FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") dated as of December 31, 1999 by and among CNL APF Partners, LP, a
limited partnership formed under the laws of the State of Delaware (the
"Borrower"), CNL AMERICAN PROPERTIES FUND, INC., a corporation organized under
the laws of the State of Maryland (the "Parent"), each of the undersigned
Guarantors (as defined in the Credit Agreement referred to below; together with
the Parent, the "Existing Guarantors"), each of the Lenders (as defined in the
Credit Agreement referred to below), and FIRST Union National Bank, as
Administrative Agent.
WHEREAS, the Borrower, the Parent, the Lenders, the Administrative
Agent and certain other parties have entered into that certain Amended and
Restated Credit Agreement dated as of June 9, 1999 (the "Credit Agreement"),
which the parties hereto desire to amend on the terms and conditions contained
herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
Section 1. Specific Amendments to Credit Agreement. The parties hereto
agree that the Credit Agreement is amended as follows:
(a) The Credit Agreement is amended by deleting from Section 1.1. the
definition of the terms "Contingent Obligations", "Contribution Date", "Excluded
Subsidiary", "Guarantor", "Nonrecourse SPE Financing", "Permitted Financial
Asset Sale", "Permitted On Balance Sheet Warehouse Financing", "Restricted
Payment", "Secured Debt" and "Term Securitization" and substituting in their
respective places the following:
"Contingent Obligation" means, with respect to any Person, any
obligation of such Person to guarantee or intended to guarantee any
Debt, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, (a) the direct
or indirect guaranty, endorsement (other than for collection or deposit
in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the obligation of a
primary obligor, (b) the obligation to make take-or-pay or similar
payments, if required, regardless of nonperformance by any other party
or parties to an agreement or (c) any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation
or any property constituting direct or indirect security therefor, (ii)
to advance or supply funds (A) for the purchase or payment of any such
primary obligation or (B) to maintain working capital, equity capital,
net worth or other balance sheet condition or any income statement
condition of the primary obligor or otherwise to maintain the solvency
of the primary obligor, (iii) to purchase, lease or otherwise acquire
property, assets, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of
which such Contingent Obligation is made (or, if less, the maximum
amount of such primary obligation for which such Person may be liable
pursuant to the terms of the agreement, instrument or other document
evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder), as
determined by such Person in good faith. Contingent Obligations shall
not include the following obligations or liabilities of the Parent, the
Borrower or any other Subsidiary (including any Special Purpose Entity)
to the extent incurred in connection with a Structured Financing: (a)
reasonable and customary obligations of the Parent, the Borrower or any
other Subsidiary with respect to (i) the servicing of any assets which
are the subject of such Structured Financing, (ii) administrative and
ministerial matters relating to any applicable Special Purpose Entity
and related Excluded Subsidiaries, (iii) maintenance of the corporate
separateness of any such Special Purpose Entity and related Excluded
Subsidiaries from that of the Parent and its other Subsidiaries and
(iv) the guaranty of payment of fees of any Person acting as a trustee
in connection with such Structured Financing and indemnification
obligations owing to any such Person, and (b)(i) reasonable and
customary repurchase obligations and other liabilities resulting from
the breach of representations, warranties and covenants that are not
related to creditworthiness of the obligors on the financial assets the
subject of such Structured Financing and (ii) following the Parent's
acquisition of CNL Financial Services, Inc. and CNL Financial
Corporation in connection with the Consolidation, repurchase
obligations resulting from the conversion of adjustable rate loans to
fixed rate loans, and associated obligations relating to the
acquisition of Hedge Agreements with respect to such loans, for
purposes of this subclause (b)(ii) arising solely in connection with
the transaction contemplated by that certain Wholesale Warehouse
Mortgage Indenture dated as of August 1, 1998 among CNL Funding 98-1
LP, as Issuer, and Norwest Bank Minnesota, National Association, as
Trustee. In addition, the ownership of a Subordinated Interest shall
not be deemed to give rise to any Contingent Obligation on the part of
the owner thereof. Further, Contingent Obligations shall not include
liabilities of the Parent or any Consolidated Subsidiary which result
solely from the Parent or such Consolidated Subsidiary being a general
partner of a Special Purpose Entity that is a limited partnership and
is not a Consolidated Subsidiary.
"Contribution Date" means first to occur of (a) the
consummation of the acquisition by the Parent of substantially all of
the assets of CNL Income Fund, LTD through CNL Income Fund, XVI, LTD
(other than any such Fund whose limited partners do not approve its
acquisition) in connection with the Consolidation or (b) June 30, 2000.
