FORM 8-K 1/24/2007
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 19, 2007
VOYAGER PETROLEUM, INC.
(Exact name of registrant as specified in its charter)
NEVADA
(State or other jurisdiction of incorporation)
0-32737 88-049002272
------------------------------ ---------------------------------
(Commission File Number) (IRS Employer Identification No.)
16 East Hinsdale Avenue, Hinsdale, IL 60521
--------------------------------------------------------------------------------
Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (630) 325-7130
--------------------------------------------------------------------------------
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
(a) Voyager Petroleum, Inc. ("Voyager") entered into a Purchase and Sale Agreement with Deacon Enterprises, Inc. ("Deacon"), a Michigan corporation, for the purchase of a refinery located in Detroit, Michigan which became effective on January 19, 2006 upon the release of signatures from escrow. Voyager also executed a sublease for pre-occupancy possession with the current tenant, D.A.Stuart ("Stuart"). The 20,000 square foot facility which will be used to process reclaimed used oil for use in lubricant oil products which will be sold to the automotive and industrial after-markets sits on 3.5 acres of land and consists of a warehouse, a processing facility and offices with on-site railroad and truck access. The plant houses 22 outside storage tanks and 32 inside storage tanks for a total storage capacity of 718,000 gallons.
The total purchase price of $750,000, less a $35,000 deposit held in escrow, is to be paid at closing which shall occur on or before the earlier of six months from the execution of the agreement, ten business days after expiration of a ninety day inspection period or sooner at Voyager's election. Under the terms of the agreement, Deacon shall provide a commitment for title insurance for $750,000 by February 9, 2007. Voyager has ten business days after receipt of the title commitment or sixty days after the effective date to approve or object to the condition of title. If Voyager objects, then the Company may either terminate the agreement and receive back the deposit or give Deacon thirty business days to remedy the title or to obtain title insurance. In addition to customary closing conditions, Voyager is obligated to obtain, at its own cost, a category S baseline environmental assessment (BEA) and due care plan before closing or within six months after the effective date which is to be filed with the Michigan Department of Environmental Quality. A BEA establishes the environmental condition of the property and pursuant to Michigan law must be completed within forty-five days of occupancy and, if not completed within that time frame, would subject Voyager to liability for any pre-existing conditions.
The agreement includes a ninety day inspection period to evaluate the property and perform the BEA. An additional $20,000 escrow payment is required for a thirty day extension only if the request is based on environmental matters. At the end of the ninety day inspection period, Voyager may terminate the agreement at its option and obtain return of its deposit. If Voyager terminates within the extension of the inspection period, then the deposit will only be returned if the reason for the delay is related to environmental matters. After the inspection period and any extension thereof, Voyager waives its rights to terminate the agreement and any monies held in escrow become non-refundable or applied to the purchase price at closing. Voyager may assign the agreement to a wholly owned subsidiary without written consent.
As a condition to the agreement Deacon and Stuart entered into a written agreement on January 22, 2007 which (a) approves the purchase by Voyager, b) terminates and releases all rights to lease and purchase the property by Stuart upon purchase by Voyager and (c) provides for the vacation of the property by Stuart in accordance with terms of the master lease including the preparation of a BEA upon leaving.
As a further condition to the agreement, Voyager entered into a sublease with Stuart which became effective January 19, 2007 with a lease term which begins on February 1, 2007 and ends on the earlier of August 1, 2007, the closing of the purchase of the refinery with Deacon or termination of the purchase agreement without a closing subject to the earlier termination of the master lease. The base rent is $4,000 per month plus utilities, repairs, maintenance, taxes and assessments during the lease term. Voyager is responsible for fire, extended coverage, broad form, flood, rent, public liability and property damage insurance. The property is to be taken in an "as is" condition. The sublease may not be assigned and may be terminated upon nonpayment of rent after five days written notice to cure. Within thirty days thereafter, Voyager would have to vacate the premises. Late payments are subject to charges of 5% of rent due plus a 2% per annum amount in excess of the prime rate of interest. If Voyager defaults in the performance of any non-monetary term of the sublease after thirty days notice to cure, except for hazardous conditions which shall be cured immediately, then Stuart may terminate the sublease agreement and Voyager shall surrender possession immediately. The sublease may also be terminated if Voyager causes a default under the master lease. Upon default, Voyager agrees to indemnify Stuart for all costs it is liable to pay under the master lease and shall remove all of Voyager's property from the facility in which case Voyager shall be subject to all obligations including the payment of rent for the term of the lease, provided however that upon reletting by Tenant, Voyager would only be responsible for deficiency in charges. Under the sublease, Voyager agrees to indemnify Stuart for all claims, damages, and costs in the conduct or management of Voyager's business, the breach or default of the sublease or from any act, omission or negligence of its invitees, employees and agents including environmental contamination. The sublease may not be assigned.
2
--------------------------------------------------------------------------------
ITEM 2.03 CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT
--------------------------------------------------------------------------------
See Item 1.01 above.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
10.1 Purchase and Sale Agreement between Deacon Enterprises, Inc. and
Voyager Petroleum, Inc. effective January 19, 2007
10.2 Sublease Agreement between D.A.Stuart Company and Voyager Petroleum,
Inc. effective January 19, 2007
10.3 Side Letter Agreement between D.A.Stuart Company and Voyager Petroleum,
Inc. dated January 17, 2007
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
Dated: January 24, 2007 VOYAGER PETROLEUM,INC.
By: /s/ Sebastien C. DuFort
-------------------------------
President
3
--------------------------------------------------------------------------------
EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT, made as of this ______ day of January, 2007, by and between DEACON ENTERPRISES, INC., a Michigan Corporation, whose address is 600 South Deacon, Detroit, Michigan 48217 ("Seller"), and VOYAGERPETROLEUM, INC., a Nevada corporation, whose address is 16 East Hinsdale Ave., Hinsdale, Illinois 60521, ("Purchaser").
W I T N E S S E T H:
In consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt of which is hereby acknowledged, it is agreed by and between the parties hereto as follows:
1. PROPERTY. Seller hereby agrees to sell to Purchaser, and Purchaser hereby agrees to purchase from Seller, land located in the City of Detroit, County of Wayne, State of Michigan, as more particularly described in EXHIBIT "A" attached hereto and made a part hereof, together with all tenements, hereditaments and appurtenances thereto, all easements, land division rights, timber, air, mineral, subsurface, riparian and other rights and interests appertaining thereto owned by Seller and all fixtures, tanks, buildings, structures and other improvements thereon owned by Seller (collectively the "Property"), upon the terms and conditions hereinafter stated in this Purchase and Sale Agreement ("Agreement").
2. PURCHASE PRICE. The Purchase Price to be paid for the Property shall be Seven Hundred Fifty Thousand Dollars and 00/100 ($750,000.00) ("Purchase Price").
3. PAYMENT OF PURCHASE PRICE. The Purchase Price, less the Deposit, and plus or minus the net of the adjustments, prorations and credits contained in Paragraph 4, shall be paid by Purchaser to Seller in certified funds at Closing, as defined in Paragraph 10 of this Agreement.
4. ADJUSTMENTS, PRORATIONS AND CREDITS. The Purchase Price shall be adjusted by the net of the following adjustments, prorations and credits which shall be computed in the following manner:
A. All real and personal property taxes and assessments (general or special) which have become a lien on the Property, all charges for improvements or services already made to, or which benefit the Property which have not yet become a lien on the Property; and all assessments (general or special) arising out of or in connection with any assessment district created or confirmed prior to the date of Closing shall be paid in full by Seller at Closing, whether due in installments or otherwise. All current taxes shall be prorated and adjusted as of the date of Closing in accordance with the due date of the municipality or taxing unit in which the Property is located. The provisions of Public Act of 1994, Nos. 80 and 279 which change the lien date of certain real property taxes shall not apply.
B. Water, sewer, electricity, gas and other public utility bills for services rendered before Purchaser or its affiliate begin occupying the Property, shall be paid by Seller before Closing. Upon Closing, water, sewer, electricity, gas and other public utility bills for such period of time
--------------------------------------------------------------------------------
shall be adjusted and prorated to such date, however, no proration shall be made for public utilities, if in lieu thereof, the respective utility companies are able to bill separately for the amount of utilities consumed through the morning of such date. In such event Seller shall pay the bills rendered for such utilities consumed to the morning of such date upon receipt thereof.
All prorations and adjustments shall be made with the day of Closing being charged and credited to the Purchaser.
If for a period of forty-five (45) days after the Closing either Seller or Purchaser discovers any inaccuracies or errors in the adjustments, prorations or credits computed at the Closing, Seller and Purchaser shall each take such action and pay such sums as may be necessary so that the said adjustments, prorations and credits shall be in accordance with the terms of this Agreement, and the obligations of either party to pay any such amount shall survive the Closing.
5. DEPOSIT. Within two (2) business days after the Effective Date, Purchaser shall deposit the sum of Thirty-Five Thousand Dollars and 00/100 ($35,000.00) (the "Deposit") with Philip R. Seaver Title Company, Inc. (the "Escrow Agent") as a good faith deposit hereunder. Said Deposit and any accrued interest earned thereon shall be applied to the Purchase Price at Closing in the event Purchaser consummates the transaction contemplated hereby. Any and all sums deposited hereunder shall be applied to the Purchase Price, paid over to Seller, or refunded to Purchaser as provided herein. (All references to "Deposit" shall be deemed to include all accrued interest, if any.)
6. TITLE. Seller shall convey to Purchaser at Closing good, marketable and insurable fee simple title to the Property by Warranty Deed, subject to recorded easements, recorded restrictions and/or rights-of-way.
