able_10q-ex1046.htm


    
      EXHIBIT
10.46

    

     

    LEASE

     

     

    BETWEEN

     

     

    ABLE
ENERGY, INC., Landlord

     

     

    -
and -

     

     

    JOHN
MCGINLEY or his designee, Tenant

     

     

    Dated: July 14,
2008

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    TABLE OF
CONTENTS

     

     

    
       

      
        	 	 	
                Page

              
	ARTICLE
      I	Demise of
      Premises	
                1

              
	ARTICLE II	Term of
    Lease	

                1

              
	ARTICLE III	Rent	

                1

              
	ARTICLE IV	The Demised
      Premises	

                2

              
	ARTICLE V	Use/Governmental
      Approvals	

                3

              
	ARTICLE VI	Quiet
      Enjoyment	

                4

              
	ARTICLE VII	Additional Rent,
      Taxes, Assessments, Water Rates, Charges, Etc	

                4

              
	ARTICLE VIII	Insurance	

                5

              
	ARTICLE IX	Repairs	

                9

              
	ARTICLE X	Casualty	

                11

              
	ARTICLE XI	Condemnation	

                12

              
	ARTICLE XII	Compliance With
      Laws, Etc	

                13

              
	ARTICLE XIII	Subordination/Estoppels	

                16

              
	ARTICLE XIV	Defaults,
      Remedies	

                17

              
	ARTICLE XV	Assignment and
      Sublease	

                20

              
	ARTICLE XVI	Notices	

                20

              
	ARTICLE XVII	Holding
    Over	

                21

              
	ARTICLE XVIII	Liens	

                22

              
	ARTICLE XIX	Condition of Demised
      Premises, Loss, Etc	

                22

              
	ARTICLE XX	Inspection	

                23

              
	ARTICLE XXI	Throughput
      Rights	

                23

              
	ARTICLE XXII	Credit
      Facility	

                23

              
	ARTICLE XXIII	Intentionally
      Omitted	

                24

              
	ARTICLE XXIV	Broker	

                24

              
	ARTICLE XXV	Purchase
      Option	

                24

              
	ARTICLE XXVI	Waiver of Jury
      Trial	

                24

              
	ARTICLE XXVII	Waiver of
      Distraint	

                25

              
	ARTICLE XXVIII	Intentionally
      Omitted	

                25

              
	ARTICLE XXIX	Miscellaneous	

                25

              
	ARTICLE XXX	Personal
      Liability	

                28

              


      

                                                                                                                

       

    

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    THIS LEASE, dated the 14th day
of July, 2008, between ABLE ENERGY, INC., a corporation with offices at 198
Green Pond Road, Rockaway, New Jersey 07866 (hereinafter referred to as the
"Landlord"); and NORTH JERSEY OIL, INC. or its designee, a with offices at 68
North Dell, Kenvil, New Jersey 07847 (hereinafter referred to as the
"Tenant").

     

    WITNESSETH:

    ARTICLE
I

    Demise
of Premises

     

    Section 1.01. The Landlord,
for and in consideration of the rents to be paid and of the covenants and
agreements hereinafter contained to be kept and performed by the Tenant, hereby
demises and leases unto the Tenant, and the Tenant hereby hires and takes from
the Landlord, for the term and the rent, and upon the covenants and agreements
hereinafter set forth, the Demised Premises as defined in Article IV consisting
of certain structures described herein which are situated on that certain parcel
of land located at 38 Diller Avenue, in the Town of Newton, County of Sussex,
State of New Jersey (hereinafter referred to as the "Real Property") more
particularly described on Exhibit A attached hereto.

    
 

    ARTICLE
II

    Term
of Lease

     

    Section 2.01. The term of this
Lease and the demise of the Demised Premises shall be for thirty (30) years
beginning on the date of this Lease (the "Commencement Date") and ending on the
last day of the calendar month that occurs thirty (30) years after the
Commencement Date or on such earlier or later commencement or termination as
hereinafter set forth (which term is hereinafter called the
"Term").

