EXHIBIT 10.1
AGREEMENT OF PURCHASE AND SALE
Between
UNITED TRUST FUND LIMITED PARTNERSHIP,
as Purchaser,
and
POINT 360
as Seller,
Dated December 30, 2005
Section 1. Agreement To Purchase.......................................1
Section 2. Purchase Price..............................................1
Section 3. Lease/Rent..................................................2
Section 4. Survey; Title; Environmental Audit..........................2
Section 5. Inspection; Due Diligence...................................3
Section 6. Closing.....................................................3
Section 7. Conditions to Closing.......................................4
Section 8. Prorations..................................................6
Section 9. Risk of Casualty Loss.......................................6
Section 10. Representations of Seller...................................6
Section 11. Representations of Purchaser................................7
Section 12. Notices.....................................................7
Section 13. Assignment..................................................8
Section 14. Deposit; Remedies...........................................8
Section 15. Brokerage Commission........................................9
Section 16. Transaction Costs...........................................9
Section 17. Miscellaneous...............................................9
EXHIBIT A--Legal Description
EXHIBIT B--Rents
EXHIBIT C--Lease
SCHEDULE I--Severable Property
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made and
entered into as of the 30th day of December, 2005 (the "Effective Date") by and
between UNITED TRUST FUND LIMITED PARTNERSHIP, a Delaware limited partnership
("Purchaser"), POINT 360, a California corporation ("Seller").
W I T N E S S E T H :
For and in consideration of the mutual covenants and promises
hereinafter set forth, the parties hereto do hereby mutually covenant and agree
as follows:
Section 1. AGREEMENT TO PURCHASE. The Purchaser agrees to purchase and
the Seller agrees to sell, for the Purchase Price (as defined in Section 2
hereof) and other good and valuable consideration, and subject to and upon each
and every one of the terms and conditions hereinafter set forth, the
following-described property (all of which are collectively referred to as the
"Premises"):
(a) fee simple interest in the approximately 3 acre parcel of land
located at 2701 Media Center Drive, Los Angeles, California, more
particularly described on Exhibit A attached to this Agreement and
made part of this Agreement (the "Land");
(b) all of the buildings, structures, fixtures, facilities,
installations and other improvements of every kind and description
(including without limitation the steel racks and shelving used to
store film, video and other elements) now or hereafter in, on, over
and under the Land and all plumbing, gas, electrical, ventilating,
lighting and other utility systems, ducts, hot water heaters, oil
burners, domestic water systems, elevators, escalators, canopies,
air conditioning systems and all other building systems and
fixtures attached to or comprising a part of the building, but
excluding Severable Property as set forth on Schedule I hereto (the
"Improvements"); and
(c) all easements, rights-of-way, appurtenances and other rights and
benefits thereunto belonging, all public or private streets, roads,
avenues, alleys or passways, open or proposed, on or abutting the
Land, any award hereafter made to or to be made in lieu thereof,
and any award hereafter made for damage to the land or any part
thereof by reason of a change of grade in any street, alley, road
or avenue, as aforesaid (all of the foregoing being included within
the term "Land").
Section 2. PURCHASE PRICE. The purchase price to be paid to Seller for
the Premises shall be Fourteen Million One Hundred Fifty Six Thousand Dollars
($14,156,000.00) (the "Purchase Price"). The Purchase Price shall be paid by
Purchaser by bank wire of same day funds as follows:
(a) Two Hundred Thousand Dollars ($200,000.00) (the "Deposit") shall be
paid within two (2) business days after the execution and delivery
of this Agreement to the Title Company (as defined herein).
(b) At Closing the balance of the Purchase Price shall be deposited
with the Title Company and shall be paid to Seller.
Section 3. LEASE/RENT. At Closing (as defined in Section 6 hereof) the
Premises shall be leased to Seller pursuant to the Lease Agreement (as defined
in Section 7(a)(ii) hereof) and the annual rent thereunder (the "Basic Rent")
shall be as is set forth on Exhibit B attached hereto.