7. EVIDENCE OF TITLE. Seller shall furnish to Purchaser, at Seller's expense, and within twenty-one (21) days from the Effective Date hereof, an
A.L.T.A. commitment for an owner's title insurance policy without standard exceptions ("Title Commitment") issued by the Title Company, in an amount equal to the Purchase Price, naming Purchaser as the insured, certified to the date of Closing, undertaking to insure title in the condition required hereunder, with a policy pursuant thereto to be issued as soon as practicable after the Closing. At the Closing the Title Company will "mark up" the Title Commitment in a manner acceptable to Purchaser's counsel. As soon after closing as may be practical, Seller shall deliver to Purchaser an owner's policy ("Title Policy") issued pursuant to such marked up commitment in the amount of the Purchase Price. The cost of Title Commitment and policy shall be paid by Seller, except that Purchaser shall be responsible for the cost of any survey necessary for the Title Company to issue a Title Policy without standard exceptions. The Title Commitment and policy may contain any endorsements requested by Purchaser, at Purchaser's expense.
8. OBJECTIONS TO TITLE. Purchaser shall have until the later of (a) ten
(10) business days from and after its receipt of the Title Commitment (and copies of all recorded documents listed in the Title Commitment) or (b) sixty
(60) days after the Effective Date, to approve or object to the condition of title disclosed in the Title Commitment or matters of Survey. Purchaser's approval of title and Survey shall be a condition precedent to Purchaser's obligation to close the transaction contemplated by this Agreement, which condition Purchaser reserves the right to waive. If objection to the title or Survey is made, based upon a written opinion of Purchaser, that title or Survey
2
--------------------------------------------------------------------------------
is not in a condition satisfactory to Purchaser, Purchaser, at its option, may either terminate this Agreement and receive back the entire Deposit or give Seller thirty (30) business days from the date it is notified in writing of the particular defects claimed, either (i) to remedy the title or Survey, or (ii) to obtain title insurance as required above, or (iii) to refund the Deposit in full termination of this Agreement, if unable to remedy the title or Survey or obtain title insurance. If the Seller remedies the title or Survey or shall obtain a Title Commitment acceptable to Purchaser within the time specified, and upon waiver or satisfaction of the conditions contained in Paragraph 9, Purchaser agrees to complete the sale and if Seller is unable to remedy the title or Survey or obtain title insurance within the time specified, the Deposit shall be refunded forthwith in full termination of this Agreement. If Purchaser makes no written objections to Seller within the later of: (a) ten (10) business days after receipt of the last of the Title Commitment and copies of all recorded documents listed in the Title Commitment or (b) sixty (60) days after the Effective Date, Purchaser shall be deemed to have accepted the condition of title disclosed in the Title Commitment and matters of Survey and waived its rights to object to the condition of title and to object to the matters of Survey. Notwithstanding the foregoing, Purchaser, at its sole option, may waive any objections to title and Survey, in writing, and in such event, Purchaser and Seller shall proceed to complete this transaction according to the terms of this Agreement, subject to satisfaction or waiver of all of Purchaser's other conditions precedent contained herein.
9. CONDITIONS PRECEDENT.
A. Seller and Purchaser hereby agree that this Agreement and all obligations hereunder are subject to and conditioned upon Purchaser's inspection of and satisfaction with the condition of the Property. Purchaser's due diligence rights, all at Purchaser's expense, include, without limitation, obtaining a current Survey, obtaining all governmental approvals deemed necessary or appropriate, obtaining a mortgage loan, obtaining an appraisal to determine the fair market value of the Property, and obtaining a satisfactory baseline environmental assessment ("BEA"), due care plan, and approval from the Michigan Department of Environmental Quality ("MDEQ") of Purchaser's proposed BEA and due care plan. Purchaser's right to inspect and evaluate the Property, and otherwise determine whether Purchaser will purchase the Property, shall expire at 5:00 p.m. EST on the ninetieth (90th) day after the Effective Date (the "Inspection Period"). Purchaser, in its sole discretion, may extend the Inspection Period for one (1) additional thirty (30) day period (the "Extension Period"), upon written notice to Seller prior to the expiration of the Inspection Period and the deposit of an additional Twenty Thousand Dollars and 00/100 ($20,000.00) (the "Extension Payment") with Escrow Agent only for reasons relating to environmental matters, including, by way of example, completing Phase II subsurface investigations, submitting a BEA and due care plan to the MDEQ, waiting to receive back a written determination of non-liability from the MDEQ with respect to existing contamination and approval of Purchaser's due care plan, or obtaining a pollution insurance policy covering Purchaser. Notwithstanding the forgoing, Purchaser may extend the Purchase Agreement for the Extension Period without paying the Extension Payment, if the only reason for the extension is to negotiate in good faith with Seller over the language of the BEA and/or Purchaser's due care plan; provided, however, Purchaser shall not be obligated to incorporate Seller's suggested revisions. Purchaser shall keep Seller reasonably apprised of Purchaser's efforts with respect to environmental-related matters. The Extension Payment shall be applied to the Purchase price, paid over to Seller, or refunded to Purchaser as provided herein. If during the Inspection Period, Purchaser determines for any reason or
3
--------------------------------------------------------------------------------
no reason and in its sole and absolute discretion Purchaser has decided not to purchase the Property, Purchaser may terminate this Agreement by providing Seller written notice of termination prior to the end of the Inspection Period, in which event Purchaser's Deposit shall be refunded in full to Purchaser and the parties shall be released from all further obligations and rights under this Agreement. In order to receive a full refund of Purchaser's Deposit (including any Extension Payment), any termination notice given after the expiration of the initial ninety (90) day Inspection Period and during any portion of the thirty
(30) day Extension Period, shall be for a reason related to environmental matters. In the event Purchaser does not provide a written notice of termination prior to the end of the Inspection Period or Extension Period, if applicable, Purchaser shall be deemed to be satisfied with the condition of the Property and to have waived its rights to terminate the Agreement and the Deposit and Extension Payment, if any, shall become non-refundable and payable to Seller or applied to the Purchase Price at Closing as provided herein. During the Inspection Period and upon reasonable prior notice to Seller, Purchaser or its agents or contractors shall have the right to enter upon the Property to make surveys, environmental studies and tests and to do all other reasonable work necessary to determine the Property's condition. All such work shall be conducted in a reasonable and workmanlike manner and shall be paid for by Purchaser. Purchaser shall restore the Property immediately following any entry thereon to the condition that existed immediately prior to such entry. Further, Purchaser indemnifies and holds harmless Seller and its shareholders, directors, officers, representatives, heirs, and successors from, against and with respect to any and all costs, expenses, fees, obligations, liabilities (including, but not limited to, personal injury or property damage), claims, damages, penalties and encumbrances (including attorneys fees) arising out of or in connection with or caused by the Purchaser's and/or its owners', employees', agents', contractors' or representatives' inspection, evaluation or testing of the Property; provided, however, this indemnity shall not apply to liability arising from the discovery of adverse information by Purchaser. Notwithstanding anything else in this Agreement to the contrary, the obligations to restore the Property and to indemnify shall survive the Closing or the earlier termination of this Agreement. At Closing, or upon the earlier termination of this Agreement, Purchaser shall provide Seller with copies of all reports, studies, test results, surveys, site plans and other documents relating to the inspection, testing, investigation or development of the Property by the Purchaser.
B. Seller and Purchaser hereby agree that this Agreement and all obligations hereunder are subject to and conditioned upon the Seller and D.A. Stuart Company ("Stuart") reaching a written agreement providing for (i) the approval and consent to the purchase and sale of the Property contemplated hereunder by Stuart (the current tenant of the Property), (ii) Stuart's termination and release of its rights to lease the Property and purchase the Property, and (iii) an agreement between Seller and Stuart regarding Stuart's vacating the Property and compliance by Stuart with all of the terms and conditions of its Lease with Seller as a result of vacating the Property. If Stuart and Seller do not enter into a written agreement within ten (10) business days after execution and delivery of this Agreement, then at Purchaser's option
(i) Purchaser may grant Seller additional time to enter into a written agreement with Stuart, or (ii) this Agreement shall be automatically terminated, the Deposit refunded to Purchaser, and the parties shall be released from all further obligations and rights under this Agreement (except those that survive termination of this Agreement).
C. Seller and Purchaser hereby agree that it is contemplated that Purchaser will cause to be prepared (and pay for) a Category S Baseline Environmental Assessment ("BEA") respecting the environmental condition of the
4
--------------------------------------------------------------------------------
Property. Further, Seller has advised Purchaser that D.A. Stuart Company is required to prepare a BEA at the time it vacates the Property in accordance with a lease of the Property it has with Seller. Therefore, Seller and Purchaser hereby agree that this Agreement and all obligations hereunder are subject to and conditioned upon the completion of the BEA by Purchaser to be filed with the State of Michigan and which complies with the following requirements:
(1) All conclusions contained in the BEAs regarding contamination or potential contamination on the Property must be either supported by test results or reasonable objective facts. Somewhere near the beginning of the BEA, there will be a statement substantially to the effect that, the BEA identifies those conclusions which are supported by test results.
(2) All test results referenced in the text of the BEAs as supporting any specific conclusions regarding the environmental condition of the Property shall be included in the body of the BEA (rather than in the Appendices), in table form, as compared with applicable clean up criteria.
(3) The BEAs shall not refer to any conditions on the Property as "suspect" (e.g., "suspect tank") when the authors of the BEA, or their principals, are on notice of a more accurate description. (e.g., tank of a specified size and description which had been cleaned and inspected on specified dates.)
