenant or both; any action of governmental authority; any breach of
warranty or misrepresentation; any defect in the condition, quality or fitness
for use of the Premises or any part thereof; or any other cause whether similar
or dissimilar to the foregoing and whether or not Tenant shall have notice or
knowledge of any of the foregoing. The parties intend that the obligations of
Tenant hereunder shall be separate and independent covenants and agreements and
shall continue unaffected unless
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such obligations shall have been modified or terminated in accordance with an
express provision of this Lease.
33. WAIVER
No waiver by Landlord of any provision hereof shall be deemed a wavier
of any other provision hereof or of any subsequent breach by Tenant of the same
or any other provision. Landlords's consent to, or approval of, any act shall
not be deemed to render unnecessary the obtaining of Landlord's consent to or
approval of any subsequent act by Tenant. The acceptance of rent hereunder by
Landlord shall not be a waiver of any preceding breach by Tenant of any
provision hereof, other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent.
34. TIME OF THE ESSENCE
Landlord and Tenant agree that time shall be of the essence of all terms
and provisions of this Lease.
35. GOVERNING LAW
This Lease shall be construed in accordance with the laws of the state
in which the Premises is located.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Lease Agreement
to be executed the day and date first above written.
Signed, Sealed and Delivered
in the presence of: "LANDLORD"
CNL , a
__________________ corporation
- --------------------------------
By:-----------------------------
Name:---------------------------
- --------------------------------
Name: --------------------------
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this ____ day of
_______________, 1996 by ____________________, as ______________________ of CNL
_____________________, a ____________________, on behalf of the
_______________________. He is personally known to me and did not take an oath.
-----------------------------------------
Notary Signature
-----------------------------------------
Printed Name
Notary Public, State of Florida
Commission Number:
---------------------------
My Commission Number:
---------------------
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"TENANT"
(TENANT NAME), a (State of
Incorporation) (Tenant Entity Type)
- -----------------------------
By:-------------------------------------
Name:------------------------
Name:-----------------------------------
As Its:---------------------------------
- -----------------------------
Name: -----------------------
STATE OF ______________
COUNTY OF ____________
The foregoing was executed before me on , 1996, by
_______________________________ as ____________________________ of
__________________________________, a __________ corporation, on behalf of the
corporation. He/She is personally known to me or produced
____________________________________________
__________________________________________ as identification
and did not take an oath.
-------------------------------------------
(NOTARY SEAL) Notary Public, State of--------------------
Printed Name:------------------------------
Notary Commission No.----------------------
My Commission Expires:---------------------
Exhibit "A" - Legal Description
<PAGE>
Exhibit "A"
Legal Description of the Premises
<PAGE>
RENT ADDENDUM
to
LEASE AGREEMENT
THIS RENT ADDENDUM dated (Closing Date), by and between CNL __________,
a (State of Registration) (Landlord Entity Type) as "Landlord", and (TENANT
NAME),a (State of Incorporation) (Tenant Entity Type), as "Tenant", for
(RESTAURANT NAME) (Site Number), (City), (County) County, (State), is attached
to and made a part of that certain Lease Agreement by and between Landlord and
Tenant of even date herewith (the "Lease"). Notwithstanding any other provision
to the contrary which may be contained in said Lease, it is specifically agreed
by and between Landlord and Tenant as follows:
(a) Commencement of Rent.
On the date hereof, Landlord has simultaneously entered into the Lease
with Tenant pursuant to which Tenant has agreed to lease from Landlord the
Premises and all improvements now or hereafter constructed thereon. Payment of
Interim Rent (if applicable), Annual Rent and Percentage Rent shall commence as
of the Effective Date as provided herein, notwithstanding that the improvements
may not be constructed or complete at that time.
(b) Interim Rent.
The terms and provisions of this paragraph (b) shall apply only if a
Construction Addendum is attached to and incorporated in the Lease. From and
after the Effective Date until Annual Rent shall first become due and payable
pursuant to subparagraph (c) below, Interim Rent shall be due and payable in
advance monthly installments on the first day of each month. For purposes of
this Lease, the term "Interim Rent" shall mean an amount equal to the product of
(i) ___________ percent (_____%) per annum, multiplied by (ii) the amount
theretofore funded by Landlord under the terms of the Construction Addendum.
