AGREEMENT TO PURCHASE

DATE:October ___, 2009

PARTIES: FCB Holdings, LLC “Seller;” and

______, “Buyer.”

RECITALS:

  1. Seller is owner of the property (the “Property”) described as: 500 Alfred Nobel Drive, Suite 137, Contra Costa County, California, is described as Contra Costa County Assessors Parcel Number: 404-710-037-7. The Property is more particularly described in Exhibit A and attached hereto, and the term “Property” shall include all easements and other rights and privileges appurtenant to the land described above, all real estate improvements located on that land and, to the extent transferable and assignable by their terms, Seller’s warranties and guarantees covering such improvements.
  2. Seller has offered to sell and assign said Property pursuant to an online Auction conducted by Dennis West, West Auctions (“Auctioneer” or “West” or “Westauction.com”), the terms of such Auction set forth in Exhibit B hereto.
  3. Buyer has submitted the highest bid on said Auction within the time allowed under the terms thereof.
  4. By this Agreement, the parties set forth their Agreement for the sale and assignment of the Property.

AGREEMENTS:

The parties mutually agree as follows:

  1. PURCHASE AND SALE: Buyer hereby agrees to purchase from Seller, and Seller hereby agrees to sell to Buyer the Property for the Purchase Price of ______$______Dollars ($,000.00).
  2. DEPOSIT: Buyer has deposited with Auctioneer the sum of $1,000.00, which Deposit shall be applied to the Purchase Price on Close of Escrow as provided herein. Buyer shall increase the Deposit by _____$______to a total of ten percent (10%) of the bid price by close of business on no less than 48 hours on July______, 2009, for a total Deposit of $______. The Deposit shall be held by Auctioneer pending Close of Escrow and transferred to the Escrow Holder at Close of Escrow.
  3. BALANCE OF PURCHASE PRICE: The balance of the Purchase Price, _____$______(not including the Buyer Premium) shall be paid by Buyer to Seller at Closing.
  4. ESCROW: An Escrow for this transaction shall be opened at Placer Title Company, Woodland, California (“Escrow Holder”), or at such other location as the parties may mutually agree. The Escrow Fees charged by the Escrow Holder shall be paid one-half by the Seller and one-half by the Buyer. Close of Escrow shall be not later than 30 days from Deposit date on November______, 2009, (the “Closing Date”). Possession of the Property shall be delivered on Close of Escrow.
  5. TITLE INSURANCE: If Buyer desires a policy of title insurance, Buyer shall immediately request a preliminary report from the Escrow Holder and shall pay all costs and expenses of the preliminary report and policy.
  6. CONTIGENCIES: There are no contingencies to this transaction.
  7. CLOSING DOCUMENTATION: At Close of Escrow, Buyer shall receive the following:
  8. A grant deed (the “Deed”) conveying to Buyer title to the Property, including oil, mineral and water rights currently owned by Seller, free and clear of all liens and encumbrances, except (a) applicable zoning ordinances and other legal requirements and restrictions; (b) taxes and assessments not yet delinquent; (c) easements, conditions, restrictions, agreements and other matters of record (excluding any lien securing a loan to Seller); (d) matters that would be revealed by a current survey and inspection of the Property; (e) binding but un-recorded leases executed prior to Effective Date; and (f) other title matters approved or not timely objected to by Buyer pursuant to Section 10 below (collectively, the “Permitted Encumbrances”). It shall be Buyer’s obligation to examine title and obtain an ALTA title insurance commitment.
  9. A Bill of Sale conveying the Intangible Property to Buyer without warranty, together with any plans, specifications, manuals, warranties and guarantees regarding the Property in Seller’s possession.
  10. An owner’s lien affidavit in form reasonably acceptable to Buyer’s title insurer.
  11. An affidavit in a form complying with law that Seller is not a “foreign person” within the meaning of the Foreign Investment in Real Property Tax Act.
  12. CLOSING EXPENSES: Each party shall be responsible for the following closing expenses:
  13. Seller shall be responsible for the cost of preparation of the Deed.
  14. Buyer shall be responsible for all other recording costs not covered in Section 7(a), and the cost of title examination, the title insurance premium, the survey contemplated by Section 11 below, and all other due diligence investigations.
  15. The parties will each be responsible for all of their other closing costs, including their respective attorneys’ fees.
  16. PRORATIONS: Ad valorem taxes and assessments on the Property due and payable in the year of Closing; rental income, prepaid expenses, utility charges and deposits, if any, with respect to the Property; and all other customarily proratable items shall be prorated as of the Closing Date on the basis of the most recent ascertainable amounts or other reliable information in respect to each such item. The net credit to Buyer or Seller shall be paid in cash or as a credit or debit against the Purchase Price. Taxes and assessments shall be prorated on a calendar year basis. If the tax bill for the year of Closing is not available at the time of Closing, ad valorem taxes will be re-prorated within thirty (30) days after receipt of the tax bill for the year of Closing. The provisions of this Section shall survive Closing.
