EXHIBIT 10.2
QUALIFIED EXCHANGE ACCOMMODATION AGREEMENT
THIS AGREEMENT (this "Agreement" or "Exchange Agreement") is entered
into by and between Green 0000 Xxxxxxxx LLC, a New York limited liability
company, hereinafter referred to as either "Exchanger" or "Taxpayer", and BEC
317 LLC, a Delaware limited liability company, having its principal place of
business in Richmond, Virginia, hereinafter referred to as "BEC 317."
RECITALS:
WHEREAS, Exchanger owns certain real property, hereinafter referred
to as the "Relinquished Property," which is legally described in Exhibit "A"
attached hereto; and
WHEREAS, Exchanger desires to exchange the Relinquished Property only
for like-kind property, hereinafter referred to as the "Replacement Property,"
in a transaction that will qualify for tax-deferred treatment under Section
1031 of the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, Exchanger has found suitable property for accomplishing said
tax-deferred exchange, as legally described in Exhibit "B" attached hereto,
hereinafter referred to as the "Replacement Property," but has not sold the
Relinquished Property; and
WHEREAS, BEC 317 owns 100% of the limited liability membership
interests (the "LLC Interests") in Green 317 Madison LLC ("Green 317"); and
WHEREAS, Green 317 has entered into a Sale-Purchase Agreement dated
the date hereof with Richfield Investment Company ("Seller") for the purchase
of the Replacement Property (the "Replacement Property Agreement"), which
Replacement Property Agreement is attached hereto as Exhibit "C";
WHEREAS, Exchanger, with a continued intent to complete a
tax-deferred exchange pursuant to Section 1031 of the Code, is willing,
directly or through a related entity, to acquire all of the benefits and
burdens of the Replacement Property on the terms and conditions hereof; and
WHEREAS, BEC 317 is willing to hold title to the LLC Interests (and
thereby hold title to the Replacement Property through Green 317) for the
benefit of Exchanger in order to facilitate an exchange under Section 1031 of
the Code and in accordance with the safe harbor established by Revenue
Procedure 2000-37 and according to the terms and conditions as set forth
herein.
WHEREAS, Exchanger has entered into a Sale-Purchase Agreement (the
"Relinquished Property Agreement") dated April 24, 2001 between Exchanger, as
Seller, and JER 1412 Broadway, LLC ("JER"), as Purchaser, to sell the
Relinquished Property to JER on a date after the date hereof; and
WHEREAS, upon the sale of the Relinquished Property, Exchanger
intends to purchase, and BEC 317 intends to sell, the LLC Interests to
complete the aforesaid tax-deferred exchange.
NOW THEREFORE, the parties hereto agree as follows:
1. The foregoing Recitals are incorporated herein by this reference.
Exchanger shall acquire the Replacement Property in accordance with the terms
of the Replacement Property Agreement.
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2. The funds necessary to close on the purchase of the Replacement
Property (the "Proceeds") shall be advanced to BEC 317 by XX Xxxxx Realty
Corp. ("XX Xxxxx"), and BEC 317 shall deliver to XX Xxxxx a promissory note
for said sum (the "Note"). The Note shall be due and payable upon the closing
of the sale of the Relinquished Property, but in no event later than 180 days
after the closing of the Replacement Property (the "Termination Date"). The
Note shall be non-recourse and shall bear interest at 5% per annum. The Note
shall be secured by an agreement (the "Pledge Agreement") executed by BEC 317
pledging the LLC Interests. BEC 317 shall contribute the Proceeds to Green
317, provided, however, XX Xxxxx, at its option, may deliver the Proceeds
directly to Green 317. A copy of the Note and the Pledge Agreement are
attached hereto as Exhibit "D" and Exhibit "E," respectively. The Note shall
provide that it may be satisfied from the net sale proceeds of the
Relinquished Property or as otherwise provided in Paragraph 11 hereof. It is
hereby understood and agreed that the receipt of the net sale proceeds of the
Relinquished Property shall be used to satisfy the Note and fully discharge
BEC 317 from all liabilities under the Note; provided, however, BEC 317 agrees
to deliver to the holder of the Note all other funds loaned to it and not used
to either acquire the Replacement Property or as otherwise approved by the
Exchanger as well as all funds received by BEC 317 from the net sale proceeds
of the Relinquished Property and to execute, acknowledge, deliver, transfer
and convey, without warranty (except for its own actions), all bills of sale,
assignment of leases and other documentation reasonably requested by the
Exchanger. In addition, at Exchanger's election, BEC 317 shall either deliver
a bargain and sale deed to Exchanger for the Replacement Property or execute
an assignment of 100% of the LLC Interests to Exchanger, and Building Exchange
Company, a Virginia corporation, shall execute an assignment of 100% of the
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limited liability company interest in BEC 317 to Exchanger. At that time,
Exchanger shall execute and deliver to BEC 317 an agreement terminating the
Pledge Agreement.