Interim Rent for partial months shall be prorated on a per diem basis.
[[INSERT FOLLOWING VERSION OF PARAGRAPH (c) FOR CONSTRUCTION SITES]]
(c) Annual Rent
(i) Definitions. Capitalized terms used in the Lease and the
Construction Addendum shall have the same meaning in this Rent Addendum unless
otherwise defined. In addition to those terms defined elsewhere in this Rent
Addendum, as used herein the following terms shall have the meaning indicated:
"Construction Period" shall mean the period beginning on the Effective
Date and ending on the earliest of (i) ____________ (___) days after the
Effective Date; (ii) the date a certificate of occupancy for the Premises is
issued; (iii) the date the restaurant opens for business on the
<PAGE>
Premises; and (iv) the date Tenant receives from Landlord its final funding of
the construction costs for the Project under this Construction Addendum.
"Annual Rent Commencement Date" shall mean the last day of the
Construction Period.
"Total Cost" shall mean the sum of (i) the purchase price paid by
Landlord for the land comprising a portion of the Premises, plus (ii) all
approved closing costs paid by Landlord, plus (iii) all actual "hard"
construction costs and approved "soft" costs incurred by Tenant and funded by
Landlord during the Construction Period pursuant to the terms and conditions of
the Construction Addendum.
(ii) Initial Annual Rent. Beginning on the Annual Rent
Commencement Date, Tenant covenants and agrees to pay to Landlord Annual Rent in
an annual amount equal to ______________ percent (______%) multiplied by the
Total Cost, payable to Landlord in equal monthly installments in advance, on the
first (1st) day of each month. Landlord and Tenant agree that prior to the
Annual Rent Commencement Date they will endeavor to establish the Total Cost so
that rent payable on the Annual Rent Commencement Date will be known prior to
such date. However, if the exact amount of the Total Cost shall not have been
finally ascertained prior to the Annual Rent Commencement Date, Tenant shall as
of the Annual Rent Commencement Date pay Landlord rent based on an annual rent
under the Lease determined by multiplying ___________ percent (____%) times
$__________________________ (the Funding Limitation set forth in the
Construction Addendum), and if, when the exact amount of the Total Cost shall
have been ascertained (the "Final Disbursement Date"), such Total Cost is more
or less than $_________________, Landlord or Tenant, as the case may be, shall
promptly refund or remit to the other an amount equal to the excess rent paid or
the underpayment of rent due. On the Final Disbursement Date, Landlord shall
mail to Tenant a statement setting forth a schedule of funds disbursed by
Landlord to Tenant under the Construction Addendum; shall compute the Annual
Rent payable hereunder; and shall state the excess rent paid or underpayment of
rent due. The Annual Rent set forth in such statement shall constitute the
Annual Rent due hereunder.
(ii) Increases in Annual Rent. Commencing at the end of the fifth
(5th) Lease Year after the Effective Date, and on each fifth (5th) anniversary
of such date thereafter during the term of this Lease (and any extension
thereof), Annual Rent shall be increased by an amount equal to _____ percent
(__%) of the Annual Rent payable during the immediately preceding Lease Year.
(iii) Partial Months. If the date on which Annual Rent shall
first be due and payable shall fall on a day other than the first day of a
calendar month, then rent for the partial rental month shall be prorated on a
per diem basis on the first Annual Rent payment and shall be paid by Tenant to
Landlord for such month.
[[INSERT FOLLOWING VERSION OF PARAGRAPH (c) FOR EXISTING STORES/NO CONSTRUCTION
ADDENDUM]]
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<PAGE>
(c) Annual Rent
(i) Beginning on the Effective Date, Tenant covenants and agrees
to pay to Landlord Annual Rent in the annual amount of
_________________________________________, payable to Landlord in equal monthly
installments in the amount of ___________________________________ AND
___/DOLLARS ($ ) monthly in advance, on the first (1st) day of each month.
(ii) Increases in Annual Rent. Commencing at the end of the fifth
(5th) Lease Year after the Effective Date, and on each fifth (5th) anniversary
of such date thereafter during the term of this Lease (and any extension
thereof), Annual Rent shall be increased by an amount equal to _______ percent
(__%) of the Annual Rent payable during the immediately preceding Lease Year.
