EXHIBIT 99.3
PURCHASE AND SALE AGREEMENT
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THIS AGREEMENT, made as of this ______ day of January, 2007, by and
between DEACON ENTERPRISES, INC., a Michigan Corporation, whose address is 000
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("Seller"), and VOYAGERPETROLEUM, INC., a
Nevada corporation, whose address is 00 Xxxx Xxxxxxxx Xxx., Xxxxxxxx, Xxxxxxxx
00000, ("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 Xxxxx, 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 xxxx 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 Xxxxxx X. Xxxxxx 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 "xxxx 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
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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 Xxxxxxxxx 0, Xxxxxxxxx
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
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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
X.X. Xxxxxx 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
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Property. Further, Seller has advised Purchaser that X.X. Xxxxxx 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
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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
X. X. Xxxxxx 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 X. X. Xxxxxx 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
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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
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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.
00 Xxxx Xxxxxxxx Xxx.
Xxxxxxxx, Xxxxxxxx 00000
ATTN: Xxxxxxxxx Xxxxxxx
Email: XxxxxxxxxXxxxxxx@xxxxxxxxxxxxxxxxxxx.xxx
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With a copy to: Xxxxx X. Xxxxxxxxx, Esq.
Couzens, Lansky, Fealk, Ellis, Xxxxxx &
Xxxxx, P.C.
00000 Xxxx 00 Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Fax No.: (000) 000-0000
Email: Xxxxx.Xxxxxxxxx@Xxxxxxx.xxx
Seller:
-------
DEACON ENTERPRISES, INC.
c/o Mr. and Xxx. Xxxxxx Xxxxxx
0000 Xxxxxxxx Xx.
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
with a copy to: Xxxx X. Xxxxxxx, Esq.
Finkel, Whitefield, Selik,
Ferrara, Xxxxxxx & Xxxxxxx, P.C.
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000-0000
Fax No.: 248/000-0000
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
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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/ XXXXXX XXXXXX
--------------------------------------- ----------------------------
XXXXXX XXXXXX, President
PURCHASER:
VOYAGERPETROLEUM, INC.
/S/ XXXXXXXXX XXXXXXX By: /S/ XXXXXXXXX XXXXXXX
--------------------------------------- ----------------------------
XXXXXXXXX XXXXXXX, Chief
Financial Officer
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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/XXXXXXXXX XXXXXXX
-------------------------------
XXXXXXXXX XXXXXXX, Chief
Financial Officer
DEPOSIT ACKNOWLEDGMENT
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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 XXXXXX X. XXXXXX TITLE COMPANY, INC.
By:
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Its Authorized Signatory
11
EXHIBIT "A"
Legal Description
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Land situated in the City of Detroit, County of Xxxxx, and State of Michigan,
to-wit:
FIRST PARCEL
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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
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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.
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APPROXIMATE CONSULTANT ENTITY FOR WHICH
DATE OF REPORT TITLE OF REPORT DRAFTING REPORT REPORT WAS PREPARED
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03/10/00 Baseline Environmental Assessment ERM X.X. Xxxxxx Company
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07/27/00 Due Care Plan ERM X. X. Xxxxxx Company
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11/02/01 Baseline Environmental Assessment ERM X. X. Xxxxxx Company
Annual Report
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08/01/02 Phase I Environmental Exit Survey ERM X. X. Xxxxxx Company
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03/2003 Second Annual Due Care Report ERM X. X. Xxxxxx Company
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7/1999 Draft Industrial Closure Report (Draft NTH Consultants Xxxxxx Oil Company
never finalized). In approximately
December 1999 X.X. Xxxxxx took the
position that it would take over
environmental issues with respect to
the Deacon site.
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10-12/1998 Sampling Event Conducted By NTH NTH Consultants Xxxxxx Oil Company
Consultants, Inc.
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02/1998 Maps and Tables LTI Environmental Safety Kleen/ELF
Engineering
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