EXHIBIT 10.1
PAYOFF AGREEMENT
This PAYOFF AGREEMENT (the "Agreement") dated June 2, 2008, is made among YA
Global Investors, L.P. (f/k/a Cornell Capital Partners, L.P.) ("YA Global"),
Trey Resources, Inc. ("Trey"), THI, Inc. ("THI"), and Voyager Petroleum, Inc.
(the "Company").
WHEREAS, the Company originally issued those certain 5% Secured
Convertible Debentures set forth on Schedule I attached hereto (collectively,
the "Debentures") pursuant to a Securities Purchase Agreement, as amended, dated
as of May 14, 2004 (the "Securities Purchase Agreement");
WHEREAS, the Company's obligations under the Debentures were secured by
(a) the Security Agreement, dated May 14, 2004, between the Company and YA
Global ("Security Agreement #1") and the UCC-1s filed on July 20, 2004 in Nevada
(with file number 2004022756-7), as amended and on July 23, 2004 in Illinois
(with file number 8921687), filed thereunder, and (b) the Security Agreement
dated May 14, 2004, between the YA Global and Silicon Film Technologies, Inc.
("Security Agreement #2" together with Security Agreement #1, the "Security
Agreement") and the UCC-1 filed on July 23, 2004 in Illinois (with file number
8923205) filed thereunder.
WHEREAS, pursuant to the Purchase and Assignment Agreement dated May 15,
2007, YA Global and Trey sold and assigned their interests in (a) the Securities
Purchase Agreement, (b) the Debentures (c) the Investor Registration Rights
Agreement, dated May 14, 2004, between the Company and YA Global (the
"Registration Rights Agreement"), (c) the Security Agreement, (e) all related
documents under which YA Global and Trey has rights or interests in the
Debentures, and (f) all amendments to the documents referred to in (a) through
(e) in this paragraph (collectively, the "Transaction Documents") to THI in
exchange for promissory notes from THI to YA Global and Trey, dated May 15, 2007
(the "THI Notes"), which were secured by a collateral assignment of the
Transaction Documents from THI to YA Global and Trey (the "Collateral
Assignment").
WHEREAS, the Company, THI, YA Global and Trey hereby agree that as of May
31, 2008, the outstanding principal balance, and interest accrued thereon, of
the THI Notes is equal to $181,231.79 ("Balance").
WHEREAS, THI desires to repay the THI Notes and the Company desires to
repay the Balance and all parties agree to compromise and settle all outstanding
obligations under the THI Notes, the Collateral Assignment and the Transaction
Documents in accordance with the terms herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the adequacy of which is hereby acknowledged, the
parties hereto agree as follows:
1. CONTRIBUTION BY THE COMPANY. The Company shall wire to Sichenzia Xxxx
Xxxxxxxx Xxxxxxx LLP, as escrow agent (the "Escrow Agent") pursuant to the wire
instructions included in the Escrow Agreement dated on even date herewith, the
sum of $89,231.79 as part of the Balance. In addition, the Company shall issue
an aggregate amount of 4,000,000 shares of common stock of the Company, in the
names and in the amounts as set forth on Exhibit B annexed hereto pursuant to
the terms of a Notice of Conversion dated June 2, 2008. The delivery of said
shares shall be made within two business days after the date of this Agreement.
2. CONTRIBUTION BY THI. THI shall wire to the Escrow Agent pursuant to the
wire instructions included in the Escrow Agreement dated on even date herewith,
the sum of $92,000 as part of the Balance.
3. REPAYMENT OF INDEBTEDNESS. The closing date shall be on June 3, 2008 or as
soon as practicable thereafter (the "Closing Date"). On the Closing Date, the
Company and THI shall direct the Escrow Agent (a) to wire to YA Global the sum
of $147,857 (if received after June 2, 2008, then $20 per day interest per diem
shall be assessed for each day thereafter and paid by the Company) and (b) to
wire to Trey the sum of $33,374.79 (if received after June 2, 2008, then
$3.98per day interest per diem shall be assessed for each day thereafter and
paid by the Company) in each case in full satisfaction and repayment of all
obligations owed to YA Global and Trey under the THI Notes and Collateral
Assignment as well as all obligations owed to THI, Inc., YA Global and Trey
Resources by the Company under the Transaction Documents and the Collateral
Assignment. All such monetary payments shall be made by wire transfer pursuant
to the wire instructions attached hereto as Exhibit A. The parties further agree
that THI, YA Global, and Trey shall accept the monetary and non-monetary payoff
amounts set forth herein at any time between the Closing Date and June 5, 2008,
unless extended by mutual agreement of all of the parties.
4. DISCHARGE. The parties hereby (i) acknowledge and agree that payment of
the amounts set forth in paragraph 3 above will constitute payment in full of
all of the obligations of each party under the Transaction Documents, the THI
Notes and the Collateral Assignment, (ii) release, effective upon the receipt of
the payment of the amounts set forth in paragraph 3 above, all security
interests and liens which the Company has granted pursuant to the Transaction
Documents, including Security Agreements and the UCC's filed thereunder pursuant
to the Transaction Documents.
5. UCC TERMINATIONS. THI, YA Global, and Trey, upon receipt of the payment of
the amounts set forth in paragraph 3 above, hereby authorize the Company to file
a UCC-3 termination statement effecting the releases, discharges and
terminations of the UCC filings set forth in paragraph 1 above.