"Excluded Subsidiary" means any Subsidiary of the Parent
(other than the Borrower) (a) which is a Special Purpose Entity or (b)
which satisfies all of the following requirements: (i) such Subsidiary
has no assets other than (x) Equity Interests in other Excluded
Subsidiaries, (y) assets which such Subsidiary is to (and does in fact)
dispose of promptly, and in any event within two Business Days,
following such Subsidiary's acquisition of such assets and (z) cash
distributed to such Subsidiary in connection with a Structured
Financing and cash contributed to such Subsidiary to permit it to
satisfy its obligations under a Structured Financing, so long as the
amount of such cash held by such Subsidiary does not exceed $50,000 in
the aggregate at any time; (ii) such Subsidiary engages in no business
activities other than the ownership of such Equity Interests and its
other assets, and activities incidental to Structured Financings; and
(iii) such Subsidiary has no Debt, liabilities or other obligations
other than those directly incurred in connection with (1) Structured
Financings and (2) if such Subsidiary is a general partner of another
Excluded Subsidiary, such Subsidiary's ownership interest as a general
partner.
"Guarantor" means any Person that is a party to the Guaranty
as a "Guarantor".
"Nonrecourse SPE Financing" means a transaction that the
parties hereto are not treating for any purpose of this Agreement as a
Permitted On Balance Sheet Warehouse Financing and that consists of one
or more transfers by the Parent at any time prior to the Contribution
Date, or by the Borrower or any other Subsidiary, to a Special Purpose
Entity of promissory notes, mortgage loans, chattel paper, leases or
other similar financial assets originated by the Parent, the Borrower
or any other Subsidiary, together with any related title or other
insurance policies, Hedge Agreements and other assets directly related
to such financial assets, which transfers may not be accounted for on
the consolidated balance sheet of the Parent as a sale in conformity
with Financial Accounting Standards Board Statement of Financial
Accounting Standard No. 125, and the incurrence by such Special Purpose
Entity of Debt secured by a Lien encumbering only the assets of such
Special Purpose Entity; provided that (a) all of the Debt, liabilities
and other obligations of such Special Purpose Entity incurred in
connection with such transaction are nonrecourse for the payment or
performance thereof to the Parent, the Borrower or any other Subsidiary
(excluding such Special Purpose Entity or any other Excluded Subsidiary
which directly owns Equity Interests in such Special Purpose Entity)
other than reasonable and customary obligations of the Parent, the
Borrower or any other Subsidiary with respect to (i) the servicing of
any assets which are the subject of such transaction, (ii)
administrative and ministerial matters relating to such Special Purpose
Entity and related Excluded Subsidiaries, (iii) maintenance of the
corporate separateness of such Special Purpose Entity and related
Excluded Subsidiaries from that of the Parent and its other
Subsidiaries, (iv) the guaranty of payment of fees of any Person acting
as a trustee in connection with such transaction and indemnification
obligations owing to any such Person and (v) reasonable and customary
repurchase obligations and other liabilities resulting from the breach
of representations, warranties and covenants that are not related to
creditworthiness of the obligors on the financial assets the subject of
such transactions; and (b) the stated maturity date of such Debt is
after the Termination Date and is also at least one year after the date
such Debt was incurred.
"Permitted Financial Asset Sale" means a transaction
consisting of one or more limited recourse or nonrecourse transfers by
the Parent at any time prior to the Contribution Date, or by the
Borrower or any other Subsidiary, to a Special Purpose Entity of
promissory notes, mortgage loans, chattel paper, leases or other
similar financial assets originated by the Parent, the Borrower or any
other Subsidiary, together with any related title or other insurance
policies, Hedge Agreements and other assets directly related to such
financial assets, which transfers may properly be, and are, accounted
for on the consolidated balance sheet of the Parent as a sale in
conformity with Financial Accounting Standards Board Statement of
Financial Accounting Standard No. 125 in connection with either (x)
limited recourse or nonrecourse sales of such financial assets (or
interests therein) by such Special Purpose Entity to one or more
Persons the accounts of which would not be required to be consolidated
with those of the Parent in its consolidated financial statements in
accordance with GAAP (provided that Subordinated Interests in such
financial assets and I/O Strips may be issued or sold to any Person) or
(y) the incurrence by such Special Purpose Entity of Debt secured by a
Lien encumbering only the assets of such Special Purpose Entity;
provided that all of the Debt, liabilities and other obligations of
such Special Purpose Entity incurred in connection with such
transactions are nonrecourse for the payment or performance thereof to
the Parent, the Borrower or any other Subsidiary (excluding such
Special Purpose Entity or any other Excluded Subsidiary which directly
owns Equity Interests in such Special Purpose Entity) other than the
following: (a) reasonable and customary obligations of the Parent, the