Section 4. Due Diligence Materials.
(a) With reasonable promptness, Seller shall deliver to Purchaser the
following items which comply with the requirements set forth
herein:
(i) a certified ALTA/ACSM "as built" survey (the "Survey") of
the Premises, together with six (6) copies thereof, in form
and substance reasonably satisfactory to Purchaser, showing
the Premises separately by metes and bounds and showing,
without limitation, the location of all existing buildings
and dimensions thereof and all set-back lines, all
improvements and parking areas (including the number of
parking spaces therein) and the location thereof and the
extent of any and all existing utility and other easements
on the Premises which are shown on the title commitment or
are visible from the surface.
(ii) an owner's title insurance commitment and copies of all
title exception documents referenced therein (collectively,
the "Commitment") with respect to the Premises issued by
Chicago Title Insurance Company (the "Title Company"),
National Business Unit, 1129-20th Street NW, Suite 300,
Washington, D.C. 20036, Attention: Angela Rice, for an ALTA
Form B policy with extended coverage and such endorsements
as requested by Purchaser bearing a date subsequent to the
date of this Agreement. Purchaser shall request that the
Title Company use Chicago Title Insurance Company, 700
Flower Street, Suite 800, Los Angeles, California 90017,
Attention: Clark McKinnon as the local title agent;
(iii) "as-built" plans and specifications;
(iv) copies of any existing leases, if any, between Seller and
tenants of the Premises (the "Subleases");
(v) Seller shall have delivered copies of the certificate(s) of
occupancy to Purchaser; and
(vi) Seller shall have caused the delivery to Purchaser of a
letter from the governmental department having zoning
jurisdiction over the Premises in the form typically
delivered by such department to the effect that the Premises
fully complies with all zoning, ordinances, regulations,
licenses and permits required by any such governmental
department having jurisdiction over the Premises.
(b) Purchaser shall promptly begin the selection process for qualified
professionals and thereafter order the following items:
(i) a current complete Phase I environmental site assessment of
the Premises (the "Environmental Audit"), which is in a form
and substance acceptable to Purchaser and conducted by an
environmental inspection company acceptable to Purchaser;
(ii) a current property condition assessment of the Premises (the
"Engineering Report"), which is in a form and substance
acceptable to Purchaser and prepared by an engineering
company acceptable to Purchaser; and
(iii) a current MAI appraisal in form and substance satisfactory
to Purchaser (the "Appraisal"), prepared by an appraiser
acceptable to Purchaser.
The materials referred to in subsections 4(a)(i), 4(a)(ii), 4(a)(iv)
through 4(a)(vi), 4(b)(i) through 4(b)(iii) are hereinafter collectively
referred to as the "Due Diligence Materials." Purchaser shall have five (5) days
after the delivery of all of the Due Diligence Materials within which to object
to the form thereof. Seller shall have fifteen (15) days, or such additional
time as may be reasonably necessary, within which to cure any form objection
made by Purchaser. The date upon which the last of the Due Diligence Materials
in form reasonably acceptable to Purchaser are delivered to Purchaser is
referred to herein as the "Delivery Date."
Purchaser shall have until such date that is thirty (30) days after the
Delivery Date (the "Due Diligence Period") within which to object in writing to
the substantive matters reflected in the Due Diligence Materials. If Purchaser
shall timely provide Seller with any such objection, Seller shall within thirty
(30) days thereafter (i) remove or cure any such matters to which Purchaser has
objected or (ii) enter into an agreement in form and substance acceptable to
Purchaser to remove or cure such matters prior to Closing and proceed to
Closing. If Seller shall fail to remove or cure, or agree to remove or cure,
such matters to which Purchaser has objected within such thirty (30)-day period
or if in the judgment of Purchaser such matters cannot be cured or if any title
defect appears between the expiration of the Due Diligence Period and Closing,
then Purchaser shall have the right to proceed to waive such objections or title
defect and proceed to Closing or terminate this Agreement. In the event of such
termination the Deposit shall be returned to Purchaser and neither party shall
have any further obligation under this Agreement except as specifically set
forth herein.