  17. TITLE EXAMINATION: Buyer shall have two days to examine the title to the Property upon delivery of the final title insurance commitment. Buyer shall advise Seller in writing, within two days of delivery of title report, of any objections it may have to title, and Seller shall have a period of ten (10) days after the date of the notice within which to remedy the objections to the satisfaction of Buyer, provided that Seller shall have no obligation to remedy any such objection except as provided below. Seller agrees, at or prior to Closing, to provide for the payment of any mortgage or deed of trust encumbering the Property granted by Seller. If any other objections raised by Buyer are not cured or remedied within the ten (10) day period, Buyer may at its election either: (a) accept title to the Property subject to the objections, or (b) terminate this Agreement, and receive the return of the Deposit. In addition, Seller agrees that it shall not cause any new encumbrance to be placed on or granted with respect to the Property, other than those existing as of the Effective Date, without the prior written consent of Buyer. If any such new encumbrances arise after the Effective Date and prior to the Closing Date and Buyer objects, Seller shall, at its sole expense, cure the objections.
  18. SURVEY: Buyer may, at its option, cause a licensed surveyor or engineer to prepare an accurate survey of the Property. Buyer shall provide copies of its survey and title insurance commitment for the Property to Seller upon Buyer’s receipt of such items. Buyer is purchasing the property based on their own examination of land size and not actual surveyed size.
  19. DELIVERY OF POSSESSION: Seller shall deliver exclusive possession of the Property to Buyer on the Closing Date subject to all existing leases. Seller shall remove its trade fixtures, equipment, furniture and other personal property (other than building mechanical systems) from the Property prior to Closing, and repair any damage to the Property caused by such removal.
  20. OPERATION OF PROPERTY: Seller agrees to continue to maintain the Property in substantially the same manner between the Effective Date and the Closing Date as it currently is being maintained, subject to ordinary wear and tear, casualty and other events beyond the reasonable control of Seller. From and after the Effective Date until any termination of this Agreement, Seller agrees to enter into no new agreements, leases or contracts encumbering the Property that will survive the Closing without Buyer’s prior written consent.
  21. REPRESENTATION AND WARRANTIES BY SELLER: Seller represents and warrants to Buyer that:
  22. Seller owns, or as of Closing will own, fee simple title to the Property.
  23. Seller has full power and authority to enter into this Agreement, and to convey the Property to Buyer in accordance with the terms of this Agreement.
  24. The execution and performance of this Agreement by Seller will not conflict with any provision of law applicable to Seller, nor will it result in the breach of any provision of, or constitute a default under, any agreement or instrument to which Seller is a party, or of Seller’s articles of incorporation or bylaws, or of any order or decree of any court or arbiter to which Seller is a party.
  25. This Agreement and the documents to be delivered by Seller at Closing have been or will be duly authorized by all necessary action on the part of Seller, and have been or will be duly executed and delivered by Seller, and is a binding obligation of Seller.
  26. Seller has received no notice of any pending or threatened condemnation proceedings that affects the Property.
  27. To the best of Seller’s knowledge, all mechanical systems are in good working order.
  28. To the best of Seller’s knowledge, Seller has not located, stored, placed, disposed of, affixed or otherwise used at, on, upon or within the Property any Hazardous Material, as defined below, in violation of any applicable legal requirement. As used herein, “Hazardous Material” means any substance or material that:
  29. is designated as a hazardous waste, hazardous substance, hazardous material, pollutant, contaminant or toxic substance under any law or regulation for the protection of the environment; or
  30. is or contains petroleum hydrocarbons.
  31. The truthfulness of each of the foregoing matters is a condition precedent to Buyer’s performance under this Agreement, and all of the foregoing matters shall be deemed repeated at Closing. Upon the breach by Seller of any representation or warranty made in this Section, Buyer may, prior to the Closing Date, terminate this Agreement and receive the return of the Deposit. The foregoing remedy is not intended to be an exclusive remedy of Buyer.