Borrower or any other Subsidiary with respect to (i) the servicing of
any assets which are the subject of such transaction, (ii)
administrative and ministerial matters relating to such Special Purpose
Entity and related Excluded Subsidiaries, (iii) maintenance of the
corporate separateness of such Special Purpose Entity and related
Excluded Subsidiaries from that of the Parent and its other
Subsidiaries, and (iv) the guaranty of payment of fees of any Person
acting as a trustee in connection with such transaction and
indemnification obligations owing to any such Person; (b)(i) reasonable
and customary repurchase obligations and other liabilities resulting
from the breach of representations, warranties and covenants that are
not related to creditworthiness of the obligors on the financial assets
the subject of such transactions and (ii) following the Parent's
acquisition of CNL Financial Services, Inc. and CNL Financial
Corporation in connection with the Consolidation, repurchase
obligations resulting from the conversion of adjustable rate loans to
fixed rate loans, and associated obligations relating to the
acquisition of Hedge Agreements with respect to such loans, for
purposes of this subclause (b)(ii) only arising solely in connection
with the transaction contemplated by that certain Wholesale Warehouse
Mortgage Indenture dated as of August 1, 1998 among CNL Funding 98-1
LP, as Issuer, and Norwest Bank Minnesota, National Association, as
Trustee, and (c) limited recourse provisions giving rise to Debt solely
to the extent permitted under Section 9.2.(b). For purposes of this
definition, whether an obligation or liability is "reasonable and
customary" shall be determined with reference to terms of similar
transactions prevailing as of the date hereof.
"Permitted On Balance Sheet Warehouse Financing" means a
transaction consisting of one or more transfers by the Parent at any
time prior to the Contribution Date, or by the Borrower or any other
Subsidiary, to a Special Purpose Entity of promissory notes, mortgage
loans, chattel paper, leases or other similar financial assets
originated by the Parent, the Borrower or any other Subsidiary,
together with any related title or other insurance policies, Hedge
Agreements and other assets directly related to such financial assets,
which transfers may not be accounted for on the consolidated balance
sheet of the Parent as a sale in conformity with Financial Accounting
Standards Board Statement of Financial Accounting Standard No. 125, and
the incurrence by such Special Purpose Entity of Debt secured by a Lien
encumbering only the assets of such Special Purpose Entity; provided
that (a) except as otherwise permitted under the immediately following
clause (b), all of the Debt, liabilities and other obligations of such
Special Purpose Entity incurred in connection with such transaction are
nonrecourse for the payment or performance thereof to the Parent, the
Borrower or any other Subsidiary (excluding such Special Purpose Entity
or any other Excluded Subsidiary which directly owns Equity Interests
in such Special Purpose Entity) other than reasonable and customary
obligations of the Parent, the Borrower or any other Subsidiary with
respect to (i) the servicing of any assets which are the subject of
such transaction, (ii) administrative and ministerial matters relating
to such Special Purpose Entity and related Excluded Subsidiaries, (iii)
maintenance of the corporate separateness of such Special Purpose
Entity and related Excluded Subsidiaries from that of the Parent and
its other Subsidiaries, and (iv) the guaranty of payment of fees of any
Person acting as a trustee in connection with such transaction and
indemnification obligations owing to any such Person; (b) all of the
provisions of such Debt regarding the liability of, or recourse to, the
Parent, the Borrower or any other Subsidiary (excluding such Special
Purpose Entity or any other Excluded Subsidiary which directly owns
Equity Interests in such Special Purpose Entity) other than liabilities
and obligations referred to in subclauses (i) through (iv) of the
immediately preceding clause (a), have been approved of by the
Administrative Agent in writing in its sole discretion and (c) all of
the other terms and conditions of such Debt have been approved of by
the Administrative Agent in writing in its reasonable judgment. For
purposes of this definition, whether an obligation is reasonable and
customary shall be determined with reference to terms of similar
transactions prevailing as of the date hereof. For the two Business Day
period commencing on the date of the Parent's acquisition of CNL
Financial Services, Inc. and CNL Financial Corporation in connection
with the Consolidation, both of the following credit facilities shall
be deemed to be Permitted On Balance Sheet Warehouse Facilities: (x)
the credit facility evidenced by that certain Franchise Loan
Warehousing Agreement dated as of November 12, 1996 by and among CNL
Financial I, Inc., First Union National Bank of Florida and Norwest
Bank Minnesota, National Association and (y) the credit facility
evidenced by that certain Franchise Loan Funding and Servicing Facility
and Wholesale Warehouse Mortgage Agreement dated as of April 6, 1998 by
and among CNL Financial IV, LP, Variable Funding Capital Corporation,
First Union Capital Markets Corp., First Union National Bank and CNL
Financial Services, Inc. Thereafter such credit facilities shall be
Permitted On Balance Sheet Warehouse Facilities only if they satisfy
the above conditions.