Section 5. INSPECTION; DUE DILIGENCE. During the term of this Agreement,
Purchaser or its agents shall be permitted access to the Premises upon
reasonable notice so long as Purchaser shall not interfere with the operations
of Seller. Purchaser shall have until the expiration of the Due Diligence Period
to inspect the Premises and perform whatever investigations, tests and
inspections Purchaser deems reasonably appropriate. Seller shall cooperate with
Purchaser's due diligence review and shall make available to Purchaser, upon
reasonable notice and during business hours, all reasonably requested
information regarding the Premises. Upon Purchaser's request for specific
information, Seller shall also make available to Purchaser (i) all public
information concerning Seller's general business affairs and (ii) financial
information which would comply with Securities and Exchange Commission
requirements for reporting by a public company for the most recent annual and
quarterly fiscal periods of Seller. Prior to the expiration of the Due Diligence
Period, Purchaser shall have the right to terminate this Agreement if
Purchaser's due diligence reveals any matters which would make the Premises or
the transaction contemplated by this Agreement unacceptable to Purchaser in
Purchaser's sole discretion.
Section 6. CLOSING. Subject to the provisions of Section 7 of this
Agreement the closing of the purchase and sale transaction contemplated by this
Agreement (the "Closing") shall occur not later than thirty (30) days after the
expiration of the Due Diligence Period (the "Closing Date"). The Closing shall
occur on the Closing Date at 10:00 a.m. in the offices of the Title Company
unless another place of Closing is mutually agreed to by Seller and Purchaser.
At the Closing, and as a condition of Purchaser's obligation to close,
Seller is to convey title to the Premises to Purchaser by a special or limited
warranty deed sufficient to permit the issuance of the owner's policy of title
insurance referred to in subsection 7(a)(iii) of this Agreement with any
required documentary stamps affixed thereto, free and clear of any and all
liens, encumbrances, covenants, conditions and restrictions, except for such
exceptions as may be approved in writing by Purchaser (the "Permitted
Exceptions").
Section 7. CONDITIONS TO CLOSING.
(a) Purchaser shall not be obligated to close the purchase and sale
transaction contemplated by this Agreement until all of the
following conditions have been waived by Purchaser or satisfied:
(i) Purchaser shall have received all items referred to in
Section 4 of this Agreement;
(ii) Seller shall have executed and delivered to Purchaser (A) a
total of five original counterparts executed by Seller, as
lessee, of a lease agreement with Purchaser, as lessor, with
respect to the Premises in form attached as Exhibit C to
this Agreement (the "Lease Agreement") with modifications as
may be required by applicable state law and to conform to
the particular facts of the Premises; provided, however, the
rent during the Primary Term and Extended Terms, if any,
shall be as indicated on the Rent Schedule attached as
Exhibit B to this Agreement, together with (B) a memorandum
thereof in recordable form ;
(iii) The Title Company shall have issued to Purchaser an ALTA
Form B owner's fee policy of title insurance for the
Premises, insuring title to the Premises to be in the name
of Purchaser as set forth herein, and a simultaneously
issued ALTA lender's policy of title insurance to
Purchaser's financial institution, if one is used, in an
amount equal to the Purchase Price with respect to the
owner's policy and in an amount not in excess of the
Purchase Price with respect to the lender's policy and
containing only Permitted Exceptions and otherwise
consistent with the title insurance commitment referred to
in subsection 4(b) of this Agreement or, in the alternative,
an irrevocable commitment for the issuance thereof showing
that all requirements have been satisfied;
(iv) Seller shall have delivered to Purchaser certificates in
form and substance satisfactory to Purchaser evidencing the
insurance coverage and policies to be carried by Seller, as
lessee, under the terms of the Lease Agreement naming
Purchaser or Purchaser's nominee or assigns (if any) as
additional insured;
(v) Seller shall have delivered to Purchaser evidence, which is
reasonably satisfactory to Purchaser and the Title Company
authorizing the sale of the Premises by Seller and
authorizing the execution, delivery and performance of the