(4) The BEAs shall be provided to counsel for Seller a minimum of five (5) business days prior to filing with the MDEQ in order to give the Seller the opportunity to provide suggested corrections.
(5) Purchaser's agreement to include any accurate suggested corrections made by Seller with respect to the BEA shall not be unreasonably withheld.
If the above referenced BEA is not prepared and filed in accordance with the above requirements before the earlier of the (i) Closing, (ii) termination of this Agreement, or (iii) six (6) months after the Effective Date, then this Agreement shall be terminated, the Deposit and the Extension Payment, if any, refunded to Purchaser and the parties shall be released from all further obligations and rights under the Agreement (except those that survive termination of this Agreement.)
Purchaser agrees to cooperate with Stuart in permitting Stuart access to and use of test results and data compiled by Purchaser's environmental consultant, upon payment by Stuart of reasonable cost sharing and/or compensation to Purchaser.
D. [INTENTIONALLY OMITTED]
E. Purchaser's obligation to proceed with this transaction is conditioned upon Purchaser entering into a satisfactory sublease agreement with Stuart prior to the expiration of the Inspection Period, granting Purchaser or its designee (the "Subtenant") the right to sublease the Property from Stuart until the earlier of (i) the Closing date, (ii) termination of this Agreement, or (iii) six (6) months after the Effective Date. If Purchaser and Stuart do not enter into a Sublease prior to the expiration of the Inspection Period, then
5
--------------------------------------------------------------------------------
this Agreement shall terminate, unless Purchaser waives this condition in a written notice to Seller. The sublease shall be on terms and conditions reasonably acceptable to Stuart and Purchaser, and shall be acceptable to and agreed to in writing by Seller. The sublease shall provide that, in the event Purchaser does not close on the purchase of the Property as provided for in this Agreement then: (a) the Subtenant shall be liable to repair any damage caused to the Property during its subtenancy; (b) the Subtenant shall defend, indemnify and hold Seller harmless from and against any liability, loss, damage, cost or expense caused as a result of the Subtenant's or its guests', invitees', employees', contractors', agents', affiliates', owners', directors' or officers' acts or omissions during the subtenancy. The Subtenant indemnification of Seller shall include any environmental contamination caused by the Subtenant or its guests, invitees, employees, contractors, agents, affiliates, owners, directors or officers during its subtenancy. Purchaser acknowledges that Stuart entered into a sublease with American Petroleum which was not approved by Seller; American Petroleum has filed for bankruptcy; and Stuart and American Petroleum have entered into an agreement whereby American Petroleum has surrendered possession of the Property to Stuart. If Seller as landlord terminates the Business Property Lease dated January 26, 2000, between Seller as landlord and D. A. Stuart as tenant, as it pertains to the Property (Deacon Premises), then Seller will lease the Property directly to Purchaser on the same terms and conditions as the Subtenant is subleasing the Property under the sublease between Purchaser or its affiliate as subtenant and D. A. Stuart as sublandlord, provided that the subtenant is not in default under the foregoing Sublease, or the Purchaser is not in default under this Purchase Agreement, or this Purchase Agreement has not been terminated, or the foregoing Sublease has not been terminated.
CLOSING. Closing of this transaction shall occur on or before the earlier of: (i) six (6) months after the Effective Date, (ii) ten (10) business days after the expiration of the Inspection Period, or Extension Period, if applicable, or (iii) sooner then (i) and (ii) at Purchaser's election. The Closing shall occur at the office of the Title Company at a time mutually agreeable to the parties.
11. POSSESSION. Purchaser shall be entitled to exclusive possession of the Property at the time of Closing.
12. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller makes the following representations and warranties to Purchaser, which representations shall survive the Closing for a period of one (1) year:
A. Seller has full power and authority to enter into this Agreement and to perform and carry out all obligations, covenants and provisions hereof.
B. Seller has received no notice that the Property is now in violation of any laws, governmental orders, regulations, statutes or ordinances with the exception of a Notice of Violation dated August 15, 2000, a copy of which has been previously provided to Purchaser.
C. Seller has not contracted for the furnishing of labor or materials to the Property which will not be paid in full prior to Closing, or which would give rise to a claim of a construction lien
6
--------------------------------------------------------------------------------
D. Seller has no notice of and there is no pending or, to the best of Seller's knowledge, threatened litigation, administrative action or examination relating to the Property before any court, or any federal, state or municipal governmental department, commission, board, agency or instrumentality thereof with the exception of a pending construction project for effluent conduit and rain improvement and a potential temporary or permanent easement with respect to same (i.e., Detroit Water and Sewer Department, Oakwood CSO control facility and Pump Station ("Project").
E. Upon execution of this Agreement, Seller shall furnish to Purchaser a copy of the notice received by Seller regarding a potential City of Detroit wastewater treatment facility near the Property, which may include the granting, taking of certain easement rights and/or loss of the railroad side track currently benefiting the Property. Purchaser shall have the right to evaluate this matter during Purchaser's Inspection Period. Any money or damage award paid to the owners or occupants of the Property at any time after the date of this Agreement shall be the property of Purchaser if the transaction closes. Seller shall not grant any deeds, easements or other property rights to the City of Detroit or anyone else without first obtaining the prior written authorization and consent of Purchaser.
F. Performance of this Agreement by Seller will not result in a breach of, or constitute a default under, or result in the imposition of, any lien or encumbrance upon the Property under any agreement or other instrument to which the Seller is a party or by which Seller or the Property is bound, except as referenced in Paragraph 9.B. of this Agreement.
G. To the best of Seller's actual knowledge, there are no latent or hidden material adverse environmental conditions respecting the Property except those matters set forth in any environmental reports or documents which are in the possession or control of Seller or Seller's counsel. To the best of Seller's actual knowledge, a list of all such environmental reports and documents is described in the attached EXHIBIT "B" ("Environmental Reports"). Seller shall furnish Purchaser with a complete copy of all Environmental Reports within five (5) business days after full execution of this Agreement.
13. PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser represents and warrants to Seller, which representations shall survive the Closing for a period of one (1) year, that Purchaser has full power and authority to enter into this Agreement and to perform and carry out all obligations, covenants and provisions hereof:
14. CONDITION OF ASSETS. It is specifically understood and agreed that, except as may be provided elsewhere in this Agreement, Seller has made no representations or warranties to the Purchaser, express or implied, as to the use or physical condition of the Property, or any improvements or appurtenances thereto, or any other matter whatsoever and Purchaser has relied upon its own investigations of the Property and has agreed to purchase the Property "AS IS", "WHERE IS."
15. DEFAULT.
A. If Purchaser shall default in the performance of its obligations under this Agreement, then provided Seller is not then in default under this Agreement, Seller shall, as its sole and exclusive remedy, terminate this Agreement by giving written notice of termination to Purchaser, whereupon
7
--------------------------------------------------------------------------------
the Deposit and Extension Payment, if any, shall be delivered to Seller as liquidated damages on account of such default, and neither party shall thereafter have any further liability or obligation to the other, except for any liability of Purchaser under paragraph 9.A. (indemnity), and the Sublease.
B. If Seller shall default in the performance of its obligations under this Agreement, then provided Purchaser is not then in default under this Agreement, Purchaser shall be entitled either: (i) to terminate this Agreement by giving written notice of termination to Seller, whereupon the Deposit and Extension Payment, if any, shall be promptly returned to Purchaser, and neither party shall thereafter have any further liability or obligation to the other; or (ii) to seek specific performance.
16. BROKER'S COMMISSION. Neither Seller nor Purchaser have dealt with any broker or person to whom a fee would be due resulting from this transaction. Each party shall indemnify and hold harmless the other from and against all expenses, fees (including reasonable attorney's fees), claims, damages, costs, causes of action, suits, proceedings, judgments or amounts paid in settlement arising out of any breach of its obligations for such fees and commissions, or its representations.
17. EXPENSES. Federal, state and local transfer taxes and all recording fees to discharge obligations against the Property which arise from this transaction shall be paid by the Seller. Fees to record the deed shall be paid by Purchaser.
18. RIGHT OF ASSIGNMENT. Purchaser may assign its rights under this Agreement to a wholly owned subsidiary of Purchaser without the written consent of Seller. Any other assignment shall require Seller's written consent.
19. MISCELLANEOUS PROVISIONS.
A. NOTICES. Any notice or other communication given pursuant to this Agreement (hereinafter "Notice") shall be in writing and shall be sent by registered or certified mail, return receipt requested, with postage and fees prepaid addressed to the parties at their respective addresses set forth below Any party may, by notice given as aforesaid, change its address for any subsequent notice. Any notice by either party shall be sufficient if signed on behalf of said party by any partner or officer thereof:
Purchaser:
VOYAGERPETROLEUM, INC.
16 East Hinsdale Ave.
Hinsdale, Illinois 60521
ATTN: Jefferson Stanley Email: JeffersonStanley@hedgemarketadvisors.com
8
--------------------------------------------------------------------------------
With a copy to: Gregg A. Nathanson, Esq.
Couzens, Lansky, Fealk, Ellis, Roeder &
Lazar, P.C.
39325 West 12 Mile Road, Suite 200
Farmington Hills, Michigan 48331
Fax No.: (248) 324-3087
Email: Gregg.Nathanson@Couzens.com
Seller:
DEACON ENTERPRISES, INC.
c/o Mr. and Mrs. Verlin Eppert
1138 Foxchase Dr.
Bloomfield Hills, Michigan 48301
with a copy to: Alan J. Ferrara, Esq.
