SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(X) QUARTERLY REPORT PURSUANT TO SECTION
13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT of 1934
For the quarterly period ended September 30, 2004
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OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT of 1934
For the transition period from ______________________ to _______________________
Commission file number
0-22485
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CNL Income Fund XVII, Ltd.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Florida 59-3295393
- -------------------------------- --------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
450 South Orange Avenue
Orlando, Florida 32801
- ----------------------------------------- ---------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number
(including area code) (407) 540-2000
---------------------------------
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Sections 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No ______
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Rule 12b-2 of the Exchange Act): Yes___ No X
CONTENTS
Part I Page
Item 1. Financial Statements:
Condensed Balance Sheets 1
Condensed Statements of Income 2
Condensed Statements of Partners' Capital 3
Condensed Statements of Cash Flows 4
Notes to Condensed Financial Statements 5-7
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 8-10
Item 3. Quantitative and Qualitative Disclosures About
Market Risk 10
Item 4. Controls and Procedures 11
Part II
Other Information 12-14
CNL INCOME FUND XVII, LTD.
(A Florida Limited Partnership)
CONDENSED BALANCE SHEETS
September 30, December 31,
2004 2003
------------------ -------------------
ASSETS
Real estate properties with operating leases, net $ 16,378,298 $ 16,659,696
Net investment in direct financing leases 391,166 399,726
Investment in joint ventures 3,759,533 3,808,950
Cash and cash equivalents 502,740 818,845
Receivables, less allowance for doubtful accounts
of $109,167 and $43,516, respectively -- 5,249
Due from related parties -- 277
Accrued rental income 510,186 497,389
Other assets 31,582 25,635
------------------ -------------------
$ 21,573,505 $ 22,215,767
================== ===================
LIABILITIES AND PARTNERS' CAPITAL
Accounts payable and accrued expenses $ 57,165 $ 11,389
Real estate taxes payable 5,323 38,114
Distributions payable 600,000 600,000
Due to related parties 60,334 11,242
Rents paid in advance 31,910 32,407
Deferred rental income 40,463 46,408
------------------ -------------------
Total liabilities 795,195 739,560
Minority interests 421,946 430,717
Partners' capital 20,356,364 21,045,490
------------------ -------------------
$ 21,573,505 $ 22,215,767
================== ===================
See accompanying notes to condensed financial statements.
1
CNL INCOME FUND XVII, LTD.
(A Florida Limited Partnership)
CONDENSED STATEMENTS OF INCOME
Quarter Ended Nine Months Ended
September 30, September 30,
2004 2003 2004 2003
------------- ------------- ------------- -------------
Revenues:
Rental income from operating leases $ 460,210 $ 476,880 $ 1,380,636 $ 1,460,027
Earned income from direct financing leases 10,486 10,784 31,688 32,560
Interest and other income 572 -- 4,350 1,112
------------- ------------- ------------- -------------
471,268 487,664 1,416,674 1,493,699
------------- ------------- ------------- -------------
Expenses:
General operating and administrative 72,724 41,195 202,531 139,139
Property related 7,206 3,822 23,207 8,443
Management fees to related party 5,675 5,854 16,876 17,550
State and other taxes -- -- 22,993 25,246
Depreciation and amortization 94,230 95,104 284,558 283,880
Provision for write-down of assets -- -- -- 213,000
------------- ------------- ------------- -------------
179,835 145,975 550,165 687,258
------------- ------------- ------------- -------------
Income before minority interests and equity in earnings
of unconsolidated joint ventures 291,433 341,689 866,509 806,441
Minority interests (10,558 ) (10,476 ) (31,699 ) (31,646 )
Equity in earnings of unconsolidated joint ventures 91,977 217,752 276,064 397,070
------------- ------------- ------------- -------------
Net income $ 372,852 $ 548,965 $ 1,110,874 $ 1,171,865
============= ============= ============= =============
Income per limited partner unit $ 0.12 $ 0.18 $ 0.37 $ 0.39
============= ============= ============= =============
Weighted average number of limited partner
units outstanding 3,000,000 3,000,000 3,000,000 3,000,000
============= ============= ============= =============
See accompanying notes to condensed financial statements.
2
CNL INCOME FUND XVII, LTD.
(A Florida Limited Partnership)
CONDENSED STATEMENTS OF PARTNERS' CAPITAL
Nine Months Ended Year Ended
September 30, December 31,
2004 2003
--------------------- ------------------
General partners:
Beginning balance $ (4,460) $ (4,460)
Net income -- --
--------------------- ------------------
(4,460) $ (4,460)
--------------------- ------------------
Limited partners:
Beginning balance 21,049,950 21,842,536
Net income 1,110,874 1,607,414
Distributions ($0.60 and $0.80 per limited partner
unit, respectively) (1,800,000) (2,400,000)
--------------------- ------------------
20,360,824 21,049,950
--------------------- ------------------
Total partners' capital $ 20,356,364 $ 21,045,490
===================== ==================
See accompanying notes to condensed financial statements.