Lease Agreement by Seller;
(vi) Seller shall have caused to be delivered to Purchaser and
Purchaser's financial institution with respect to this
transaction, if any, an opinion or opinions by Seller's
counsel, to the effect that the Lease Agreement constitutes
the legal, valid and binding obligation of Seller, as
lessee, enforceable against Seller, as lessee, in accordance
with its terms, subject to qualifications for bankruptcy or
insolvency and principles of equity, and to such other
effects as Purchaser may reasonably require;
(vii) There shall have been no material adverse change in the
financial condition of Seller from the date hereof;
(viii) Seller shall have delivered to Purchaser a "nonforeign"
certificate in form and substance reasonably satisfactory to
Purchaser, or such other evidence that Seller is not a
"foreign person" within the meaning of Internal Revenue Code
Section 1445 as Purchaser may reasonably require;
(ix) Seller shall have caused all Subleases existing at the
Closing to be subordinated to the Lease Agreement pursuant
to subordination agreements in form and substance reasonably
satisfactory to Purchaser;
(x) All representations, warranties and covenants of Seller set
forth herein shall have been true and correct in all
material respects when made and Seller shall deliver to
Purchaser at Closing a certificate stating that all such
representations, warranties and covenants remain true and
correct in all material respects at and as of the Closing;
and
(xi) Seller shall have delivered to Purchaser such further
documents as reasonably may be reasonably required in order
to fully and legally close this transaction.
(b) Seller shall not be obligated to close until all of the following
conditions have been waived by Seller or satisfied:
(i) Purchaser, as lessor, shall have caused to be executed and
delivered to Seller a total of five original counterparts of
the Lease Agreement with respect to the Premises;
(ii) Purchaser shall have delivered to Seller a certified copy of
the resolutions of the Board of Directors of the general
partner of Purchaser authorizing the purchase of the
Premises and the execution, delivery and performance of the
Lease Agreement;
(iii) All representations, warranties and covenants of Purchaser
set forth herein shall have been true and correct in all
material respects when made and Purchaser shall deliver to
Seller at Closing a certificate stating all such
representations, warranties and covenants remain true and
correct in all material respects at and as of the Closing;
and
(iv) Purchaser shall have delivered to Seller such further
documents as may reasonably be required in order to fully
and legally close this transaction.
Section 8. PRORATIONS. In view of the continuing relationship between
Seller, as lessee and Purchaser, as lessor, under the Lease Agreement, and the
obligations of lessee, under the terms and conditions of the Lease Agreement,
there shall be no proration of insurance, taxes, special assessments, utilities
or any other costs; it being the intention of Purchaser and Seller that all such
costs shall be the obligation of Seller prior to Closing and the obligation of
Seller, as lessee from and after Closing.
Section 9. RISK OF CASUALTY LOSS. From the date hereof until Closing,
Seller shall continue to maintain the Premises and all other improvements in
good condition and repair, subject to reasonable wear and tear, and promptly
notify Purchaser of the occurrence of any event known to it which materially
affects the value or utility of the Premises for its current use.
Notwithstanding anything herein to the contrary, from and after the date hereof
to the Closing, Seller is considered the owner of the Premises for all purposes
and shall be entitled to receive all insurance proceeds and/or condemnation
awards that may become payable with respect thereto. Any and all risks
associated with ownership of the Premises shall be borne by Seller from the date
hereof until Closing. If the Premises is substantially damaged or condemned as
to a material part prior to the Closing Date and is not substantially repaired
or restored on or before the Closing Date, Purchaser may, at its election, (i)
terminate and cancel this Agreement in which event Seller and Purchaser shall be
relieved and discharged of any further liability or obligation under this
Agreement, or (ii) proceed to Closing in which event the occurrence shall be
dealt with under the terms of the Lease Agreement as if it had occurred after
the commencement date of the Lease Agreement.