(iii) Partial Months. If the date on which Annual Rent shall be
first due and payable shall fall on a day other than the first day of a calendar
month, then rent for the partial rental month shall be prorated on a per diem
basis on the first Annual Rent payment and shall be paid by Tenant to Landlord
for such month.
(d) Percentage Rent.
In addition to the Interim Rent and Annual Rent set forth above, Tenant
shall pay, as additional Rent, percentage rent ("Percentage Rent") as follows:
Within thirty (30) calendar days after the expiration of each Lease Year, Tenant
shall pay, in one lump sum, an amount equal to (i) ___ percent (__%) multiplied
by Tenant's Gross Sales (as hereinafter defined) for the Lease Year then ended,
minus (ii) the Annual Rent payable for such Lease Year. At such time, Tenant
shall also furnish Landlord a sworn statement showing the Gross Sales made by
Tenant during such Lease Year then ended.
(i) Inspection of Records. Landlord or its duly authorized
representatives may on regular business days within reasonable office hours,
inspect Tenant's records of Gross Sales and deductions made in the Premises,
either at the Premises or elsewhere as reasonably designated by Tenant, provided
such inspection is commenced within thirty-six (36) months after a statement of
Gross Sales is furnished to Landlord by Tenant or should have been delivered and
is limited to the period covered by such statement. Any claim by Landlord for
revision of any statement of Gross Sales or for additional Percentage Rent must
be made in writing to Tenant within thirty-six (36) months after the date such
statement of Gross Sales is mailed to Landlord, or within thirty (30) days
following completion of its inspection, otherwise it shall be deemed waived by
Landlord.
(ii) Reporting Errors. If Landlord inspects Tenant's records as
permitted by this Rent Addendum and if such inspection shows an error(s) in the
statements submitted by Tenant which results in an understatement of Gross Sales
by more than three percent (3%), then in addition to paying the Percentage Rent
due, Tenant shall pay Landlord the reasonable cost of
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<PAGE>
such inspection. In the event such inspection shows an overstatement of Gross
Sales, then Landlord shall refund such overpayment to Tenant.
(iii) Sales and Other Financial Reports. In addition to the above
annual sworn statement of Gross Sales, Tenant shall provide Landlord with (i)
monthly reports of its sales at the Premises within five (5) days following the
last day of each month, together with a copy of all reports submitted to its
franchisor, (ii) quarterly sales tax reports for sales at the Premises, and
(iii) Tenant and each guarantor shall provide unaudited year end financial
statements including operating statements and balance sheets and federal income
tax returns within ten (10) days after they are generated for Tenant or such
guarantor. Further, Tenant hereby authorizes its franchisor to release to
Landlord any and all inspection reports issued by franchisor to Tenant relating
to the Premises.
(iv) Gross Sales/Sales Tax Defined. As used in this Rent
Addendum, the term "Gross Sales" shall mean the gross amount charged for all
sales or services made from the Premises by Tenant, for cash or credit, paid or
unpaid, less any sales taxes, returns, exchanges, allowances, discounts,
employee meals, and excluding sales of Tenant's Property or Tenant's leasehold
interest. Gross Sales shall include, without limitation, gross Rents or other
amounts received by Tenant from the licensees or concessionaires owning and
operating coin operated machines and devices, such as cigarette machines, but
not the amount taken in by such machines or devices. The term "sales tax" shall
mean taxes which by law (1) are not imposed on Tenant or any other party prior
to sale at retail by Tenant, but (2) are imposed on purchasers from Tenant at
retail and collectible by Tenant from such purchasers.
(e) Sales/Use Tax.
Tenant shall also pay to Landlord any sales and use tax imposed on any
Rents payable hereunder from time to time by state law or any other governmental
entity, which sums are due monthly as to monthly rent payments and annually as
to Percentage Rent on the due date of the rent payment under this Lease.
