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