"Restricted Payment" means: (a) any dividend or other
distribution, direct or indirect, on account of any shares of any
Equity Interest of the Parent, the Borrower or any other Subsidiary now
or hereafter outstanding, except a dividend or distribution payable
solely in shares of that class of Equity Interest to the holders of
that class; (b) any redemption, conversion, exchange, retirement,
sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any Equity Interest of the
Parent, the Borrower or any other Subsidiary now or hereafter
outstanding; (c) any payment or prepayment of principal of, premium, if
any, or interest on, redemption, conversion, exchange, purchase,
retirement, defeasance, sinking fund or similar payment with respect
to, any outstanding Debt which is subordinate in right of repayment to
any of the Obligations; and (d) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options or other
rights to acquire shares of any Equity Interest of the Parent, the
Borrower or any other Subsidiary now or hereafter outstanding.
"Secured Debt" means, with respect to any Person, any Debt
that is (a) secured in any manner by any Lien or (b) entitled to the
benefit of a Negative Pledge. Debt in respect of Capitalized Lease
Obligations shall not be deemed to be Secured Debt.
"Term Securitization" means a Permitted Financial Asset Sale
(a) involving only a single transfer (or series of related and
substantially contemporaneous transfers) to a Special Purpose Entity of
financial assets, and any related title or other insurance policies,
Hedge Agreements and other assets directly related to such financial
assets, by the Parent, the Borrower or any other Subsidiary other than
any transfer of such assets (i) being substituted for asset previously
transferred pursuant to reasonable and customary repurchase and
substitution obligations resulting from the breach of representations,
warranties and covenants that are not related to the creditworthiness
of the obligor on the financial assets or (ii) being substituted for
cash collateral or a cash deposit (including in connection with
reasonable and customary "pre-funding" arrangements) and (b) under
which the Persons acquiring such financial assets (or interests
therein) from the applicable Special Purpose Entity or making advances
to such Special Purpose Entity secured directly or indirectly by such
financial assets, are neither required nor permitted to acquire
additional financial assets (or interests therein) from, or otherwise
make additional advances to, such Special Purpose Entity, except as
otherwise permitted under the immediately preceding clause (a).
(b) The Credit Agreement is amended by adding to Section 1.1. the
following new definition in the appropriate alphabetical location:
"Income Fund Note" means a promissory note issued by the
Borrower to a Person who was a limited partner of any of CNL Income
Fund, LTD through CNL Income Fund, XVI, LTD (each a "Fund") at the time
of the Borrower's acquisition of substantially all of the assets of
such Fund in connection with the Consolidation, which promissory note
was issued to such Person because such Person elected not to receive
common shares of the Parent in exchange for such Person's limited
partnership interest in the applicable Fund. Any such promissory note
shall only be considered to be an Income Fund Note if (a) the
applicable interest rate (excluding any interest rate applicable upon a
default) is not in excess of seven percent per annum, (b) accrued
interest is scheduled to be paid no more frequently than semiannually
and no principal is scheduled to be paid until the stated maturity date
of such promissory note; and (c) the stated maturity date of such
promissory note is at least five years following its date of issuance.
(c) The Credit Agreement is amended by deleting Section 7.3. in its
entirety and substituting in its place the following:
Section 7.3. Maintenance of Property.
In addition to the requirements of any of the other Loan
Documents, the Borrower and the Parent shall (a) protect and preserve,
and cause each other Subsidiary, or with respect to any material Real
Property Asset leased by the Borrower, any Subsidiary or the Parent to
a lessee, use its best efforts to cause such lessee, to protect and
preserve, all of its material properties (or any such Real Property
Asset in the case of any such lessee), and maintain, or use its best
efforts to cause such lessee to maintain, in good repair, working order
and condition all tangible properties necessary to their respective
operations (or any such Real Property Asset in the case of any such
lessee), ordinary wear and tear excepted, and (b) from time to time
make, or use its best efforts to cause to be made, all needed and
appropriate repairs, renewals, replacements and additions to such
properties (or any such Real Property Asset in the case of any such
lessee), so that the business carried on in connection therewith may be
properly and advantageously conducted at all times.
(d) The Credit Agreement is amended by deleting Sections 7.5. and 7.6.
in their entirety and substituting in their respective places the following:
Section 7.5. Insurance.