(f) Late Charges.
In the event any installment of rent due hereunder (including Interim
Rent, Annual Rent and Percentage Rent) is not received by Landlord within ten
(10) days of its respective due date, there shall be an automatic late charge
due to Landlord from Tenant in the amount of five percent (5%) of such
delinquent installment of rent. All such late charges due hereunder shall be
deemed additional Rent, and are not penalties but rather are charges
attributable to administrative and collection costs arising out of such
delinquency. In addition to such late charge, in the event Landlord does not
receive Rent when due hereunder, interest at the rate of the maximum rate
allowable by law shall be due and payable with respect to such payment from the
due date thereof until Landlord receives such payment.
(g) Payments of Rents.
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<PAGE>
Except as provided in the following sentence, all Rent payments shall be
made by check payable to the order of Landlord and shall be sent to 400 East
South Street, Suite 500, Orlando, Florida 32801, or to such other place or
places as Landlord or its successors or assigns, respectively, may from time to
time designate in writing. In the event Tenant is late in the payment of
Interim, Annual or Percentage Rent on three (3) or more occasions, and if
Landlord shall so request, Tenant shall establish arrangements whereby Rent is
transferred by wire or other means directly from Tenant's bank account to such
account as Landlord may designate.
(h) No Abatement.
Unless otherwise stated in the Lease, no abatement, offset, diminution
or reduction (a) of Rent, charges or other compensation, or (b) of Tenant's
other obligations under this Lease shall be allowed to Tenant or any person
claiming under Tenant, under any circumstances or for any reason whatsoever.
Initialed for Identification:
- ------------------------------------- --------------------------------------
By Landlord By Tenant
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<PAGE>
CONSTRUCTION ADDENDUM
THIS CONSTRUCTION ADDENDUM, executed as of (Closing Date), by and
between CNL __________, a (State of Registration) (Landlord Entity Type) with
principal office and place of business at 400 E. South Street, Suite 500,
Orlando, Florida 32801 ("Landlord"), and (TENANT NAME), a (State of
Incorporation) (Tenant Entity Type), with a mailing address of (Tenant Street
Address), (Tenant Street Address), (Tenant City), (Tenant State) (Tenant Zip)
("Tenant").
PRELIMINARY STATEMENT
Landlord has acquired the real property which constitutes a portion of
the Premises described in Exhibit "A" attached to the Lease Agreement and has
leased the same to Tenant under the terms of the Lease Agreement. Landlord
desires to construct or have constructed certain improvements on the Premises
and is entering into this Construction Addendum with Tenant for the purpose of
setting forth the terms and conditions under which Tenant shall serve as
developer in connection with the Project (as that term is defined hereinbelow).
NOW, THEREFORE, it is agreed, by and between the parties hereto as
follows:
1. Definitions. Capitalized terms used in the Lease Agreement shall have
the same meaning in this Construction Addendum unless otherwise defined. In
addition to those terms defined elsewhere in this Construction Addendum, as used
herein the following terms shall have the meaning indicated:
"Project" shall mean construction of the building and all necessary
site improvements on the Premises for the initial use as a ___________
restaurant by Tenant who is Tenant under the Lease Agreement between Tenant and
Landlord of even date herewith (the "Lease Agreement"). Such building and
improvements shall be completed in accordance with the plans and specifications
approved by Landlord and Tenant prior to Landlord's acquisition of the Premises,
which approval shall not be unreasonably withheld, delayed or conditioned.
"Construction Period" shall mean the period beginning on the Effective
Date and ending on the earliest of (i) _____________ (___) days after the
Effective Date; (ii) the date a certificate of occupancy for the Premises is
issued; (iii) the date the __________ restaurant opens for business on the
Premises; and (iv) the date Tenant receives from Landlord its final funding of
the construction costs for the Project under this Construction Addendum.
2. Authorization, Independent Contractor. Landlord hereby engages Tenant
as an independent contractor and authorizes Tenant to enter upon the Premises
and to undertake responsibilities, duties, obligations, rights and authority
expressly herein set forth and, subject to the provisions hereof, Tenant hereby
accepts such appointment and agrees to perform and fully discharge all of its
duties, responsibilities and obligations herein set forth diligently, promptly
and in full compliance with the provisions hereof.
