ENTREPRENEUR GROWTH CAPITAL February 11, 2008
Exhibit
10.39
ENTREPRENEUR GROWTH CAPITAL
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇
February
11, 2008
Able
Energy, Inc.
▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
We refer
you to that certain Loan and Security Agreement between ABLE ENERGY, INC., ABLE
OIL COMPANY, ABLE ENERGY NEW YORK, INC., ABLE ENERGY TERMINAL, LLC, and ABLE
PROPANE, LLC (collectively referred to as "Borrower") and ENTREPRENEUR
GROWTH CAPITAL, LLC ("EGC") dated May 13, 2005 (the "Loan Agreement"). Capitalized
terms used herein and not otherwise defined shall have the meanings given to
them in the Loan Agreement.
Borrower
requests that EGC make an advance to the Borrower in excess of its borrowing
availability under the Loan Agreement in the amount of $250,000.00 (the "Overadvance") and EGC is
amenable to making the Overadvance available to Borrower under the following
terms and conditions:
| 1. | Upon execution of this letter agreement, EGC shall make one or more advances to Borrower in the aggregate amount of $250,000.00, which amount shall become part of the Obligations. | |
| 2 |
The Overadvance will
be identified on EGC' books as a separate loan and Interest on the
Overadvance shall be charged at the Accounts Interest Rate specified in
Section 3.1 of the Loan Agreement. The interest associated with this
Overadvance shall be in addition to the Minimum Monthly Interest Charge
and shall not be considered when determining if the Minimum Monthly
Interest Charge is applicable.
|
|
| 3. |
Borrower agrees to
repay the Overadvance, and hereby authorizes EGC to reduce the Overadvance by applying
$10,000.00 per business day from Borrower's availability under the Loan
Agreement. The daily repayment of the Overadvance shall commence February
12, 2008 and shall continue each business day thereafter until the
Overadvance is paid in full. In addition, the Overadvance shall be reduced
by the amount of proceeds received by EGC from the sale of Able Melbourne,
in inverse order of maturity. Notwithstanding the foregoing, the
outstanding amount of the Overadvance shall be immediately due and payable
upon (a) the occurrence and continuation of an Event of Default under the
Loan Agreement; or (b) termination of the Loan Agreement, whether by
default, acceleration or otherwise.
|
| 4. |
Notwithstanding
anything set forth to the contrary in the Loan Agreement, Borrower shall
pay EGC an accommodation fee for arranging the Overadvance as follows: (a)
a non-refundable fee in the amount of one percent (1.0%) of the gross
amount of the Overadvance (i.e., $2,500.00) fully earned and payable on
the day the Overadvance is extended.
|
|
| 5. |
In
addition to the foregoing, Borrower agrees that EGC may charge an internal
transfer fee of $5.00 per transfer associated with the payments of the
Overadvance and Borrower shall also remit to EGC a $250.00 documentation
fee in consideration of EGC documenting this
accommodation.
|
Borrower
further agrees that EGC may transfer funds from Borrower's accounts receivable
account in payment of all obligations due under the Overadvance, including but
not limited to the: (a) the payments specified above, (b) the fees specified
herein, and (c) the interest and fees specified in the Loan Agreement and
herein.
Borrower
acknowledges that (a) EGC's agreement to provide the Borrower with this
Overadvance shall not obligate EGC to make any other overadvances or any other
additional accommodations to or for the benefit of the Borrower, and (b)
additional overadvances, if any, requested by Borrower will be subject to
additional fees and charges. Moreover, any future overadvances will continue to
be discretionary and require, among other things, certain financial information
such as cash flows and uses, and repayment terms.
Except as
hereby or heretofore amended or supplemented, the Loan Agreement shall remain in
full force and effect in accordance with its original terms and
conditions.
this
space intentionally left blank
signature
page follows
Page 2 of
3
If the
foregoing correctly sets forth your and our understanding, please execute the
enclosed copy of this letter in the spaces provided below and return such
executed copy to the undersigned as soon as possible. This letter amendment may
be executed in counterparts. Each counterpart shall be deemed an original but
all of which together shall constitute one and the same instrument An executed
facsimile of this letter amendment shall be deemed to be a valid and binding
agreement between the parties hereto.
| Very truly yours, | |
| ENTREPRENEUR GROWTH CAPITAL | |
|
|
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
|
| CONSENTED
AND AGREED TO
this 11 day of
February 2008
|
|
| ABLE ENERGY, INC. | ABLE ENERGY, INC. |
| a Delaware Corporation | a New Jersey Corporaton |
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ | Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
| Title: Chief Executive Officer | Title: President |
| ABLE ENERGY NEW YORK, INC. | |
| a New York Corporation | |
| By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Title: President | |
| ABLE PROPANE, LLC | ABLE ENERGY TERMINAL, LLC |
| a New Jersey limited liability company | a New Jersey limited liability company |
| By: Able Energy, Inc. | By: Able Energy, Inc. |
| Its: Sole Member | Its: Sole Member |
|
By: /s/
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
President
|
By: /s/
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
President
|
Page 3 of
3