AGREEMENT
Exhibit
10.34
AGREEMENT
Agreement
made this 20th day of December, 2007 by and between
Able Energy, Inc., a corporation formed under the laws of the State of Delaware
having an address at 000 Xxxxx Xxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("Able"),
and S&S NY Holdings, Inc., a corporation formed under the laws of the State
of Florida having and address at 00000 Xxxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxx
00000 ("S&S").
WHEREAS,
Able is engaged in the business, among other things, of the
retail distribution of home heating oil, propane gas, kerosene, and diesel fuels (the
"Fuel(s))";
WHEREAS,
Able is seeking to obtain financing for its purchase of
Fuel. it sells for other than fuels its sells for which it has received
pre-payment from its customers prior to delivery ("Pre-Paid Fuel");
and
WHEREAS,
S&S has agreed to provide Able with financing for its purchase of Fuel under
the terms and conditions hereinafter set forth.
NOW,
therefore upon the mutual covenants and agreements hereinafter contained and
intending to be legally bound, the parties hereby agree as follows:
1. Financing. Upon the
execution of this Agreement, S&S will deposit the sum of Five Hundred
Thousand ($500,000) Dollars (the "Funds") in a bank account (the "Account") to
be opened and maintained exclusively by Able for the sole purpose of using the
Funds to purchase Fuel and effectuating the terms of this
Agreement.
2. Purchase of Fuel.
Able shall have sole discretion and authority to use the Funds to purchase Fuel
on such terms, i.e., price, amount, etc. as it determines in its sole
discretion; however, Able agrees that it will not use the Fuel purchased with
the Funds to fulfill Able's obligations to its customers who purchased Pre-Paid
Fuel.
3. Sale of Fuel. Able
shall have sole authority to sell, the Fuel it purchases with the Funds to its
customers on such term and conditions as it determines in. its sole
discretion.
4. Proceeds From Sale of
Fuel. All proceeds received by Able from its customers from the sale of
Fuel as set forth in paragraph 3 of this Agreement shall be deposited directly
into the Account (the "Proceeds").
5. Repayment of Funds; Payments
to S&S. The principal amount of the Funds shall be repaid to S&S
no later than April 1, 2007. In addition, commencing on the first Friday after
the execution of this Agreement and every Friday thereafter, Able shall pay to
S&S the sum of seven and one-half cents ($0.075) for each gallon of Fuel it
sells to its customers in accordance with paragraph 3 of this Agreement from the
Proceeds deposited
in the Account (the "Additional Payment"); but, in no event shall the Additional
Payment to S&S in any thirty (30) day period he loss than $37,500 (the
"Minimum Additional Payment"). Notwithstanding anything to the contrary herein,
S&S shall not receive any payment for any sums received from the sale of
Pre-Paid Fuel. .
6. Reconciliation of
Account. Commencing thirty (30) days from the date of the execution of
this Agreement and every thirty (30) days thereafter, Able shall provide an
accounting to S&S of the Account setting forth all amounts withdrawn. from
the Account, all amounts deposited into the account, the amount (in gallons) of
Fuel purchased with the Funds in the account on a daily basis and the amount (in
gallons) of Fuel sold on a daily basis from the
Fuel it purchased with the Funds.
7. Security Interest.
Able shall cause the shareholders of All American Properties, Inc. formerly
known as All American Plazas, Inc. ("All American") to pledge 1,838,573 shares
of the common stock of Able (the "Shares") owned by All American to S&S as
security for Able's obligations pursuant to paragraph 5 of this Agreement. The
certificate for the Shares shall be held in escrow by Xxxxxxx X. Xxxxxx, Esq.