3. Identification of Relinquished Property.
(a) On or before midnight of the date that is forty-five (45) days
after the date of the acquisition of the Replacement Property (in the event
there is more than one Replacement Property, forty-five (45) days after the
acquisition of the first Replacement Property) by BEC 317 (the "Identification
Period"), Taxpayer shall identify the Relinquished Property to be transferred
by Taxpayer in exchange for the Replacement Property. Such identification
shall be effectuated by one or more Notices of Identification signed by
Taxpayer or on behalf of Taxpayer. Notices of Identification shall be hand
delivered, mailed (certified, return receipt requested), or sent by facsimile
to BEC 317 before the end of the Identification Period. Taxpayer shall give
BEC 317 prompt written notice of any changes, deletions, or additions and may
revoke a Notice of Identification only by a written notice (a "Notice of
Revocation") signed by the Taxpayer and hand delivered, mailed (certified,
return receipt requested), or sent by facsimile to BEC 317 before the end of
the Identification Period. To be effective, a Notice of Identification sent to
BEC 317 by facsimile must be sent to the facsimile number which is part of BEC
317's notice address below.
(b) Taxpayer agrees that the Relinquished Property shall be
identified on the Notice of Identification in accordance with the following
principles:
(i) Taxpayer shall unambiguously describe the Relinquished
Property using either its complete legal description, complete street address,
Assessor's Parcel Number, or distinguishable name.
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(ii) Taxpayer shall identify only that number of Relinquished
Properties which meets one of the following "rules": (x) three (3) properties
without regard to the fair market value of the properties; (y) any number of
properties so long as their aggregate fair market value as of the end of the
Identification Period does not exceed two hundred percent (200%) of the
aggregate fair market value of the Replacement Property as of the date such
Replacement Property was acquired by BEC 317; or (z) any number of properties
without regard to their fair market value so long as Taxpayer transfers
identified Relinquished Properties constituting at least ninety-five percent
(95%) of the aggregate fair market value of all identified Relinquished
Properties no later than 180 days after the closing of the Replacement
Property.
4. Exchanger hereby agrees to assign its rights, title, interest in
and to, but not the obligations under the Relinquished Property Agreement to
BEC 317 prior to closing the sale of the Relinquished Property to a third
party.
5. Subject to and conditioned upon the close of the purchase of the
Replacement Property under the Replacement Property Agreement, and otherwise
subject to and upon the terms and conditions set forth in this Agreement, BEC
317 hereby agrees to convey to Exchanger, in exchange for the Relinquished
Property, the Replacement Property, or transfer 100% of the LLC Interests to
the Exchanger at such time as a sale of the Relinquished Property is ready to
close. At the closing for sale of the Relinquished Property to a third party,
the Relinquished Property shall be directly deeded from Exchanger to said
third party and the "net sale proceeds" (as defined in Paragraph 7 hereof)
shall be paid directly to BEC 317 as the qualified intermediary for the
Exchanger.