<PAGE>
3. Co-Tenant and Sub-Agents. Tenant may delegate the performance of any
of its responsibilities hereunder to one or more contractors, subcontractors,
consultants, co-developers or sub-agents; provided, however, that no such
delegation shall relieve Tenant of its duties, responsibilities and obligations
hereunder.
4. Specific Duties and Obligations. Tenant shall be responsible for the
complete development and construction of the Project and shall deliver a
turn-key facility to Landlord. In that connection, Tenant's duties, obligations
and responsibilities include, but shall not be limited to the following:
(a) Project Design. Procuring all necessary architectural and
engineering services related to the site work, design and engineering related to
the Project, any and all engineering and impact studies or reports related to
the development of the Project, and processing and obtaining all required
governmental approvals.
(b) Licenses and Permits. Obtaining all licenses, permits and
approvals required to prepare the site for development, to permit construction
of the Project and to operate it for its intended purposes. Such licenses,
permits and approvals shall include, but shall not be limited to, water
management district approvals, approvals required under any franchise agreement,
financing agreement or any instrument of record, building permits, certificates
of occupancy, and any other required governmental consents or approvals.
(c) General Contractor, Construction Contracts and Purchase
Orders. Negotiating all necessary construction contracts, for the benefit of
Landlord, relating to the development and construction of the Project. All
construction contracts and purchase orders for work, material or equipment shall
be entered into between Tenant and the contractors or vendors selected and shall
be satisfactory in form and substance to Landlord, Tenant, and legal counsel for
Landlord and Tenant, including a payment and performance bond from the general
contractor in the amount of the general construction contract. The general
construction contract and construction/trade cost breakdown shall be approved by
Landlord prior to Landlord's purchase of the property. The general construction
contract shall contain provisions for a ten percent (10%) retainage and
submission to Landlord of all underlying contracts with and invoices (required
only if a cost-plus contract) from materialmen and subcontractors. All change
orders to such contract must be approved in writing by Landlord. Tenant shall
cause its general contractor to submit (and the general construction contract
shall so provide) all subcontracts to Landlord prior to commencement of
construction.
(d) Construction Coordination. Coordinating all aspects of
construction of the Project to completion. Tenant shall monitor the progress of
construction and the compliance by all contractors with the provisions of their
construction contracts, through periodic on-site visits and inspections and
through written and other reports from the architect, contractors and other
construction supervisory personnel. Tenant shall keep Landlord advised from time
to time of the progress of construction. Tenant shall review and approve all
contractor and other payment requests made from time to time and shall review
all such requests to ensure compliance with the
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<PAGE>
construction contract and the terms hereof. Tenant shall determine which, if
any, contractor or subcontractor is in default under the provisions of its
applicable contract or subcontract, and what measures should be taken in
connection therewith.
(e) Funding. Financing to be provided by Landlord hereunder shall
be limited to all actual "hard" construction costs of the Project together with
approved "soft" costs (to the extent set forth herein), exclusive of any
developer's fee. Landlord's funding shall be disbursed to Tenant monthly against
draw requests submitted by Tenant to Landlord. Each such draw request shall be
submitted on AIA Forms G-702 and G-703 (or other forms approved by Landlord),
shall be prepared in accordance with Landlord's instructions and shall be
received by Landlord no later than the twenty-fifth (25th) day of each month.
Each draw request shall be accompanied by all supporting documentation required
by Landlord (including partial lien waivers from the general contractor and all
subcontractors waiving all lien rights through the date of the last draw
request, and copies of invoices for "soft" costs which may be reimbursable). If
properly prepared and documented requests are received by the twenty-fifth
(25th) day of a month, Landlord shall pay proper amounts reflected in such
request by the tenth (10th) day of the following month. The funds to be advanced
by Landlord pursuant to this Construction Addendum shall at no time in the
aggregate exceed $________________ (the "Funding Limitation"), minus the
purchase price Landlord paid at closing for the acquisition of the Premises,
including Landlord's acquisition costs and closing costs. Tenant shall be solely
responsible for the full and timely payment of any and all costs of developing
the Project which exceed the Funding Limitation determined hereinabove. If, at
any time after the date hereof, there exists any unpaid costs in excess of the
Funding Limitation, then Landlord shall have the right to immediately stop
funding under this Construction Addendum until such time as Tenant has funded
such excess costs and has provided Landlord with evidence that such excess costs
have been paid in full by Tenant. Tenant shall obtain no construction financing
for the Project which is secured by a lien on the Project. Construction
financing shall not include equipment financing.