3
CNL INCOME FUND XVII, LTD.
(A Florida Limited Partnership)
CONDENSED STATEMENTS OF CASH FLOWS
Nine Months Ended
September 30,
2004 2003
--------------- --------------
Net cash provided by operating activities $ 1,524,365 $ 1,677,080
--------------- --------------
Cash flows from financing activities:
Distributions to limited partners (1,800,000) (1,800,000)
Distributions to holders of minority interests (40,470) (38,782)
--------------- --------------
Net cash used in financing activities (1,840,470) (1,838,782)
--------------- --------------
Net decrease in cash and cash equivalents (316,105) (161,702)
Cash and cash equivalents at beginning of period 818,845 838,556
--------------- --------------
Cash and cash equivalents at end of period $ 502,740 $ 676,854
=============== ==============
Supplemental schedule of non-cash financing activities:
Distributions declared and unpaid at end of
period $ 600,000 $ 600,000
=============== ==============
See accompanying notes to condensed financial statements.
4
CNL INCOME FUND XVII, LTD.
(A Florida Limited Partnership)
NOTES TO CONDENSED FINANCIAL STATEMENTS
Quarters and Nine Months Ended September 30, 2004 and 2003
1. Basis of Presentation
The accompanying unaudited condensed financial statements have been
prepared in accordance with the instructions to Form 10-Q and do not
include all of the information and note disclosures required by
generally accepted accounting principles. The financial statements
reflect all adjustments, consisting of normal recurring adjustments,
which are, in the opinion of the general partners, necessary for a fair
statement of the results for the interim periods presented. Operating
results for the quarter and nine months ended September 30, 2004, may
not be indicative of the results that may be expected for the year
ending December 31, 2004. Amounts as of December 31, 2003, 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 Form 10-K of CNL
Income Fund XVII, Ltd. (the "Partnership") for the year ended December
31, 2003.
The Partnership accounts for its 60.06% interest in CNL Kingston Joint
Venture and its 86% interest in CNL VII & XVII Lincoln Joint Venture
using the consolidation method. Minority interests represent the
minority joint venture partners' proportionate share of the equity in
the joint ventures. All significant intercompany accounts and
transactions have been eliminated.
In December 2003, the Financial Accounting Standards Board issued a
revision to FASB Interpretation No. 46 (originally issued in January
2003) ("FIN 46R"), "Consolidation of Variable Interest Entities"
requiring existing unconsolidated variable interest entities to be
consolidated by their primary beneficiaries. The primary beneficiary of
a variable interest entity is the party that absorbs a majority of the
entity's expected losses, receives a majority of its expected residual
returns, or both, as a result of holding variable interests, which are
the ownership, contractual, or other pecuniary interests in an entity
that change with changes in the fair value of the entity's net assets
excluding variable interests. Prior to FIN 46R, a company generally
included another entity in its financial statements only if it
controlled the entity through voting interests. Application of FIN 46R
is required in financial statements of public entities that have
interests in variable interest entities for periods ending after March
15, 2004. The Partnership adopted FIN 46R during the quarter ended
March 31, 2004, which resulted in the consolidation of previously
unconsolidated joint ventures. FIN 46R does not require, but does
permit restatement of previously issued financial statements. The
Partnership has restated prior year's financial statements to maintain
comparability between the periods presented. Such consolidation
resulted in certain assets and minority interests, and revenues and
expenses, of these entities being reported on a gross basis in the
Partnership's financial statements; however, these restatements had no
effect on partners' capital or net income.
2. Discontinued Operations
In January 2004, the contract for the sale of the property in Warner
Robins, Georgia was terminated, and as a result, the Partnership
reclassified the assets from real estate held for sale to real estate
properties with operating leases. The Partnership recorded
approximately $1,900 of depreciation expense during the nine months
ended September 30, 2004 related to the period of time that the asset
was classified as real estate held for sale.
5
CNL INCOME FUND XVII, LTD.