Section 10. REPRESENTATIONS OF SELLER. Seller represents and warrants to
and covenants with Purchaser as follows:
(a) Organization and Standing, Etc. Seller is a corporation duly
organized, validly existing and in good standing under the laws of
California and has all requisite corporate power and authority to
own and operate the Premises, to enter into this Agreement and the
Lease Agreement, as the case may be, and to carry out the
transactions contemplated hereby and thereby;
(b) Litigation. There are no actions or proceedings pending with
respect to the Premises and no actions or proceedings pending
against Seller, which in any way materially adversely affects the
Premises, Seller, or Seller's ability to perform under the Lease or
this Agreement, as the case may be;
(c) Condemnation and Compliance With Laws. Seller has received no
notice from any governmental authority of any proposed condemnation
of any portion of the Premises. The Premises or the use thereof is
not presently and at the Closing Date will not be in material
violation of or in material noncompliance with applicable codes,
ordinances, regulations or laws (including, but not limited to,
those relating to environmental matters); and
(d) Satisfy Conditions. Seller agrees to use its reasonable efforts to
satisfy all conditions set forth in subsection 7(a) of this
Agreement on or prior to the Closing Date.
Section 11. REPRESENTATIONS OF PURCHASER. Purchaser represents and
warrants to and covenants with Seller as follows:
(a) Organization and Standing, Etc. As of the Effective Date, Purchaser
is a limited partnership duly formed, validly existing and in good
standing under the laws of the State of Delaware and has all
requisite power and authority to acquire the Premises, to enter
into this Agreement and the Lease Agreement and to carry out the
transactions contemplated hereby and thereby.
(b) Litigation. There are no actions, proceedings or investigations
pending involving Purchaser which question the validity of this
Agreement or adversely affect Purchaser's ability to consummate the
transactions contemplated by this Agreement or the Lease Agreement;
(c) Compliance With Other Instruments. The execution, delivery and
performance by Purchaser of this Agreement will not violate, or
constitute a default under, any provision of Purchaser's
partnership agreement or of any agreement or other instruments to
which Purchaser is a party or by which Purchaser or any of its
property is bound; and
(d) Satisfy Conditions. Purchaser agrees to use its reasonable efforts
to satisfy all conditions set forth in subsection 7(b) of this
Agreement on or prior to the Closing Date.
(e) Independent Evaluation. With the exception of the financial
statements and other financial information provided by Seller to
Purchaser, Purchaser has independently, and without reliance upon
Seller or any information provided by Seller, conducted Purchaser's
own evaluation and inspection of the Premises, obtaining and
reviewing such information and conducting such inspections as
Purchaser has deemed adequate and appropriate; and
(f) Experience. Purchaser, or its authorized representatives, acting on
its behalf, has and/or have such knowledge and experience in
business, financial and real estate matters as is necessary to
evaluate the merits and risks of the acquisition of the Premises.
Section 12. NOTICES. All notices given or delivered under this Agreement
shall be in writing and shall be validly given when hand-delivered or sent by a
courier or express service guaranteeing overnight delivery or by telecopy, with
original being sent promptly as otherwise provided above, addressed as follows:
If intended for Purchaser:
c/o United Trust Fund, Inc.
Suite 1300
701 Brickell Avenue
Miami, FL 33131
Attention: Sidney Domb, President
Facsimile: (305) 358-4002
With a copy to:
Kutak Rock LLP
The Omaha Building
1650 Farnam Street
Omaha, NE 68102
Attention: Walter L. Griffiths, Esq.
Facsimile: (402) 346-1148
If intended for Seller:
Point 360
2777 N. Ontario Street
Burbank, CA 91504
Attention: Chief Financial Officer
Facsimile: 818-847-2503
With a copy to:
Point 360
2777 N. Ontario Street
Burbank, CA 91504
Attention: General Counsel
Facsimile: 818-847-2503
or such other person or address which Seller or Purchaser shall have given upon
notice as herein provided. Notices given by any means described herein shall be
deemed delivered on the day after such notices are sent.
