CNL Strategic Capital, LLC


 


Exhibit 10.3


 


FIRST
AMENDMENT TO THE ESCROW AGREEMENT


 


This
FIRST AMENDMENT TO THE ESCROW GREEMENT (this “First Amendment”) is dated this _18th___ day of April,
2019, amends that certain ESCROW AGREEMENT (the “Original Agreement”) dated as of February 14, 2018, by and
among CNL Strategic Capital, LLC, a Delaware limited liability company (the “Company”), UMB Bank, N.A. as escrow
agent (the “Escrow Agent”) and CNL Securities Corp. (the “Managing Dealer”), (collectively,
the “Parties”)(the “First Amendment” and the Original Escrow Agreement” together the “Agreement”).
All capitalized terms not defined herein shall have the meaning given to such term in the Original Agreement.


WHEREAS,
the Company has previously proposed and continues to offer and sell, on a best-efforts basis through the Managing Dealer, in its
capacity as the managing dealer, and selected broker-dealers that are registered with the Financial Industry Regulatory Authority
or intermediaries that are exempt from such broker-dealer registration (the Managing Dealer and such intermediaries are hereinafter
referred to collectively as the “Distribution Participants”), the Company’s shares of Class A, Class
T, Class D, and Class I limited liability interests (the “Original Shares”), on a best-efforts basis, for at least
$2,000,000 and up to $1,100,000,000 of gross offering proceeds (excluding the shares of its Class A, Class T and Class I common
stock to be offered and sold pursuant to the Company’s dividend reinvestment plan), at an initial purchase price of up to
$27.32 per Class A share, $26.25 per Class T share, $25.00 per Class D and $25.00 per Class I share (the “Original Offering”)
pursuant to an offering prospectus as amended from time to time and filed with the Securities and Exchange Commission as part
of a registration statement file no. 333-222986, including amended for additional share classes (hereinafter the “Original
Prospectus”); and


WHEREAS,
as of March 7, 2018 at least $2,000,000 in Original Shares of the Company have been subscribed for in the Company’s offering
and therefore the Break Escrow Date has occurred, but the Escrow Agent continues to receive amounts for deposit into the Escrow
Account and to disburse such Escrowed Funds in accordance with section 5(b) of the Original Agreement;


WHEREAS
the Company now proposes to offer and sell, on a best-efforts basis through the Managing Dealer, in its capacity as the placement
agent, and through Distribution Participants, the Company’s shares of Class FA limited liability interests (the “Class
FA Shares”), in a private offering exempt from registration, for at least $2,000,000 and up to $50,000,000 of gross offering
proceeds (the “Class FA Private Offering”) pursuant to an offering memorandum, as amended from time to time
(hereinafter the “Class FA Memorandum”) at a current offering price per Class FA share; and


WHEREAS,
the Company has agreed that the subscription price paid by subscribers for Class FA Shares will be promptly refunded in full to
such subscribers if subscriptions and payment for an aggregate of at least $2,000,000 in Class FA Shares in the Class FA Private
Offering have not been received on or before the date which is three (3) full months from the commencement of the Class FA Private
Offering unless the Company extends the outside date of the Class FA Private Offering in its sole discretion but in no event later
than December 31, 2019 (the “Class FA Outside Date”); and






    

    

    




WHEREAS,
the Company desires to deposit Class FA Subscription Payments (as defined herein) into the Escrow Account to be commingled with
the Escrowed Funds from the Original Offering and for the Escrow Agent to act as escrow agent for the Class FA Private Offering
as well as the Original Offering solely upon the terms and conditions herein set forth; and


WHEREAS,
in order to subscribe for Class FA Shares, a subscriber must deliver an executed subscription agreement in substantially the form
attached as an exhibit to the Memorandum, along with the full amount of its subscription, subject to volume discounts or other
discounts, as applicable: (i) by check in U.S. dollars or (ii) by wire transfer of immediately available funds in U.S. dollars
(collectively, the “Class FA Subscription Payment”). The Company or the Managing Dealer shall instruct any
Distribution Participants that any such wire transfers shall be in accordance with the instructions provided on Exhibit
A hereto.


WHEREAS,
in order to accomplish the foregoing, the Company desire to amend the Original Agreement to allow for the deposit of the Class
FA Subscription Payment into the Escrow Account and to set forth the requirements with respect to the deposit and disbursement
of the Class FA Subscription Payment;


 


WHEREAS,
the Escrow Agent agrees to act as escrow agent with respect to the Class FA Subscription Payments deposited into the Escrow Account.