In addition to the requirements of any of the other Loan
Documents, the Parent and the Borrower shall maintain, and cause each
other Subsidiary, or with respect to any Real Property Asset leased by
the Borrower, any Subsidiary or the Parent to a lessee, use its best
efforts to cause such lessee, to maintain, insurance with financially
sound and reputable insurance companies against such risks and in such
amounts as is customarily maintained by Persons engaged in similar
businesses or as may be required by Applicable Law, and the Borrower
will from time to time deliver to the Administrative Agent upon its
request, or to any Lender upon request through the Administrative
Agent, a detailed list, together with copies of all policies of the
insurance then in effect, stating the names of the insurance companies,
the amounts and rates of the insurance, the dates of the expiration
thereof and the properties and risks covered thereby. Not in limitation
of the foregoing, the Parent and the Borrower shall, and shall cause
its other Subsidiaries to, or with respect to any Real Property Asset
leased by the Borrower, any Subsidiary or the Parent to a lessee, use
its best efforts to cause such lessee to, maintain builder's risk
insurance during any period of construction and, upon completion, "all
risk" insurance in an amount equal to (A) 100% of the replacement cost
of the improvements, if any, on at least 85% (determined by number of
parcels) of its Real Property Assets and (B) 90% of such replacement
cost on no more than 15% (determined by number of parcels) of its Real
Property Assets, in all cases with insurers having an A.M. Best
policyholder's rating of not less than A- and financial size category
of not less than X, which insurance shall in any event not provide for
materially less coverage than the insurance in effect on the Agreement
Date. The Borrower will deliver to the Lenders (i) upon request of any
Lender through the Administrative Agent from time to time full
information as to the insurance carried, (ii) within 10 days of receipt
of notice from any insurer a copy of any notice of cancellation or
material change in coverage from that existing on the Agreement Date
and (iii) promptly upon receipt, notice of any cancellation or
nonrenewal of coverage by the Parent, the Borrower or any other
Subsidiary.
Section 7.6. Payment of Taxes and Claims.
The Parent and the Borrower shall pay or discharge, and cause
each other Subsidiary, or with respect to any Real Property Asset
leased by the Borrower, any Subsidiary or the Parent to a lessee, use
its best efforts to cause such lessee, to pay or discharge, when due
(a) all taxes, assessments and governmental charges or levies imposed
upon it or upon its respective income or profits or upon any properties
belonging to it (or in the case of any such lessee, such lessee or such
Real Property Asset), and (b) all lawful claims of materialmen,
mechanics, carriers, warehousemen and landlords for labor, materials,
supplies and rentals which, if unpaid, might become a Lien on any
properties of such Person (or in the case of any such lessee, such
lessee or such Real Property Asset); provided, however, that this
Section shall not require the payment or discharge of any such tax,
assessment, charge, levy or claim which is being contested in good
faith by appropriate proceedings and for which adequate reserves have
been established on the books of the Parent, the Borrower or such other
Subsidiary, as applicable, in accordance with GAAP.
(e) The Credit Agreement is amended by deleting Section 7.13. in its
entirety and substituting in its place the following:
Section 7.13. Exchange Listing.
At all times on and after June 30, 2000, the Parent shall
maintain at least one class of common shares of the Parent having
trading privileges on the New York Stock Exchange or the American Stock
Exchange or which is subject to price quotations on The NASDAQ Stock
Market's National Market System.
(f) The Credit Agreement is amended by deleting Section 7.15. in its
entirety and substituting in its place the following:
Section 7.15. New Subsidiaries.
Upon the acquisition, incorporation or other creation of any
Wholly Owned Subsidiary (other than an Excluded Subsidiary) after the
Effective Date, the Parent shall cause such Subsidiary to execute and
deliver to the Administrative Agent within 10 Business Days of such
acquisition, incorporation or creation, an Accession Agreement to the
Guaranty executed and delivered by such Subsidiary, together with each
of the items that would have been required to be delivered with respect
to such Subsidiary under subsections (iv), (v), and (x) through (xiii)
of Section 5.1. if such Subsidiary were a Guarantor on the Effective
Date. In addition, any Subsidiary that is not a Wholly Owned Subsidiary
may execute and deliver to the Administrative Agent an Accession
Agreement to the Guaranty, and if a Subsidiary does so, it shall also
deliver to the Administrative Agent each of the items that would have
been required to be delivered with respect to such Subsidiary under
subsections (iv), (v), and (x) through (xiii) of Section 5.1. if such
Subsidiary were a Guarantor on the Effective Date.