(f) General Construction Matters. Tenant shall commence
construction as soon as practicable after the date hereof and, after
commencement and subject to Paragraph 9 hereinbelow, shall diligently complete
the Project within __________ (___) days thereafter in a first-class,
workmanlike manner and in conformity with all applicable governmental laws,
ordinances, rules, orders, regulations and other requirements and in substantial
compliance with the plans and specifications approved by Landlord, Tenant's
franchisor and the final working drawings. Notwithstanding the foregoing,
Landlord agrees to consider reasonable written requests from Tenant for
extensions of time to complete the Project beyond the __________(___) day
period.
All of Tenant's records pertaining to the construction of the
Project shall be available for inspection and copying by Landlord and its agents
and employees during normal business hours. Following completion of the Project,
Tenant shall execute such documents and instruments as Landlord may request (in
form and substance reasonably satisfactory to Landlord and Tenant) to evidence
Landlord's ownership of and title to all improvements on the Premises
3
<PAGE>
comprising, in the aggregate, the Project and shall assign to Landlord all
warranties relating to the work and/or materials performed at or incorporated
into the Project.
Tenant shall as part of the construction and development work
engage an inspecting architect or engineer suitable to Landlord to make monthly
inspections and to certify all draw requests to Landlord. Such certification
shall include a statement of work done if not reasonably ascertainable from the
draw request and shall be accompanied by color photographs in no less than 3
1/2" by 5" formats showing the construction work completed as of the inspection
date. Such photographs shall be taken from such vantage points as are required
to clearly show all work done and once vertical construction has commenced shall
show all elevations. The final draw request shall be accompanied by: (1) the
contractor's affidavit of completion and proof of payment of all subcontractors
and all materialmen; (2) an assignment of all manufacturer's warranties for any
material, equipment or workmanship installed as a part of the Project; (3) an
ALTA as-built survey of completed Project certified to Landlord and Tenant, and
any title company designated by Landlord; (4) Certificate(s) of Occupancy for
the Project issued by the appropriate regulatory agencies; and (5) a complete
certified final set of plans, specifications and working drawings for the
Project as completed. At the time such draw request is submitted to Landlord,
Landlord shall order or cause to be ordered an update search or endorsement to
its title insurance policy for the Premises, which must show no additional
matters of record through a then current date (except for matters which have
been previously accepted by Landlord).
No approvals or inspections made, given or conducted by Landlord shall
relieve Tenant of any duties, responsibilities, obligations or liabilities
hereunder.
5. Development Fee. Neither Tenant nor any affiliate shall receive a
development or construction supervision fee for its services hereunder. A
licensed general contractor shall be entitled to reasonable, normal and
customary overhead and profit in connection with the performance of its services
under a general construction contract. Said profit shall include reasonable,
normal and customary superintendent compensation.
6. General. With respect to matters not specifically related to the
Premises or its development, this Construction Addendum shall be governed by the
laws of the state where the Premises is located. All captions and section
headings used herein are for convenience and ease of reference only and do not
constitute part of this instrument. The Preliminary Statement set forth at the
beginning of this Construction Addendum is hereby incorporated herein by
reference and is deemed to constitute an integral part of this instrument.
