Exhibit
99.5
EXCHANGE AGENT
AGREEMENT
This Exchange Agent Agreement (this
“Agreement”) is entered into as of this
day of
, 2011 by and among CNL Lifestyle Properties, Inc., a Maryland
corporation (the “Company”), certain subsidiaries of
the Company party hereto (the “Guarantors”) and
Wilmington Trust FSB, a federal savings bank having its corporate
trust offices in Guilford, Connecticut (hereinafter referred to
from time to time as “Wilmington Trust”).
The Company is offering to exchange
all of its outstanding 7.250% Senior Notes due 2019 (the
“Notes”) for a like principal amount of its 7.250%
Senior Notes due 2019 (the “Exchange Notes”) upon the
terms and subject to the conditions set forth in the Prospectus
dated
, 2011 (as may be supplemented, the “Prospectus”)
included in the Company’s registration statement on Form S-4
(File No. 333-
), and the related letter of transmittal (the “Letter of
Transmittal”), which together, as they may be supplemented or
amended from time to time, constitute the “Offer.” All
capitalized terms not defined herein shall have the meaning
ascribed to such term in the Offer.
The Company hereby appoints
Wilmington Trust to act as the exchange agent (the “Exchange
Agent”) in connection with the Offer. References hereinafter
to “you” shall refer to Wilmington Trust.
The Offer is expected to be
commenced by the Company on or about
, 2011. The Letter of Transmittal that accompanies the Offer (or in
the case of book-entry securities, the Automated Tender Offer
Program (“ATOP”) of DTC (as defined below)) is to be
used by the holders of the Notes to accept the Offer. The Letter of
Transmittal contains instructions with respect to the delivery of
certificates for Notes tendered in connection therewith. The
Exchange Agent’s obligations with respect to receipt and
inspection of the Letter of Transmittal in connection with the
Offer shall be satisfied for all purposes hereof by
(1) inspection of the electronic message transmitted to the
Exchange Agent by Offer participants in accordance with ATOP of
DTC, and by otherwise observing and complying with all procedures
established by DTC in connection with ATOP, to the extent that ATOP
is utilized by Offer participants, or (2) by inspection of the
Letter of Transmittal delivered by each holder of Notes.
The Offer shall expire at 5:00 p.m.,
New York City time, on
, 2011, or on such subsequent date or time to which the Company may
extend the Offer (the “Expiration Date”). Subject to
the terms and conditions of the Offer, the Company expressly
reserves the right to extend the Offer from time to time and may
extend the Offer by giving oral (promptly confirmed in writing) or
written notice to you before 9:00 a.m., New York City time, on the
business day following the scheduled Expiration Date, and in such
case, “Expiration Date” shall mean the time and date on
which the Offer so extended shall expire.
The Company expressly reserves the
right, in its sole discretion, to (1) delay accepting any
validly tendered Notes or (2) terminate or amend the Offer, in
each case, by giving oral or written notice (any such oral notice
to be promptly confirmed in writing) of such delay, termination or
amendment to the Exchange Agent. Any such delay in acceptance,
termination or amendment will be followed as promptly as
practicable by a public announcement thereof by the
Company.
In carrying out your duties as
Exchange Agent, you are to act in accordance with the following
instructions:
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1.
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You will
perform such duties and only such duties as are specifically set
forth in the section of the Prospectus captioned “The
Exchange Offer,” in the Letter of Transmittal accompanying
the Prospectus or as specifically set forth herein; provided,
however, that in no way will your general duty to act in good faith
be discharged by the foregoing.
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2.
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You will
establish a book-entry account in respect of the Notes at The
Depository Trust Company (“DTC”), in connection with
the Offer within two business days after the effective date of the
Prospectus. Any financial institution that is a participant in the
DTC system may make book-entry delivery of the Notes by causing DTC
to transfer such Notes into the account maintained by you, pursuant
to this section, in accordance with DTC’s procedures for such
transfer, and you may affect a withdrawal of Notes through such
account by book-entry movement as requested by the participant. The
account shall be maintained until all Notes tendered pursuant to
the Offer shall have been either accepted or returned.
