ENTREPRENEUR GROWTH CAPITAL February 25, 2008
Exhibit
10.41
ENTREPRENEUR GROWTH CAPITAL
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February
25, 2008
Able
Energy, Inc.
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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
has requested that EGC make an advance to the Borrower in excess of its
borrowing availability under the Loan Agreement in the amount of $500,000.00,
which would be used to purchase fuel (the "Fuel Purchase Loan"). EGC is
amenable. to making
the Fuel Purchase Loan available to Borrower under the following terms and
conditions:
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1.
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Upon execution of this letter
agreement, EGC shall make one or more advances to Borrower in the
aggregate amount of $500,000.00, which amount shall become part of the
Obligations. Borrower hereby acknowledges that the first $200,000.000 was
wired to Borrower on February 22,
2008.
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2.
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The
Fuel Purchase Loan will be identified on EGC's 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.
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3.
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Borrower
agrees to repay the Fuel Purchase Loan, and hereby authorizes EGC to
reduce the Fuel Purchase Loan by applying the following amounts from
Borrower's availability under the Loan Agreement: (a) commencing March 1,
2008 and continuing through March 31, 2008, EGC shall apply
$2,500.00/business day to reduce the Fuel Purchase Loan; (b)
from April 1 through April 30, 2008, EGC shall apply
$5,000.00/business day to reduce the Fuel Purchase Loan; (c) from May 1
through May 31, 2008, EGC shall apply $7,500.00/business day to reduce the
Fuel Purchase Loan; and (d) from June 1, 2008 until the Fuel Purchase Loan
is paid in full, EGC shall apply $10,000.00/business day to reduce the
Fuel Purchase Loan. Notwithstanding the foregoing, the outstanding amount
of the Fuel Purchase Loan shall be immediately due and payable upon (x)
the occurrence and continuation of an Event of Default under the Loan
Agreement; or (y) termination of the Loan , Agreement, whether by default,
acceleration or otherwise.
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Notwithstanding the foregoing,
Borrower may prepay the amount of the Fuel Purchase Loan in part or in full at
anytime without penalty, provided,
however, Borrow
would be subject to paying EGC the minimum Revenue Share as set forth in
Paragraph 4 below.
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4.
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In
consideration of making the Fuel Purchase Loan, EGC shall be entitled to
participate in the revenue stream generated from Borrower's fuel purchases
and sales during the term the Fuel Purchase Loan remains outstanding (the
"Revenue Share").
EGC's Revenue Share shall be four ($.04) cents per gallon,
calculated by Borrower, based on Borrower's fuel purchases during each
week, commencing February 22, 2008, purchased with the proceeds of the
Fuel Purchase Loan, on a revolving basis. Borrower agrees that during the
first 7 weeks, EGC's Revenue Share shall be the greater of the actual
amount earned or $5,000.00/week.. After the first 7 weeks, the Revenue
Share shall be payable on the actual purchases made with the proceeds of
the Fuel Purchase Loan, on a revolving basis. Borrower will be required to
deliver to EGC, each Friday, a fuel purchase and sale report for the
immediate preceding week (Wednesday through Tuesday), together with a
check in the amount of EGC's Revenue Share for the week. In the event
Borrower fails to deliver EGC's Revenue Share, EGC may automatically
charge Borrower's account for EEC's portion of the Revenue Share, based
upon estimated or actual amounts, as reported by
Borrower.
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5.
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In
addition to the foregoing, Borrower agrees that EGC may charge an internal
transfer fee of $waived
per transfer associated with the payments of the Fuel Purchase Loan
and Borrower shall also remit to EGC a $waived documentation
fee in consideration of EGC documenting this
accommodation.
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Borrower
further agrees that EGC may transfer funds from Borrower's accounts receivable
account in payment of all obligations due under the Fuel Purchase Loan,
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 Fuel
Purchase Loan 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
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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 | |
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CONSENTED
AND AGREED TO this
___ day
of February 2008
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| ABLE ENERGY, INC. | ABLE OIL COMPANY |
| a Delaware Corporation | a New Jersey Corporation |
| 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 and Manager | Its: Sole Member and Manager |
| By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
| Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
| Title: President | Title: President |
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