(A Florida Limited Partnership)
NOTES TO CONDENSED FINANCIAL STATEMENTS
Quarters and Nine Months Ended September 30, 2004 and 2003
3. Concentration of Credit Risk
The following schedule presents total rental revenues from individual
lessees, each representing more than 10% of the Partnership's total
rental revenues (including total rental revenues from consolidated
joint ventures and the Partnership's share of total rental revenues
from unconsolidated joint ventures and properties held as
tenants-in-common with affiliates of the general partners) for each of
the nine months ended September 30:
2004 2003
--------------- --------------
Golden Corral Corporation $ 468,685 $ 468,685
Taco Cabana and Carrols Corp (entities
under common control) 252,204 250,920
Heartland Illinois Food Corporation 213,678 N/A
RTM Indianapolis and RTM Southwest
Texas, Inc. (entities under common
control) 197,851 197,851
National Restaurant Enterprises, Inc. N/A 246,248
In addition, the following schedule presents total rental revenues from
individual restaurant chains, each representing more than 10% of the
Partnership's total rental revenues (including total rental revenues
from the consolidated joint ventures and the Partnership's share of
total rental revenues from unconsolidated joint ventures and properties
held as tenants-in-common with affiliates of the general partners) for
each of the nine months ended September 30:
2004 2003
-------------- --------------
Golden Corral Buffet and Grill $ 468,685 $ 468,685
Burger King 241,463 272,750
Taco Cabana 224,419 224,419
Arby's 211,682 211,411
The information denoted by N/A indicates that for each period
presented, the tenant did not represent more than ten percent of the
Partnership's total rental revenues.
Although the properties have some geographical diversity in the United
States and the lessees operate a variety of restaurant concepts,
default by any of these lessees or restaurant chains will significantly
impact the results of operations if the Partnership is not able to
re-lease the properties in a timely manner.
4. Merger Transaction
On August 9, 2004, the Partnership entered into a definitive Agreement
and Plan of Merger pursuant to which the Partnership will be merged
with a subsidiary of U.S. Restaurant Properties, Inc. (NYSE: USV). The
merger is one of multiple concurrent transactions pursuant to which 17
other affiliated limited partnerships also will be merged with a
subsidiary of U.S. Restaurant Properties, Inc. and in which CNL
Restaurant Properties, Inc., an affiliate, also will be merged with
U.S. Restaurant Properties, Inc. CNL Restaurant Properties, Inc.
currently provides property management and other services to the
Partnership. The merger of the Partnership (and each of the 17 other
affiliated mergers) is subject to certain conditions including approval
by a majority of the limited partners, consummation of a minimum number
of limited partnership mergers representing at least 75.0% in value (as
measured by the value of the merger consideration) of all limited
partnerships, consummation of the merger between U.S. Restaurant
Properties, Inc. and CNL Restaurant Properties, Inc., approval of the
shareholders of U.S. Restaurant Properties, Inc., and availability of
financing. The transaction is expected to be consummated in the first
quarter of 2005.
6
CNL INCOME FUND XVII, LTD.
(A Florida Limited Partnership)
NOTES TO CONDENSED FINANCIAL STATEMENTS
Quarters and Nine Months Ended September 30, 2004 and 2003
4. Merger Transaction - Continued
Under the terms of the merger agreement, if the transaction is
approved, the limited partners will receive total consideration of
approximately $25.79 million, consisting of approximately $21.57
million in cash and approximately $4.22 million in U.S. Restaurant
Properties, Inc. Series A Convertible Preferred Stock that is listed on
the New York Stock Exchange. The general partners will receive total
consideration of approximately $24,000 consisting of approximately
$20,000 in cash and approximately $4,000 in preferred stock.
7
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
CNL Income Fund XVII, Ltd. (the "Partnership," which may be referred to
as "we," "us," or "our") is a Florida limited partnership that was organized on
February 10, 1995, to acquire for cash, either directly or through joint venture
arrangements, both newly constructed and existing restaurant properties, as well
as land upon which restaurants were to be constructed, to be leased primarily to
operators of national and regional fast-food, family-style and casual dining
restaurant chains (collectively, the "Properties"). The leases generally are
triple-net leases, with the lessee responsible for all repairs and maintenance,
property taxes, insurance and utilities. We owned 16 Properties directly and ten
Properties indirectly through joint venture or tenancy in common arrangements as
of September 30, 2004 and 2003.
Merger Transaction
The general partners believe their primary objective is to maintain
current operations with restaurant operators as successfully as possible, while
evaluating strategic alternatives, including alternatives that may provide
liquidity to the limited partners. Real estate markets are strong throughout
much of the nation, and the performance of restaurants has generally improved
after several challenging years. As a result, the general partners believe that
this is an attractive period for a strategic event to monetize the interests of
the limited partners.
In furtherance of this, on August 9, 2004, we entered into a definitive
Agreement and Plan of Merger pursuant to which we will be merged with a
subsidiary of U.S. Restaurant Properties, Inc. (NYSE: USV). The merger is one of
multiple concurrent transactions pursuant to which 17 other affiliated limited
partnerships also will be merged with a subsidiary of U.S. Restaurant
Properties, Inc. and in which CNL Restaurant Properties, Inc., an affiliate,
also will be merged with U.S. Restaurant Properties, Inc. Our merger (and each
of the 17 other affiliated mergers) is subject to certain conditions including
approval by a majority of the limited partners, consummation of a minimum number
of limited partnership mergers representing at least 75.0% in value (as measured
by the value of the merger consideration) of all limited partnerships,
consummation of the merger between U. S. Restaurant Properties, Inc. and CNL
Restaurant Properties, Inc., approval of the shareholders of U.S. Restaurant
Properties, Inc., and availability of financing. U.S. Restaurant Properties,
Inc. is a real estate investment trust (REIT) that focuses primarily on
acquiring, owning and leasing restaurant properties. The transaction is expected
to be consummated in the first quarter of 2005.
