EXHIBIT 6
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is made and entered into this 12th
day of February, 1998, by and between Mountaineer Park, Inc. a West Virginia
corporation ("Purchaser"), and Realm, Inc. and Ohio corporation (" Seller").
RECITALS
The Seller is a party to that certain Real Estate Sales Contract with
Brohha Land Company dated as of January 9, 1998, for the purchase of the
Property, as defined below.
Purchaser has previously loaned to Seller the amount of $240,000 for the
purpose of facilitating the purchase by Seller of the Property (the "Loan").
The Seller purchased, in fee simple, certain improved real property
located in Chester, Hancock County, West Virginia from the Brohha Land
Company on February 12, 1998.
The Seller and the Purchaser desire to enter into this Agreement to set
forth the terms and conditions upon which the Seller will sell and the
Purchaser will acquire such property.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions
(a) For all purposes of this Agreement, the following terms shall have
the respective meanings set forth below:
"Building" means any and all other buildings, structures and other
improvements located on the Land.
"Business Day" means any day other than a Saturday, Sunday, or other day
on which commercial banks are authorized or required to close under the laws
of the State in which the Property is located.
"Closing" shall mean the closing of the purchase and sale of the
Property in accordance with Section 7 hereof.
"Closing Date" shall mean the date of Closing provided for in Section 7.
"Contracts" means all contracts, agreements and obligations currently in
force relating to the Property, including, without limitation, all sale,
management, construction, leasing, insurance, commission, architectural,
engineering, operating, employment, service, supply and maintenance
agreements.
"Effective Date" means the date on which both Seller and Purchaser have
executed this Agreement.
"Existing Exceptions" means a lien against the Property for real estate
taxes not yet due and payable and those other matters affecting title to the
Property as are set forth on Exhibit B attached hereto.
"Federal Tax Law" means the Federal Foreign Investment in Real Property
Tax Act of 1980 and the 1986 Tax Reform Act, as amended.
"Governmental Authorities" shall mean any governmental or
quasi-governmental body or agency having jurisdiction over the Property
and/or the Seller, including, without limitation, the State of West Virginia
and Hancock County.
"Governmental Regulation" shall mean any laws, ordinances, rules,
requirements, resolutions, policy statements and regulations (including,
without limitation, those relating to land use, subdivision, zoning,
environmental, toxic or hazardous waste, occupational health and safety,
water, earthquake hazard reduction, and building and fire codes) of the
Governmental Authorities bearing on the construction, alteration,
rehabilitation, maintenance, use, operation or sale of the Property.
"Hazardous Materials" means toxic materials, hazardous waste, hazardous
substances [as these terms are defined in the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C. 6901, et seq.), in the Hazardous
Materials Transportation Act, 49 U.S.C. 1802 and/or in the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended
(42 U.S.C. 9601, et seq.)], asbestos or asbestos-related products, oils,
petroleum-derived compounds, radon, PCB'S, gas or oil storage tanks, or other
hazardous materials or pesticides as from time to time identified in any laws
ore regulations from time to time applicable to the Property.
"Insurance Company" shall mean the Title Insurance Company selected by
the Purchaser.
"Land" means that certain (i) approximate 350.19 acres of real property
owned by Seller (the "Real Property") located in the Hancock County, West
Virginia more fully described in Exhibit A, attached hereto and incorporated
herein, purchased by Logan from Brohha Land, Co, as seller, on or about
February ___ 1998, including (i) all right, title and interest of the Seller
in and to any easements, covenants and other rights' appurtenant to such Land
and (ii) all right, title and interest of the Seller in and to any land lying
in the bed of any existing dedicated street, road, avenue or alley, open or
closed, in front of or adjoining such land.
"Leases" means all leases or other agreements permitting the use or
occupancy of space on, under, over or about the Property, including all
amendments and exhibits thereto and assignments thereof.
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"Permits" means all evidence in the possession of Seller that the
present structure, use, operation and maintenance of the Property is
authorized by, and in compliance with, Governmental Regulations including,
but not limited to, true and correct legible copies of any or all
certificates of occupancy (or the equivalent), any or all permits, licenses
and other authorizations issued with respect to the Property.
"Person" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
limited liability company, limited liability partnership, governmental
authority, or other entity of whatever nature.
"Personal Property" means all personal property owned or used by Seller
in connection with the operation or maintenance of the Building.
"Property" means the Land, the Buildings, the Personal Property and all
utility and other intangibles relating to the ownership and operation of the
Property.
"Studies" means title examinations; surveys; architecture, financial,
financing, economic, marketing, engineering, and other tests, including test
borings, inspections, investigations, reviews, and/or other similar studies.
"Tenant" means any Person entitled to occupy or use any portion of the
Property pursuant to a Lease.