Section 13. ASSIGNMENT. Upon written notice to Seller, the rights and
obligations of Purchaser under this Agreement may be assigned to a third party.
In any assignment which may be made by Purchaser of its rights and obligations
under this Agreement, Purchaser shall remain primarily liable under this
Agreement. Seller may not assign its rights under this Agreement.
Section 14. DEPOSIT; REMEDIES.
(a) The Deposit shall be dealt with as provided in this subsection
14(a).
(i) Subject to the provisions of subsection 14(a)(ii) of this
Agreement, if the Closing of the purchase and sale
transaction contemplated by this Agreement shall fail to
occur pursuant to the terms hereof for any reason, Title
Company shall immediately return the Deposit, together with
accrued interest thereon, to Purchaser;
(ii) If Purchaser shall be obligated by the provisions of this
Agreement to consummate the purchase and sale transaction
contemplated by this Agreement and shall fail to do so,
Seller's sole remedy against Purchaser shall be to receive
the Deposit from Title Company, together with accrued
interest thereon, as liquidated damages. Purchaser and
Seller acknowledge that actual damages suffered by Seller in
such event will be difficult or impossible to measure and
that the amount of the Deposit, together with interest
thereon, represents a good-faith estimate thereof; and
(iii) At Closing, the Deposit, together with accrued interest
thereon, shall be paid to Seller as part of the Purchase
Price.
(b) If Seller shall be obligated by the provisions of this Agreement to
consummate the purchase and sale transaction contemplated by this
Agreement and shall fail to do so, in addition to a return of the
Deposit, together with accrued interest thereon, Purchaser shall
have the remedy of specific performance.
Section 15. BROKERAGE COMMISSION. Each of the parties represents and
warrants to the other that neither party dealt with, negotiated through or
communicated with any broker in connection with this transaction other than
Trammel Crow Company, whose fees shall be paid by Seller if, as and when Closing
occurs. Each party shall indemnify, defend and hold harmless the other party
from and against any and all claims, loss, costs and expenses, including
reasonable counsel fees, resulting from any claims that may be made against such
party by any other broker claiming a commission by, through or under the other
party.
Section 16. TRANSACTION COSTS. The costs of this transaction shall be
paid at or prior to Closing by Seller whether or not the transaction closes and
shall include the Survey, all title insurance and title updates, property
transfer taxes, deed stamp taxes, recording charges (other than those relating
to any financing by Purchaser) and the fees and expenses of Seller's counsel
(collectively the "Transaction Costs"). Purchaser shall pay the cost of the
Appraisal, the Engineering Report, the Environmental Audit, and the fees and
expenses of Purchaser's counsel. Seller and Purchaser shall each pay 50% of any
escrow fees and all other similar costs.
Section 17. MISCELLANEOUS.
(a) The provisions of this Agreement shall not be amended, waived or
modified except by an instrument, in writing, signed by the parties
hereto to be charged.
(b) In construing this Agreement, the singular shall include the
plural, the plural shall include the singular and the use of any
gender shall include every other and all genders.
(c) All sections and descriptive headings of this Agreement are
inserted for convenience only and shall not affect the construction
or interpretation hereof.
(d) This Agreement may be executed in any number of counterparts, each
of which, when executed and delivered, shall be an original, but
all counterparts shall together constitute one and the same
instrument.
(e) This Agreement and the exhibits hereto constitute the entire
understanding between the parties with respect to the Premises.
(f) The waiver of any party of any breach or default by any other party
under any of the terms of this Agreement shall not be deemed to be,
nor shall the same constitute, a waiver of any subsequent breach or
default on the part of any other party.
(g) This Agreement shall be used as instructions to the Title Company,
as escrow agent, which may attach hereto its standard conditions of
acceptance of escrow; provided, however, that in the event of any
inconsistency between such standard conditions of acceptance and
the terms of this Agreement, the terms of this Agreement shall
prevail.