Under the terms of the merger agreement, if the transaction is
approved, our limited partners will receive total consideration of approximately
$25.79 million, consisting of approximately $21.57 million in cash and
approximately $4.22 million in U.S. Restaurant Properties, Inc. Series A
Convertible Preferred Stock that is listed on the New York Stock Exchange. The
general partners will receive total consideration of approximately $24,000
consisting of approximately $20,000 in cash and approximately $4,000 in
preferred stock.
We received an opinion from Wachovia Capital Markets, LLC that as of
August 9, 2004 the merger consideration to be received by the holders of our
general and limited partnership interests is fair, from a financial point of
view, to such holders.
As reflected above, the contemplated transactions are complex, and
contingent upon certain conditions. The restaurant marketplace, the real estate
industry, and the equities markets, all individually or taken as a whole, could
impact the economics of this transaction. As a result, there is no assurance
that we will be successful in completing the contemplated transaction.
Capital Resources
Net cash provided by operating activities was $1,524,365 and $1,677,080
for the nine months ended September 30, 2004 and 2003, respectively.
Cash and cash equivalents decreased to $502,740 at September 30, 2004,
from $818,845 at December 31, 2003. At September 30, 2004, these funds were held
in demand deposit accounts at a commercial bank. The funds remaining at
September 30, 2004, will be used toward the payment of distributions and other
liabilities.
8
Short-Term Liquidity
Our investment strategy of acquiring Properties for cash and leasing
them under triple-net leases to operators who meet specified financial standards
minimizes our operating expenses. The general partners believe that the leases
will generate net cash flow in excess of operating expenses.
Our short-term liquidity requirements consist primarily of our
operating expenses.
The general partners have the right, but not the obligation, to make
additional capital contributions or loans if they deem it appropriate in
connection with our operations.
We generally distribute cash from operations remaining after the
payment of operating expenses, to the extent that the general partners determine
that such funds are available for distribution. Based on current and anticipated
future cash from operations, and for the nine months ended September 30, 2004, a
portion of the 2003 liquidating proceeds received from the CNL Ocean Shores
Joint Venture, we declared distributions to limited partners of $1,800,000 for
each of the nine months ended September 30, 2004 and 2003 ($600,000 for each of
the quarters ended September 30, 2004 and 2003). This represents distributions
of $0.60 per unit for the nine months ended September 30, 2004, and 2003,
respectively ($0.20 for each applicable quarter). No distributions were made to
the general partners for the quarters and nine months ended September 30, 2004
and 2003. No amounts distributed to the limited partners for the nine months
ended September 30, 2004 and 2003, are required to be or have been treated as a
return of capital for purposes of calculating the limited partners' return on
their adjusted capital contributions. We intend to continue to make
distributions of cash to the limited partners on a quarterly basis.
Total liabilities, including distributions payable, were $795,195 and
$739,560 at September 30, 2004 and December 31, 2003, respectively. The increase
in total liabilities was due to increases in accounts payable and accrued
expenses and amounts due to related parties and was partially offset by a
decrease in real estate taxes payable. Total liabilities at September 30, 2004,
to the extent they exceed cash and cash equivalents, will be paid from
anticipated future cash from operations, or in the event the general partners
elect to make additional capital contributions or loans, from the future general
partners' contributions or loans.
Long Term Liquidity
We have no long-term debt or other long-term liquidity requirements.
Results of Operations
Rental revenues from continuing operations decreased to $1,412,324 for
the nine months ended September 30, 2004 as compared to $1,492,587 in the same
period in 2003, of which, $470,696 and $487,664 were earned during the third
quarters of 2004 and 2003, respectively. The decrease in rental revenues from
continuing operations resulted partially from a reduction in the rents due under
the leases for the Properties in Harvey, Lyons and Chicago Ridge, Illinois. The
leases relating to these Properties were assigned to and assumed by a new tenant
in December 2003. The parent company of the former tenant, National Restaurant
Enterprises, Inc., filed for bankruptcy protection in December 2002.
Also, in June 2003, the tenant of the Property in Warner Robins,
Georgia vacated the premises, ceasing all related restaurant operations. The
lost revenues resulting from the vacant Property will continue to have an
adverse effect on our results of operations until we are able to re-lease the
Property. We are currently seeking a replacement tenant for this Property.
