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FORM OF REAL ESTATE SALES CONTRACT

Real Estate Purchase and Sale Agreement

FORM OF REAL ESTATE SALES CONTRACT | Document Parties: YRC WORLDWIDE INC You are currently viewing:
This Real Estate Purchase and Sale Agreement involves

YRC WORLDWIDE INC

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Title: FORM OF REAL ESTATE SALES CONTRACT
Date: 5/11/2009
Industry: Trucking     Sector: Transportation

FORM OF REAL ESTATE SALES CONTRACT, Parties: yrc worldwide inc
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Exhibit 10.9

FORM OF REAL ESTATE SALES CONTRACT

THIS REAL ESTATE SALES CONTRACT (this “Contract”) is made effective as of the later of the date signed by Buyer or the date signed by Seller (the “Effective Date”) between Estes Express Lines, a Virginia Corporation (“Buyer”), and                     , a                      corporation (“Seller”).

WITNESSETH

In consideration of Ten Dollars ($10.00) and the mutual covenants and agreements herein contained, the receipt and sufficiency of which are hereby acknowledged, Buyer hereby agrees to buy, and Seller hereby agrees to sell, upon the following terms and conditions, the real estate, including all improvements and fixtures thereon, located for street numbering purposes at                     , and further described on Exhibit “A” attached hereto (collectively, the “Property”):

1. PURCHASE PRICE . The purchase price for the Property shall be                      DOLLARS ($            ) (the “Purchase Price”), payable at the time of Closing (as defined in Section 8) by applying the Deposit (as defined in Section 2) and Buyer paying the balance by cash, cashier’s check, certified check or wire transfer of funds, in each case, paid to the order of Seller.

2. DEPOSIT . Buyer shall deposit with the Escrow Agent (as defined in Section 9) within ten (10) days after the Effective Date, the sum of                     DOLLARS ($            ) (the “Deposit”), which shall be held by the Escrow Agent and shall be applied against the Purchase Price at the Closing.

3. POSSESSION . Possession of the Property shall be given to the Buyer immediately after Closing.

4. EVIDENCE OF TITLE .

(A) Buyer shall obtain a title insurance commitment (the “Commitment”) issued by the Escrow Agent, pursuant to which the title insurance company commits that at the Closing it will issue its owners policy of title insurance (“Buyer’s Policy”), insuring fee simple title to the Property to be in Buyer’s name in the total amount of the Purchase Price, free and clear of all liens, encumbrances, restrictions and conditions of title except the following (the “Permitted Exceptions”): (1) utility easements for utility service to the Property, (2) zoning ordinances, (3) legal highways, (4) real property taxes (and their lien, if any) which are not delinquent as of Closing, (5) assessments which are not delinquent as of Closing, (6) rights of way and easements which do not materially adversely affect title to or use of the Property, (7) the standard preprinted exceptions contained in the Commitment and Buyer’s Policy, (8) matters which an accurate survey of the Property would disclose, and (9) any other restrictions, easements, encumbrances or other matters which do not materially adversely affect title to or use of the Property. Any liens, encumbrances, restrictions and conditions of title other than the “Permitted Exceptions” are herein referred to as the “Non-Permitted Exceptions”.

(B) Buyer shall notify Seller in writing of any Non-Permitted Exceptions to which Buyer objects within fifteen (15) days following Buyer’s receipt of the Commitment. If Buyer


does not provide Seller with said notice within such fifteen (15) day period, Buyer shall be deemed to have accepted the state of title disclosed in the Commitment and shall have waived any right to object to any exceptions to Seller’s title.

(C) Seller may, but shall not be obligated to, remove any Non-Permitted Exceptions so objected to by Buyer within thirty (30) days after receipt of Buyer’s written notice under Section 4(B). Seller shall not be required to bring any action or proceeding or otherwise incur any expense in order to remove any such Non-Permitted Exception; excepting the payment of indebtedness evidenced by any deed of trust or mortgage but with respect to the lien of JP Morgan Chase encumbering the Property, Seller shall use its commercially reasonable efforts to have such lien released at Closing. If Seller is unable to obtain a lien release from JP Morgan Chase by Closing, either Buyer or Seller may terminate this Contract by written notice to the other, in which case Buyer shall be entitled to prompt return of the Deposit and Seller shall be obligated to reimburse Buyer for all out-of-pocket costs incurred by Buyer related to this Contract. If Seller is unable to remove any other such Non-Permitted Exception within such thirty (30) day period, the Deposit shall be returned to Buyer forthwith and this Contract shall automatically terminate, relieving the parties of any further obligations and/or liabilities hereunder, unless Buyer notifies Seller in writing within five (5) days after the expiration of such thirty (30) day period that Buyer is willing to accept such title as Seller may be able to convey, without reduction of the Purchase Price and without further obligation on the part of the Seller.

