ableenergy_10q-ex1029.htm


    Exhibit
10.29

    
AGREEMENT

     

    Agreement
made this 17th day of October, 2007 by and between Able Energy, Inc., a
corporation formed under the laws of the State of Delaware having an address at
198 Green Pond Road, Rockaway, New Jersey 07866 ("Able"), and S&S NY
Holdings, Inc., a corporation formed under the laws of the State of Florida
having and address at 15335 Groose Point Lane, Clermont, Florida 34714
("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. Commencing within thirty (30) days after the execution of
this Agreement and every thirty (30) days thereafter, Able shall pay to S&S
the sum of ten cents ($0.10) 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 which shall payments shall reduce dollar for dollar the initial
financing
in the amount of five hundred thousand ($500,000) dollars. In addition, Able
shall also pay S&S from the Proceeds commencing within seven (7) days from
the execution of this Agreement and every seven (7) days thereafter, the sum of
seven and one-half cents ($0.075) for each gallon of Fuel it sells to its
customers representing S&S's profit in this transaction (the "Additional
Payment"); but, in no event shall the Additional Payment to S&S in any
thirty (30) day period be less 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 hereby grants to S&S a security interest in Able's accounts and New
Jersey customer list and the vehicles listed on Exhibit A annexed hereto (the
"Collateral"). The security interest in the Collateral secures the payment and
performance of all existing and future obligation of Able to S&S under
paragraph 5 of this Agreement. It is understood and agreed by S&S that its
security interest in the Collateral is subordinate to the security interest in
the same Collateral granted by Able to Entrepreneur Growth Capital, LLC ("EGC")
under certain loan and security agreements between EGC and Able. The EGC line of
credit has a maximum cap of one million ($1,000,000) dollars. Able will take the
steps necessary to file the UCC-1 forms within seven (7) business days of the
execution of this Agreement to acknowledge S&S's security interest in the
Collateral.

     

    8. Term. The term of
this Agreement shall be a minimum of ninety (90) days from the date of the
execution of this Agreement (the "Initial Term"). Upon the expiration of the
Initial Term Able shall have right to reload the Account up to the sum of five
hundred thousand ($500,000) dollars for an additional ninety (90) day period.
Upon the expiration of the Initial Term or any extension thereof, the principal
amount of the Funds then outstanding shall be repaid to S&S. Either party
may terminate this Agreement upon thirty (30) days notice to the other party
prior to the expiration of the Initial Term or any extension
thereof.

     

    9. 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) Use the
Funds for the sole purpose of purchasing Fuel;

     

    (g) Deposit
all proceeds from the sale of Fuel it receives from its Customers in the
Account;

     

    (h) Continue
to make the payments to S&S required under paragraph 5 of this Agreement;
and

     

    (i) 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 within seven
(7) business days of the execution of this Agreement.

     

    10. Indemnification. 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
indemnification is provided hereunder

     

    11. 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.

     

    (1) 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/ Gregory D.
      Frost                             
       
	 	
              Gregory D.
      Frost, 

            
	 	
              Chief Executive
      Officer 

            
	 	 
	 	 
	 	S&S NY Holdings,
      Inc. 
	 	 
	 	 
	Witness:
      ____________________________ 	By:    /s/ Manpreet S.
      Thaper                           
      
	 	
              Manpreet S.
      Thaper, 

            
	 	
              President 

            


    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

      
FIRST
AMENDMENT

    

    TO

    FUEL SUPPLY
AGREEMENT

     

    This
First Amendment (the "Amendment") to the Fuel Supply Agreement entered into
October 17, 2007 between Able Energy, Inc., a corporation formed under the laws
of the State of Delaware having an address at 198 Green Pond Road, Rockaway, New
Jersey 07866 ("Able"), and S&S NY Holdings, Inc., a corporation formed under
the laws of the State of Florida having and address at 15335 Groose Point Lane,
Clermont, Florida 34714 ("S&S") (the "Agreement"), is entered into this 5th
day of February, 2008.

     

    WHEREAS,
pursuant to the Agreement S&S agreed to provide Able with financing to
purchase home heating oil, propane gas, kerosene, and diesel feels (the
"Fuel(s))";

     

    WHEREAS,
the parties desire to extend the Term of the Agreement upon 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.    All
defined terms in the Agreement shall have the same meaning in this
Amendment.

     

    2.    Paragraph
8 of the Agreement shall be amended to extend the Term of the Agreement to and
through March 31, 2008.

     

    3.    The
parties recognize and agree that pursuant to paragraph 5 of
the Agreement Able has repaid S&S the sum of $100,000 of the Funds advanced
by S&S to Able to purchase Fuel under the Agreement.

     

    4.    Paragraph
1 of the Agreement is hereby amended to provide that S&S shall continue to
deposit with Able the sum of $400,000 to purchase Fuel subject to the terms
and conditions of the Agreement.

     

    5.    Paragraph
5 of the Agreement is hereby modified to provide that the Additional Minimum
Payment set forth therein shall be decreased from $37,500 to
$30,000.

     

    6.    Paragraph 5
of the Agreement is hereby further modified to add a provision that Able can
repay the entire balance of the Funds at any time prior to the expiration of the
Term of the Agreement, as hereby amended, without penalty.

     

    7.    In all other
respects the Agreement shall not be amended, modified or in any manner changed
and shall remain in full force and effect.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    IN
WITNESS WHEREOF, the parties have executed this First Amendment to the
Agreement, or caused this First Amendment to the Agreement to be executed by
their duly authorized representatives, as of the day and year first above
written,.

     

    
      
        	 	Able Energy,
      Inc. 
	 	 
	 	 
	Witness:
      ____________________________ 	By:     /s/ Gregory D.
      Frost                             
       
	 	
                Gregory D.
      Frost, 

              
	 	
                Chief Executive
      Officer 

              
	 	 
	 	 
	 	S&S NY Holdings,
      Inc. 
	 	 
	 	 
	Witness:
      ____________________________ 	By:    /s/ Manpreet S.
      Thaper                           
      
	 	
                Manpreet S.
      Thaper, 

              
	 	
                President