During the nine months ended September 30, 2004 and 2003, we earned
$276,064 and $397,070, respectively, attributable to net income earned by
unconsolidated joint ventures, of which, $91,977 and $217,752 were earned during
the third quarters of 2004 and 2003, respectively. Net income earned by
unconsolidated joint ventures, was higher during 2003, because in September
2003, CNL Ocean Shores Joint Venture, in which we owned a 30.94% interest, sold
its vacant Property in Ocean Shores, Washington, to a third party and recorded a
gain of approximately $413,700 for which we received a liquidating distribution
of approximately $243,000 in October 2003.
9
During the nine months ended September 30, 2004, four lessees, Golden
Corral Corporation, Taco Cabana and Carrols Corp. (entities under common
control), Heartland Illinois Food Corporation, and RTM Indianapolis and RTM
Southwest Texas, Inc. (entities under common control), each contributed more
than 10% of our total rental revenues (including total rental revenues from
consolidated joint ventures and our share of total rental revenues from
unconsolidated joint ventures and Properties held as tenants-in-common with
affiliates of the general partners). We anticipate that based on the minimum
rental payments required by the leases, these lessees will each continue to
contribute more than 10% of our total rental revenues. In addition, during the
nine months ended September 30, 2004, four restaurant chains, Golden Corral
Buffet and Grill, Burger King, Taco Cabana, and Arby's, each accounted for more
than 10% of our total rental revenues (including total revenues from
consolidated joint ventures and our share of total rental revenues from
unconsolidated joint ventures and Properties held as tenants-in-common with
affiliates of the general partners). We anticipate that these restaurant chains
will each continue to account for more than 10% of the total rental revenues to
which we are entitled under the terms of the leases. Any failure of these
lessees or restaurant chains will materially affect our operating results if we
are not able to re-lease the Properties in a timely manner.
Operating expenses, including depreciation and amortization expense and
provision for the write-down of assets, were $550,165 and $687,258 for the nine
months ended September 30, 2004 and 2003, respectively of which, $179,835 and
$145,975 were incurred during the third quarters of 2004 and 2003, respectively.
The decrease in operating expenses during the nine months ended September 30,
2004 was primarily due to the recording of a provision for write-down of assets
in June 2003 of $213,000 relating to the Property in Warner Robins, Georgia. The
tenant of this Property experienced financial difficulties and surrendered the
premises as discussed above. The decrease in operating expenses during the nine
months ended September 30, 2004 was partially offset by and the increase in
operating expenses during the quarter ended September 30, 2004 was primarily due
to an increase in property related expenses and an increase in general operating
and administrative expenses including, primarily, legal fees incurred in
connection with the merger transaction discussed above.
In December 2003, the Financial Accounting Standards Board issued a
revision to FASB Interpretation No. 46 (originally issued in January 2003) ("FIN
46R"), "Consolidation of Variable Interest Entities" requiring existing
unconsolidated variable interest entities to be consolidated by their primary
beneficiaries. The primary beneficiary of a variable interest entity is the
party that absorbs a majority of the entity's expected losses, receives a
majority of its expected residual returns, or both, as a result of holding
variable interests, which are the ownership, contractual, or other pecuniary
interests in an entity that change with changes in the fair value of the
entity's net assets excluding variable interests. Prior to FIN 46R, a company
generally included another entity in its financial statements only if it
controlled the entity through voting interests. Application of FIN 46R is
required in financial statements of public entities that have interests in
variable interest entities for periods ending after March 15, 2004. We adopted
FIN 46R during the quarter ended March 31, 2004, which resulted in the
consolidation of previously unconsolidated joint ventures, CNL Kingston Joint
Venture and CNL VII & XVII Lincoln Joint Venture, which were accounted for under
the equity method. FIN 46R does not require, but does permit restatement of
previously issued financial statements. We have restated prior year's financial
statements to maintain comparability between the periods presented. Such
consolidation resulted in certain assets and minority interests, and revenues
and expenses, of these entities being reported on a gross basis in our financial
statements; however, these restatements had no effect on partners' capital or
net income.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not applicable.
10
ITEM 4. CONTROLS AND PROCEDURES
The general partners maintain a set of disclosure controls and
procedures designed to ensure that information required to be disclosed in our
filings under the Securities Exchange Act of 1934 is recorded, processed,
summarized and reported within the time periods specified in the Securities and
Exchange Commission's rules and forms. The principal executive and financial
officers of the corporate general partner have evaluated our disclosure controls
and procedures as of the end of the period covered by this Quarterly Report on
Form 10-Q and have determined that such disclosure controls and procedures are
effective.
There was no change in internal control over financial reporting that
occurred during the most recent fiscal quarter that has materially affected, or
is reasonably likely to materially affect, internal control over financial
reporting.