    
 

    ARTICLE
III

    Rent

     

    Section 3.01. Basic rent for
the Term ("Basic Rent") shall be in the sum of Five Hundred Thousand
($500,000.00) Dollars payable in advance as follows:

     

    (a) The
sum of Two Hundred Fifty Thousand ($250,000.00) Dollars by certified or bank
check payable to Landlord on the Commencement Date; and

     

    
      
        
        

      

      
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    (b) The
sum of Two Hundred Fifty Thousand ($250,000.00) Dollars by delivery to Landlord
of Tenant's Promissory Note in the form attached as Exhibit B (the "Note') on
the Commencement Date.

     

    The Basic
Rent shall be payable at the office of the Landlord, at the address above set
forth, or as may otherwise be directed by notice from the Landlord to the
Tenant.

     

    Section 3.02. The Tenant
shall, and will, during the Term well and truly pay, or cause to be paid, to the
Landlord, the installments of Basic Rent as herein provided and all other sums
that may become due and payable by the Tenant hereunder, at the time and in the
manner herein provided, without counterclaim, offset or deduction; and all other
sums due and payable by the Tenant hereunder may, at the Landlord's option, be
deemed to be, and treated as, Additional Rent, and added to any Basic Rent due
and payable by the Tenant hereunder, and, in the event of nonpayment of such
other sums, the Landlord shall have all the rights and remedies herein provided
for in the case of the nonpayment of Basic Rent and Additional Rent, or of a
breach of any covenant to be performed by the Tenant.

     

    Section 3.03. The Basic Rent
payable by the Tenant pursuant to this Lease is intended to be net to the
Landlord, and all other charges and expenses imposed upon the Demised Premises
or incurred in connection with its use, occupancy, care, maintenance, operation
and control, including but not limited to the charges and expenses payable
pursuant to Articles VII and VIII of this Lease, shall be paid by the
Tenant.

     

    ARTICLE IV

    The
Demised Premises

     

    Section 4.01.. The Demised
Premises includes a framed structure, underground fuel storage tanks having a
capacity of 191,100 gallons, and fuel racks (collectively the "Structures")
previously erected thereon and the Real Property, which the Tenant acknowledges
that it has inspected and is fully familiar with its condition and is leasing
the same in an "AS IS" condition.

     

    Section 4.02. The Demised
Premises hereinabove described constitutes a self-contained unit and nothing in
this Lease shall impose upon the Landlord any obligation to provide any services
for the benefit of the Tenant, including but not limited to water, gas,
electricity, heat, janitorial or garbage removal, unless and to the extent
expressly provided for in this Lease.

     

    
      
        
        

      

      
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ARTICLE
V

    Use/Governmental
Approvals

     

    Section 5.01. The Demised
Premises may be used as a fuel terminal for storage and distribution of diesel
and home heating fuel products. Notwithstanding anything to the contrary, the
Landlord makes no representation that the Demised Premises may be used for those
purposes set forth in this Section 5.01. The Tenant shall not use or permit to
be used the Demised Premises or any part thereof for any purpose other than the
use described in the first sentence of this Section. Tenant acknowledges that
the Real Property and Demised Premises are not, and have not, for a period of
more than three years been used as a fuel terminal or for any other
purpose.