 


NOW,
THEREFORE, the parties hereto, in consideration of the mutual promises herein contained and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, hereby agree to amend the Agreement as follows:


 


		1.	All
                                         monies deposited in the Escrow Account in connection with the Class FA Private Offering
                                         are hereinafter referred to as the “Class FA Escrowed Funds.” The
                                         initial escrow period (the “Class FA Initial Escrow Period”) for the
                                         Class FA Shares shall commence upon the effectiveness of this First Amendment and shall
                                         continue until the earlier of (i) the date upon which the Escrow Agent receives written
                                         confirmation from the Company that the Company has raised an aggregate of at least $2,000,000
                                         of gross proceeds in the Class FA Private Offering (“Class FA Minimum Proceeds”),
                                         (ii) the Class FA Outside Date, or (iii) the date upon which the Escrow Agent receives
                                         written confirmation from the Company of the termination of the Class FA Private Offering
                                         prior to the receipt of the Class FA Minimum Proceeds. The Class FA Initial Escrow Period
                                         together with the Class FA Post Escrow Break Period (as defined below) shall collectively
                                         be referred to as the “Class FA Escrow Period.” The Escrow Account shall
                                         continue to be a non-interest bearing account and all amounts deposited into the Escrow
                                         Account shall be held un-invested. 



		2.	Deposits
                                         into the Escrow Account and Transmission of Subscription Documents.



		(a)	Deposits
                                         in Escrow Account. During the Class FA Escrow Period, persons subscribing to purchase
                                         Class FA Shares will be instructed by the Company and the Distribution Participants to
                                         make checks for subscriptions payable to the order of “UMB Bank, N.A., as EA for
                                         CNL Strategic Capital, LLC” or any variation thereof permitting a deposit in the
                                         Escrow Account if accompanied by a corresponding subscription agreement. Completed subscription
                                         agreements and checks in payment for the purchase price shall be remitted to the Processing
                                         Agent at the address designated for the receipt of such agreements and funds; and, drafts
                                         or wires shall be transmitted directly to the Escrow Account. The Processing Agent will
                                         promptly deliver all monies received in good order from subscribers (or from the Distribution
                                         Participants transmitting monies and subscriptions from subscribers) for the payment
                                         of Class FA Shares to the Escrow Agent for deposit in the Escrow Account no later than
                                         the end of the business day on which such monies are received by the Processing Agent.
                                         Any Class FA Subscription Payments received prior to the time, if any, that the Escrowed
                                         Funds are deliverable to the Company, and that are made payable to a party other than
                                         the Escrow Agent shall be promptly returned to the Participating Broker-Dealer who submitted
                                         the Class FA Subscription Payment. Completed subscription agreements and checks shall
                                         be delivered by the Participating Broker-Dealer to the Processing Agent no later than
                                         the close of business on the first business day following their receipt by the Distribution
                                         Participants; provided, however, if the Distribution Participants receives subscription
                                         agreements and checks at a branch office and final supervisory review is conducted at
                                         a different location (the “Final Review Office”), then the branch office
                                         shall transmit the subscription agreements and checks to the Final Review Office by the
                                         close of business on the first business day following their receipt by the branch office
                                         and the Final Review Office shall review the subscription agreements and check to ensure
                                         their proper execution and form and, if they are acceptable, deliver the subscription
                                         agreements and the funds to the Processing Agent by the close of business on the first
                                         business day after their receipt by the Final Review Office. All Class FA Escrowed Funds
                                         shall be held in the Escrow Account until such funds are disbursed in accordance with
                                         Section 4 of this First Amendment. Prior to the disbursement of the Class FA Escrowed
                                         Funds, none of the Escrow Agent, the Processing Agent or the Company is entitled
to any of the Class FA Escrowed Funds received into the Escrow Account, and no Class FA Escrowed Funds deposited in the Escrow
Account shall become the property of the Company, its affiliates, the Escrow Agent or the Processing Agent, nor be subject to
the debts or offsets of the Company, its affiliates, the Escrow Agent, the Processing Agent or Distribution Participants; provided
nothing herein shall impose an obligation upon the Escrow Agent to determine which funds in the Escrow Account constitute Class
FA Escrowed Funds and which funds constitute Escrowed Funds.







    

    

    




		(b)	Subscription
                                         Agreements. The Escrow Agent agrees to cause the Processing Agent to maintain a written
                                         account of each subscription for the Class FA Shares, which account shall set forth,
                                         among other things, the following information: (i) the subscriber’s name and address,
                                         (ii) the number of Class FA Shares purchased by such subscriber, and (iii) the subscription
                                         amount paid by such subscriber for such Class FA Shares.