11
PART II. OTHER INFORMATION
Item 1. Legal Proceedings. Inapplicable.
------------------
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.
------------------------------------------------------------
Inapplicable.
Item 3. Default upon Senior Securities. Inapplicable.
-------------------------------
Item 4. Submission of Matters to a Vote of Security Holders. Inapplicable.
----------------------------------------------------
Item 5. Other Information. Inapplicable.
------------------
Item 6. Exhibits and Reports on Form 8-K.
---------------------------------
(a) Exhibits
**2.1 Agreement and Plan of Merger among U.S. Restaurant
Properties, Inc., Ivanhoe Acquisition XVII, LLC, and CNL
Income Fund XVII, Ltd., dated as of August 9, 2004.
(Included as Exhibit 99.2 to Form 8-K filed with the
Securities and Exchange Commission on August 9, 2004,
and incorporated herein by reference.)
**3.1 Affidavit and Certificate of Limited Partnership of CNL
Income Fund XVII, Ltd. (Filed as Exhibit 3.1 to the
Registrant's Registration Statement on Form S-11, No.
33-90998, incorporated herein by reference.)
**3.2 Amended and Restated Agreement of Limited Partnership of
CNL Income Fund XVII, Ltd. (Included as Exhibit 4.2 to
Form 10-K filed with the Securities and Exchange
Commission on March 21, 1996, and incorporated herein by
reference.)
**4.1 Affidavit and Certificate of Limited Partnership of CNL
Income Fund XVII, Ltd. (Filed as Exhibit 3.1 to
Registration Statement No. 33-90998 on Form S-11 and
incorporated herein by reference.)
**4.2 Amended and Restated Agreement of Limited Partnership of
CNL Income Fund XVII, Ltd. (Included as Exhibit 4.2 to
Form 10-K filed with the Securities and Exchange
Commission on March 21, 1996, and incorporated herein by
reference.)
**4.3 Form of Agreement between CNL Income Fund XVII, Ltd. and
MMS Escrow and Transfer Agency, Inc. and between CNL
Income Fund XVIII, Ltd. and MMS Escrow and Transfer
Agency, Inc. relating to the Distribution Reinvestment
Plans (Filed as Exhibit 4.4 to the Registrant's
Registration Statement on Form S-11, No. 33-90998,
incorporated herein by reference.)
**8.3 Opinion of Baker & Hostetler regarding certain material
issues relating to the Distribution Reinvestment Plan of
CNL Income Fund XVII, Ltd. (Filed as Exhibit 8.3 to
Amendment No. Three to the Registrant's Registration
Statement on Form S-11, No. 33-90998, incorporated
herein by reference.)
**10.1 Management Agreement between CNL Income Fund XVII, Ltd.
and CNL Fund Advisors, Inc. (Included as Exhibit 10.1 to
Form 10-K filed with the Securities and Exchange
Commission on March 21, 1996, and incorporated herein by
reference.)
12
**10.2 Assignment of Management Agreement from CNL Fund
Advisors, Inc. to CNL APF Partners, LP. (Included as
Exhibit 10.2 to Form 10-Q filed with the Securities and
Exchange Commission on August 13, 2001, and incorporated
herein by reference.)
**10.3 Form of Joint Venture Agreement for Joint Ventures with
Unaffiliated Entities (Filed as Exhibit 10.2 to the
Registrant's Registration Statement on Form S-11, No.
33-90998, incorporated herein by reference.)
**10.4 Form of Joint Venture Agreement for Joint Ventures with
Affiliated Programs (Filed as Exhibit 10.3 to the
Registrant's Registration Statement on Form S-11, No.
33-90998, incorporated herein by reference.)
**10.5 Form of Development Agreement (Filed as Exhibit 10.5 to
the Registrant's Registration Statement on Form S-11,
No. 33-90998, incorporated herein by reference.)
**10.6 Form of Indemnification and Put Agreement (Filed as
Exhibit 10.6 to the Registrant's Registration Statement
on Form S-11, No. 33-90998, incorporated herein by
reference.)
**10.7 Form of Unconditional Guarantee of Payment and
Performance (Filed as Exhibit 10.7 to the Registrant's
Registration Statement on Form S-11, No. 33-90998,
incorporated herein by reference.)
**10.8 Form of Lease Agreement for Existing Restaurant (Filed
as Exhibit 10.8 to the Registrant's Registration
Statement on Form S-11, No. 33-90998, incorporated
herein by reference.)
**10.9 Form of Lease Agreement for Restaurant to be Constructed
(Filed as Exhibit 10.9 to the Registrant's Registration
Statement on Form S-11, No. 33-90998, incorporated
herein by reference.)