Finkel, Whitefield, Selik,
Ferrara, Feldman & Sherbin, P.C.
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334-1567
Fax No.: 248/855-6501
B. APPLICABLE LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, irrespective of the residence of a party.
C. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and understanding by and between the parties relating to the subject matter hereof, and this Agreement may not be amended, waived or discharged, except by an instrument in writing executed by the party against which enforcement of such amendment, waiver, or discharge is sought.
D. COUNTERPARTS AND FACSIMILE. This Agreement may be executed in any number of counterparts, none of which has been executed by all of the parties hereto, each of which shall be deemed an original, and all of which when taken together, shall constitute one in the same instrument. Facsimile or photostatic signatures shall be deemed originals for purposes of execution and delivery of this Agreement.
E. SEVERABILITY. Whenever possible, each provision of this Agreement and all related documents shall be interpreted in such a manner as to be valid under applicable law, but to the extent any provision is invalid or prohibited under applicable law, such provision shall be ineffective to the extent of such invalidity or prohibition without invalidating the remainder of such provision or the remaining provisions of this Agreement.
F. BINDING AGREEMENT. This Agreement shall be binding upon and inure to the benefit of the heirs, legal representatives, successors and assigns of the parties hereto.
G. EFFECTIVE DATE. The "Effective Date" of this Agreement shall be the date upon which Purchaser acknowledges receipt of a copy of this Agreement, fully executed by Seller and Purchaser. "Acknowledgement" shall be the earlier of (i) Purchaser signing the Purchaser's Acknowledgement attached to
9
--------------------------------------------------------------------------------
this Agreement, (ii) the execution by Purchaser of a U.S. Postal Office Return Receipt Card, or (iii) Seller's confirmation of Purchaser's receipt of the fully executed Agreement via facsimile or electronic mail.
H. CONSTRUCTION. Seller and Purchaser have participated equally in the preparation of this Agreement and, therefore, in construing this Agreement there shall be no presumption in favor of one party over the other as the result of one party actually drafting this Agreement. The absence from this Agreement of provisions appearing in drafts hereof shall not be used in construing the intent of the parties hereto. To the extent a time frame provided hereunder shall be set to expire on a Saturday, Sunday or day on which banking institutions in the State of Michigan are authorized by law to close, then such time frame shall expire on the next day which is not a Saturday, Sunday or day on which banking institutions in the State of Michigan are authorized by law to close.
I. TIME IS OF THE ESSENCE. Time is of the essence with respect to this Agreement.
J. VENUE. Any litigation based hereon, or arising out of, under, or in connection with this Agreement, shall be brought and maintained exclusively in the courts of the County of Oakland, State of Michigan or in the United States District Court for the Eastern District of Michigan. Each of the parties hereby expressly and irrevocably submits to the jurisdiction of the courts of the County of Oakland, State of Michigan and of the United States District Court for the Eastern District of Michigan for the purpose of any such litigation as set forth above. Each of the parties further irrevocably consents to the service of process by registered mail, postage prepaid, or by personal service within or without the State of Michigan.
K. EXPIRATION. The offer to purchaser and sell the Property made herein expires at 5:00 p.m. EST on January __, 2007, unless the parties execute this Agreement prior to said date.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and date first above written.
WITNESSED BY: SELLER:
DEACON ENTERPRISES, INC.
/S/ Signature illegible By: /S/ VERLIN EPPERT
--------------------------------------- ----------------------------
VERLIN EPPERT, President
PURCHASER:
VOYAGERPETROLEUM, INC.
/S/ GABRIELLE STANLEY By: /S/ JEFFERSON STANLEY
--------------------------------------- ----------------------------
JEFFERSON STANLEY, Chief
Financial Officer
10
--------------------------------------------------------------------------------
PURCHASER'S ACKNOWLEDGMENT
Purchaser acknowledges receipt of a copy of this Agreement fully executed by the parties.
Dated: January 19, 2007 Purchaser:
VOYAGERPETROLEUM, INC.
By: /S/JEFFERSON STANLEY
-------------------------------
JEFFERSON STANLEY, Chief
Financial Officer
DEPOSIT ACKNOWLEDGMENT
The Purchase and Sale Agreement, and the Deposit referred to in Paragraph 5, has been received by the Escrow Agent. By its execution of this Purchase and Sale Agreement below, the Escrow Agent agrees to be bound by the terms hereof to the extent that the Purchase and Sale Agreement imposes duties on the Escrow Agent.
Dated: ___________________, 2007 PHILIP R. SEAVER TITLE COMPANY, INC.
By:
--------------------------------
Its Authorized Signatory
11
--------------------------------------------------------------------------------
EXHIBIT "A"
Legal Description
Land situated in the City of Detroit, County of Wayne, and State of Michigan, to-wit:
FIRST PARCEL
Beginning at the intersection of the Southeasterly line of Private Claim 125 and the Northerly line of Michigan Central Railroad right-of-way (100.00 feet wide); thence North 29 degrees East 695.88 feet; thence North 21 degrees 21 minutes 40 seconds West 17.25 feet; thence South 58 degrees 01 minutes 57 seconds West 548.01 feet; thence North 60 degrees 59 minutes 33 seconds West 46.01 feet to the Detroit and Toledo Shore line Railroad right-of-way 60.00 feet wide; thence along said right-of-way by a curve to the left an arc distance of 194.11 feet whose chord bears South 16 degrees 23 minutes 23 seconds West 193.96 feet to the Northerly line of Michigan Central railroad right-of-way thence along said right-of-way by a curve to the right an arc distance of 286.25 feet whose chord bears South 53 degrees 15 minutes 42 seconds East 285.58 feet to the point of beginning. Containing 3.027 acres, more or less.
SECOND PARCEL
Beginning at a point in the Northwesterly line of said Private Claim One Hundred and Twenty-Five where it is intersected by the Southwesterly line of the Detroit, Delray and Dearborn Railroad Company's one hundred feet wide right of way;
Thence Southeastwardly, along said Southwesterly line, by a curve to the right having a radius of eleven hundred six feet and twenty eight-one-hundredths of a foot, for a distance of eighty-six feet and fifty-eight one-hundredths of -a foot to the Westerly line of the sixty feet wide right of way of the Detroit and Toledo Shore Line Railroad Company, said curve lying on the Northeasterly side of its chord, said chord having a bearing of South sixty-four degrees thirty-nine minutes and twenty-eight and one-half seconds East and a length of eighty-six feet and fifty-five one hundredths of a foot;
Thence Southwardly along the last mentioned Westerly line, by a curve to the left having a radius of fourteen hundred and sixty-three feet, for a distance of three hundred seven feet and forty-six one hundredths of a foot to the Southwesterly line of land of the Pennsylvania, Ohio and Detroit Railroad Company, said curve lying on the Westerly side of its chord, said chord having a bearing of South four degrees thirtY-Three minutes and fourteen seconds West and a length of three hundred six feet and ninety-one hundredths of a foot;
Thence North thirty-nine degrees and thirty minutes West along said Southwesterly line of land of said the
Pennsylvania, Ohio and Detroit Railroad Company, two hundred twenty-nine feet and thirty-four one hundredths of a foot to a point in the Northwesterly line of said Private Claim One Hundred and Twenty-five;
Thence Northeastwardly along said Northwesterly line, one hundred eighty-nine feet and ninety-four one hundredths of a foot to the point of beginning;
Containing an area of seventy-one hundred and thirty-five ten thousandths of an acre, more or less.
Together with the right to use, as a way of ingress and egress to and from the parcel of land third hereinbefore described, a strip of land twenty feet in width lying immediately West of and adjoining the West line of said Private Claim One Hundred Twenty-five and extending from a point on the line of said third described parcel of. land in a Southerly direction to a strip of land known as Lot Number A in the Grand Factory Subdivision of part of Private Claim One Hundred Eighteen according to the plat thereof recorded in Liber 23 of Plats, Page 49.
--------------------------------------------------------------------------------
EXHIBIT B - ENVIRONMENTAL REPORTS
The following is a list of the environmental reports and/or test results with their approximate dates, the consultants which
compiled them and the entities for which they were compiled. The Epperts will use their best efforts to produce the reports and/or
test results listed below within ten (10) days from the signing of this Agreement.
------------------------------------------------------------------------------------------------------------------------------------
APPROXIMATE CONSULTANT ENTITY FOR WHICH
DATE OF REPORT TITLE OF REPORT DRAFTING REPORT REPORT WAS PREPARED
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
03/10/00 Baseline Environmental Assessment ERM D.A. Stuart Company
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
07/27/00 Due Care Plan ERM D. A. Stuart Company
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
11/02/01 Baseline Environmental Assessment ERM D. A. Stuart Company
Annual Report
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
08/01/02 Phase I Environmental Exit Survey ERM D. A. Stuart Company
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
03/2003 Second Annual Due Care Report ERM D. A. Stuart Company
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
7/1999 Draft Industrial Closure Report (Draft NTH Consultants Eppert Oil Company
never finalized). In approximately
December 1999 D.A. Stuart took the
position that it would take over
environmental issues with respect to
the Deacon site.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
10-12/1998 Sampling Event Conducted By NTH NTH Consultants Eppert Oil Company
Consultants, Inc.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
02/1998 Maps and Tables LTI Environmental Safety Kleen/ELF
Engineering
------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT 10.2
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (this "SUBLEASE") is made and entered into as of December __, 2006, by and between D. A. STUART COMPANY, a Delaware corporation ("SUBLANDLORD"), and Voyager Petroleum, Inc., a Nevada corporation ("SUBTENANT").