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6. The following are conditions precedent to BEC 317's obligation to
cause Green 317 to acquire the Replacement Property:
(a) Either Commonwealth Land Title Insurance Company, Lawyers
Title Insurance Corporation, Transnation Title Insurance Company or Chicago
Title Insurance Company shall have committed to issue an owner's policy of
title insurance that is reasonably satisfactory to BEC 317 and such policy
shall be issued to Green 317 as part of the closing of the Replacement
Property, with premium costs thereof being borne by a party other than BEC
317.
(b) Green 317 shall have been furnished a current phase 1
environmental site assessment ("ESA") from a qualified engineering firm
reasonably satisfactory to BEC 317, along with a letter directed to BEC 317
and Green 317 from such firm indicating that BEC 317 may rely on the ESA,
which concludes that there are no adverse environmental impacts associated
with the Replacement Property. Notwithstanding the ESA described in this
paragraph, Exchanger hereby agrees to indemnify, hold harmless and defend
Green 317 and BEC 317 from and against any and all actions, suits, claims,
charges, costs, losses, damages, liabilities, expenses, including costs of
investigation, court costs, and reasonable attorneys' fees and disbursements
that may be brought or imposed upon Green 317 or BEC 317 in connection with
the Replacement Property, including, without limitation, that which may be
brought or imposed pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act, or any other federal and any state
environmental statute.
(c) BEC 317 and Green 317 shall have been named as owners or
additional named insureds under liability and property insurance policies
acceptable to Green 317 and BEC 317, in its sole and absolute discretion.
Exchanger shall cause a certificate evidencing
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the foregoing to be furnished to Green 317 and BEC 317 prior to the closing of
the purchase of the Replacement Property.
If any of the foregoing conditions precedent are not satisfied,
BEC 317 shall have the right, in its sole and absolute discretion and without
liability whatsoever, to decline to cause Green 317 to acquire the Replacement
Property or, alternatively, waive such condition(s) in writing and proceed
with the closing.
7. In respect to the Relinquished Property, sale proceeds shall mean
the total consideration to which BEC 317 would be entitled to receive from the
closing of the sale. All real estate commissions, prorations of income and
expenses (including rents, interest on encumbrances, real estate taxes, etc.),
closing costs, title insurance premiums, escrow fees, transfer taxes, amounts
required to satisfy all mortgages, lines of credits, UCC-1 financing
statements, judgments, security interest, and liens against the Relinquished
Property, and any other amounts otherwise chargeable to BEC 317 in the closing
as seller of the Relinquished Property, shall be charged to Exchanger and
shall reduce the sale proceeds from the sale of the Relinquished Property. BEC
317's charges and fees shall likewise be charged to Exchanger and reduce such
sale proceeds unless separately paid by the Exchanger. The sale proceeds less
the charges described in this Paragraph 7 shall mean the "net sale proceeds."
8. Exchanger hereby agrees to indemnify, hold harmless, and defend
BEC 317 from and against any and all actions, suits, claims, charges, costs,
losses, damages, liabilities, expenses, including any State or city real
estate transfer taxes in connection with the transactions contemplated by this
agreement, and costs of investigation, court costs, and reasonable attorneys'
fees and disbursements, that may be incurred by, brought against or imposed
upon BEC 317
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arising from or related to its actions hereunder and any liability it may
incur as a result of taking title to the Replacement Property, including any
litigation in connection with this Agreement, unless caused as a direct result
of BEC 317's breach of this Agreement, willful misconduct or gross negligence.
This indemnification shall include, without limitation, any and all
consequential damages arising therefrom and shall survive the closing of the
sale of the Relinquished Property to a third party indefinitely.
9. Exchanger has read and hereby represents that it understands all
of the provisions set forth in this Agreement, including the indemnifications
recited herein.
10. It is understood and agreed by the parties to this Exchange
Agreement that:
(a) BEC 317 has entered into this Exchange Agreement with the
intention of being an "exchange accommodation titleholder" within the meaning
of Revenue Procedure 2000-37 as in effect on the date hereof and shall use its
best efforts to retain that status until the Relinquished Property has been
transferred in accordance with this Exchange Agreement. BEC 317 and Taxpayer
acknowledge and agree that this Exchange Agreement is intended to constitute a
"qualified exchange accommodation arrangement" as defined in section 4.02 of
Revenue Procedure 2000-37 and to satisfy the "safe harbor" provisions of that
Revenue Procedure.
