Exhibit 10.1
PUT AND SALE AGREEMENT
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THIS PUT
AND SALE AGREEMENT
(this "Agreement"), dated as of August 17,
2005, is made and entered into by and
between KNIGHT
FULLER, INC., a Delaware
corporation ("KF"), and OPUS INTERNATIONAL, LLC, a Maryland limited
liability
company ("Opus"), with reference to the
following facts:
RECITALS:
WHEREAS,
KF and Opus are
parties to the Agreement and Plan of Merger,
dated as of August 17, 2005, among KF,
Opus, CenterStaging
Musical Productions,
Inc. ("CMPI") and the other parties
identified therein (the "Merger Agreement");
and
WHEREAS,
KF owns all of the
outstanding
shares of capital stock (the
"Stock") of PayCell, Inc., a California
corporation ("PayCell"); and
WHEREAS,
KF is indebted to Opus and its affiliates and associates; and
WHEREAS,
KF and Opus
agreed in the
Merger Agreement to enter into an
agreement under which KF, at its election,
could sell to Opus, and cause Opus to
purchase and acquire, all of the Stock in exchange
for all indebtedness and
other amounts owed by KF to Opus; and
WHEREAS,
CMPI's obligations under the Merger Agreement are conditional
upon KF and Opus entering into this
Agreement.
NOW,
THEREFORE, in
consideration of the parties' entering into the Merger
Agreement, and as a condition to CMPI's
obligations thereunder, and the mutual
covenants set forth herein, KF and Opus
hereby agree as follows:
1. Option to Put the
Stock
(a)
Opus hereby
grants to KF the right and option, at KF's election (the
"Put Option"), to sell and assign to Opus, and to
require Opus to purchase and
acquire all (but not less than all) of the
Stock, free and clear
of all liens,
claims and encumbrances, in consideration and in exchange
for all (but not less
than all) of the Debt of KF or any
subsidiary
of KF to Opus as of
the Closing
Date, including without limitation the amounts described
in Schedule A to this
Agreement, and all interest, fees and charges accruing on such
amounts through
the Closing Date (the "Opus Indebtedness"). For purposes of this Agreement,
"Debt" shall mean: (i) indebtedness or liability for
borrowed money, or for the
deferred purchase price of property or
services (including
trade
obligations);
(ii) obligations as lessee under capital
leases; (iii) obligations under letters
of credit issued; (iv) all obligations
evidenced by bonds, debentures, notes or
other similar instruments; (v) all guarantees, endorsements (other than for
collection or deposit in the ordinary
course of business),
and other contingent
obligations to purchase any item included
in this definition,
to provide funds
for payment, to supply funds to invest in any
Person, or otherwise
to assure a
creditor against loss; and (vi) all
interest, fees,
charges and other
amounts
accruing with respect to any of the
foregoing.
<PAGE>
(b)
The Put Option
may be exercised by
notice to Opus at any time on or
before the first annual anniversary of the
date of this Agreement, which notice
shall set forth the date (the "Closing
Date"), time and place, which shall be
mutually convenient to the parties,
of the closing of the
sale and purchase of
the Stock. At the closing, KF shall deliver to Opus one or more
certificates
evidencing the Stock, along with duly executed stock powers, against the
delivery by Opus of: (a) all evidences of the Opus Indebtedness, marked
cancelled, and (b) duly executed instruments of assignment, cancellation or
termination respecting the Opus Indebtedness
as KF shall reasonably
request in
order to fully effectuate the exchange and
cancellation of the Indebtedness.
(c)
Each
party shall bear and pay its own expenses incurred in
connection with this Agreement and the
transactions
contemplated hereby. Should
either party fail to purchase or sell, as
the case may be, the Stock as provided
herein, time being of the essence, in
addition to all other rights and remedies
that may be available to the other party in such event,
the defaulting party
shall be liable for all loss, liability, and expense incurred by the other
party, including, without limitation, attorneys' fees and expenses, in
connection with the proposed purchase and sale of the Stock.
In addition,
the
parties acknowledge and agree that, in view of the reliance and change of
position which must necessarily result from KF's notice of
exercise of the Put
Option hereunder and the fact that the
damages which would result from a default
by Opus in its obligation to consummate
such a purchase or sale are uncertain in
amount and cannot be determined with
certainty, the provisions of this Agreement
shall be specifically enforceable by each
party.
2. Representations and
Warranties of KF
KF hereby
represents and
warrants to Opus that the following are true and
correct as of the date hereof and will be true and
correct as of the
Closing
Date, if any, hereunder:
(a)
KF is,
and will be,
the sole legal and beneficial owner of the
Stock.
(b)
Except for
restrictions
imposed under federal
or state
securities
laws applicable to securities generally,
there are, and will be, no restrictions
on the transfer of the Stock, and KF has, and will have,
the right to
transfer
the Stock to Opus in the event of KF's exercise of the Put Option as
contemplated herein, without the consent,
permission, waiver or any other act of
any other person.
(c)
This Agreement
constitutes,
and will constitute,
the legal, valid
and binding obligation of KF, enforceable against KF in accordance with its
terms.
(d)
The Stock is
not, and will not be,
subject to any liens,
security
interests, claims or encumbrances
whatsoever.
(e)
The execution,
delivery and
performance of this Agreement by KF are
not, and will not be, in violation of any
indenture, agreement or undertaking to
which KF is a party or by which KF or the
Stock is bound or otherwise affected.
2
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Except for
the foregoing, KF makes no representation or warranty regarding
the Stock, the sale of the Stock, or the business, operations, financial
condition, results of operations,
assets, liabilities, rights, properties or
prospects of PayCell. Without limiting the
generality of the foregoing, KF makes
no representation that the value equals or exceeds the amount of th