  32. AS IS NATURE OF PURCHASE: Except as expressly set forth in this Agreement, the Property is being sold and conveyed to Buyer “as is” and “with all faults.” Except as expressly set forth in this Agreement, Seller has not made, does not make, and hereby disclaims any and all express or implied representations and warranties regarding or relating to: the condition of the Property, its suitability for any particular purpose; the susceptibility to flooding of the Property; the value or marketability of the Property; the acreage of the Property, the layout or square footage of the improvements on the Property; the projected income or expenses of the Property; the zoning classification, or use and occupancy restrictions, applicable to the Property; the current manner of operation of the Property; the compliance of the Property with environmental laws or other legal requirements; the presence of Hazardous Materials; and all other matters affecting or relating to the Property. Buyer acknowledges that, except as expressly set forth in this Agreement, no such representations or warranties, express or implied, have been made by Seller, or by any other person representing or purporting to represent Seller. The terms and covenants of this Section shall survive the Closing.
  1. BUYER INDEMNITY AND SELLER PROTECTION FOR ENTRY UPON PROPERTY: Buyer shall:
  1. keep the Property free and clear of liens;
  2. repair all damage arising from Buyer Investigations; and
  3. indemnify and hold Seller harmless from all resulting liability, claims, demands, damages and costs. Buyer shall carry, or Buyer shall require anyone acting on Buyer’s behalf to carry, policies of liability, workers’ compensation and other applicable insurance, defending and protecting Seller from liability for any injuries to persons or property occurring during any Buyer Investigations or work done on the Property at Buyer’s direction prior to Close Of Escrow. Seller is advised that certain protections may be afforded Seller by recording a “Notice of Non-Responsibility” for Buyer Investigations and work done on the Property at Buyer’s direction. Buyer’s obligations under this paragraph shall survive the termination of this Agreement.
  1. CONDEMNATION OR CASUALITY DAMAGE: If, prior to the Closing Date, the Property or any part thereof is damaged or destroyed by fire, the elements or any other destructive force or cause, then, within ten (10) days of any such damage or destruction, Seller shall give written notice to Buyer specifying the insurance carrier’s estimate of the amount of insurance payable as the result of such damage or destruction. Within ten (10) days after the notice described in the preceding sentence, Buyer may elect to terminate this Agreement by delivery of written notice to Seller, in which case the Deposit shall be returned to Buyer. If Buyer elects to consummate the purchase despite the damage or destruction, there shall be no reduction in or abatement of the Purchase Price, and Seller shall assign to Buyer all of Seller’s right, title and interest in and to all insurance proceeds, if any, resulting from the damage or destruction. If, prior to the Closing Date, any condemnation proceedings are instituted in which a taking of any material portion of the Property is proposed, then within five (5) days of notice of the institution of the condemnation proceedings, Seller shall give written notice to Buyer. Within ten (10) days after the notice described in the preceding sentence, Buyer may elect to terminate this Agreement by delivery of written notice to Seller, in which case the Deposit shall be returned to Buyer. If Buyer elects to consummate the purchase despite the institution of condemnation proceedings, there shall be no reduction in or abatement of the Purchase Price, and Seller shall assign to the Buyer all of Seller’s right, title, and interest in and to any award or settlement made or to be made in the condemnation proceedings.
  2. OTHER TERMS, CONDITIONS, AND PROVISIONS: The terms, conditions, and provisions attached hereto as Exhibit B are incorporated herein by reference and made a part of this Agreement as if set forth herein in their entirety. In the event of any inconsistency between the terms, conditions, and provisions set forth in Exhibit B and an express provision in this document, the term, condition, or provision set forth shall control over that set forth in Exhibit B.
  3. ENVIRONMENTAL HAZARD CONSULTATION: Buyer and Seller acknowledge:
  4. Federal, state, and local legislation impose liability upon existing and former owners and users of real property, in applicable situations, for certain legislatively defined, environmentally hazardous substances;
  5. Auctioneer or Broker(s) has/have made no representation concerning the applicability of any such Law to this transaction or to Buyer or to Seller, except as otherwise indicated in this Agreement;
  6. Auctioneer or Broker(s) has/have made no representation concerning the existence, testing, discovery, location and evaluation of/for, and risks posed by, environmentally hazardous substances, if any, located on or potentially affecting the Property; and
  7. Buyer and Seller are each advised to consult with technical and legal experts concerning the existence, testing, discovery, location and evaluation of/for, and risks posed by, environmentally hazardous substances, if any, located on or potentially affecting the Property.
  8. DEFAULTS AND LIQUIDATING DAMAGES: Upon the breach by Seller of this Agreement, Buyer, as its sole and exclusive remedies, may either:
  9. terminate this Agreement by delivery of written notice to Seller, in which event Buyer shall be entitled to the return of the Deposit; or
  10. institute proceedings in mediation, arbitration or any court of competent jurisdiction to specifically enforce the performance by Seller of the terms of this Agreement.