(g) The Credit Agreement is amended by deleting Section 9.1.(d) in its
entirety and substituting in its place the following:
(d) Maximum Unencumbered Asset Ratio. The ratio of (i)
Unsecured Debt to (ii) the Unencumbered Asset Value, to be greater than
(x) 0.50 to 1.00 prior to the Contribution Date and (y) 0.40 to 1.00 on
and after the Contribution Date.
(h) The Credit Agreement is amended by deleting Sections 9.2.(h) and
(i) in their entirety and substituting in their respective places the following:
(h) Secured Debt that is Nonrecourse Debt, and Debt incurred
in connection with Nonrecourse SPE Financings; provided, however, until
the acquisition by the Parent of substantially all of the assets of CNL
Income Fund, LTD through CNL Income Fund, XVI, LTD (other than any such
Fund whose limited partners do not approve its acquisition) has been
approved of by the shareholders of the Parent and by the limited
partners of the Funds being acquired, the Parent and the Borrower shall
not, and shall not permit any other Subsidiary to, (i) create, incur or
assume any additional Secured Debt except pursuant to existing
commitments to extend to the Parent, the Borrower or any other
Subsidiary Secured Debt; (ii) permit any existing commitment to extend
to the Parent, the Borrower or any other Subsidiary any additional
Secured Debt to be increased; or (iii) permit any additional
commitments to extend any such Secured Debt to be incurred by any
Person.
(i) Unsecured Debt incurred after the Agreement Date which (x)
was incurred in connection with an offering of Debt securities (A) made
pursuant to an effective registration statement filed with the
Securities and Exchange Commission or (B) exempt from the registration
requirements of the Securities Act pursuant to Rule 144A thereof so
long as such Debt securities are required to be exchanged for Debt
securities referred to in the preceding clause (A); (y) in the case of
Debt evidenced by the Income Fund Notes, does not exceed $81,074,006 in
aggregate outstanding principal amount at any time; or (z) in the case
of any other Unsecured Debt, does not exceed $20,000,000 in aggregate
outstanding principal amount at any time; and
(i) The Credit Agreement is amended by deleting Section 9.4.(b) in its
entirety and substituting in its place the following:
(b) Investments in general and limited partnerships, joint
ventures and other Persons which are not corporations (excluding
Investments subject to the limitations of the immediately following
clause (e)) and which Investments are accounted for on an equity basis
in accordance with GAAP, such that the aggregate book value of such
Investments, together with the aggregate book value of all Investments
of the Parent, the Borrower and other Consolidated Subsidiaries in
Subsidiaries (excluding Excluded Subsidiaries) that are not Guarantors,
exceeds 10.0% of Total Assets;
(j) The Credit Agreement is amended by deleting Section 9.4.(f) in its
entirety and substituting in its place the following:
(f) (i) Leases of equipment and Investments in promissory
notes secured by a Lien in equipment, such that the aggregate amount of
such leases and Investments (determined in accordance with GAAP)
exceeds 5.0% of Total Assets and (ii) commitments to lease equipment
and make Investments of the types described in the immediately
preceding clause (i).
(k) The Credit Agreement is amended by deleting Section 9.5.(g) in its
entirety and substituting in its place the following:
(g) Investments in Subordinate Interests (excluding any
Subordinate Interest issued in connection with a Term Securitization),
so long as the value (determined on the basis of lower of cost or Fair
Value) of such Investments, together with the aggregate outstanding
amount of Debt permitted under Section 9.2.(b), does not exceed
$100,000,000 in the aggregate at any time;
(l) The Credit Agreement is amended by deleting Section 9.7.(d) in its
entirety and substituting in its place the following:
(d) the Parent may declare or make cash distributions to its
shareholders during any fiscal year in an aggregate amount not to
exceed (i) $60,500,000 for the fiscal year ending December 31, 1999;
(ii) 95% of Funds From Operations for the fiscal year ending December
31, 2000 and (iii) 90% of Funds From Operations for any fiscal year
thereafter;
(m) The Credit Agreement is amended by deleting Section 9.9.(a)(B) in
its entirety and substituting in its place the following:
(B) the Parent and each Subsidiary (other than the Borrower)
may sell, transfer, dispose of or contribute its assets to the Parent,
the Borrower or any Wholly Owned Subsidiary;
(n) The Credit Agreement is amended by deleting Section 9.9.(a)(G) in
its entirety and substituting in its place the following:
(G) the Parent, the Borrower and the other Subsidiaries may
sell, transfer, dispose of or contribute assets to a Special Purpose
Entity, directly or indirectly through the Parent or other Subsidiary,
in connection with a Structured Financing, and Special Purpose Entities
may sell and assign assets (or interests therein) pursuant to Permitted
Financial Asset Sales; and
(o) The Credit Agreement is amended by deleting Section 9.10. in its
entirety and substituting in its place the following:
Section 9.10. Dispositions of Assets.