     

    Section 5.02. Tenant, at its
sole cost and expense, shall be responsible for obtaining any and all
certificates and/or permits sanctioning Tenant's use from any governmental
agencies having jurisdiction over the Demised Premises ("Governmental
Agencies"), including by way of example, but not limitation, a Certificate of
Occupancy for the Demised Premises. Following the Commencement Date, the Tenant
shall promptly file applications with all applicable Governmental Agencies and
diligently and continuously pursue the Approvals. Landlord shall provide Tenant
with copies at Landlord's expense of all documents filed or utilized by Landlord
to date in attempting to secure government approvals and shall cooperate as
reasonably necessary with Tenant or Tenant's counsel to secure for Tenant
government approvals and waive any claim to privilege such that Tenant may
consult with Landlord's attorneys and engineers with regard to Landlord's
pursuit of government approvals. Tenant shall provide Landlord with copies of
all such applications and all correspondence between Tenant and the Governmental
Agencies relating to the Approvals. If, despite its best efforts, Tenant does
not obtain the Approvals, then either party may terminate this lease on written
notice to the other served on the sooner to occur of (a) the date Tenant is
advised in writing by any Governmental Agency that the Approvals cannot be
obtained; or (b) the last day of the sixth (6th)
consecutive calendar month following the month in which the Commencement Date
occurs, TIME BEING OF THE ESSENCE with respect thereto. In the event of such
termination, the sole obligations of Landlord shall be (i) to repay to Tenant
the Two Hundred Fifty Thousand and 00/100 ($250,000.00) Dollar payment of Basic
Rent described in Section 3.01(a) above with interest at eight (8%) percent per
annum in twelve equal consecutive monthly installments beginning on the tenth
(10th)
day following the date of termination; and (b) to return the Note to Tenant. In
the event that Landlord fails to make any such monthly installment payment and
fails to cure such default within 15 days of notice of such default, Tenant
shall have (i) the right to place a lien on the Real Property for the amount of
the Basic Rent of $250,000 not repaid to Tenant and (ii) the option to purchase
the Real Property for the sum of $500,000 less any amount of the $250,000 Basic
Rent payment made by Tenant to Landlord not repaid by Landlord. The procedures
set forth in Section 25.01 of this Lease shall be followed with respect
to such option. Tenant upon such termination must surrender the Demised Premises
and is responsible for all damages or other claims to the Demised Premises and
Real Property, other than regular wear and tear customary within industry
standards, occurring during Tenant's possession of the Demised premises which
amount may be setoff against the $250,00 payment to be made by Landlord to
Tenant hereinabove set forth. See, Section 14.02.

    
 

    
      
        
        

      

      
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    ARTICLE VI

    Quiet
Enjoyment

     

    Section 6.01. Except as set
forth in Section 5.02 above, the Landlord covenants that if, and so long as, the
Tenant pays the Basic Rent, and any Additional Rent as herein provided, and
performs the covenants hereof, the Landlord shall do nothing to affect the
Tenant's right to peaceably and quietly have, hold and enjoy the Demised
Premises for the Term herein mentioned, subject to the provisions of this Lease
and to any mortgage or deed of trust to which this Lease shall be
subordinate.

    
 

    ARTICLE
VII


    Additional
Rent, Taxes, Assessments,

    Water
Rates, Charges, Etc.

     

    Section 7.01. The Tenant shall
pay, before any interest or penalties accrue thereon, all Real Estate Taxes, as
hereinafter defined, and all Operating Costs, including by way of example but
not limitation, all electricity charges, domestic water charges, gas and
electricity charges, fire sprinkler standby charges, sewer rates and charges,
and all other governmental charges imposed during the Term on the Real Property
and Structures of which the Demised Premises are a part, parking lot repairs,
parking lot maintenance and lighting, landscaping and snow removal, and all
other charges relating to the maintenance and repair of the parking lot. Tenant
shall pay such Operating Costs directly to the entity or authority assessing
such charges. In the event Tenant pays such charges directly to the assessing
authority or provider, as the case may be, then upon request, Tenant shall
exhibit to the Landlord receipted bills or other proof of payment. There shall
be apportioned any tax or charge relating to the fiscal years in which the Term
of this Lease commences and terminates. In the event Landlord directs Tenant to
pay any charges directly to an assessing authority or providing entity and
Tenant fails to pay any of the foregoing items in a timely manner, then Landlord
shall have the right but not the obligation to pay such amounts and charge
Tenant, as Additional Rent, all sums expended by Landlord. Tenant shall be
entitled to a refund from Landlord on a prorated basis for any Operating Costs
paid by Tenant directly to the entity or authority assessing such charges if the
Lease is terminated pursuant to any of the provisions of this Lease and such
Operating Costs, or portion thereof, paid by Tenant were for any period of time
after such termination. Tenant's obligations under this Lease to pay Operating
Costs or public improvement assessments shall cease upon termination of the
Lease and Tenant shall have no further responsibility of obligation to pay
same.