		3.	Collection
                                         Procedure for Class FA Subscription Payments.



		(a)	The
                                         Escrow Agent is hereby instructed by the Company to forward each Class FA Subscription
                                         Payment for Federal Reserve Bank clearing and upon collection of the proceeds of each
                                         Class FA Subscription Payment, to deposit the collected proceeds into the Escrow Account.



		(b)	The
                                         Escrow Agent will timely notify the Company and the Processing Agent in writing via mail,
                                         email or facsimile of any Subscription Payment returned to the subscriber, and the Escrow
                                         Agent is authorized to debit the Escrow Account in the amount of such returned Class
                                         FA Subscription Payment and direct the Processing Agent to delete the appropriate account
                                         from the records maintained by the Processing Agent. 



		(c)	In
                                         the event that the Company or any agent acting on behalf of the Company rejects any subscription
                                         for Class FA Shares and the funds for such subscription have already been collected by
                                         the Escrow Agent, the Escrow Agent shall, upon receipt from the Company or the Processing
                                         Agent of written notice of such rejection, promptly cause the issuance of a refund payment
                                         by bank check to the rejected or withdrawing subscriber, without interest or income thereon,
                                         if applicable. If the Escrow Agent has not yet collected funds for such subscription
                                         but has submitted such subscription for clearing, the Escrow Agent shall promptly cause
                                         the issuance of a payment by bank check in the amount of such Class FA Subscription Payment
                                         to the rejected or withdrawing subscriber only after the Escrow Agent has cleared such
                                         funds. If the Escrow Agent has not yet submitted the Class FA Subscription Payment relating
                                         to the subscription of the rejected or withdrawing subscriber, the Escrow Agent shall
                                         promptly cause such Class FA Subscription Payment to be remitted to the drawer of the
                                         Class FA Subscription Payment submitted by or on behalf of the subscriber.



		(d)	In
                                         the event that money is deposited into the Escrow Account in error, the Escrow Agent
                                         shall notify the Company and the Processing Agent in writing via mail, email or facsimile
                                         of any such error and promptly cause the issuance of a refund payment by bank check to
                                         the appropriate party only after the Class FA Subscription Payment has cleared.



		4.	Distribution
                                         of Escrowed Funds.



		(a)	Break
                                         Escrow – Initial Closing



(i)
Upon receipt of the Class FA Break Escrow Letter (as defined in Section 4(a)(ii) of this First Amendment from the Company to the
Escrow Agent and the Processing Agent by 3:00 P.M. Eastern Time that the Company has raised the Class FA Minimum Proceeds, and
contingent upon the prior day’s notification by the Company to the Escrow Agent and the Processing Agent of the Company’s
best efforts at an estimate of the amount of Class FA Escrowed Funds anticipated to be released from the Escrow Account,
the Escrow Agent will release such Class FA Escrowed Funds that day from the Escrow Account to the Company’s designated
account.



    

    

    




(ii)
A letter from an officer of the Company to the Processing Agent and the Escrow Agent certifying that the Class FA Minimum Proceeds
have been timely subscribed shall constitute sufficient evidence for the purpose of this Agreement that such event has occurred
(the “Class FA Break Escrow Letter”). The current form of the Class FA Break Escrow Letter is attached hereto as Exhibit
B. The Class FA Break Escrow Letter shall indicate (i) the date on which the Company has raised the Class FA Minimum Proceeds
(the “Class FA Break Escrow Date”) and (ii) the wire amount, in U.S. dollars, which represents the amount of subscriptions
determined to be in good and proper order “Good Order Funds”), and (iii) the Company’s designated account for
such released Class FA Escrowed Funds.


(iii)
If the Escrow Agent has not received a Class FA Break Escrow Letter on or prior to the Class FA Outside Date, the Escrow Agent
shall cause the Class FA Escrowed Funds to be promptly returned to the respective subscribers in amounts equal to the subscription
amount theretofore paid by each of them, without interest and without deduction, penalty or expense to the subscriber. The Escrow
Agent shall notify the Processing Agent, the Company and the Placement Agent of any such return of subscription amounts. The purchase
money returned to each subscriber shall be free and clear of any and all claims of the Company, the Processing Agent, the Escrow
Agent, the Distribution Participants or any of their creditors.


		(b)	Post
                                         Escrow Break Period. From and after the Class FA Break Escrow Date (the “Class
                                         FA Post Escrow Break Period”), the Escrow Agent shall periodically transfer to
                                         the Company’s designated account, the Class FA Escrowed Funds pursuant to standing
                                         instructions from the Company as agreed among the Company, the Escrow Agent and the Processing
                                         Agent from time to time. 