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3.
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You are to
examine each of the Letters of Transmittal and certificates for
Notes (or confirmation of book-entry transfer into your account at
DTC) and any other documents delivered or mailed to you by or for
holders of the Notes to ascertain whether: (a) the Letters of
Transmittal, certificates and any such other documents are duly
executed and properly completed in accordance with instructions set
forth therein and in the Prospectus under the caption “The
Exchange Offer — Procedures for Tendering” and that
such book-entry confirmations are in due and proper form and
contain the information required to be set forth therein; and
(b) the Notes have otherwise been properly tendered. In each
case where the Letter of Transmittal or any other document has been
improperly completed or executed or any of the certificates for
Notes are not in proper form for transfer or some other
irregularity in connection with the acceptance of the Offer exists,
you will endeavor to inform the presenters of the need for
fulfillment of all requirements and to take any other action as may
be reasonably necessary or advisable to cause such irregularity to
be corrected.
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4.
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With the
approval of the Chief Executive Officer, the Chief Operating
Officer, the Chief Financial Officer, the President, any Vice
President, the Treasurer or the Secretary of the Company (each, an
“Authorized Officer”) (such approval, if given orally,
to be promptly confirmed in writing), or any other party designated
in writing by such officer of the Company, you are authorized to
waive any irregularities in connection with any tender pursuant to
the Offer. You are not otherwise authorized to waive any such
irregularities.
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5.
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Tenders of
Notes may be made only as set forth in the Letter of Transmittal
and the section of the Prospectus captioned “The Exchange
Offer — Procedures for Tendering” and Notes shall be
considered properly tendered or delivered to you only when tendered
in accordance with the procedures set forth therein.
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Notwithstanding the provisions of
Section 5 of this Agreement, Notes that an Authorized Officer
of the Company shall approve as having been properly tendered shall
be considered to be properly tendered (such approval, if given
orally, shall be promptly confirmed in writing).
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6.
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You shall
advise the Company with respect to any Notes received subsequent to
the Expiration Date and accept its instructions with respect to
disposition of such Notes.
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7.
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You shall
accept tenders:
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(a)
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in cases where
the Notes are registered in two or more names only if signed by all
named holders;
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(b)
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in cases where
the signing person (as indicated on the Letter of Transmittal) is
acting in a fiduciary or a representative capacity only when proper
evidence of his or her authority so to act is submitted;
and
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(c)
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from persons
other than the registered holder of Notes, provided that customary
transfer requirements, including payment of any applicable transfer
taxes, if any, are fulfilled.
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You shall accept partial tenders of
Notes (only to the extent that the partial tender is equal to
$2,000 in aggregate principal amount or integral multiples of
$1,000 in excess thereof) and deliver certificates for Notes to the
registrar for split-up and return any untendered Notes to the
holder (or such other person as may be designated in the Letter of
Transmittal) as promptly as practicable after expiration or
termination of the Offer. A new certificate for the remainder of
the principal amount of the Notes will be sent to the holders of
Notes unless otherwise indicated by partial tendering holders of
Notes.
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8.