     

    
      
        
        

      

      
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    Section 7.02. The Tenant shall
not be required to pay any estate, inheritance, devolution, succession,
transfer, legacy or gift tax charged against the Landlord or the estate or
interest of the Landlord in the Demised Premises or upon the right of any person
to succeed to the same or any part thereof by inheritance, succession, transfer
or gift, nor any capital stock tax or corporate franchise tax incurred by the
Landlord, nor any income tax upon or against the income of the Landlord
(including any rental income derived by the Landlord from the Demised Premises
but this exclusion shall not be applicable to a gross receipts or rental tax
which shall be considered a Real Estate Tax).

     

    Section 7.03. The Tenant shall
pay all assessments that may be imposed upon the Real Property by reason of any
specific public improvement (including but not limited to assessments for street
openings, grading, paving and sewer installations and improvements) except that
if by law such special assessment is payable, or may, at the option of the
taxpayer, be paid, in installments, the Tenant may, whether or not interest
accrues on the unpaid balance thereof, pay the same and any accrued interest on
any unpaid balance thereof in installments as each installment becomes due and
payable, but in any event before any penalty or cost may be added thereto for
nonpayment of any installment or interest. Any such benefit, assessment or
installment thereof relating to a fiscal period in which the Term of this Lease
begins or ends shall be apportioned.


    ARTICLE VIII

    Insurance

     

    Section 8.01. The Tenant
shall, during the Term of this Lease, cause the Structures to be insured for the
benefit of the Landlord, and any and all mortgagees of the Landlord and for the
Tenant, as its interest may appear, "All Risk" or "Special Forms" property
insurance against damage or loss by fire, malicious mischief, sprinkler leakage
and such other hazards and perils as now or hereafter may be included in a
standard "extended coverage" endorsement from time to time including boiler
insurance and with a vandalism and malicious mischief endorsement, in an amount
not less than the full replacement value of identical Structures (excluding
Tenant improvements and alterations) constructed in accordance with all
requirements, rules and regulations, which may be applicable at the time of any
loss or damage, of all governmental agencies having jurisdiction over the
Structures and construction of such Structures and improvements. Such policies
shall be issued by insurance companies licensed to do business in New Jersey.
Any deductible shall be deemed self insurance by the Tenant, to the extent of
one hundred (100%) percent of the amount thereof.

     

    
      
        
        

      

      
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    Section 8.02. The Tenant shall
provide and keep in force, during the Term of this Lease, for the benefit of the
Landlord, naming the Landlord as an "insured" under said policies, commercial
general liability insurance policy in standard form, insuring the Landlord with
respect to ownership, maintenance and use against liability for personal injury,
bodily injury, broad form property damage, operations hazard, owner's protective
coverage, blanket contractual liability, products and completed operations
liability in or upon the Demised Premises during the Term of this Lease. Said
policies shall be written by insurance companies licensed to do business in the
State of New Jersey rated A-XII by A.M. Best Company, Oldwick, New Jersey, and
shall cover the entire Demised Premises as well as any sidewalk in front of the
same, and shall be in the minimum amount of Two Million and 00/100
($2,000,000.00) Dollars for each occurrence and shall contain provision for
thirty (30) days' written notice by registered mail to the Landlord of any
change, reduction in coverage, or cancellation or other termination of said
policy. The said policies shall also contain an endorsement protecting the
Landlord for water damage and sprinkler damage liability with respect to
property other than the Landlord's. The Tenant shall name the Landlord (and at
Landlord's election, Landlord's managing agent and/or mortgagee[s]) as an
additional insured on its commercial general liability insurance policy. Tenant
shall provide at all times current certificates of insurance demonstrating
compliance with the provisions of this Section and evidence of such coverage. In
no event shall the Landlord be permitted to require an increase in the aforesaid
amount during the term of this Lease in excess of three (3%) percent per year
for each year Tenant is in possession of the Premises unless required to do so
by governmental agency or authority or Tenant and Landlord shall mutually agree
to a change in the intended use of the Premises. In such event, the increase as
agreed to by the parties shall be reasonable under the circumstances considering
the character and location of the structures and Tenant's changed use of the
Demised Premises.