R E C I T A L S
A. Pursuant to that certain Business Property Lease dated as of January 26, 2000 by and between DEACON ENTERPRISES, INC., a Michigan corporation (successor to Verlin R. Eppert, Jr. and Rosalie A. Eppert, "LANDLORD") as landlord and Sublandlord as tenant (the "MASTER LEASE"; a copy of the Master Lease is attached hereto as EXHIBIT A), Landlord leased to Sublandlord certain industrial property and buildings located at 9100 Freeland Avenue, Detroit, Michigan (the "FREELAND PREMISES") and at 600 S. Deacon Street, Detroit, Michigan (the "DEACON PREMISES").
B. On July 20, 2005, Sublandlord, as sublandlord, and American Petroleum Products Corporation, an Illinois corporation ("APPC"), as subtenant, executed a Sublease Agreement with respect to the Deacon Premises ("APPC SUBLEASE").
C. APPC subsequently filed for bankruptcy.
D. Sublandlord and APPC entered into a Stipulation and Order Approving Rejection of Sublease, filed with the U.S. Bankruptcy Court, Southern District of New York, Poughkeepsie Division, on December 4, 2006 (judge's signature erroneously stated as November 4, 2006), which requires APPC to relinquish all rights under the APPC Sublease, including APPC's right to possession of the Deacon Premises, no later than December 29, 2006 (the "Stipulation").
E. Subtenant or its affiliate, as purchaser, and Landlord, as seller, have executed or are in the process of negotiating a Real Estate Purchase Agreement for the sale by Landlord to Subtenant or its affiliate ("PURCHASER"), of the Deacon Premises (the "DEACON PURCHASE AGREEMENT").
F. The Deacon Purchase Agreement contemplates that the Sublandlord and the Subtenant shall enter into this Sublease.
G. Subtenant desires to lease from Sublandlord the Deacon Premises and Sublandlord desires to lease the Deacon Premises to Subtenant on the terms and conditions set forth herein;
NOW, THEREFORE, for and in consideration of $10.00 and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Sublandlord and Subtenant do hereby agree as follows:
--------------------------------------------------------------------------------
1. SUBLEASED PREMISES. Subject to the effectiveness of the Stipulation against APPC, and the actual vacation of the Deacon Premises by APPC and its corporate affiliates, Sublandlord hereby subleases and demises to Subtenant, and Subtenant hereby hires and subleases from Sublandlord, the Deacon Premises together with all equipment, improvements and fixtures thereon to be used for manufacture of lubricating oils in keeping with the character of the Deacon Premises, and for no other purpose. Subtenant covenants and agrees to provide 24 hour security and fire protection to the Deacon Premises during the term of this Sublease.
2. TERM. The term of this Sublease shall commence on the later of: January 1, 2007 or the date APPC vacates the Deacon Premises in the condition required under paragraph 2 of the Stipulation and Sublandlord delivers possession thereof to Subtenant (the "Commencement Date") and shall end on the earliest of (i) six (6) months after the Commencement Date (provided, however, Sublandlord agrees to extend the term of this Sublease for up to an additional three (3) months if and to the extent the Deacon Purchase Agreement is still in effect and Subtenant is to Sublandlord's reasonable satisfaction diligently working toward the purchase of the Deacon Premises, (ii) the date upon which Subtenant or its affiliate closes on the purchase of the Deacon Premises from Landlord pursuant to the Deacon Purchase Agreement or (iii) the date on which the Deacon Purchase Agreement terminates without a closing; but subject in any event to the earlier termination of the Master Lease. Without limiting the responsibility of Subtenant to carefully review the Master Lease, Sublandlord hereby reiterates that the "Initial Term" of the Master Lease ends on December 31, 2009, and while Sublandlord has an option to renew the Master Lease, Sublandlord undertakes absolutely no obligation to Subtenant to so extend the Master Lease.
3. RENT. Subtenant shall pay in advance to Sublandlord basic rent of Four Thousand Dollars ($4,000) per month ("BASE RENT") for the term of this Sublease, payable on the Commencement Date and on the first day of each month thereafter during the term of this Sublease. Payment of Base Rent shall be made without demand, notice, counterclaim, offset or deduction.
It is the intention of the parties that the payment of Base Rent provided above shall be absolutely "net" to the Sublandlord, by which is meant that the parties intend that the Sublandlord shall have the Base Rent in hand after payment of any and all expenses that Sublandlord is required to pay on account of its leasehold interest in the Deacon Premises and that arise during the term of this Sublease.
SECTION 17 of this Sublease sets forth additional provisions relative to the payment of expenses related to the Deacon Premises.
All such expenses that Sublandlord is required to pay under the terms of the Master Lease (or otherwise) with respect to the Deacon Premises (hereinafter referred to as "ADDITIONAL RENT"), to the extent not directly paid by the Subtenant, shall be invoiced by the Sublandlord to the Subtenant and the Subtenant shall pay the Sublandlord the amount so invoiced, without further demand, notice, counterclaim, offset or deduction, within 30 days of invoice. Additional Rent includes all costs and expenses of any kind or description with respect to the Deacon Premises that are the responsibility of the "Tenant" under the Master Lease and that arise during the term of this Sublease. Base Rent and Additional Rent are referred to herein collectively as "RENT".
2
--------------------------------------------------------------------------------
Subtenant's agreement to pay Rent is an independent covenant, with no right of setoff, deduction or counterclaim of any kind, except if and to the extent APPC objects to Subtenant occupying the Deacon Premises. The obligation of the Subtenant to pay Rent accruing during the term of this Sublease, whether Base Rent or Additional Rent, shall survive any termination of this Sublease or the Master Lease.
Rent shall be prorated for any partial month at the beginning and/or end of the Sublease term, by dividing the stated monthly rental rate (and Tenant's pro rata share of Additional Rent) by the number of days in such month during which Subtenant occupies the Deacon Premises.
4. CONDITION AND DELIVERY OF THE PREMISES. Except as provided below, the Deacon Premises shall be delivered to Subtenant in "AS IS" condition as of the date of Possession, with no representations or warranties on the part of Sublandlord, and without any obligation of Sublandlord to alter, remodel, improve, repair or decorate any part of the Deacon Premises. Except as provided below, Subtenant's taking possession of any portion of the Deacon Premises shall be conclusive evidence that, as between Sublandlord and Subtenant, the Deacon Premises was in good order, repair and condition, and that any work to be performed by Sublandlord has been satisfactorily completed. Any statements made by Sublandlord, its officer, agents or representatives regarding the physical or legal condition of the Deacon Premises, whether orally, in writing or by electronic communication, while true to the best knowledge of the individual making such statements, are solely for the purpose of guiding Subtenant's own evaluation of the Deacon Premises, and by its signature below, Subtenant affirms that it is not relying on any such statement, nor shall Sublandlord, its officer, agents or representatives have any liability with respect to the accuracy of such statements. The preceding sentence shall not be construed as negating any express representation or warranty contained within the four corners of this Sublease, nor shall it have any bearing on any provision of the Deacon Purchase Agreement. Notwithstanding the foregoing, Tenant shall have thirty (30) days after the Commencement Date ("Inspection Period") to determine whether anything is not working, missing, broken or defective with respect to the Deacon Premises, or whether there are any other material adverse facts which Subtenant was unable to discover upon a reasonable preliminary inspection of the Premises (collectively "Surprises"). If Subtenant discovers any Surprises that have a material impact on Subtenant's ability to operate its lubricating oil manufacturing business at the Deacon Premises, then Subtenant may terminate the Sublease, and Subtenant shall notify both Sublandlord and Landlord of its decision to do so.
5. COMPLIANCE WITH THE MASTER LEASE DURING THE TERM. Subtenant acknowledges that it has had an opportunity to review the Master Lease, and that Subtenant is leasing the Deacon Premises subject to all faults and physical conditions set forth in the Master Lease, including, without limitation, all known or unknown environmental conditions, except to the extent provided for in the last sentence of paragraph 4 of this Sublease.
3
--------------------------------------------------------------------------------
A. Subtenant agrees to comply with and be bound by and be subject to the provisions of the Master Lease arising during the term of this Sublease, the terms of which are hereby incorporated as additional terms and covenants of this Sublease as if they were recited herein to the same extent as if Subtenant was the tenant under the Master Lease. Subtenant shall have all the duties and obligations of Sublandlord under the Master Lease arising during the term of this Sublease (as if Subtenant were the tenant under the Master Lease), and Sublandlord shall have all of the rights, privileges and remedies of Landlord under the Master Lease arising during the term of this Sublease (as if Sublandlord were the landlord under the Master Lease) with respect to this Sublease as fully as if such duties, obligations, rights, privileges and remedies were fully set forth herein. Notwithstanding the above, if any of the terms of the Master Lease are inconsistent with any terms of this Sublease, the terms of this Sublease shall control. Subtenant warrants, represents, covenants and agrees that it will not take any actions which violate the terms and covenants to be observed by Sublandlord under the Master Lease arising during the term of this Sublease or which result, or with the giving of notice or the passage of time would result, in a breach of the Master Lease. Subtenant agrees to indemnify, defend and hold Sublandlord harmless from any and all claims, suits, actions, causes of action, liabilities, damages, losses, costs and expenses, including reasonable attorneys' fees and expenses, asserted against, incurred by or imposed on Sublandlord as a result of the nonperformance or nonobservance of any terms and covenants of the Master Lease by Subtenant arising during the term of this Sublease to the same extent as if Sublandlord were the landlord under the Master Lease.