(the "Escrow Agent"). In the
event Able fails to repay the Funds on or before April 1,
2008
this shall be deemed an event of default ("Event of Default") which shall
cause the Escrow Agent to release the Shares from Escrow five (5) business days
after he
receives written
notice from S&S of the Event of Default with a copy to Able
and the Event of Default has not been cured within that five (5) day period. At
that time, the Escrow Agent shall release and turnover to S&S the Shares in
full satisfaction of Able's obligations under this
Agreement. S&S agrees that its will sell the Shares in an orderly and
reasonable fashion to maximize the value of the Shares. In the event, upon the
sale of the Shares by S&S it receives proceeds from such sales that are in
excess of any amount owed hereunder, S&S will forthwith return such excess
amount to Able. Able will take the steps necessary to perfect and acknowledge
S&S's security interest in the Shares, including executing all such further
documents and causing Able to execute all such other documents
necessary.
Notwithstanding
anything to the contrary in
the prior agreement between the parties dated October 17, 2007 (the "Prior Agreement"), in the
event of a default of Able under the terms of the Prior Agreement, S&S shall
have no right to enforce its rights against the Collateral as defined in and
provided for in the Prior Agreement until April 1, 2007; however, in the event
that such default under the Prior Agreement shall continue and is not cured by
Able by April 1, 2007 and after notice as
provided for in the Prior Agreement, S&S shall have the right to then
proceed against and enforce its rights with respect to the Collateral under the
Prior Agreement and, in addition, the Escrow Agent upon proper notice from
S&S shall release the Shares from Escrow to S&S which shall have the
right to sell such Shares necessary to satisfy Able's obligations to S&S
under the Prior Agreement. S&S further agrees that any such sale of the
Shares shall be made in an
orderly and reasonable fashion intended to maximize the price received
upon the sale of the Shares and any amounts received from such sale in excess of
Able's obligations under the Prior Agreement or this Agreement shall be
forthwith returned to Able.
8. Term. The term of
this Agreement shall be from the date of the execution of this Agreement through
March 31, 2008.
9. Right of S&S to supply Able with Fuel. S&S shall
have the right to supply Abe with Fuel during the Term of this Agreement
provided that the cost of such Fuel provided by S&S is lower than the cost
Able is paying for its Fuel at that time.
10. Covenants. During the
Term of this Agreement, Able shall:
(a) Not
dispose of, transfer, assign,
mortgage, or in any manner encumber the-Account or Fuel purchased with
Funds from the Account;
(b) Afford
S&S and its representatives reasonable access, after appropriate notice to
all records relating to the Account, the purchase of Fuel from the Funds and the
sale of Fuel purchased with the Funds. Any such investigation and examination
shall be conducted during regular business hours and under reasonable
circumstances, and Able shall
cooperate fully therein;
(c) Conduct
its business only in the ordinary course of business;
(d) Maintain
the assets essential to the purchase and sale of the Fuel in good operating
repair and condition, subject to normal wear and tear, and make repairs and
replacements in accordance as necessary;
(e) Notify
S&S concerning any material changes to status of the business, operations,
and finances of Able;
(f) Deposit
all proceeds from the sale of Fuel it receives from its Customers in the
Account;
(g) Continue
to make the payments to S&S required under paragraph 5 of this Agreement;
and
(h) Continue
in full force and effect or
renew or replace all policies of insurance now in effect which cover the
assets of its business and property and give all notices and present all
material claims under all policies of insurance in due
and timely fashion. Able will take steps necessary to add S&S as additional
insured on such policies to the extent of, the amount of the Funds.
11. Indemmnification.
Able shall indemnify and hold S&S and its directors, officers, employees,
affiliates, agents, successors and assigns harmless from and
against:
(a) any
and all losses, liabilities, obligations, damages, costs and expenses based
upon, attributable to or resulting
from the operation of the Account and subsequent purchase and sale of Fuel incurred
by Able during the Term, and
(b) any
and all notices, actions, suits, proceedings, claims, demands, assessments,
judgments, costs, penalties and expenses, including attorneys' and other
professionals' fees and disbursements incident to any and all losses,
liabilities, obligations, damages, costs and expenses with. respect to which
indermnification is provided hereunder.
12. General
Provisions.
(a) Further Assurances.
Each party, will upon request of the other, execute and deliver all instruments
and documents of further assurance or otherwise, and perform all acts and
things, which may be required to carry out its obligations hereunder and to
consummate and complete the transactions contemplated by this
Agreement.