If Buyer fails to complete this purchase because of Buyer’s default, Seller shall retain, as liquidated damages, the deposit actually paid and to receive from Buyer all surveys, inspections, evaluations and other reports and information on the Property, including physical improvements, prepared by or for, or otherwise obtained by, Buyer as Sellers liquidated damages. Buyer and Seller agree that this amount is a reasonable sum given that it is impractical or extremely difficult to establish the amount of damages that would actually be suffered by Seller in the even Buyer were to breach this Agreement. Release of funds will require mutual, Signed release instructions from both Buyer and Seller, judicial decision or arbitration award.

Buyer’s Initials:______/______Seller’s Initials:______/______

  1. DISPUTE RESOLUTION:
  2. Mediation: Buyer and Seller agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration or court action. Paragraphs 22c and d below apply whether or not the Arbitration provision is initialed. Mediation fees, if any, shall be divided equally among the parties involved. If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action. THIS MEDIATION PROVISION APPLIES WHETHER OR NOT THE ARBITRATION PROVISION IS INITIALED.
  3. Arbitration of Disputes: (1) Buyer and Seller agree that any dispute or claim in Law or equity arising between them out of this Agreement or any resulting transaction, which is not settled through mediation, shall be decided by neutral, binding arbitration, including and subject to paragraphs 22c and d below. The arbitrator shall be a retired judge or justice, or any attorney with at least 5 years of real estate transactional Law experience, unless the parties mutually agree to a different arbitrator, who shall render an award in accordance with substantive California Law. The parties shall have the right to discovery in accordance with Code of Civil Procedure S1283.05. In all other respects, the arbitration shall be conducted in accordance with Title 9 of Part III of the California Code of Civil Procedure. Judgment upon the award of the arbitrator(s) may be entered into any court having jurisdiction. Interpretation of this agreement to arbitrate shall be governed by the Federal Arbitration Act.
  4. Exclusions From Mediation and Arbitration: The following matters are excluded from mediation and arbitration: (i) a judicial or non-judicial foreclosure or other action or proceeding to enforce a deed of trust, mortgage, or installment land sale contract as defined in Civil Code S2985; (ii) an unlawful detainer action; (iii) the filing or enforcement of a mechanic’s lien; and (iv) any matter that is within the jurisdiction of a probate, small claims, or bankruptcy court. The filing of a court action to enable the recording of a notice of pending action, for order of attachment, receivership, injunction, or other provisional remedies, shall not constitute a waiver of the mediation and arbitration provisions.
  5. Auctioneer: Buyer and Seller agree to mediate and arbitrate disputes or claims involving either Auctioneer or Broker, consistent with 22c and d, provided either Auctioneer or Broker shall have agreed to such mediation or arbitration prior to, or within a reasonable time after, the dispute or claim is presented to Auctioneer or Broker. Any election by either Auctioneer or Broker to participate in mediation or arbitration shall not result in Auctioneer or Broker being deemed parties to the Agreement.

“NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE ‘ARBITRATION OF DISPUTES’ PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE ‘ARBITRATION OF DISPUTES’ PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.”