"Title Insurance Company" means the law firm of Geiger, Teeple, Smith &
Hahn, 260 East Main Street, Alliance, Ohio 44601.
(b) Whenever required by the context of this Agreement, the singular
shall include the plural and the masculine shall include the feminine and
vice versa.
2. Purchase and Sale of Property
(a) On the Closing Date, and subject to the terms and conditions of
this Agreement, the Seller agrees to sell and convey, and the Purchaser
agrees to acquire, 100% of the fee simple ownership of the Property. Title
to the Property shall be free and clear of all liens, encumbrances,
easements, covenants, conditions and other matters affecting title, except as
set forth in the Survey attached hereto and incorporated herein as Exhibit B
and shall be good of record and in fact merchantable and insurable at
standard rates.
(b) The Seller agrees that it will, at any time and from time-to-time
after the Closing Date, upon request of the Purchaser, do, execute,
acknowledge or deliver, all such further acts, deeds, assignments,
conveyances and assurances as may reasonably be required for the better
conveying, transferring, assigning, assuring and confirming the Property to
the Purchaser.
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3. Purchase Price and Terms of Payment
(a) The Purchase Price shall be $240,000.00. The Purchase Price shall
be payable by a forgiveness by Purchaser of the Loan owed by Seller to
Purchaser at settlement on the sale of the Real Property.
(b) On the Closing Date, all amounts set forth on the Settlement
Statement shall be disbursed in accordance with the joint instructions of the
Purchaser and the Seller.
4. Representations and Warranties of the Seller
The Seller represents and warrants to the Purchaser as follows:
(a) Seller is the record owner of fee simple title to the Property.
(b) Seller has not made, and prior to the Closing will not make, any
commitments to any Governmental Authorities, utility company, school board,
church or other religious body, or any homeowner or homeowners' association,
or to any other organization, group or individual, relating to the Property
which would impose any obligation on the Purchaser, or its successors or
assigns, after the Closing to make any contributions of money, dedications of
land or grant of easements or right-of-way, or to construct, install or
maintain any improvements of a public or private nature on or off the
Property.
(c) Seller has not received any notice that there are any wetlands of
any nature located on the Property and, to the best of its knowledge, there
are none.
(d) Seller has not received any notice that there are any special
assessments pending, noted or levied against the Property, and, to the best
of its knowledge, there are none, nor is there any proposed increase in the
assessed value of the Property.
(e) Except as set forth in that certain Phase I Environmental
Assessment of Blake & August Environmental, Inc. dated February 6, 1998, no
Hazardous Materials are located on or in the Property, including the surface,
soil or subsurface of the Property. Seller has received no notice that
Hazardous Materials contaminate or otherwise affect the Property; and to its
best knowledge, no Hazardous Materials are present on any adjacent property.
The Property has not been previously used for the storage, manufacture,
repair or disposal of Hazardous Materials, or machinery containing such
Hazardous Materials. No complaint, order, citation or notice with regard to
air emissions, water discharges, noise emissions, Hazardous Materials, or any
other environmental, health, or safety matters affecting the Property, or any
portion thereof, from any person, government or entity, has been received by
Seller. All federal, state and local environmental laws and regulations
affecting the Property and Hazardous Materials have been fully complied with,
and no heating equipment, incinerator or other burning equipment installed or
located in or on the Property violates any law, ordinance, order or
regulation of any Governmental Authority.
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(f) Seller is a "United States person" within the meaning of Sections
1445(f)(3) and 7701(a)(3) of the Internal Revenue Code of 1986, as amended.
(g) No attachment, execution proceedings, assignments for the benefit
of creditors, insolvency, bankruptcy, reorganization, or other proceedings
are pending or threatened against Seller or its general partner(s),
collectively or individually.
(h) Seller has paid or caused to be paid all real estate taxes, income
taxes, special assessments and other taxes, that are due on or before the
Closing Date and, if not paid, could result in a lien or charge against the
Property and/or the Seller.
(i) Seller has the legal power, right and authority to enter into this
Agreement and the instruments referenced herein and to consummate the
transactions contemplated hereby.
(j) This Agreement and all documents required hereby to be executed by
Seller are and shall be valid, legal, binding obligations of, and enforceable
against, Seller in accordance with their terms, subject only to applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws, or
equitable principles affecting or limiting the rights of contracting parties
generally.
(k) Neither the execution and delivery of this Agreement and the
documents referenced herein nor the consummation of the transactions
contemplated herein nor compliance with the terms of this Agreement and the
documents referenced herein conflict or result in the material breach of any
terms, conditions or provisions of, or constitute a default under, any bond,
note or other evidence of indebtedness or any contract, indenture, mortgage,
deed of trust, loan, partnership agreement, lease or other agreements or
instruments to which Seller or any of its partners is a party or affecting
the Property or by which Seller or any of its partners may be bound.