(h) In connection with any litigation maintained in connection with
this Agreement, the prevailing party shall collect from the
non-prevailing party all costs associated with such litigation
including reasonable attorney's fees at all trial and appellate
levels.
(i) This Agreement shall be construed and enforced pursuant to the laws
of the state in which the Premises are located.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first set forth above.
UNITED TRUST FUND LIMITED
PARTNERSHIP, a Delaware limited partnership
By: United Trust Fund, Inc., a Florida corporation,
its General Partner
By: /s/ Sidney Domb
-----------------------------------
Printed Name: Sidney Domb
-----------------------------------
Title: President
-----------------------------------
POINT 360, a California corporation
By: /s/ Alan Steel
-----------------------------------
Printed Name: Alan Steel
-----------------------------------
Its CFO
-----------------------------------
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
RENTS
The annual fixed rental payments are based on an outlay of $14,156,000.00 as the
Purchase Price and are payable in equal monthly installments.
- -------------------------- ---------------------------
Years Annual Rental Payments
- -------------------------- ---------------------------
- -------------------------- ---------------------------
1 $969,000
- -------------------------- ---------------------------
- -------------------------- ---------------------------
2 $995,648
- -------------------------- ---------------------------
- -------------------------- ---------------------------
3 $1,023,028
- -------------------------- ---------------------------
- -------------------------- ---------------------------
4 $1,051,161
- -------------------------- ---------------------------
- -------------------------- ---------------------------
5 $1,080,068
- -------------------------- ---------------------------
- -------------------------- ---------------------------
6-15 Basic Rent as determined
pursuant to Section 1.05
of the Lease Agreement
- -------------------------- ---------------------------
- ------------------------------------------------------
Options
- ------------------------------------------------------
- -------------------------- ---------------------------
16-20 Basic Rent as determined
pursuant to Section 1.05
of the Lease Agreement
- -------------------------- ---------------------------
- -------------------------- ---------------------------
21-25 Basic Rent as determined
pursuant to Section 1.05
of the Lease Agreement
- -------------------------- ---------------------------
- -------------------------- ---------------------------
26-30 Basic Rent as determined
pursuant to Section 1.05
of the Lease Agreement
- -------------------------- ---------------------------
- -------------------------- ---------------------------
31-35 Basic Rent as determined
pursuant to Section 1.05
of the Lease Agreement
- -------------------------- ---------------------------
EXHIBIT C
LEASE
[SEE ATTACHMENT]
SCHEDULE I
SEVERABLE PROPERTY
All apparatus, personal property, trade fixtures, inventory, equipment,
machinery, fittings, furniture, furnishings, chattel, materials and supplies
located on and used in, or related to Seller's business, including, but not
limited to, overhead cranes mainframe computers, kitchen equipment and telephone
and similar systems and articles of personal property of every kind and nature
whatsoever, and any additions, replacements, accessions and substitutions
thereto or therefor, and all proceeds of all of the foregoing, or any part of
the foregoing used or usable in connection with any present or future operation
or letting (or subletting) of the Premises or the activities at any time
conducted thereon and now or hereafter owned by Seller or by any sublessee or
other person or entity using all or any part of the Premises by, through, or
under (or with the express or implied consent of) Seller.
AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
This AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this "Amendment")
dated as of March 10, 2006 amends that certain Agreement of Purchase and Sale
dated as of December 30, 2005 (the "Agreement") by and between UNITED TRUST FUND
LIMITED PARTNERSHIP, a Delaware limited partnership ("Purchaser") and POINT.360,
a California corporation ("Seller").
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Seller and Purchaser agree as follows:
1. Capitalized Terms not defined herein shall have the meaning given in
the Agreement.
2. Section 2 of the Agreement is hereby amended to provide that the
Purchase Price shall be Thirteen Million Nine Hundred Forty Six Thousand Dollars
($13,946,000). In addition, Purchaser agrees to pay $500,000.00 to Seller for
tenant improvements upon Closing.
