EXHIBIT 10.2
SUBLEASE AGREEMENT
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THIS SUBLEASE AGREEMENT (this "SUBLEASE") is made and entered into as
of December __, 2006, by and between X. X. XXXXXX 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 Xxxxxx X. Xxxxxx, Xx. and Xxxxxxx X. Xxxxxx, "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 0000 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx (the "FREELAND PREMISES") and at 000 X. Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx (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".
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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.
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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
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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
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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
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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.
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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
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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
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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:
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X. X. Xxxxxx Company.
Attn: Xxxxxxx Xxxxxxxxxx
0000 Xxxxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000
Telephone: 000-000-0000
(b) To Subtenant:
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Voyager Petroleum, Inc.
Attention: Xxxxxxxxx Xxxxxxx
00 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx, 00000
Telephone: (000) 000-0000
(c) To Landlord:
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Deacon Enterprises, Inc.
Attn: Xxxxxx Xxxxxx
____________________________________
____________________________________
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
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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.
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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]
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IN WITNESS WHEREOF, Sublandlord and Subtenant have caused this Sublease
to be duly executed as of the day and year first above written.
SUBLANDLORD:
------------
X. X. XXXXXX COMPANY, a Delaware corporation.
By: /S/ XXXXXXX XXXXXXXXXX
------------------------------------------
Name: XXXXXXX XXXXXXXXXX
Its: PRESIDENT
SUBTENANT:
----------
XXXXXXX XXX, INC., a Nevada corporation
(name changing to Voyager Petroleum, Inc.,
as of December 1, 2006)
By: /S/ XXXXXXXXX XXXXXXX
------------------------------------------
Name: Xxxxxxxxx Xxxxxxx
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/ XXXXXX XXXXXX
------------------------------------
Xxxxxx Xxxxxx, President
Date: January _____, 2007
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EXHIBIT A
[ATTACH MASTER LEASE]