The Parent and the Borrower shall not sell, lease, transfer or
otherwise dispose of, and shall not permit any other Subsidiary to
sell, lease, transfer or otherwise dispose of, assets (including
without limitation capital stock or similar ownership interests) during
any fiscal year which have an aggregate book value in excess of 15% of
Total Assets as of the end of the immediately preceding fiscal year;
provided, however, that the limitations of this Section shall not apply
to (i) the sale, lease, transfer, disposition or contribution of assets
(x) among the Parent, the Borrower and any other Wholly-Owned
Subsidiary that is a Guarantor or (y) from any Subsidiary to the
Parent, the Borrower or any Wholly-Owned Subsidiary that is a
Guarantor, (ii) any lease or sublease, as lessor or sublessor (as the
case may be) by the Parent, the Borrower or any Subsidiary of its
assets in the ordinary course of their business or (iii) any sale,
assignment, disposition or contribution of assets in connection with a
Structured Financing to the extent permitted under clause (a)(G) of
Section 9.9.
(p) The Credit Agreement is amended by deleting Section 9.12. in its
entirety and substituting in its place the following:
Section 9.12. Modifications to Material Contracts.
The Parent and the Borrower shall not enter into, or permit
any other Subsidiary to enter into, without the prior written consent
of the Requisite Lenders, any amendment or modification to any Material
Contract or default in the performance of any of its respective
obligations under any Material Contract or cancel or terminate any
Material Contract prior to its stated maturity; provided, however, this
Section shall not apply at any time following the consummation of the
acquisition by the Parent of substantially all of the assets of CNL
Income Fund, LTD through CNL Income Fund, XVI, LTD (other than any such
Fund whose limited partners do not approve its acquisition) in
connection with the Consolidation.
(q) The Credit Agreement is amended by deleting the references to "CNL
Income Fund, XVIII, LTD" contained in the definitions of "Consolidation" and
"Joint Venture" and replacing such references with references to "CNL Income
Fund, XVI, LTD".
(r) The Credit Agreement is amended by deleting (i) from Section 1.1.
the definition of the term "Joint Ventures" and (ii) Schedule 1.1. thereto.
Section 2. Conditions Precedent. The effectiveness of this Amendment is
subject to receipt by the Administrative Agent of each of the following, each in
form and substance satisfactory to the Administrative Agent:
(a) A counterpart of this Amendment duly executed by the Borrower, the
Existing Guarantors and each of the Lenders;
(b) Evidenced of payment of the fees payable under Section 7 below; and
(c) Such other documents, instruments and agreements as the
Administrative Agent may reasonably request.
Section 3. Representations. The Borrower represents and warrants to the
Administrative Agent and the Lenders that:
(a) Authorization. The Borrower and the Existing Guarantors each has
the right and power, and has taken all necessary action to authorize it, to
execute and deliver this Amendment and to perform its obligations hereunder and,
in the case of the Borrower, under the Credit Agreement, as amended by this
Amendment, in accordance with their respective terms. This Amendment has been
duly executed and delivered by a duly authorized officers of the Borrower and
the Existing Guarantors and each of this Amendment and the Credit Agreement, as
amended by this Amendment, is a legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its respective
terms, except as the same may be limited by bankruptcy, insolvency, and other
similar laws affecting the rights of creditors generally and the availability of
equitable remedies for the enforcement of certain obligations contained herein
or therein may be limited by equitable principles generally.
(b) Compliance with Laws, etc. The execution and delivery by the
Borrower of this Amendment and the performance by the Borrower of this Amendment
and the Credit Agreement, as amended by this Amendment, in accordance with their
respective terms, do not and will not, by the passage of time, the giving of
notice or otherwise: (i) require any Governmental Approval or violate any
Applicable Law (including all Environmental Laws) relating to the Borrower, the
Parent or any other Subsidiary; (ii) conflict with, result in a breach of or
constitute a default under the organizational documents of the Borrower, the
Parent or any other Subsidiary, or any indenture, agreement or other instrument
to which the Borrower, the Parent or any other Subsidiary is a party or by which
it or any of its respective properties may be bound; or (iii) result in or
require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by the Borrower, the Parent or any
other Subsidiary other than in favor of the Administrative Agent for the benefit
of the Lenders.
(c) No Default. No Default or Event of Default has occurred and is
continuing as of the date hereof nor will exist immediately after giving effect
to this Amendment.