7. Landlord's Right to Complete Construction on Tenant's Default. Except
for delays caused by events not within the control of Tenant, failure to
continuously prosecute to completion the construction of the Project within
____________ (___) days following the date hereof shall constitute a default by
Tenant hereunder. If, after ten (10) days notice to Tenant, any such default
shall not have been remedied, then Landlord may, if it elects to do so, either:
(a) take over construction of the Project and, at its option, complete such
construction or cause the same to be completed, or (b) terminate the Lease
Agreement and this Construction Addendum, in
4
<PAGE>
which case Tenant shall be required to purchase the Premises from Landlord
(subject to all liens, claims or encumbrances not placed on the Premises by
Landlord) at a price equal to Landlord's purchase price of the Premises, plus
all sums disbursed to Tenant pursuant to this Construction Addendum, plus all
Interim Rent due under the Lease Agreement, plus all fees, costs and expenses
paid by Landlord in connection with its purchase of the Premises, plus interest
on all such sums accruing from the date of disbursement thereof at the rate of
ten percent (10%) per annum. Closing of such purchase and sale shall take place
within thirty (30) days following the date of Landlord's notice of default to
Tenant.
8. Force Majeure. The time for completion of the Project shall be
extended by the period of time, if any, that construction is delayed by virtue
of labor unrest, materials shortage, natural disaster, weather, Acts of God, and
other causes beyond the reasonable control of Tenant; provided, however, that no
such extension shall be permitted with respect to any delay unless written
notice of the delay specifying the cause of the delay and the expected time of
the delay is delivered to Landlord within fifteen (15) days after such delay is
encountered.
9. Entire Agreement. This Construction Addendum and the Lease Agreement
of which this Construction Addendum is a part constitute the entire agreement of
Landlord and Tenant with respect to the development of the Premises, and
supersedes any prior or contemporaneous agreement with respect thereto. No
amendment or modification of this Construction Addendum shall be binding upon
the parties unless made in writing and signed by both Landlord and Tenant.
(Signatures begin on next page)
5
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have caused this Construction
Addendum to be executed and sealed as of the date first above written.
Signed, Sealed and Delivered
in the presence of: "LANDLORD"
CNL , a
__________________ corporation
- --------------------------------
By:---------------------------------
Name:---------------------------
- --------------------------------
Name:---------------------------
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this ____ day of
_______________, 1996 by ____________________, as ______________________ of CNL
_____________________, a ____________________, on behalf of the
_______________________. He is personally known to me and did not take an oath.
---------------------------------
Notary Signature
---------------------------------
Printed Name
Notary Public, State of Florida
Commission Number:---------------
My Commission Number:--------------
6
<PAGE>
"TENANT"
(TENANT NAME), a (State of
Incorporation) (Tenant Entity Type)
- --------------------------------
By:--------------------------------------
Name:---------------------------
Name: -----------------------------------
As Its:----------------------------------
- --------------------------------
Name:---------------------------
STATE OF ______________
COUNTY OF ____________
The foregoing was executed before me on , 1996 by
_______________________________ as ____________________________ of
__________________________________, a __________ corporation, on behalf of the
corporation. He/She is personally known to me or produced
____________________________________________
__________________________________________ as identification
and did not take an oath.
-------------------------------------------
(NOTARY SEAL) Notary Public, State of -------------------
Printed Name:------------------------------
Notary Commission No.----------------------
My Commission Expires:---------------------
EXHIBITS ATTACHED
Exhibit "A" - Legal Description
7
<PAGE>
REQUESTED BY:
AFTER RECORDATION RETURN TO:
Lowndes, Drosdick, et. al.
Post Office Box 2809
Orlando, Florida 32802
Attention: Dale A. Burket, Esquire
Phone: (407) 843-4600
RETURN BY: MAIL (X) PICK UP ( )
_________ #(Site Number)/(City), (County) County, (State)
MEMORANDUM OF LEASE
This Memorandum of Lease is made as of (Closing Date), by and between
CNL __________, a (State of Registration) (Landlord Entity Type) with principal
office and place of business at 400 E. South Street, Suite 500, Orlando, Florida
32801 ("Landlord"), and (TENANT NAME), a (State of Incorporation) (Tenant Entity
Type), with a mailing address of (Tenant Street Address), (Tenant Street
Address), (Tenant City), (Tenant State) (Tenant Zip) ("Tenant").