		5.	Notwithstanding
                                         anything to the contrary herein, the Company and the Managing Dealer acknowledge and
                                         agree that the Escrowed Funds and Class FA Escrowed Funds may be commingled in the Escrow
                                         Account and the Escrow Agent shall have no responsibility to hold the Class FA Escrowed
                                         Funds separately from the Escrowed Funds. The Escrow Agent may conclusively rely upon
                                         the records of the Processing Agent in determining the amount of Class FA Escrowed Funds
                                         in the Escrow Account. The Company agrees that any future requested transfer of Escrow
                                         Funds submitted to the Escrow Agent in accordance with Section 5(b) of the Original Agreement
                                         shall contain a certification by the Company that it is requesting Escrowed Funds in
                                         accordance with Section 5(b) of the Original Agreement and that such request is in compliance
                                         with the terms of the Agreement. The Escrow Agent may conclusively rely upon any such
                                         written request and certification of the Company. To the extent at any time the Escrow
                                         Agent is directed to return subscription amounts to a subscriber and there are insufficient
                                         amounts in the Escrow Account to return such funds, the Escrow Agent shall suffer no
                                         liability hereunder and the Company agrees to pay any such amount owed directly to the
                                         subscriber affected. 







    

    

    




 





		6.	The
                                         Company and the Managing Dealer warrant that this First Amendment is in compliance with
                                         the Original Offering and Class FA Offering.



		7.	The
                                         Agreement, except as expressly amended by this First Amendment shall continue unmodified
                                         and in full force and effect.



		8.	No
                                         provision of this First Amendment may be changed or modified, except by an instrument
                                         in writing signed by each of the parties hereto.



 


		9.	This
                                         First Amendment shall be governed and construed in accordance with the laws of the State
                                         of Delaware without regard to the principles of conflicts of law.



.


IN
WITNESS WHEREOF, the parties have duly executed this Escrow Agreement as of the date first above written.





	 	CNL STRATEGIC CAPITAL, LLC 
	 	 
	 	By: 	/s/ Chirag J. Bhavsar
	 	Name:	Chirag J. Bhavsar
	 	Title:	Authorized Signatory 
	 	 
	 	UMB BANK, N.A., as escrow agent 
	 	 
	 	By: 	/s/ Lara L. Stevens
	 	Name:	Lara L. Stevens
	 	Title:	Vice President
	 	 
	 	CNL SECURITIES CORP.
	 	 
	 	By: 	/s/ Erin M. Gray
	 	Name:	 Erin M. Gray
	 	Title:	Authorized Signatory 







 




    	 



    	 



    

 


EXHIBIT
A


 


Wiring
Instructions


 


 


 


UMB
Bank, N.A.


ABA
No: 101000695


Acct
No: 9872323874


Acct
Name: UMB Bank, N.A., as EA for CNL Strategic Capital, LLC


 








 




    	 



    	 



    

 


EXHIBIT
B


 


_______________,
201_


 


 


UMB
Bank, N.A.


1010
Grand Blvd., 4th Floor 


Mail
Stop: 1020409 


Kansas
City, Missouri 64106


Facsimile:
(816) 860-3029 


Attention:
[__________] 


 


 


Re:CNL
Strategic Capital, LLC (the “Company”)


 


Break
Escrow Date: _________________, 2019


 


Dear
Ladies and Gentlemen:


 


The
undersigned signatory hereby certifies to you the following, pursuant to Section 4 of the First Amendment to the Escrow Agreement
among the Company and therein defined Escrow Agent and Placement Agent dated as of [___________], 2019 (the “First Amendment”):


 


1.       She
is the Chief Financial Officer of the Company;


 


2.       At
least $2,000,000 in Class FA shares of common stock (the “Shares”) of the Company subscribed for in the private offering
as of _______________, 201___ (the “Break Escrow Date”), and $___________ represents the amount good order funds that
have been subscribed in the Company’s offering. The investors who submitted subscriptions that were accepted on or before
the Break Escrow Date should be admitted as shareholders of the Company as of the Break Escrow Date. Thereafter, investors should
be admitted as shareholders at such time as their funds are released from the Escrow Account upon written authorization received
by the Escrow Agent from the Issuer.


 


Please
contact the undersigned should you have any questions at (407) _____________.


 


Very
truly yours,


CNL
Strategic Capital, LLC


By:



 


 


Chief
Financial Officer