Section 4. Reaffirmation of Representations. The Borrower hereby
repeats and reaffirms all representations and warranties made by the Borrower to
the Administrative Agent and the Lenders in the Credit Agreement and the other
Loan Documents to which it is a party on and as of the date hereof (or, if any
representation and warranty expressly relates to an earlier date, on and as of
such earlier date) with the same force and effect as if such representations and
warranties were set forth in this Amendment in full.
Section 5. Reaffirmation of Guaranty. Each of the Existing Guarantors
hereby reaffirms its continuing obligations to the Administrative Agent and the
Lenders under the Guaranty and agrees that the transactions contemplated by this
Amendment shall not in any way affect the validity and enforceability of the
Guaranty or reduce, impair or discharge the obligations of such Existing
Guarantor thereunder.
Section 6. Certain References. Each reference to the Credit Agreement
in any of the Loan Documents shall be deemed to be a reference to the Credit
Agreement as amended by this Amendment.
Section 7. Amendment Fee. In consideration of the Lenders amending of
the Credit Agreement as provided herein, the Borrower agrees to pay to the
Administrative Agent for the account of the Lenders an amendment fee in the
amount of $10,000 for each Lender.
Section 8. Expenses. The Borrower shall reimburse the Administrative
Agent upon demand for all reasonable costs and expenses (including reasonable
attorneys' fees) incurred by the Administrative Agent in connection with the
preparation, negotiation and execution of this Amendment and the other
agreements and documents executed and delivered in connection herewith.
Section 9. Benefits. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns.
Section 10. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 11. Effect. Except as expressly herein amended, the terms and
conditions of the Credit Agreement and the other Loan Documents remain in full
force and effect. The amendments contained herein shall be deemed to have
prospective application only, unless otherwise specifically stated herein.
Section 12. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns.
Section 13. Definitions. All capitalized terms not otherwise defined
herein are used herein with the respective definitions given them in the Credit
Agreement. The interpretive provisions set forth in Section 1.2 of the Credit
Agreement shall apply to this Amendment as though set forth herein.
[Signatures on Following Page]
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to Amended and Restated Credit Agreement to be executed as of the date first
above written.
CNL APF Partners, LP
By: CNL APF GP Corp., its sole general partner
By:_____________________________________________
Name:______________________________________
Title:_____________________________________
CNL AMERICAN PROPERTIES FUND, INC.
CNL APF GP CORP.
CNL APF LP CORP.
CNL FINANCIAL SERVICES, LP
By: CNL Financial Services GP Corp., its general partner
CNL FINANCIAL SERVICES GP CORP.
CNL FINANCIAL LP HOLDING, LP
By: CNL Financial GP Holding Corp., its general partner
CNL FINANCIAL GP HOLDING CORP.
CNL FUND ADVISORS, INC.
CNL RESTAURANT DEVELOPMENT, INC.
By:__________________________________________________
Name:___________________________________________
Title:__________________________________________
First Union National Bank, as Administrative Agent and Lender
By:______________________________________________
Name:_______________________________________
Title:______________________________________
BANK OF AMERICA, N.A.
By:______________________________________________
Name:_______________________________________
Title:______________________________________
[Signatures Continued on Following Page]
[Signature Page to First Amendment to Amended and Restated
Credit Agreement dated as of December ___, 1999
with CNL APF Partners, LP]
AMSOUTH BANK
By:______________________________________________
Name:_______________________________________
Title:______________________________________
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC.
By:______________________________________________
Name:_______________________________________
Title:______________________________________
By:______________________________________________
Name:_______________________________________
Title:______________________________________
THE CHASE MANHATTAN BANK
By:______________________________________________
Name:_______________________________________
Title:______________________________________
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By:______________________________________________
Name:_______________________________________
Title:______________________________________
[Signatures Continued on Following Page]
[Signature Page to First Amendment to Amended and Restated
Credit Agreement dated as of December ___, 1999
with CNL APF Partners, LP]
CITIZENS BANK OF RHODE ISLAND
By:______________________________________________
Name:_______________________________________
Title:______________________________________
COMPASS BANK
By:______________________________________________
Name:_______________________________________
Title:______________________________________
THE HUNTINGTON NATIONAL BANK
By:______________________________________________
Name:_______________________________________
Title:______________________________________
COOPERATIEVE CENTRALE RAIFFEISEN- BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH
By:______________________________________________
Name:_______________________________________
Title:______________________________________
By:______________________________________________
Name:_______________________________________
Title:______________________________________
SOUTHTRUST BANK, NATIONAL ASSOCIATION
By:______________________________________________
Name:_______________________________________
Title:______________________________________