5. DEED . Seller shall convey to Buyer fee simple title to the Property by a recordable limited or special warranty deed (the “Limited Warranty Deed”). The parties agree that the Limited Warranty Deed shall warrant title only as against those persons claiming by, through or under Seller, but not otherwise, and shall be subject to the Permitted Exceptions and to all Non-Permitted Exceptions accepted or deemed accepted by Buyer.

6. REAL ESTATE TAXES AND ASSESSMENTS . Seller shall pay all delinquent real estate taxes, including penalties and interest, and shall pay or credit against the Purchase Price all other real estate taxes which are due and payable by the date of Closing. Seller shall also pay all real estate assessments which are due and payable by the date of Closing. If Seller has already paid the real estate taxes and/or assessments for the current tax year, it shall be noted on the Closing Statement (as defined in Section 9).

7. INSPECTION; DUE DILIGENCE; SELLER’S REPRESENTATIONS AND WARRANTIES .

(A) Seller agrees to provide Buyer with a copy of the following documents (to the extent such documents are in possession or control of Seller): (i) any survey of the Property, (ii) all approved or pending site plans relating to the Property, (iii) all environmental reports, studies or data, including any Phase I or Phase II, together with the results of any environmental testing of the Property, (iv) existing title insurance policies, commitments or exceptions, (v) any zoning permits, special exception, special use permits, variances or similar approval relating to the Property, and (vi) all notices of outstanding code violations, as well as copies of any notices of previous code violations with evidence of cure. Buyer, at its own expense, may have any survey provided by the Seller updated or may obtain a new survey. Seller grants to Buyer and persons designated by Buyer permission to enter upon the Property in order to make surveys, bores, soil bearing tests and other tests (including hazardous substances), provided that Buyer shall notify Seller at least 48 hours in advance of such testing. Such testing shall be so conducted as not to

 

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damage the Property. Buyer hereby agrees to indemnify, defend and hold Seller harmless from and against any and all damages, liens, injuries, actions, claims or costs, including reasonable attorneys fees, arising in any manner, directly or indirectly, from Buyer’s or its designees’ activities on or with respect to the Property, which indemnity shall survive the termination of this Contract for six months. Buyer shall (i) keep all due diligence materials delivered by the Seller and all information, data and reports concerning or arising from any such tests confidential to the extent permitted by applicable law and shall not disclose or divulge the same to any third party (other than Buyer’s lender, attorneys, accountants, consultants, advisors and except as required by court order) without Seller’s prior written consent, which Seller may withhold in its sole and absolute discretion, and (ii) provide copies of all such information, data and reports to Seller upon written request therefore from Seller.

(B) Buyer shall have [thirty (30)] [thirty-six (36)] [sixty (60)] days from the Effective Date within which to conduct the surveys and tests referred to in Section 7(A) and to obtain written evidence of any necessary financing for this purchase from a reputable institutional lender (the “Inspection Period”). [Buyer shall have an option to extend the Inspection Period for [one] [two] additional thirty (30) day period[s] by providing Seller with written notice exercising this option prior to the expiration of the Inspection Period (“Extended Inspection Period”).] In the event that Buyer does not terminate this Contract pursuant to Section 7(C) below, Buyer agrees to accept the Property in its present condition as of the Effective Date. Buyer represents and warrants that it is qualified through experience and training to make such investigation of the condition of the Property, both as to the type of investigation and as to the extent of the investigation, and that if Buyer is not qualified to make such investigation Buyer shall have the investigation made by persons who are so qualified. In purchasing and accepting the Property in its present condition, Buyer represents that it will rely solely upon its own investigation and will not rely upon any investigation or disclosure of Seller regarding the Property (excepting any representations and warranties expressly contained herein).

(C) In the event that Buyer determines prior to the end of the Inspection Period [and/or Extended Inspection Period] that the Property is not suitable for any reason or Buyer fails to obtain written evidence of any necessary financing for this purchase from a reputable institutional lender, Buyer may provide written notice to Seller terminating this Contract, in which event the Deposit shall be returned to Buyer and the parties shall have no further obligation to one another hereunder. If Buyer fails to give such notice of termination to Seller prior to the end of the Inspection Period [and/or Extended Inspection Period], Buyer shall be deemed to have waived any objection to the Property and to have affirmed this Contract and elected to purchase the Property with no reduction in the Purchase Price.