B. If for any reason the Master Lease terminates, this Sublease shall terminate. If such termination arises because of the actions of the Sublandlord, then the Subtenant shall be entitled to any appropriate remedies available under this Sublease, otherwise the Subtenant shall have no remedy against the Sublandlord.
C. Subtenant acknowledges that any option to purchase, right of first refusal, option to extend the Master Lease or similar optional right of Sublandlord relative to the Deacon Premises contained in the Master Lease, including, without limitation, the rights contained within Section 31 and 32 of the Master Lease, is strictly personal to Sublandlord, and Subtenant shall have no rights with respect to such option or right. Notwithstanding the foregoing, during the term of this Sublease, Sublandlord shall not exercise any right of first refusal or other present contractual right that Sublandlord may have to purchase the Deacon Property. Sublandlord agrees that should this Sublease terminate as a result of Purchaser's purchase of the Deacon Premises from Landlord pursuant to the Deacon Purchase Agreement, then the rights afforded to Sublandlord under Section 31 and 32 of the Master Lease shall terminate as to the Deacon Premises.
D. Subtenant agrees to indemnify Landlord and Sublandlord to the extent that Sublandlord is required to indemnify Landlord under the Master Lease, to the extent such indemnity arises as a result of any wrongful acts or omissions
4
--------------------------------------------------------------------------------
of Subtenant during the term of the Sublease or under this Sublease. Landlord may seek indemnification from either Subtenant or Sublandlord or both in its sole discretion and shall not be obligated to seek indemnification from a party before seeking indemnification from the other party; provided, however, Landlord may seek indemnification from Subtenant only to the extent such indemnification arises as a result of any wrongful acts or omissions of Subtenant during the term of this Sublease or under this Sublease.
E. Sublandlord agrees that, in connection with the Purchaser's closing upon the purchase of the Deacon Premises from Landlord pursuant to the Deacon Purchase Agreement, Sublandlord will surrender its leasehold interest in the Deacon Premises under the Master Lease, terminate any rights to possess, occupy, use or enjoy the Deacon Premises, and execute such form of instrument evidencing such surrender and termination as is mutually satisfactory to Landlord, Purchaser and Sublandlord.
F. Notwithstanding anything to the contrary contained in this Sublease: (a) nothing contained in this Sublease shall relieve Sublandlord of any of its liabilities or obligations to Landlord under the Master Lease; (b) the Subtenant is not assuming any liabilities or obligations of Sublandlord to the Landlord under the Master Lease for anything Sublandlord did or fails to do under the Master Lease; (c) Sublandlord agrees to defend and indemnify Subtenant if and to the extent Landlord seeks to hold Subtenant liable for any liability or obligations of Sublandlord to Landlord under the Master Lease, except if and to the extent Sublandlord's liability to Landlord arises as a result of any wrongful acts or omissions of Subtenant under this Sublease; (d) Sublandlord shall be liable for any nonpayment of utilities, taxes, or other breach under the Master Lease which arose or occurred at any time before the commencement of this Sublease; and (e) nothing in this Sublease shall relieve Sublandlord of its obligations under the Master Lease including, without limitation, liabilities with respect to environmental matters, provided that the foregoing shall not limit the obligation of the Subtenant to indemnify the Sublandlord if and to the extent Sublandlord's liability to Landlord arises as a result of any wrongful acts or omissions of Subtenant under this Sublease.
6. SALE, ASSIGNMENT, AND SUBLEASE. Subtenant shall not assign, mortgage or hypothecate this Sublease, or sublet the Deacon Premises subleased herein, or any part thereof. This Sublease shall not be assigned by operation of law. Any attempt to sell, assign or sublet without the consent of Sublandlord and the Landlord shall be deemed a default by Subtenant and shall be deemed null and void.
7. COVENANT AGAINST LIENS. Under the Master Lease, Sublandlord has no authority or power to cause or permit any lien or encumbrance of any kind whatsoever, whether created by act of Sublandlord, operation of law or otherwise, to attach to or be placed upon Landlord's title or interest in the Deacon Premises. Subtenant covenants and agrees not to suffer or permit any lien of mechanics or materialmen or others to be placed against the Deacon Premises with respect to work or services claimed to have been performed or for materials claimed to have been
5
--------------------------------------------------------------------------------
furnished to Subtenant or the Deacon Premises, and, in case of any such lien attaching, Subtenant covenants and agrees to discharge or cause to be discharged such lien within ten (10) days after Subtenant receives notice of the filing thereof.
8. CONDEMNATION. If there shall be a taking of a portion of the Deacon Premises and the Master Lease shall not be canceled, Rent shall be reduced in the proportion that the area of the Deacon Premises so taken (if any) bears to the entire area of the Deacon Premises. Subtenant shall under no circumstances be entitled to claim, share in, collect or recover any of the condemnation award pursuant to this Sublease; provided, however, nothing herein shall affect Subtenant or Purchaser's rights to claim, share in, collect or recover any condemnation award to the extent provided for under the Deacon Purchase Agreement.
9. DEFAULT.
A. MONETARY DEFAULT. If Subtenant defaults in the payment of any sums payable hereunder when due and fails to cure such default within five (5) days after Sublandlord gives written notice thereof to Subtenant, then Sublandlord may, at its option, immediately terminate this Sublease or Subtenant's right to possession of the Deacon Premises by giving Subtenant thirty (30) days' written notice of such election to terminate, in which event neither Subtenant nor any person claiming through or under Subtenant by virtue of any statute or order of any court shall be entitled to possession or to remain in possession of the Deacon Premises but shall immediately surrender the Deacon Premises.
If Subtenant shall fail to make any payment of Rent when due and payable under this Sublease, Subtenant shall pay to Sublandlord as a late charge and in consideration of the additional costs incurred by Sublandlord and the additional record keeping required to be performed by Sublandlord an additional sum equal to five percent (5%) of the amount of Rent due and owing from Subtenant. Furthermore, an additional late charge may be assessed by Sublandlord against Subtenant in a per annum amount equal to two percent (2%) in excess of the prime rate of interest or other equivalent reference rate announced from time to time by the Bank of America (or any successor thereto) at its principal corporate office from the date such payment is due hereunder until paid by Subtenant provided in no event shall charges exceed the maximum interest rate permitted by law (the "DEFAULT INTEREST RATE"). The assessment or payment of such late charge, however, shall not excuse or be deemed to cure any default by Subtenant hereunder.
B. NON-MONETARY DEFAULT. If Subtenant defaults in the prompt and full performance of any covenant, agreement or condition of this Sublease or the Master Lease (other than a default in any payment required under this Sublease) and such default shall continue for a period in excess of thirty (30) days after Sublandlord gives written notice thereof to Subtenant (unless such default involves a hazardous condition, in which event such default shall be cured immediately, but in
6
--------------------------------------------------------------------------------
no event later than 30 days after such notice), then Sublandlord may, at its option, terminate this Sublease or Subtenant's right to possession of the Deacon Premises, in which event neither Subtenant nor any person claiming through or under Subtenant by virtue of any statute or order of any court shall be entitled to possession or to remain in possession of the Deacon Premises but shall immediately surrender the Deacon Premises.
C. MASTER LEASE. Sublandlord may terminate this Sublease, without having given prior notice of default hereunder, if the act or omission of Subtenant causes a default under the Master Lease, and such act or omission does not otherwise constitute a default under PARAGRAPH 9A or PARAGRAPH 9B of this Sublease.
D. SUBLANDLORD'S REMEDIES. If Subtenant shall default under this Sublease and such default shall entitle Sublandlord to possession of the Deacon Premises as hereinabove provided, then Sublandlord shall have the right to enter the Deacon Premises by any legal means, to remove Subtenant's property and effects, and to take and hold possession thereof, without terminating this Sublease or releasing Subtenant in whole or in part from Subtenant's obligations to pay rent and all of Subtenant's other obligations hereunder for the full term of this Sublease, and to relet the Deacon Premises or any part thereof (with the Landlord's consent) either in the name or for the account of Subtenant, for such rent and for such term or terms as Sublandlord may see fit, which term may, at Sublandlord's option, extend beyond the balance of the term of this Sublease (but not beyond the term of the Master Lease without Landlord's consent). Sublandlord shall not be required to accept any tenant offered by Subtenant or to observe any instructions given by Subtenant about such reletting; however, Sublandlord may not unreasonably withhold its consent to a proposed sublease or assignment by Subtenant, although the failure of Landlord to consent to such a sublease or assignment shall constitute a reasonable basis for Sublandlord's refusal. Sublandlord shall use reasonable efforts to mitigate damages incurred by Subtenant's default; it being understood and agreed, however, that Sublandlord shall be under no obligation to relet a portion of the Deacon Premises prior to all of the Deacon Premises. In any such case, Sublandlord may make such repairs, alterations and additions in and to the Deacon Premises and redecorate the same as it sees fit, subject to the terms of the Master Lease. Subtenant shall pay Sublandlord any deficiency between the Rent and other charges hereby reserved and covenanted to be paid and the amount of the rents collected on such reletting, for the balance of the term of this Sublease. Any deficiency in Rent and other charges shall be paid in monthly installments, upon statements rendered by Sublandlord to Subtenant. Any suit brought to collect the amount of the deficiency for any one or more months shall not preclude any subsequent suit to collect the deficiency for any subsequent months. In addition to all other rights, and remedies of Sublandlord under this Sublease, Subtenant agrees to indemnify Sublandlord for all costs, expenses and other amounts which Sublandlord is required to pay under the Master Lease as a result of Subtenant's default under this Sublease or the Master Lease.