(l) Seller is neither insolvent nor the debtor in any bankruptcy,
receivership or similar proceeding; and no party of the Property is currently
subject to the jurisdiction or supervision of any court in any such
proceeding.
5. Additional Undertakings of the Seller
Seller shall perform the following undertakings:
(a) On the Closing Date, Seller shall execute, acknowledge and deliver
to the Purchaser a good and sufficient general warranty deed in proper form
for recording, conveying fee simple absolute to the Real Property to the
Purchaser or Purchaser's designee, free and clear of all liens, leases
encumbrances, covenants, conditions and other matters affecting title, and,
as required by Purchaser, assignments of and/or bills of sale for each of the
foregoing (including appropriate indemnification).
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(b) The Seller shall give possession and occupancy of the Property to
the Purchaser on the Closing Date and in the event the Seller shall fail to
do so and Purchaser nonetheless elects in its sole discretion to purchase the
Property, the Seller shall become and thereafter be a tenant by sufferance of
the Purchaser.
(c) If requested to do so by the Purchaser, on the Closing Date the
Seller shall execute and deliver to the purchaser, or any title insurance
company designated by it, an owner's Affidavit, in the customary form, with
respect to the absence of claims which would give rise to mechanics' liens
and the absence of parties in possession of the Property other than the
Seller and Tenants pursuant to the terms of Leases or shall provide such
other assurances as shall be required to enable Purchaser to obtain the title
insurance policy to be issued pursuant to the title commitment referred to in
Section 6(b).
6. Conditions Precedent to the Obligations of the Purchaser
The obligation of the Purchaser to purchase the Property shall be
subject to the following conditions (all or any of which may be waived, in
whole or in part, by the Purchaser):
(a) The representations and warranties made by the Seller in Section 5
shall be true and correct in all material respects on and as of the Closing
Date.
(b) On the Closing Date, (i) the Seller's title to the Property shall
be marketable, good of record and in fact, and free-and-clear of all liens,
mortgages, deeds of trust, encumbrances, easements, leases, conditions and
other matters affecting title other than as set forth on the Survey, and (ii)
Purchaser's Title Insurance Company shall have committed unconditionally to
issue to the Purchaser or its designee, at standard rates, an ALTA Form B
owner's title insurance policy covering the Property, including such
endorsements as Purchaser may reasonably require, in an amount at least equal
to the Purchase Price, insuring title to the Property in the condition
required by clause (i) of this paragraph.
7. Closing
(a) The Closing shall take place on February ____ 1998. Closing shall
take place at the office of the Title Company or at such other location in
the Chester, West Virginia area as Purchaser and Seller shall designate
jointly. The Insurance Company shall conduct the Closing.
(b) The delivery to the Insurance Company of the Purchase Price, the
executed deed of conveyance, assignments of the Leases and Security Deposits
and all other documents and instruments required to be delivered by either
party to the other by the terms of this Agreement shall be deemed to be a
good and sufficient tender of performance of the terms hereof.
(c) The following items of income and expense shall be adjusted as of
11:59 p.m. on the day prior to the Closing Date.
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(i) Real estate and personal property taxes with respect to the
Property. (Assessments, if any, for improvements completed prior to the
Closing Date, whether assessment therefor has been levied or not, shall be
adjusted as of the Closing Date and thereafter assumed by the Purchaser.)
(ii) Fuel, water and sewer service charges and charges for oil,
electricity, telephone and all other public utilities.
(iii) Rental and all other income (including common area
charges and other "pass-throughs") received from Tenants.
(iv) All charges payable pursuant to the Contracts.
If meters measure the consumption of water, gas and/or electric current
at the Property by the Seller (as opposed to by Tenants), Seller shall cause
such meters to be read on the day prior to the Closing Date and shall pay all
utility bills resulting therefrom promptly upon receipt thereof.
8. Termination
(a) If (i) any of the representations and warranties made by the Seller
in Section 4 shall be materially inaccurate or incorrect, (ii) the Seller
shall fail to perform any of the covenants or agreements to be performed by
the Seller under this Agreement, or (iii) the Purchaser shall be relieved of
its obligation to purchase the Property by operation of Section 6, then, in
any such event, the Purchaser, in its sole and absolute discretion, shall
have the right either (A) to extend the Closing Date for a sufficient period
to allow Seller to satisfy conditions specified in Section 6; (B) to
terminate this Agreement by giving written notice to the Seller; or (C) in
lieu of terminating this Agreement, to seek specific performance of this
Agreement. In the event of (A) - (C) above, Purchaser reserves all rights it
may have to seek damages incurred by it, specifically including but not
limited to a refund to Purchaser of all costs incurred in connection with
the third party Studies. Further, in the event Seller refuses or fails to
deliver title to the Property as aforesaid, then Purchaser shall not be
obligated to forgive the Loan and shall at its sole option be permitted to
elect an offset against the Purchase Price of that additional 350 acre tract
which Seller and Realm Incorporated have previously granted Purchaser an
option to purchase.