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Upon
satisfaction or waiver of all of the conditions to the Offer, the
Company will notify you (such notice, if given orally, to be
promptly confirmed in writing) of its acceptance, promptly after
the Expiration Date, of all Notes properly tendered indicating the
aggregate principal amount of Notes accepted. You, on behalf of the
Company, will exchange, in accordance with the terms hereof,
accepted Notes for Exchange Notes and cause such Notes to be
cancelled. Delivery of the Exchange Notes will be made on behalf of
the Company by you, in your capacity as the trustee, at the rate of
a $2,000 principal amount Exchange Note for each $2,000 principal
amount Note and, with respect to Notes in excess of such amount,
Exchange Notes in integral multiples of $1,000 in excess thereof
(unless otherwise instructed in writing by the Company) for each
principal amount of the Notes in excess of such amount tendered,
and, in the case of Notes tendered, promptly after notice (such
notice if given orally, to be promptly confirmed in writing) of
acceptance of such Notes by the Company; provided ,
however , that in all cases, Notes tendered pursuant to the
Offer will be exchanged only after timely receipt by you of
certificates for such Notes (or confirmation of book-entry transfer
into your account at DTC), a properly completed and duly executed
Letter of Transmittal (or manually signed facsimile thereof) (or an
agent’s message, as defined in the Prospectus, in lieu
thereof) with any required signature guarantees and any other
required documents. Unless otherwise instructed in writing by the
Company, you shall issue Exchange Notes only in denominations of
$2,000 or any integral multiples of $1,000 in excess thereof. The
amount of Exchange Notes issued to a tendering holder will be
rounded down to $2,000 or the nearest integral multiple of $1,000
in excess thereof, with any fractional amount refunded to such
tendering holder in cash.
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9.
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Tenders
pursuant to the Offer are irrevocable after the Expiration Date.
Subject to the terms and upon the conditions set forth in the
Prospectus and the Letter of Transmittal, Notes tendered pursuant
to the Offer may be withdrawn at anytime on or prior to the
Expiration Date in accordance with the terms of the
Offer.
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10.
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The Company
shall not be required to exchange any Notes tendered if any of the
conditions set forth in the Offer are not met. Notice of any
decision by the Company not to exchange any Notes tendered shall be
given (such notice, if given orally, to be promptly confirmed in
writing) by the Company to you.
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11.
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If, pursuant to
the Offer, the Company does not accept for exchange all or part of
the Notes tendered, you shall as soon as practicable after the
expiration or termination of the Offer return those certificates
for unaccepted Notes (or effect appropriate book-entry transfer),
together with any related required documents and the Letters of
Transmittal relating thereto that are in your possession, to the
persons who deposited them.
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12.
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All
certificates for reissued Notes, unaccepted Notes or Exchange
Notes, as the case may be (other than those effected by book-entry
transfer) shall be shipped by an approved overnight air courier
under a Mail & Transit insurance policy protecting you and
the Company from loss or liability arising out of the non-receipt
or non-delivery of such certificates up to limits set forth in the
aforementioned policy.
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13.
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You are not
authorized to pay or offer to pay any concessions, commissions or
solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
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14.
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As Exchange
Agent hereunder you:
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(a)
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shall not be
liable for any action or omission to act unless the same
constitutes your own gross negligence, willful misconduct or bad
faith;
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(b)
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shall have no
duties or obligations other than those specifically set forth
herein or as may be subsequently agreed to in writing between you
and the Company;
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(c)
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will be
regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or
genuineness of any of the certificates or the Notes represented
thereby deposited with you pursuant to the Offer, and will not be
required to and will make no representation as to the validity,
value or genuineness of the Offer, unless required by
law;
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(d)
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may rely on and
shall be protected in acting in reliance upon any certificate,
instrument, opinion, notice, letter, telegram or other document or
security delivered to you and believed by you to be genuine and to
have been signed or presented by the proper person or
persons;
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(e)
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may act upon
any tender, statement, request, document, certificate, agreement or
other instrument whatsoever not only as to its due execution and
validity and effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which you
shall in good faith believe to be genuine or to have been signed or
presented by the proper person or persons;
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(f)
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may rely on and
shall be protected in acting upon written or oral instructions from
any authorized officer of the Company; and
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(g)
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shall not
advise any person tendering Notes pursuant to the Offer as to the
wisdom of making such tender or as to the market value or decline
or appreciation in market value of any security, including the
Notes.
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15.