(b) The parties hereto agree that NONE OF BEC 317'S ACTIONS UNDER
THIS AGREEMENT SHALL CONSTITUTE LEGAL, TAX OR OTHER ADVICE OR REPRESENTATIONS
TO EXCHANGER OR ANY OTHER PERSON OR ENTITY. BEC 317 MAKES NO REPRESENTATIONS
REGARDING THE TAX CONSEQUENCES OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT. EXCHANGER HEREBY REPRESENTS TO BEC 317 AND
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ACKNOWLEDGES THAT BEC 317 IS RELYING ON SUCH REPRESENTATION IN EXECUTING THIS
AGREEMENT, THAT EXCHANGER HAS EXECUTED THIS AGREEMENT BASED ON THE ADVICE OF
EXCHANGER'S LEGAL AND TAX ADVISERS WITH RESPECT TO ALL ASPECTS OF THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING BY WAY OF
ILLUSTRATION, AND NOT LIMITATION, FEDERAL, STATE AND LOCAL TAX CONSEQUENCES,
AND EXPRESSLY RELEASES BEC 317 FROM ANY LIABILITY WITH RESPECT THERETO, EXCEPT
FOR BEC 317'S BREACH OF THIS AGREEMENT, WILLFUL AND WANTON MISCONDUCT OR
FRAUD.
11. If Exchanger is unable to complete the sale of the Relinquished
Property by the Termination Date, then BEC 317 shall, at Exchanger's election,
either deliver a bargain and sale deed to Exchanger for the Replacement
Property or execute an assignment of 100% of the LLC Interests to Exchanger,
and, in either case, Exchanger shall deliver to BEC 317 an agreement
terminating the Pledge Agreement and the original Note marked satisfied, and
all obligations of BEC 317 to Exchanger shall be deemed satisfied; provided,
however, BEC 317 also delivers to the holder of the Note all other funds
loaned to it and not used to either acquire the LLC Interests or as otherwise
approved by the Exchanger as well as all funds received by BEC 317 from the
net sale proceeds of the Relinquished Property. Notwithstanding the foregoing,
BEC 317 shall have no obligation to convey the Replacement Property as set
forth in this Paragraph 11 in the event Exchanger fails to satisfy any
obligations hereunder to BEC 317, including, without limitations, the
obligations set forth in Paragraph 14 of this Agreement.
12. BEC 317 shall not be required to make any warranties or
representations regarding either the Relinquished Property or the Replacement
Property which survive closing,
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as to BEC 317, following the conveyance date of the Relinquished Property to a
third party, or otherwise, and of the Replacement Property to BEC 317 and / or
the Exchanger.
13. Upon execution hereof, Exchanger shall pay BEC 317, upon
presentation and marked receipt of an invoice, a nonrefundable fee in an
amount equal to One Hundred Thousand Dollars and Zero Cents ($100,000.00).
14. XX Xxxxx Realty Acquisition LLC ("Tenant"), as tenant, and Green
317, as landlord, shall enter into a triple net lease for the Replacement
Property in the form attached hereto as Exhibit "F" (the "Lease") for a rental
as set forth in the Lease and making Tenant responsible for the payment of all
taxes and other obligations on the Replacement Property. The Lease shall
provide that Tenant shall be solely responsible for all costs associated with
Green 317's ownership, carrying and holding of the Replacement Property
("Carrying Costs"). By way of illustration and not limitation, Carrying Costs
shall include the following items: insurance premiums, real estate taxes, debt
service payments, and leasing, management, and service fees.
15. From the date Green 317 acquires the Replacement Property until
the Termination Date, BEC 317 shall be treated as the beneficial owner of the
Replacement Property for all federal income tax purposes and shall maintain
its status as an entity subject to federal income tax. Both parties shall
report the federal income tax attributes of the Replacement Property on their
federal income tax returns in a manner consistent with this Agreement.