7
--------------------------------------------------------------------------------
E. DAMAGES. If Subtenant is in default of its obligations under this Sublease, Sublandlord may cure the default and Subtenant shall forthwith pay to Sublandlord a sum of money equal to all amounts reasonably expended by Sublandlord in curing such default plus interest at the Default Interest Rate from the date such amounts are expended by Sublandlord until Sublandlord is reimbursed therefor by Subtenant.
F. ATTORNEYS' FEES. If suit is brought by either party under this Sublease, each party in such suit shall pay all its own expenses of such suit, including, without limitation, its own attorneys' fees and expenses.
G. BANKRUPTCY OR INSOLVENCY. If, at any time during the term of this Sublease, there shall be filed by or against Subtenant in any court pursuant to any statute either of the United States or any state, a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver, trustee or liquidator of all or any portion of Subtenant's property or if Subtenant makes an assignment for the benefit of creditors, or if Subtenant admits in writing its inability to pay its debts, or if there is an attachment, execution or other judicial seizure of substantially all of Subtenant's assets or of Subtenant's interest in this Sublease, this Sublease shall IPSO FACTO be canceled and terminated, in which event neither Subtenant nor any person claiming through or under Subtenant by virtue of any statute or an order of any court shall be entitled to possession or to remain in possession of the Deacon Premises but shall forthwith quit and surrender the Deacon Premises and Sublandlord shall, in addition to any other rights and remedies under this Sublease, be entitled to retain any Rent or other monies received by Sublandlord from Subtenant as liquidated damages.
H. OTHER REMEDIES. In addition to any and all remedies set forth herein, Sublandlord shall have all remedies available at law or in equity and any and all remedies shall be cumulative and nonexclusive.
10. SURRENDER OF POSSESSION. Upon the expiration of the term of this Sublease or upon the termination of Subtenant's right of possession (in whole or in part) other than in connection with the purchase of the Deacon Premises from Landlord pursuant to the Deacon Purchase Agreement, whether by lapse of time or at the option of Sublandlord as herein provided or upon termination of the Master Lease, Subtenant forthwith shall surrender the Deacon Premises to Sublandlord in the same repair and condition as existed in the Deacon Premises upon the Commencement Date, ordinary wear and tear excepted. Upon the termination of the term of this Sublease or of Subtenant's right of possession or upon termination of the Master Lease, Subtenant shall remove (a) Subtenant's inventory, equipment, office furniture, trade fixtures, office equipment, and all other items of Subtenant's personal property on the Deacon Premises and (b) all improvements which Landlord or Sublandlord has directed Subtenant to remove at the end of the term of this Sublease that were not installed by Sublandlord or Landlord or were not in the Deacon Premises as of the date of this Sublease and all other items, if any, required to be removed by Subtenant pursuant to
SECTION 8 of the Master Lease. Subtenant shall pay to Sublandlord upon demand the cost of repairing any damage to the Deacon Premises and to
8
--------------------------------------------------------------------------------
the Building caused by any such removal. If Subtenant shall fail or refuse to remove any such property from the Deacon Premises, Subtenant shall be conclusively presumed to have abandoned the same, and title thereto shall, at Sublandlord's option, pass to Sublandlord without any cost either by set-off, credit, allowance, or otherwise, and Sublandlord at its option may accept the title to such property, or at Subtenant's expense may (i) remove the same or any part in any manner that Sublandlord shall choose, repairing any damage to the Deacon Premises caused by such removal, and (ii) store, destroy, or otherwise dispose of the same without incurring liability to Subtenant or any other person.
11. HOLDING OVER.
A. If Subtenant retains possession of the Deacon Premises or any part thereof after the expiration of the earlier of (i) the term of this Sublease, (ii) Subtenant's right of possession, whether by lapse of time or otherwise or (iii) upon termination of the Master Lease, then at Sublandlord's option (with the consent of the Landlord), Subtenant shall thereafter be deemed to be a month-to-month tenant and shall remain subject to each and every term of this Sublease. In the event of any hold-over, and rent shall be payable for each month or portion thereof thereafter at the hold-over rate of three (3) times the basic rent required under Section 3 of this Sublease, plus all additional charges and additional rent required to be paid by Sublandlord under the Master Lease for such hold-over period.
B. In addition to such payment of rent and without limiting any other rights and remedies which Sublandlord may have on account of such holding over by Subtenant, Subtenant shall pay to Sublandlord on demand all direct damages suffered by Sublandlord on account of such holding over by Subtenant.
12. WAIVER. Any waiver of any provision of this Sublease by any party must be in writing and shall be limited to the particular instance involved and shall not be deemed to waive any other rights of such party under any other instances or under any other terms of this Sublease.
13. QUIET ENJOYMENT. Provided that Subtenant pays the Rent and otherwise performs and observes all of the covenants, obligations, terms and conditions contained in this Sublease, Subtenant shall enjoy peaceful and quiet possession of the Deacon Premises against any party claiming through Sublandlord.
14. INDEMNIFICATION BY SUBTENANT; INSURANCE. Subtenant agrees to indemnify and defend Sublandlord (and Landlord and its shareholders) and hold Sublandlord (and Landlord and its shareholders) harmless from and against any and all claims, damages, costs and expenses, including reasonable attorneys' fees, arising from the conduct or management of the business conducted by Subtenant in the Deacon Premises, or from any breach or default on the part of Subtenant in the performance of any covenant or agreement on the part of Subtenant to be performed pursuant to the terms of this Sublease, or from any act, omission or negligence of Subtenant, its agents, contractors, servants, employees, concessionaires or licensees in or about the Deacon Premises, which obligations shall include any claims, damages, costs and expenses
9
--------------------------------------------------------------------------------
arising as a result of environmental contamination caused by the Subtenant during its subtenancy. In case any action or proceeding is brought against Sublandlord (or Landlord and its shareholders) by reason of any such claim, Subtenant, upon notice from Sublandlord, covenants to diligently defend such action or proceeding, and to retain legal counsel reasonably satisfactory to Sublandlord (and Landlord and its shareholders) in connection therewith. Subtenant agrees to name Sublandlord (and Landlord and its shareholders) as an additional insured under any insurance policies of Subtenant related to Subtenant's use or occupancy of the Deacon Premises. Subtenant shall maintain all insurance policies required to be maintained by Sublandlord under the Master Lease. To the extent the Master Lease requires that Landlord be named in such policies, Subtenant shall cause both Landlord and Sublandlord to so be named. Subtenant shall provide the Sublandlord a certificate evidencing the required insurance coverages on the Commencement Date and on each anniversary thereof.
15. ACCESS TO PREMISES. Sublandlord (and Landlord) shall have the right to enter the Deacon Premises at any reasonable time for the purpose of observing the condition of the Deacon Premises. Such visitations to the Deacon Premises by the Sublandlord (or Landlord) shall be conducted so as to avoid to the extent reasonably possible any material interference with the business conducted by the Subtenant.
16. NOTICES. All notices, consents and other communications required or permitted hereunder shall be in writing and shall be mailed, hand delivered, or sent by Federal Express or other recognized overnight courier service, to the parties as follows:
(a) To Sublandlord: D. A. Stuart Company.
Attn: Charles Santangelo
4580 Weaver Parkway
Warrenville, IL 60555
Telephone: 630-393-8556
(b) To Subtenant: Voyager Petroleum, Inc. Attention: Jefferson Stanley 16 East Hinsdale Avenue Hinsdale, Illinois, 60521 Telephone: (630) 325-7130
(c) To Landlord: Deacon Enterprises, Inc. Attn: Verlin Eppert
--------------------------------------------------------------------------------
Telephone: _________________________
or to such additional or other persons, at such other address or addresses as may be designated by notice from Sublandlord or Subtenant, as the case may be, to the other. Notices by mail shall be sent by United States certified or
10
--------------------------------------------------------------------------------
registered mail, return receipt requested, postage prepaid. Notices by mail shall be deemed given and effective when received. Notices by hand delivery shall be deemed given and effective upon the delivery thereof. Notices by overnight courier shall be deemed given and effective on the first day following the delivery thereof to Federal Express or another recognized overnight courier service.
17. SPECIFIC IMPLEMENTATION OF MASTER LEASE PROVISIONS
A. UTILITIES. All utilities used in the Deacon Premises shall be supplied by the utility companies through meters serving the Deacon Premises and Subtenant shall pay directly to such utility companies.
B. REPAIRS AND MAINTENANCE. Subtenant shall observe the requirements of Section 9 of the Master Lease. As between Sublandlord and Subtenant, Subtenant shall be primarily and directly responsible for performing repairs and maintenance of the Deacon Premises, as opposed to reimbursing Sublandlord for such work as Additional Rent.
C. TAXES. The Master Lease imposes upon the Sublandlord, as tenant thereunder, the obligation to directly pay to the relevant taxing authority, all taxes and assessments (including special assessments) (collectively, "TAXES") that are levied or assessed against the Deacon Premises during Sublandlord's possession of the Deacon Premises. During the term of this Sublease, Subtenant shall pay all Taxes levied or assessed against the Deacon Premises, commencing with the December 1, 2006 installment. Subtenant shall provide Sublandlord with evidence of such payment upon demand. If this Sublease shall terminate as a result of a failure of the Deacon Purchase Agreement to close, then Sublandlord and Subtenant shall equitably prorate the burden of the Taxes through the date of termination. By its signature to this Sublease, Landlord agrees that, notwithstanding any contrary language in the Deacon Purchase Agreement, the Purchaser under the Deacon Purchase Agreement shall receive credit with respect to the payment of such taxes (and installments of assessments, if any), in calculating tax prorations under the Deacon Purchase Agreement, so that there is no "double dip" permitting Landlord to receive a credit for any prepaid taxes (or assessments) which were, in fact, paid by Subtenant under this Sublease. Landlord further acknowledges that the obligation of Sublandlord to pay Taxes on the Deacon Premises will be satisfied by such payment by Subtenant.