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You shall send
to all holders of Notes a copy of the Prospectus, the Letter of
Transmittal, the Notice of Guaranteed Delivery (as described in the
Prospectus) and such other documents (collectively, the
“Offer Documents”) as may be furnished by the Company
to commence the Offer and take such other action as may from time
to time be requested by the Company or its counsel (and such other
action as you may deem appropriate) to furnish copies of the Offer
Documents, or such other forms as may be approved from time to time
by the Company, to all holders of Notes and to all persons
requesting such documents and to accept and comply with telephone
requests for information relating to the Offer, provided that such
information shall relate only to the procedures for accepting (or
withdrawing from) the Offer. All other requests for information
relating to the Offer shall be directed to the Company, Attention:
Holly Greer, General Counsel, CNL Center at City Commons, 450 South
Orange Avenue, Orlando, Florida, 32801.
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16.
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You are
authorized to cooperate with and to furnish information to any
organization (and its representatives) designated from time to time
by the Company in the manner directed or authorized by the Company
in connection with the Offer and any tenders thereunder.
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17.
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You shall
advise by e-mail or facsimile transmission Holly Greer, the General
Counsel of the Company (at the facsimile number (407) 540-2544
or by email at the address furnished to you by the Company) and
such other person or persons as Company may request, weekly (and
more frequently during the week immediately preceding the
Expiration Date, if requested) up to and including the Expiration
Date, as to the aggregate principal amount of Notes which have been
tendered pursuant to the Offer and the items received by you
pursuant to this Agreement, separately reporting and giving
cumulative totals as items properly received and items improperly
received. In addition, you also will inform, and cooperate in
making available to, the Company or any such other person or
persons authorized by the Company, upon oral request made from time
to time prior to the Expiration Date, of such other information as
they may reasonably request. Such cooperation shall include,
without limitation, the granting by you to the Company and such
person as the Company may request of access to those persons on
your staff who are responsible for receiving tenders, in order to
ensure that immediately prior to the Expiration Date and each other
Expiration Date, if any, the Company shall have received
information in sufficient detail to enable it to decide whether to
extend the Offer. You shall then prepare a final list of all
persons whose tenders were accepted, the aggregate principal amount
of Notes tendered and the amount accepted and deliver such list to
the Company.
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18.
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Letters of
Transmittal and Notices of Guaranteed Delivery shall be stamped by
you as to the date, and, after the expiration of the Offer, the
time, of receipt thereof and shall be preserved by you for a period
of time at least equal to the period of time you customarily
preserve other records pertaining to the transfer of securities, or
one year, whichever is longer, and thereafter shall be delivered by
you to the Company. You shall dispose of unused Letters of
Transmittal and other surplus materials in accordance with your
customary procedures.
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19.
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For services
rendered as Exchange Agent hereunder, you shall be entitled to such
compensation as set forth on Schedule I hereto. The
provisions of this Section 19 shall survive the termination of
this Agreement.
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20.
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You hereby
acknowledge receipt of the Prospectus, the Letter of Transmittal
and other Offer Documents provided to you by the Company. Any
inconsistency between this Agreement, on the one hand, and the
Prospectus, the Letter of Transmittal and the other Offer Documents
(as they may be amended from time to time), on the other hand,
shall be resolved in favor of the latter two documents, except with
respect to your duties, liabilities and indemnification as Exchange
Agent, which shall be controlled by this Agreement.
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21.