(D) Seller has not made, and shall not be deemed to have made, and Buyer has not relied upon, any representation or warranty, either express or implied, to Buyer, or any person representing Buyer, or any person or entity upon which Buyer relies in purchasing the Property as to any matter whatsoever concerning the Property except for any representation or warranty expressly set forth in this Contract (including, without limitation, Section 7(E) below). Except as otherwise expressly provided herein, Buyer acknowledges that the purchase of the Property by Buyer is on an “AS IS” basis. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BUYER EXPRESSLY AGREES TO ACCEPT THE PROPERTY “AS IS” AND “WHERE IS”. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLER SHALL UNDER NO CIRCUMSTANCES BE DEEMED TO HAVE MADE, AND SELLER HEREBY DISCLAIMS, ANY REPRESENTATION OR WARRANTY, EITHER EXPRESS OR

 

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IMPLIED. Except as otherwise expressly provided herein, Seller shall not be obligated to conduct any inquiry or investigation regarding the condition of the Property in connection with this Contract. The provisions of this Section 7 (D) shall survive the delivery and recording of the Limited Warranty Deed for record.

(E) The Seller represents and warrants to the Buyer as follows:

(i) Organization and Power. Seller has all requisite powers to enter into and perform its obligations hereunder and under any document required to be executed and delivered on behalf of the Seller hereunder.

(ii) Bankruptcy. Except as disclosed in writing to Buyer prior to the expiration of the Inspection Period, no petition in bankruptcy (voluntary or to Seller’s knowledge involuntary), assignment for the benefit of creditors, or petition seeking reorganization or arrangement or other similar action under Federal or state bankruptcy or insolvency law is pending against or contemplated by Seller.

(iii) Authorization and Execution. This Contract constitutes the valid and binding agreement of the Seller and is enforceable in accordance with its terms, subject to bankruptcy, insolvency and similar laws applicable to creditor’s rights or the collection of debtor’s obligations generally and to general principles of equity. Except for JP Morgan Chase, there is no other person or entity whose consent is required in connection with the Seller’s performance of its obligations hereunder.

(iv) Leases. There are no parties in possession, tenancies, leases or side agreements with tenants or others affecting the Property.

(v) Contracts; Management and Service Contracts. Except for this Contract, there are no contracts of sale, purchase options or first offer or refusal rights, agreements or restrictions (written or oral) affecting the Property to which the Seller is a party or of which the Seller has knowledge that would in any way adversely affect the Seller’s ability to perform its obligations hereunder. To Seller’s knowledge, there are no management agreements, service contracts, listing agreements or any other agreements (written or oral) affecting the Property or the operation, use or maintenance thereof except the Permitted Exceptions.

(vi) Violation of Law. The Seller has no knowledge of any violation of federal, state or local law or ordinances, orders or regulations with respect to the Property including, but not limited to, those pertaining to building, zoning and environmental requirements.

(vii) Planned Improvements. The Seller has no knowledge of any special assessments against the Property or any planned public improvements which may result in a special assessment against the Property.

(viii) Legal Proceedings. There are no proceedings pending or, to Seller’s knowledge, threatened against or relating to the Property including, without limitation, any proceedings relating to condemnation or the exercise of the right of eminent domain as to any part of the Property, or purchase in lieu thereof, or for limiting or denying any right of access thereto.

 

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(ix) Hazardous Substances. To Seller’s knowledge, the Property is not identified on the current or proposed (i) National Priorities List under 40 C.F.R. ß 300, (ii) Comprehensive Environmental Response Compensation and Liability Inventory System (“CERCLIS”) list, or (iii) any list arising from a state statute similar to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. ß 9601 et seq.(“CERCLA”). There are no present or, to Seller’s knowledge, past actions, activities, circumstances, conditions, events or incidents affecting the Property that would be in violation of any Environmental Laws (as defined in Section 18) such that it would be a basis for assertion of any claim against the Buyer under any Environmental Laws relating to protection of human health or the environment, including, without limitation, any release (as defined in CERCLA, or in any applicable state or local law or regulation) of any chemical substances, asbestos or asbestos-containing materials, formaldehyde, polychlorinated biphenyls, toxic, carcinogenic, radioactive, or other hazardous material, substance, waste, contaminant, or pollutant regulated now or hereafter by any governmental entity or agency (collectively, “Hazardous Materials”). Except as disclosed in writing to Buyer prior to the expiration of the Inspection Period, there are currently no underground storage tanks existing on the Property, and, to Seller’s knowledge, except as disclosed in writing to Buyer prior to the expiration of the Inspection Period, no underground storage tanks have existed on the Property, which are or were used to store Hazardous Materials of any kind.

(x) Zoning. To Seller’s knowledge, the present use of the Property is a permitted use under the zoning classification applicable to the Property without any rezoning, special exception, use permit or variance being required therefor. To Seller’s knowledge, the Property has not been subject to any application for any rezoning, special use permit, conditional use permit, proffer amendment, plan of development or other land use permit or approval within the past twelve (12) months.

The phrases “to Seller’s knowledge” or “Seller has no knowledge” or similar phrases shall mean the actual conscious knowledge of individuals in YRC’s Real Estate and Properties department or Environmental Services department, without any duty to investigate.

At Closing, the Seller shall deliver a certificate to Buyer stating that the representations and warranties made by


 
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