9. Brokers
Seller and Purchaser each represent and warrant to the other than no
broker has been involved in this transaction on behalf of Seller or
Purchaser, respectively. Seller and Purchaser shall indemnify and hold the
other, its partners, agents and employees, harmless against any and all
claims, damages and expenses, including reasonable attorneys fees, incurred
by the other party due to a claim by any other broker or agent alleging to be
entitled to a fee or commission
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due to work on this transaction on behalf of Seller or Purchaser, respectively.
10. Foreign Person
If Seller is not a "foreign person," as defined in the Federal Tax Law,
then at the Closing, Seller will deliver to Purchaser a certificate so
stating, in a form complying with the Federal Tax Law. If Seller is a
"foreign person" or if Seller fails to deliver the required certificate at
the Closing, then in either such event the funding to Seller at the Closing
will be adjusted-to the extent required to comply with the withholding
provisions of the Federal Tax Law; and although the amount withheld will
still be paid at the Closing by Purchaser, it will be retained by the Title
Company for delivery to the Internal Revenue Service, together with the
appropriate Federal Tax Law forwarding forms (and with copies being provided
both to Seller and to Purchaser).
11. Entire Agreement
No change or modification of this Agreement shall be valid unless the
same is in writing and signed by the parties hereto. No waiver of any of the
provisions of this Agreement shall be valid unless in writing and signed by
the party against whom it is sought to be enforced. This Agreement contains
the entire agreement between the parties relating to the purchase and sale of
the Property, all prior negotiations between the parties are merged in this
Agreement and there are no promises, agreements, conditions, undertakings,
warranties or representations, oral or written, express or implied, between
them other than as set forth in this Agreement.
12. Survival of Representations, Warranties and Agreements
The representations, warranties, covenants, agreements and indemnities
set forth in or made pursuant to this Agreement shall remain operative and
shall survive the Closing under this Agreement and the execution and delivery
of the deed and other conveyance documents hereunder and shall not be merged
therein, regardless of any investigation made by or on behalf of any party.
13. Benefit and Burden
The Seller may not assign its rights and obligations under this
Agreement prior to the Closing Date without first obtaining the prior written
consent of the Purchaser. All terms of this Agreement shall be binding upon,
and inure to the benefit of, the parties hereto and their respective legal
representatives, successors and assigns. If the Purchaser assigns its rights
under this Agreement, the Purchaser shall promptly deliver an executed copy
of the instrument of assignment to the Seller.
14. Risk of Loss
Except as otherwise expressly provided in Section 9 above, the risk of
loss or damage to the property by fire or other casualty is assumed by Seller
until recordation of the deed of
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conveyance to Purchaser.
15. Governing Law
This Agreement concerns property located in the State of West Virginia,
and shall be construed and enforced in accordance with the laws of the State
of West Virginia.
16. Notices
All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered
personally or if deposited in the United States mail, properly addressed and
postage prepaid or if delivered to Federal Express or other recognized
overnight delivery service, (i) if to the Seller, Route 2, Box 386, Chester,
West Virginia 26034 with a copy to ; (ii)
if to the Purchaser, Mountaineer Park, Inc., Route 2 , Box 358, Chester, West
Virginia 26034, Attn. Edson R. Arneault with a copy to Ruben & Aronson, LLP,
1101 30th Street, N.W., Suite 500, Washington, D.C. 20007, Attn.: Louis M.
Aronson; or (iii) at such other address as may be given by either party to
the other party by notice in writing pursuant to provisions of this Section.
17. Counterparts
This Agreement may be executed simultaneously in one or more
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
18. Miscellaneous
(a) If the date on which either the Purchaser or the Seller is required
to take action under this Agreement is not a Business Day, the action shall
be taken on the next succeeding Business Day.
(b) The captions of the various sections and paragraphs of this
Agreement have been inserted only for the purpose of convenience; such
captions are not a part of this Agreement and shall not be deemed in any
manner to modify, explain, enlarge or restrict any of the provisions of this
Agreement.
(c) Seller and Purchaser agree that the proposed terms and conditions,
and all information (other than information which is a matter of public
record or is provided by other sources readily available to the public)
shared or developed in the context of this transaction shall be kept strictly
confidential.
IN WITNESS WHEREOF, the Purchaser and the Seller have signed this
Agreement on the day and year first above written.
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PURCHASER:
MOUNTAINEER PARK, Inc.
By: /s/ Edson R. Arneault
------------------------------
Its: President
-----------------------------
SELLER:
REALM, INC.
/s/ Robert C. Logan
---------------------------------
By: Robert C. Logan
Its: President
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