(b) Independent
Contractor. In all activities under this Agreement S&S shall be an
independent contractor Nothing in this Agreement shall be deemed to make
S&S, any of its subsidiaries, or employees; the agent, employee, joint
venture partner or employee of Able.
(c) Notices. Any notice
or other, communication under the provisions of this Agreement shall be in
writing, and shall be given by postage prepaid, registered or certified mail,
return receipt requested, by hand delivery with an acknowledgment copy
requested, or by the Express Mail service offered by the United States Post
Office or by any reputable overnight courier service, directed to the addresses
set forth above, or to any new address of which any party hereto shall have
informed the others by the giving of notice in the manner provided herein. Such
notice or communication shall be effective, if sent by mail, three (3) days
after it is mailed within the continental United States; if sent by Express Mail
service or overnight courier service, one day after it is mailed; or by hand
delivery, upon receipt.
(d) Governing Law. This
agreement and the transaction documents shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of law. In any dispute arising hereunder or in connection with this
agreement the parties agree to submit to the jurisdiction of the state courts
located in New York.
(e) Parties-In-Interest.
This agreement shall be binding upon and inure to the benefit of the parties
hereto, their
respective heirs, administrators, executors, successors and
assigns.
(f) Entire Agreement and
Modification. This
Agreement constitutes and contains the entire Agreement of the parties and
supersede any and all prior negotiations, correspondence, understandings and
agreements between the parties respecting its subject matter. This Agreement may
not be amended except by a written agreement executed. by the party to be
changed with the amendment.
(g) Waiver. Any of the
terms and conditions of this Agreement,
and any inaccuracies in any of the representations or
warranties contained herein, may be waived at any time and from time to time, in
writing, by such parties
as are
entitled to the benefit of such terms, conditions, warranties or
representations. Such waiver shall not constitute or be deemed a waiver of any
other terms, conditions or inaccuracies.
(h) Interpretation.
Headings, captions, section or section numbers appearing in this Agreement are
for ease of reference and convenience only, and shall in no way be deemed to
define, modify, affect, limit or describe the scope, intent or content of this
Agreement or of provisions to which they relate.
(i) Singular or Plural
Words. Whenever used, the singular pronoun will include the plural, the
plural will include the singular, and the uses of any gender will include all
genders as required or necessary for proper grammatical reading or as the sense
or context requires.
(j) Drafting
Presumptions. Any ambiguity in this Agreement shall not
be construed in accordance with any presumption against the party
initially drafting this Agreement. If any provision of this Agreement may be
construed in two or more ways, such provision shall have the meaning which
renders it valid and enforceable.
(k) Severability. The
invalidity of any one or more of the words, phrases, sentences, clauses,
sections or subsections contained in this Agreement shall not affect the
enforceability of the remaining portions of the Agreement or any part hereof,
all of which are inserted conditionally on their being valid in law, and, in
the event
that any one or more of the words, phrases, sentences,
clauses, sections or subsections contained in this Agreement shall be declared
invalid, this Agreement shall be construed as if such invalid word or words,
phrase or phrases, sentence or sentences, clause or clauses, section or sections
or subsection or subsections had not been inserted.
(l) Assignment. This
Agreement may be not assigned by Able without
the written consent of S&S.
(m) Counterparts. This
Agreement may be executed in several counterparts and all of such counterparts
shall constitute one and the same instrument with the same force and effect as
if all the parties had executed the same document.
IN WITNESS WHEREOF, the
parties have executed this Agreement, or caused this Agreement to be executed by
their duly authorized representatives, as
of the day and year first above written.
| Able Energy, Inc. | |
|
Witness:____________________________
|
By: /s/ Xxxxxxx X. Xxxxx |
|
Xxxxxxx
X. Xxxxx
|
|
|
|
Chief
Executive Officer
|
|
|
|
| S&S NY Holdings, Inc. | |
|
Witness:____________________________
|
By: /s/ Xxxxxxxx X. Xxxxxx |
|
Xxxxxxxx
X. Xxxxxx,
President
|