**10.10 Form of Premises Lease for Golden Corral Restaurant
(Filed as Exhibit 10.10 to the Registrant's Registration
Statement on Form S-11, No. 33-90998, incorporated
herein by reference.)
**10.11 Form of Agreement between CNL Income Fund XVII, Ltd. and
MMS Escrow and Transfer Agency, Inc. and between CNL
Income Fund XVIII, Ltd. and MMS Escrow and Transfer
Agency, Inc. relating to the Distribution Reinvestment
Plans (Filed as Exhibit 4.4 to the Registrant's
Registration Statement on Form S-11, No. 33-90998,
incorporated herein by reference.)
**10.12 Form of Cotenancy Agreement with Unaffiliated Entity
(Filed as Exhibit 10.12 to Amendment No. One to the
Registrant's Registration Statement on Form S-11, No.
33-90998, incorporated herein by reference.)
**10.13 Form of Cotenancy Agreement with Affiliated Entity
(Filed as Exhibit 10.13 to Amendment No. One to the
Registrant's Registration Statement on Form S-11, No.
33-90998, incorporated herein by reference.)
13
**10.14 Form of Registered Investor Advisor Agreement (Filed as
Exhibit 10.14 to Amendment No. One to the Registrant's
Registration Statement on Form S-11, No. 33-90998,
incorporated herein by reference.)
**10.15 Assignment of Management Agreement from CNL APF
Partners, LP to CNL Restaurants XVIII, Inc. (Included as
Exhibit 10.15 to Form 10-Q filed with the Securities and
Exchange Commission on August 14, 2002, and incorporated
herein by reference.)
31.1 Certification of Chief Executive Officer of Corporate
General Partner Pursuant to Rule 13a-14 as Adopted
Pursuant to Section 302 of the Sarbanes-Oxley Act of
2002. (Filed herewith.)
31.2 Certification of Chief Financial Officer of Corporate
General Partner Pursuant to Rule 13a-14 as Adopted
Pursuant to Section 302 of the Sarbanes-Oxley Act of
2002. (Filed herewith.)
32.1 Certification of Chief Executive Officer of Corporate
General Partner Pursuant to 18 U.S.C. Section 1350 as
Adopted Pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002. (Filed herewith.)
32.2 Certification of Chief Financial Officer of Corporate
General Partner Pursuant to 18 U.S.C. Section 1350 as
Adopted Pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002. (Filed herewith.)
**previously filed.
14
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
DATED this 12th day of November 2004.
CNL INCOME FUND XVII, LTD.
By: CNL REALTY CORPORATION
General Partner
By: /s/ James M. Seneff, Jr.
-------------------------------------
JAMES M. SENEFF, JR.
Chief Executive Officer
(Principal Executive Officer)
By: /s/ Robert A. Bourne
-------------------------------------
ROBERT A. BOURNE
President and Treasurer
(Principal Financial and
Accounting Officer)
EXHIBIT INDEX
Exhibit Number
Exhibits
**2.1 Agreement and Plan of Merger among U.S. Restaurant
Properties, Inc., Ivanhoe Acquisition XVII, LLC, and CNL
Income Fund XVII, Ltd., dated as of August 9, 2004.
(Included as Exhibit 99.2 to Form 8-K filed with the
Securities and Exchange Commission on August 9, 2004,
and incorporated herein by reference.)
**3.1 Affidavit and Certificate of Limited Partnership of CNL
Income Fund XVII, Ltd. (Filed as Exhibit 3.1 to the
Registrant's Registration Statement on Form S-11, No.
33-90998, incorporated herein by reference.)
**3.2 Amended and Restated Agreement of Limited Partnership of
CNL Income Fund XVII, Ltd. (Included as Exhibit 4.2 to
Form 10-K filed with the Securities and Exchange
Commission on March 21, 1996, and incorporated herein by
reference.)
**4.1 Affidavit and Certificate of Limited Partnership of CNL
Income Fund XVII, Ltd. (Filed as Exhibit 3.1 to
Registration Statement No. 33-90998 on Form S-11 and
incorporated herein by reference.)
**4.2 Amended and Restated Agreement of Limited Partnership of
CNL Income Fund XVII, Ltd. (Included as Exhibit 4.2 to
Form 10-K filed with the Securities and Exchange
Commission on March 21, 1996, and incorporated herein by
reference.)
**4.3 Form of Agreement between CNL Income Fund XVII, Ltd. and
MMS Escrow and Transfer Agency, Inc. and between CNL
Income Fund XVIII, Ltd. and MMS Escrow and Transfer
Agency, Inc. relating to the Distribution Reinvestment
Plans (Filed as Exhibit 4.4 to the Registrant's
Registration Statement on Form S-11, No. 33-90998,
incorporated herein by reference.)