18. MISCELLANEOUS.
A. NO REPRESENTATIONS OR WARRANTIES; "AS IS". SUBLANDLORD MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIS TRANSACTION OR THE PREMISES, EXCEPT AS SPECIFICALLY SET FORTH HEREIN, AND SUBTENANT EXPRESSLY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY SUBLANDLORD. SUBLANDLORD HAS NO OBLIGATION TO ALTER, REMODEL, IMPROVE, REPAIR OR DECORATE ANY PART OF THE PREMISES. SUBTENANT TAKES THE PREMISES IN "AS IS" CONDITION. SUBTENANT'S TAKING POSSESSION OF ANY PART OF THE PREMISES SHALL BE CONCLUSIVE EVIDENCE THAT THE PREMISES WAS IN GOOD ORDER, REPAIR AND CONDITION.
11
--------------------------------------------------------------------------------
B. EFFECT. This Sublease shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors and permitted assigns, and may not be altered, amended or modified except by written instrument signed by both parties hereto.
C. CAPITALIZED TERMS. Capitalized terms which are defined in the Master Lease have the same meaning when used in this Sublease unless defined in this Sublease or unless the context hereof clearly indicates that a different meaning is intended.
D. CAPTIONS; SEVERABILITY. The headings of sections and paragraphs of this Sublease are for convenience only and shall not be construed in any way to limit or define the content, scope or intent of the provisions. If any provision of this Sublease or any application of any provision in any circumstance is adjudicated to be invalid, the validity of the remainder of this Sublease shall be construed as if such invalid provision were never included.
E. GOVERNING LAW. This Sublease shall be interpreted and construed in accordance with the law of the State of Michigan.
F. COUNTERPARTS. This Sublease may be executed in counterparts, all such counterparts shall constitute the same agreement, and the signature of any party to any counterpart shall be deemed a signature to, and may be appended to, any other counterpart.
G. FURTHER ASSURANCES. The parties agree to take such further actions and execute such further documents as any other party may reasonably require in order to implement the terms and conditions of this Sublease and/or the Deacon Purchase Agreement (after that Agreement has been executed).
H. LANDLORD APPROVAL. This Sublease shall not be effective until it has been approved by Landlord. Landlord shall evidence its approval by executing this Sublease.
I. SUBLANDLORD'S OBLIGATIONS. This Sublease and the obligations of Subtenant hereunder do not relieve the Sublandlord of its obligations under the Master Lease. The Sublandlord acknowledges and agrees that it continues to be primarily obligated and liable to Landlord under the Master Lease irrespective of this Sublease and without any claim or right to offset, deduction, indemnification, credit or counterclaim against Landlord based on a failure of Subtenant to perform; provided, however, that the foregoing shall not limit the obligations of the Subtenant to the Sublandlord under this Sublease.
[signature page follows]
12
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, Sublandlord and Subtenant have caused this Sublease to be duly executed as of the day and year first above written.
SUBLANDLORD:
D. A. STUART COMPANY, a Delaware corporation.
By: /S/ CHARLES SANTANGELO
------------------------------------------
Name: CHARLES SANTANGELO
Its: PRESIDENT
SUBTENANT:
VOYAGER ONE, INC., a Nevada corporation (name changing to Voyager Petroleum, Inc., as of December 1, 2006)
By: /S/ JEFFERSON STANLEY
------------------------------------------
Name: Jefferson Stanley
Title: Chief Financial Officer
Date: January 4, 2007
ACCEPTED AND AGREED TO
Landlord hereby consents to the foregoing Sublease. Landlord acknowledges and agrees that, should the foregoing Sublease terminate as a result of Subtenant's purchase of the Deacon Premises from Landlord pursuant to the Deacon Purchase Agreement, then Landlord shall not exercise its right to repurchase equipment as expressed in Section 8 of the Master Lease.
Landlord:
Deacon Enterprises, Inc.,
a Michigan corporation
By: /S/ VERLIN EPPERT
------------------------------------
Verlin Eppert, President
Date: January _____, 2007
13
--------------------------------------------------------------------------------
EXHIBIT A
[ATTACH MASTER LEASE]
--------------------------------------------------------------------------------
EXHIBIT 10.3
D.A. Stuart Company
4580 Weaver Parkway
Warrenville, IL 60555
Tel: 630-393-0833
Fax: 630-393-0834
Web: www.dastuart.com
January 17, 2007
Mr. Jefferson Stanley
Voyager Petroleum, Inc.
16 East Hinsdale Avenue
Hinsdale, IL 60521
Re: Side Letter Agreement to Sublease Agreement between D.A. Stuart Company and Voyager Petroleum, Inc. ("Sublease Agreement") for premises at 600 S. Deacon Street, Detroit, Michigan (the "Premises")
Dear Jefferson:
In connection with Voyager Petroleum, Inc.'s ("Voyager") agreement to purchase the Premises from Deacon Enterprises, Inc., D.A. Stuart and Company ("DAS") understands that Voyager intends to prepare a baseline environmental assessment ("BEA") for the Premises and submit the same to the Michigan Department of Environmental Quality ("MDEQ"). As we have informed you, DAS is required by its lease with Deacon Enterprises to prepare a Type S BEA upon ceasing occupation of the Premises, to afford Deacon Enterprises an opportunity to make "appropriate modifications" to the Type S BEA and to submit the Type S BEA to MDEQ. As a condition of entering into the Sublease Agreement and other good and valuable consideration, the receipt and sufficiency of which the parties acknowledge, DAS and Voyager hereby enter into this side letter agreement to share environmental information related to their respective filings of a Type S BEA and to address certain insurance issues.
Promptly after the execution of this side letter, DAS shall make copies of its previous BEA reports and deliver those to Voyager's environmental consultant. DAS shall also make its personnel and consultants with knowledge of the prior BEAs and operations at the Premises reasonably available to Voyager's environmental consultant to provide information in connection with the preparation of a Type S BEA.
Voyager has retained, at its sole cost and expense except as otherwise provided below, Associated Environmental Services, LLC ("AES") as its environmental consultant to prepare a Type S BEA for the Premises. Voyager will provide a site map of sample locations, laboratory reports of any sampling results and other relevant documentation related to the samples conducted by AES as part of its BEA to DAS no less than 30 days after Voyager first physically occupies the Premises under the Sublease Agreement and provide a written draft of the AES Type S BEA no less than 6 days prior to submitting the final Type S BEA to MDEQ. Voyager consents to DAS using such documentation in connection with DAS's preparation of its Type S BEA. DAS shall be solely responsible for providing a draft of its Type S BEA to Deacon Enterprises and filing a complete Type S BEA
--------------------------------------------------------------------------------
with MDEQ. Any expenses or work beyond what Voyager deems necessary to file a Type S BEA with the MDEQ will be paid and arranged for by DAS and in no event shall either party have any right to direct or control the final content or timing of the filing of the other party's Type S BEA with the MDEQ.
In light of DAS's contractual obligation under its lease with Deacon Enterprises to submit a Type S BEA, Voyager agrees not to close on the purchase of the Premises or otherwise take action that would terminate DAS's lease for the Premises until DAS has submitted its Type S BEA to MDEQ.
Notwithstanding anything in the Sublease Agreement to the contrary, Voyager and DAS agree that Voyager's occupancy of the Premises and the term of the lease will begin on February 1, 2007.
Voyager and DAS further agree as follows with respect to insurance required to be maintained by Voyager pursuant to Section 14 of the Sublease Agreement. Notwithstanding the requirements of the Sublease Agreement that Voyager "maintain all insurance policies required to be maintained by Sublandlord under the Master Lease", DAS shall initially maintain in place DAS's existing insurance coverages with respect to the Premises. Voyager shall reimburse DAS for the cost of such coverages, which the parties agree is initially estimated to be an annual premium of $2,675. Since the Sublease is not scheduled to terminate as of a date certain, Voyager shall initially pay DAS 100% of such amount (i.e., $2,675), with any unearned balance to be returned to Voyager at the termination of the Sublease. In the event that the term of the Sublease Agreement is further extended, the parties will determine the treatment of insurance policies at that time. Voyager shall also be responsible for the deductible on the policies of insurance, which is currently $10,000 per loss (or $250,000 in case of flood). It is further understood and agreed that, once Voyager sets up operations and from time to time thereafter, the insurance loss control engineer of DAS's insurer will be permitted access to the Premises for the purpose of inspecting and signing off on the new risk profile/exposure. In the event of an unacceptable engineering report, Voyager shall be required to obtain the required coverages directly under Voyager's own name, and upon placement of such insurance in accordance with the Sublease, the unearned portion of the insurance premium paid to DAS shall be refunded to Voyager.
D. A. STUART COMPANY, a Delaware corporation.
By: /S/ CHARLES SANTANGELO
------------------------------------
Name: CHARLES SANTANGELO
Its: PRESIDENT
VOYAGER ONE, INC., a Nevada corporation
(name changing to Voyager Petroleum, Inc., as of December 1, 2006)
By: /S/ JEFFERSON STANLEY
------------------------------------
Name: Jefferson Stanley
Title: Chief Financial Officer
Market Data 
Markets 
AI
