ADVANCE SCHEDULE No. 04
Exhibit
10.40
ADVANCE SCHEDULE
No.
04
XXXXXXXXXXX.XXX,
INC.
Date:
February 14, 2008
This
Advance Schedule (the "Schedule")
is issued pursuant to
and is subject to all terms and conditions of the Credit Card Receivables
Advance Agreement, dated as of November 7, 2007 (as amended from time to time in
accordance with its terms, the "Master
Agreement")
between CREDIT CASH, LLC (the "Lender") and XXXXXXXXXXX.XXX, INC. (the
"Merchant"). Capitalized terms
used and not defined in this
Schedule have the meanings given to them in the Master
Agreement
The
Merchant has requested that the Lender make an Advance to the
Merchant, and the Lender is willing to make such Advances in each case
subject to the following terms and conditions;
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1.
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The
Advance Amount is
$500,000.00.
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2.
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The
Collection Amount of this Advance Schedule
No. 04 is
$535,000.00.
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3.
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The
Collection Date is September 14,
2008.
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4.
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The
Collection Account Bank and Collection Account are as follows: Bank
name:
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| Bank name: | North Fork Bank |
| 0000 Xxxxxxxx | |
| New York NY 10018 | |
| Routing/ABA Number: | 021401912 |
| Account Name to credit: | XxxxxXxxxxx.xxx, Inc. |
| Account Number to credit: | 2744061595 |
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5.
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The
Merchant agrees to repay the Collection Amount (plus all Costs and
Expenses) by remittmg (or causing to
be remitted)
to the Lender, on or before the
motion Date,
the Collection
Amount, by authorizing Lender to retain Payment Percentage from the
Collection
Account as provided the Agreement. If the Collection Amount is remitted to
the Lender before
the Collection
Date; the Merchant shall not be entitled to any refund or
other compensation. If the Collection Amount is not remitted to the
Lender by the Collection Date, Merchant may be subject to extension
fees as set forth in the Master
Agreement.
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6.
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The
Merchant hereby reaffirms and further grants to the Lender a security
interest in the Collection. Account and Collateral (including, without
limitation, all
Credit
Card Receivables and/or
proceeds
thereof at any time deposited therein) to
secure the Merchant's
obligation to pay the Collection Amount (plus all Costs and Expenses) and
to secure all other existing and future
obligations
of the Merchant to the
Lender.
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7.
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The
Merchant
understands
and agrees that
all Advances by Xxxxxx to Merchant under the Master Agreement, this
Advance Schedule and under any other Related Agreements constitute one
loan, and all indebtedness and obligations of Merchant to Lender under the
Master Wit,
this Advance Schedule and the Related Agreements, present and future,
constitute one obligation secured by the Coliateral. Xxxxxxxx
further understands
that they shall be jointly and
severally liable for payment of all of the obligations owing to Lender
under all Advance Schedules, the Master Agreement and the Related
Agreements and under any other agreement between Lender and any Merchant.
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8.
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The
Merchant reaffirms all terms, conditions and agreements set forth in the
Master Agreement and any Related Agreements and further represents, and
warrants to the Lender that all representations and warranties made
by
the Merchant in the Master Agreement and any Related Agreements
entered into on or before the date hereof are true and correct on the date
hereof as if made an the
date hereof.
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This
Schedule 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 Schedule
shall be deemed to be a
valid and binding agreement between the parties
hereto.
| Agreed to: | |
| CREDIT CASH, LLC | XXXXXXXXXXX.XXX, INC. |
| By: /s/ Xxxx Xxxxxx | By: /s/ Xxxxxxxxxxx Xxxxxx |
| Name: Xxxx Xxxxxx | Name: Xxxxxxxxxxx Xxxxxx |
| Title: President | Title: President |
STATE OF NEW
YORK )
)ss.:
COUNTY OF NEW
YORK )
On
this 14th day of February 2008 before me
personally appeared Xxxx
Xxxxxx, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within
instrument and acknowledged to me that be/she is the Managing Member and
president of CREDIT CASH, LLC, the company herein
described and that he/she executed the same in his/her capacity as
an officer of said company, and that he/she signed the instrument by order of
the members of said company.
| /s/ Xxxxx Xxxxxxxxx | |
| NOTARY PUBLIC | |
|
XXXXX
XXXXXXXXX
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| Notary Public - State of New York | |
|
No.
02R16123649
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| Qualified in Westchester County | |
| Commission Expires March 7, 2009 |
STATE OF New
Jersey )
)ss.:
COUNTY OF
Xxxxxx )
On
this 14 day of February 2008 before me personally appeared Xxxxxxxxxxx Xxxxxx, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within
instrument and acknowledged to me that he/she is the President of
XXXXXXXXXXX.XXX,. INC., the corporation herein described and that he/she
executed the same in his/her capacity as an. officer of said corporation, and
that he/she signed the instrument by order of the board of directors of said
corporation.
| /s/ Xxxxxxx Xxxxxxxxxx | |
| NOTARY PUBLIC | |
|
Xxxxxxx
Xxxxxxxxxx
|
|
|
Notary Public of New
Jersey
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|
Commission Expires
4/11/08
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GUARANTOR
CONSENT AND REAFFIRMATION
The
undersigned guarantors of XXXXXXXXXXX.XXX, INC. (collectively, "Borrower") in relation to their
respective financial agreements with CREDIT CASH, LLC (i) acknowledges receipt
of a copy of Advance Schedule No. 4; (ii) consents to each Borrower's execution
and delivery thereof; (iii) agrees to be bound thereby; and (iv)
affirms that nothing contained
therein shall modify in any respect
whatsoever their guaranty of the obligations and each of the undersigned
reaffirms that such guaranty is and shall remain in full force and
effect.
IN
WITNESS WHEREOF, the undersigned has executed this Consent and Reaffirmation
on
and as of the date of Advance Schedule No. 4.
| ABLE OIL COMPANY | ABLE ENERGY, INC. |
| By: /s/ Xxxxxxxxxxx Xxxxxx | By: /s/ Xxxxxxxxxxx Xxxxxx |
| Name: Xxxxxxxxxxx Xxxxxx | Name: Xxxxxxxxxxx Xxxxxx |
| Title: President | Title: President |
| ABLE ENERGY NEW YORK, INC. | |
| By: /s/ Xxxxxxxxxxx Xxxxxx | |
| Name: Xxxxxxxxxxx Xxxxxx | |
| 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/ Xxxxxxxxxxx Xxxxxx | By: /s/ Xxxxxxxxxxx Xxxxxx |
| Name: Xxxxxxxxxxx Xxxxxx | Name: Xxxxxxxxxxx Xxxxxx |
| Title: President | Title: President |