Notwithstanding the foregoing, the parties agree that Green 317 and BEC 317
shall be treated as the nominee of Exchanger for all purposes other than
federal income tax purposes, including, without limitation, for purposes of
State and city real estate transfer taxes.
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16. All notices provided to be given under this Agreement shall be
deemed to have been given or made when delivered in person to the party to
whom the communication is addressed, or when sent by facsimile to such party
at the address indicated, or on the next business day after being sent by
Federal Express or similar overnight document delivery service or on the third
day after the postmark date of mailing when sent by certified mail. Any party
may change the address at which it is to receive notices by so advising the
other parties in writing. To be effective, any such notice, request or consent
sent by facsimile must be sent to the facsimile number shown below.
17. This Agreement may be modified, altered, amended, cancelled or
terminated only by the written agreement of all the parties. This Agreement
shall be governed by and construed in accordance with the applicable laws of
the State of New York without regard to the conflict of laws provisions
thereof (except with respect to matters of corporation law in which case the
law of the state of domestication shall apply), and shall be binding upon and
shall inure to the benefit of the parties and their respective successors in
interest and permitted assigns. Each of the parties hereby consents and
submits to personal jurisdiction in the State of New York for all matters that
may arise with respect to this Agreement, and waives any and all rights to
object to jurisdiction within the State of New York. The paragraph headings
and subheadings contained in this Agreement are for convenience and reference
only, and shall not in any way affect the meaning or interpretation of this
Agreement. This Agreement may be executed in any number of counterparts and
each shall be considered an original and together they shall constitute one
agreement. Facsimile signatures on this Agreement or any other document called
for or contemplated in this Agreement shall be deemed original signatures.
This Agreement contains the entire understanding between and among the parties
hereto. Exchanger may not assign this
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Agreement. Should a court of competent jurisdiction find any portion of this
Agreement to be invalid or unenforceable, the remaining terms and provisions
hereof shall not be affected and shall remain in full force and effect. Each
party hereto and their legal counsel have reviewed this Agreement and have had
an opportunity to revise (or request revision of) this Agreement and,
therefore, any usual rules of construction requiring that ambiguities are to
be resolved against a particular party shall not be applicable in the
construction and interpretation of this Agreement. Should the language of any
provision herein be deemed to negate a like-kind exchange within the meaning
of Section 1031 as to Exchanger, it shall be interpreted and applied in order
to comply with Section 1031 of the Code, Regulations, case law, and
administrative pronouncements interpreting the Code and Regulations.
18. THE PARTIES WAIVE TRIAL BY JURY OF ANY AND ALL DISPUTES ARISING
HEREUNDER OR RELATED HERETO AND AGREE THAT ALL SUCH DISPUTES SHALL BE TRIED
AND DECIDED SOLELY BY A JUDGE SITTING WITHOUT A JURY.
(Signatures on next page)
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed this ___ day of __________, 2001.
ADDRESSES FOR NOTICES TO BE MAILED: GREEN 0000 XXXXXXXX LLC, a New York
limited liability company
c/o XX Xxxxx Realty Corp.
000 Xxxxxxxxx Xxxxxx By: XX Xxxxx Operating Partnership, L.P.
Xxx Xxxx, Xxx Xxxx 00000 By: XX Xxxxx Realty Corp.
Attention: Xxxx Xxxxxxxx
and Xxxxxx Xxxxxx
By: /s/ Xxxx Xxxxxxxx
_______________________________
Name:
Title:
c/o Land America Exchange Company BEC 317 LLC, a Delaware limited liability
000 Xxxxx Xxxxxx company
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx By: Building Exchange Company, a Virginia
Corporation
By: /s/ Xxxxx Xxxxx
_________________________________
Xxxxx Xxxxx, Vice President
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SCHEDULE OF EXHIBITS TO EXCHANGE AGREEMENT
Exhibit A Legal Description of Relinquished Property
Exhibit B Legal Description of Replacement Property
Exhibit C Replacement Property Agreement
Exhibit D Note
Exhibit E Pledge Agreement
Exhibit F Lease
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