**8.3 Opinion of Baker & Hostetler regarding certain material
issues relating to the Distribution Reinvestment Plan of
CNL Income Fund XVII, Ltd. (Filed as Exhibit 8.3 to
Amendment No. Three to the Registrant's Registration
Statement on Form S-11, No. 33-90998, incorporated
herein by reference.)
**10.1 Management Agreement between CNL Income Fund XVII, Ltd.
and CNL Fund Advisors, Inc. (Included as Exhibit 10.1 to
Form 10-K filed with the Securities and Exchange
Commission on March 21, 1996, and incorporated herein by
reference.)
**10.2 Assignment of Management Agreement from CNL Fund
Advisors, Inc. to CNL APF Partners, LP. (Included as
Exhibit 10.2 to Form 10-Q filed with the Securities and
Exchange Commission on August 13, 2001, and incorporated
herein by reference.)
**10.3 Form of Joint Venture Agreement for Joint Ventures with
Unaffiliated Entities (Filed as Exhibit 10.2 to the
Registrant's Registration Statement on Form S-11, No.
33-90998, incorporated herein by reference.)
**10.4 Form of Joint Venture Agreement for Joint Ventures with
Affiliated Programs (Filed as Exhibit 10.3 to the
Registrant's Registration Statement on Form S-11, No.
33-90998, incorporated herein by reference.)
**10.5 Form of Development Agreement (Filed as Exhibit 10.5 to
the Registrant's Registration Statement on Form S-11,
No. 33-90998, incorporated herein by reference.)
**10.6 Form of Indemnification and Put Agreement (Filed as
Exhibit 10.6 to the Registrant's Registration Statement
on Form S-11, No. 33-90998, incorporated herein by
reference.)
**10.7 Form of Unconditional Guarantee of Payment and
Performance (Filed as Exhibit 10.7 to the Registrant's
Registration Statement on Form S-11, No. 33-90998,
incorporated herein by reference.)
**10.8 Form of Lease Agreement for Existing Restaurant (Filed
as Exhibit 10.8 to the Registrant's Registration
Statement on Form S-11, No. 33-90998, incorporated
herein by reference.)
**10.9 Form of Lease Agreement for Restaurant to be Constructed
(Filed as Exhibit 10.9 to the Registrant's Registration
Statement on Form S-11, No. 33-90998, incorporated
herein by reference.)
**10.10 Form of Premises Lease for Golden Corral Restaurant
(Filed as Exhibit 10.10 to the Registrant's Registration
Statement on Form S-11, No. 33-90998, incorporated
herein by reference.)
**10.11 Form of Agreement between CNL Income Fund XVII, Ltd. and
MMS Escrow and Transfer Agency, Inc. and between CNL
Income Fund XVIII, Ltd. and MMS Escrow and Transfer
Agency, Inc. relating to the Distribution Reinvestment
Plans (Filed as Exhibit 4.4 to the Registrant's
Registration Statement on Form S-11, No. 33-90998,
incorporated herein by reference.)
**10.12 Form of Cotenancy Agreement with Unaffiliated Entity
(Filed as Exhibit 10.12 to Amendment No. One to the
Registrant's Registration Statement on Form S-11, No.
33-90998, incorporated herein by reference.)
**10.13 Form of Cotenancy Agreement with Affiliated Entity
(Filed as Exhibit 10.13 to Amendment No. One to the
Registrant's Registration Statement on Form S-11, No.
33-90998, incorporated herein by reference.)
**10.14 Form of Registered Investor Advisor Agreement (Filed as
Exhibit 10.14 to Amendment No. One to the Registrant's
Registration Statement on Form S-11, No. 33-90998,
incorporated herein by reference.)
**10.15 Assignment of Management Agreement from CNL APF
Partners, LP to CNL Restaurants XVIII, Inc. (Included as
Exhibit 10.15 to Form 10-Q filed with the Securities and
Exchange Commission on August 14, 2002, and incorporated
herein by reference.)
31.1 Certification of Chief Executive Officer of Corporate
General Partner Pursuant to Rule 13a-14 as Adopted
Pursuant to Section 302 of the Sarbanes-Oxley Act of
2002. (Filed herewith.)
31.2 Certification of Chief Financial Officer of Corporate
General Partner Pursuant to Rule 13a-14 as Adopted
Pursuant to Section 302 of the Sarbanes-Oxley Act of
2002. (Filed herewith.)
32.1 Certification of Chief Executive Officer of Corporate
General Partner Pursuant to 18 U.S.C. Section 1350 as
Adopted Pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002. (Filed herewith.)
32.2 Certification of Chief Financial Officer of Corporate
General Partner Pursuant to 18 U.S.C. Section 1350 as
Adopted Pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002. (Filed herewith.)
**previously filed.
EXHIBIT 31.1
EXHIBIT 31.2
EXHIBIT 32.1
EXHIBIT 32.2