6. PRIOR AGREEMENTS. This Payoff Agreement supersedes any previous written or
oral agreements between the parties and to the extent that any terms herein
change or contradict the terms of the THI Notes, the Collateral Assignment, and
the Transaction Documents which includes the Debentures or any oral discussions
or agreements, the terms herein control.
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7. ACTIONS NECESSARY TO COMPLETE TRANSACTION. Each party hereby agrees to
execute and deliver all such other documents or instruments and to take any
action as may be reasonably required in order to effectuate the transactions
contemplated by this Payoff Agreement.
8. EXECUTION. This Agreement may be executed in two or more counterparts, all
of which when taken together shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a ".pdf" format data file, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or ".pdf" signature page were an original thereof.
9. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. EACH PARTY AGREES THAT ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT SHALL BE
BROUGHT IN A U.S. FEDERAL OR STATE COURT OF COMPETENT JURISDICTION SITTING IN
THE NEW YORK COUNTY, IN THE STATE OF NEW YORK. EACH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY CONSENTS TO THE JURISDICTION OF SUCH COURT AND HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY DEFENSE OF AN INCONVENIENT FORUM OR A
LACK OF PERSONAL JURISDICTION TO THE MAINTENANCE OF ANY ACTION OR PROCEEDING AND
ANY RIGHT OF JURISDICTION OR VENUE ON ACCOUNT OF THE PLACE OF RESIDENCE OR
DOMICILE OF ANY PARTY HERETO. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT
MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY
DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
10. AMENDMENTS. No provision hereof may be waived or modified other than by an
instrument in writing signed by the party against whom enforcement is sought.
11. SEVERABILITY. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
YA GLOBAL INVESTMENTS, L.P.
By: Yorkville Advisors, LLC
Its: Investment Manager
By: /s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
Title: Portfolio Manager
TREY RESOURCES, INC.
By: /s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
Title: CEO
THI, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
VOYAGER PETROLEUM, INC.
By: /s/ Xxxxxxxxx X. XxXxxx
-------------------------------
Name: Xxxxxxxxx X. XxXxxx
Title: CEO
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EXHIBIT A
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WIRING INSTRUCTIONS AND NET PAYOUTS
-----------------------------------
1. Wire Instructions For YA Global Investments, L.P.
Total: $147,857 (plus any per diem)
RECEIVING BANK:
Bank Name: Wachovia Bank, N.A.
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Address: 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, XX
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Routing Number: 031 201 467
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BENEFICIARY INFO:
Name of Account: YA Global Investments, L.P.
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Account Number: 2000018639380
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2. Wire Instructions For Trey Resources, Inc.
Total: $33,374.79 (plus any per diem)
RECEIVING BANK:
Bank Name: Fleet Bank (BofA)
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Address:
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Routing Number: 026 009 593
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BENEFICIARY INFO:
Name of Account: Trey Resources, Inc.
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Account Number: 009421262704
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EXHIBIT B
SHARE ISSUANCE
SHARES TO BE ISSUED PURSUANT TO THI, INC.'S
NOTICE OF CONVERSION DATED MAY 30, 2008
3,100,000 SHARES TO BE ISSUED TO: XXXXX HOLDINGS CORP.
0000 Xxxxx Xx
Xxxxxxx, XX 00000
900,000 SHARES TO BE ISSUED TO: THI, Inc.
00000 X. Xxxxxxxx Xxxx
Tower One, Penthouse #803
Xxxxxxxxx, XX 00000
SCHEDULE I
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DEBENTURES AS OF 6/2/08 PRIOR TO CONVERSION IN PAYOFF AGREEMENT
---------------------------------------------------------------
INITIAL OUTSTANDING OUTSTANDING
PRINCIPAL INTEREST
CORNELL PRINCIPAL 6/2/08 6/2/08 TOTALS
--------- ------ ------ ------
#6-3/8/05 $150,000 $0.00 $9,682.76 $9,682.76
#7-3/8/05 $50,000.00 $0.00 $4,858.50 $4,858.50
#5-3/8/05 $62,500.00 $0.00 $6,909.25 $6,909.25
#4-3/8/05 $62,500.00 $0.00 $7,194.47 $7,194.47
#8-3/8/05 $17,386.98 $0.00 $2,031.66 $2,031.66
#9-5/25/05 $350,000.00 $0.00 $41,044.48 $41,044.48
#10-10/11/05 $100,000.00 $5,556.22 $12,587.59 $18,143.81
TOTALS $792,386.98 $5,556.22 $84,308.69 $89,864.91
INITIAL OUTSTANDING OUTSTANDING
PRINCIPAL INTEREST
TREY PRINCIPAL 6/2/08 6/2/08 TOTALS
--------- ------ ------ ------
#3-3/8/05 $150,000.00 $0.00 $10,661.96 $10,661.96
#4-3/8/05 $50,000.00 $0.00 $5,211.14 $5,211.14
#2-3/8/05 $62,500.00 $0.00 $7,420.63 $7,420.63
#1-3/8/05 $62,500.00 $6,757.35 $8,685.23 $15,442.58
#5-3/8/05 $3,695.21 $3,695.21 $597.31 $4,292.52
TOTALS $328,695.21 $10,452.56 $32,576.26 $43,028.82