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The Company
agrees to fully indemnify and hold you harmless in your capacity as
Exchange Agent hereunder against any and all liability, cost or
expense, including, without limitation, reasonable attorneys’
fees and such attorneys’ reasonable expenses, arising out of
or in connection with your appointment as Exchange Agent and the
performance of your duties hereunder, including, without
limitation, any act, omission, delay or refusal made by you in
reliance upon any signature, endorsement, assignment, certificate,
order, request, notice, instruction or other instrument or document
reasonably believed by you to be valid, genuine and sufficient and
in accepting any tender or effecting any transfer of Notes
reasonably believed by you in good faith to be authorized, and in
delaying or refusing in good faith to accept any tenders or effect
any transfer of Notes; provided , however , that the
Company shall not be liable for indemnification or otherwise for
any liability, cost or expense arising out of your gross
negligence, willful misconduct or bad faith. In each case, the
Company shall be notified by you, by letter or facsimile
transmission, of the written assertion of a claim against you or of
any other action commenced against you, promptly after you shall
have received any such written assertion or shall have been served
with a summons in connection therewith. The Company shall be
entitled to participate at its own expense in the defense of any
such claim or other action and, if the Company so elects, the
Company shall assume the defense of any suit brought to enforce any
such claim, provided that (a) the Company shall retain counsel
reasonably satisfactory to you to defend such suit, and
(b) you do not determine, in your reasonable judgment, that a
conflict of interest exists between you and the Company. For so
long as (x) the Company retains counsel reasonably
satisfactory to you to defend such suit and (y) you do not
determine, in your reasonable judgment, that a conflict of interest
exists between you and the Company, the Company shall not be liable
for the fees and expenses of separate counsel retained by you
thereafter to defend any such suit. The Company’s obligations
under this Section 21 shall survive the termination of this
Agreement and the discharge of your obligation hereunder and any
other termination of this Agreement under any federal or state
bankruptcy law.
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22.
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You shall
arrange to comply with all applicable withholding and tax reporting
requirements under the tax laws of the United States, including
those relating to missing Tax Identification Numbers, and shall
file any appropriate reports with the Internal Revenue Service
(e.g., 1099, 1099B, etc.) as directed in writing by the
Company.
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23.
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You shall
deliver or cause to be delivered in a timely manner to each
governmental authority to which any transfer taxes are payable in
respect of the transfer of Notes to the Company, the
Company’s payment in the amount of all transfer taxes so
payable; provided , however , that you shall
reimburse the Company for amounts refunded to you in respect of
your payment of any such transfer taxes, at such time as such
refund is received by you.
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24.
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This Agreement
and your appointment as Exchange Agent hereunder shall be construed
and enforced in accordance with the laws of the State of Delaware
applicable to agreements made and to be performed entirely within
such state, and without regard to conflicts of laws principles, and
shall inure to the benefit of, and the obligations created hereby
shall be binding upon, the successors and assigns of each of the
parties hereto.
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25.
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This Agreement
may be executed in two or more counterparts, each of which shall be
deemed to be an original and all of which together shall constitute
one and the same agreement.
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26.
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In case any
provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
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27.
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This Agreement
shall not be deemed or construed to be modified, amended,
rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of
the party to be charged. This Agreement may not be modified
orally.
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28.
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Unless
otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing
(including facsimile or similar writing) and shall be given to such
party, addressed to it, at its address or telecopy number set forth
below:
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If to the Company or the
Guarantors:
CNL Lifestyle Properties,
Inc.
450 South Orange Avenue
Orlando, FL 32801
Facsimile No.:
(407) 540-2544
Attention: Holly Greer, Senior Vice
President and General Counsel
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If to the Exchange Agent:
Wilmington Trust FSB
Corporate Capital Markets
246 Goose Lane
Suite 105
Guilford, CT 06437
Attn: Joseph P.
O’Donnell
Fax: (203) 453-1183
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29.
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Unless
terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, Sections 19 and 21 shall survive the termination of
this Agreement. Upon any termination of this Agreement, you shall
promptly deliver to the Company any certificates for Notes, funds
or property then held by you as Exchange Agent under this
Agreement.
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30.
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This Agreement
shall be binding and effective as of the date hereof.
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IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be executed by their
respective officers, hereunto duly authorized, as of the day and
year first above written.
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CNL LIFESTYLE PROPERTIES, INC.,
a
Maryland Corporation
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By:
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Name:
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Holly
Greer
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Title:
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Senior Vice
President and General Counsel
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Signature Page to Exchange Agent
Agreement
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GUARANTORS
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CNL INCOME PARTNERS, LP,
a Delaware limited
partnership
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