In consideration of ONE AND NO/100 DOLLARS ($1.00) and other valuable
consideration paid by Tenant to Landlord and the mutual covenants contained in
that certain Lease Agreement between the parties hereto dated on even date
herewith (hereinafter called the "Lease"), Landlord has leased and does hereby
lease to Tenant, and Tenant has hired and does hereby hire from landlord, upon
the terms and conditions set forth in said Lease, the real property more
particularly described in Exhibit "A" attached hereto and made a part hereof
(the "Premises").
The term of the Lease is __________ (__) years commencing on the date
hereof and ending on _______ ___, 20__. Said Lease provides for options to renew
for _________ (__) five (5) year terms. Tenant shall not allow any mechanic's
lien or similar type of lien to be filed against the Premises. Tenant has the
first right of refusal to purchase the Premises and an option to purchase the
Premises during the term of the Lease and any renewals or extensions thereof
upon the terms and conditions set forth in the Lease.
(Signatures begin on next page)
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have caused this Memorandum of
Lease to be executed and sealed as of the date first above written.
Signed, Sealed and Delivered
in the presence of: "LANDLORD"
CNL , a
__________________ corporation
- ----------------------------------
By:--------------------------------------
Name:-----------------------------
- ----------------------------------
Name: ----------------------------
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this ____ day of
_______________, 1996 by ____________________, as ______________________ of CNL
_____________________, a ____________________, on behalf of the
_______________________. He is personally known to me and did not take an oath.
--------------------------------------------
Notary Signature
--------------------------------------------
Printed Name
Notary Public, State of Florida
Commission Number:--------------------------
My Commission Number:-----------------------
2
<PAGE>
"TENANT"
(TENANT NAME), a (State of
Incorporation) (Tenant Entity Type)
- ---------------------------
By:--------------------------------------
Name:----------------------
Name:------------------------------------
As Its:----------------------------------
- ---------------------------
Name:----------------------
STATE OF ______________
COUNTY OF ____________
The foregoing was executed before me on , 1996 by
_______________________________ as ____________________________ of
__________________________________, a __________ corporation, on behalf of the
corporation. He/She is personally known to me or produced
____________________________________________
__________________________________________ as identification
and did not take an oath.
------------------------------------------
(NOTARY SEAL) Notary Public, State of-------------------
Printed Name:-----------------------------
Notary Commission No.---------------------
My Commission Expires:--------------------
3
Exhibit 10.9
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made and entered into as of
the 18th day of April, 1995, by and among CNL American Properties 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
<PAGE>
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
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.
2
<PAGE>
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.
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,
3
<PAGE>
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
4
<PAGE>
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 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 in any
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
5
<PAGE>
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
omission(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 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
6
<PAGE>
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 trial
preparation, 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.
7
<PAGE>
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 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 services.
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.
8
<PAGE>
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.
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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, in
defense 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;
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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) 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 indemnification 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
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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.
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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.
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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 "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
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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:
If to the Indemnitee, as shown with the Indemnitee's signature below.
If to the Company to:
CNL American Properties Fund, Inc.
400 East South Street, Suite 500
Orlando, FL 32801
Attention: President
Facsimile No. (___) ___-____
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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.
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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.
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 PROPERTIES FUND, INC.
By: _____________________________
Name: ___________________________
Title:___________________________
_________________________, as INDEMNITEE
By: _____________________________
Name: ___________________________
Title:___________________________
Facsimile No.: ________________________
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EXHIBIT A
FORM OF UNDERTAKING TO REPAY EXPENSES ADVANCED
The Board of Directors of CNL American
Properties Fund, Inc.
Re: Undertaking to Repay Expenses Advanced
Ladies and Gentlemen:
This undertaking is being provided pursuant to that certain Indemnification
Agreement dated the 18th day of April, 1995, by and among CNL American
Properties 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 Properties 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]
<PAGE>
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
Exhibit 23.1
Consent of Coopers & Lybrand L.L.P.
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-11
(File N0. 33-78790) of our report dated January 22, 1996 on our audits of the
financial statements of CNL American Properties Fund, Inc. We also
consent to the reference to our Firm under the captions "Experts".
/s/ COOPERS & LYBRAND L.L.P.
ORLANDO, FLORIDA
OCTOBER 31, 1996