3. Exhibit B, which is attached to the Agreement, is hereby deleted in
its entirety. Exhibit B, which is attached to this Amendment, shall be
substituted in lieu thereof and is hereby incorporated into the Agreement.
4. Section 1.06 of the Lease Agreement, which is attached to the
Agreement as Exhibit C, is hereby amended to read as follows:
Right of First Refusal. At any time after the first thirty six (36)
months of the Primary Term if Lessor shall desire to sell the Premises
and shall receive a bona fide written offer from any third party, Lessor
shall by written notice to Lessee, offer to Lessee the right to enter
into a contract for the purchase of the Premises on the terms set forth
in such bona fide written offer and Lessee shall have 10 business days
after receipt of such notice and offer in which to accept in writing
such terms and conditions. Upon any acceptance of such offer by Lessee,
Lessor and Lessee shall enter into a contract for the purchase of the
Premises upon the terms and conditions specified in the notice from
Lessor to Lessee. In the event that Lessee shall fail to accept the
terms and conditions of sale by written notification to Lessor prior to
the expiration of such 10-business-day period, Lessor shall thereafter
be free to sell the Premises to any such unaffiliated third party
pursuant to the bona fide written offer for a period of eight months.
The right of first refusal contained in this Section 1.06 shall not
apply to a foreclosure or similar sale of the Premises by any holder of
a mortgage on the Premises or to the granting of a deed in lieu of
foreclosure by Lessor to such holder and shall not apply to the
subsequent sale of the Premises by a purchaser of the Premises at a
foreclosure or a similar sale or by the grantee of a deed in lieu of
foreclosure.
5. Except as amended hereby, the Agreement remains unmodified and in
full force and effect.
6. This Amendment may be executed in any number of counterparts, each of
which, when executed and delivered, shall be an original, but all counterparts
shall together constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date first set forth above.
UNITED TRUST FUND LIMITED PARTNERSHIP
By: United Trust Fund, Inc., its General Partner
By: /s/ Fred Berliner
------------------------------------
Printed Name: Fred Berliner
-------------------------------------
Title: Senior Vice President
-------------------------------------
POINT.360
By: /s/ Alan Steel
-------------------------------------
Printed Name: Alan Steel
-------------------------------------
Title: CFO
-------------------------------------
EXHIBIT B
BASIC RENT
The annual fixed rental payments are based on an outlay of $14,446,000 as the
Purchase Price and are payable in equal monthly installments.
- -------------------------- ---------------------------
Years Annual Rental Payments
- -------------------------- ---------------------------
- -------------------------- ---------------------------
1 $1,111,000
- -------------------------- ---------------------------
- -------------------------- ---------------------------
2 $1,111,000
- -------------------------- ---------------------------
- -------------------------- ---------------------------
3 $1,111,000
- -------------------------- ---------------------------
- -------------------------- ---------------------------
4 $1,111,000
- -------------------------- ---------------------------
- -------------------------- ---------------------------
5 $1,111,000
- -------------------------- ---------------------------
- -------------------------- ---------------------------
6-15 Basic Rent as determined
pursuant to Section 1.05
of the Lease Agreement
- -------------------------- ---------------------------
- ------------------------------------------------------
Options
- ------------------------------------------------------
- -------------------------- ---------------------------
16-20 Basic Rent as determined
pursuant to Section 1.05
of the Lease Agreement
- -------------------------- ---------------------------
- -------------------------- ---------------------------
21-25 Basic Rent as determined
pursuant to Section 1.05
of the Lease Agreement
- -------------------------- ---------------------------
- -------------------------- ---------------------------
26-30 Basic Rent as determined
pursuant to Section 1.05
of the Lease Agreement
- -------------------------- ---------------------------
- -------------------------- ---------------------------
31-35 Basic Rent as determined
pursuant to Section 1.05
of the Lease Agreement
- -------------------------- ---------------------------