     

    Tenant
represents, said representation being specifically designed to induce the
Landlord to execute this Lease, that Tenant shall insure its business against
interruption and its improvements, alterations, personal property and fixtures
and any other items which Tenant may bring to the Demised Premises or which may
be under Tenant's care, custody and control which may be subject to any claim
for damages or destruction, which property value shall never exceed the amount
of insurance which Tenant is required to carry pursuant to this Lease. If at any
time the value of the personal property, fixtures or other goods located at the
Demised Premises shall exceed said amount, Tenant covenants to so notify
Landlord and at the same time increase the amount of insurance required to be
carried pursuant to this Section 8.02 to an amount sufficient to cover the
aforesaid. Should Tenant fail to do so, or fail to maintain insurance coverage
adequate to cover the aforesaid, then Tenant shall be in default hereunder and
shall be deemed to have breached its covenants as set forth herein.

     

    
      
        
        

      

      
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    Section 8.03. The Tenant shall
provide and keep in force, during the Term of this Lease, for the benefit of the
Landlord and ground lessor, if any, machinery insurance if applicable.
The Landlord shall be named as an additional insured and loss payee under the
policy, with respect to real property. Upon failure at any time on the part of
the Tenant to procure any or all of the policies of insurance as provided in
this Article, or to pay the premiums therefor, the Landlord shall be at liberty
from time to time as often as such failure shall occur, to procure such
insurance and pay the premiums therefor as herein provided in case of fire
insurance, and all and any sums paid for such insurance by the Landlord together
with interest thereon from date of payment shall be and become and are hereby
declared to be Additional Rent under this Lease, forthwith due and payable, and
shall be collectible accordingly.

     

    Section 8.04. Intentionally
omitted.

     

    Section 8.05. Each such
insurance policy carried by Tenant insuring the Demised Premises, its business
against interruption, and its fixtures and contents against loss by fire, water
and causes covered by standard extended coverage or all risks endorsement
insurance, shall be written in a manner so as to provide that the insurance
company waives all right of recovery by way of subrogation against Landlord in
connection with any loss or damage covered by such policies except, however,
criminal acts. Landlord shall not be liable to the Tenant and Tenant, except for
loss caused by the negligence of Landlord or Landlord's agents, officers,
managers or employees, hereby waives any claims against Landlord for any loss or
damage caused by fire, water or any of the risks enumerated in standard extended
coverage insurance, all risks or special forms endorsement insurance, provided
such insurance was obtainable at the time of such loss or damage.

     

    Notwithstanding
any provision in this section to the contrary, Landlord acknowledges that it is
Landlord's intent to purchase fuel from Tenant and/or execute a throughput
agreement with Tenant and in doing so Landlord or its officers, managers, agents
or employees may be on the Demised Premises; accordingly, Landlord shall be
solely responsible for any and all resulting damages of any kind caused by the
negligence or recklessness of Landlord or its officers, managers, agents or
employees on the Demised Premises. Landlord further agrees to defend, indemnify
and hold harmless Tenant from any such claims, penalties, suits, liabilities,
fines, damages, losses, fees, costs, and expenses which may be imposed by such
negligent or reckless conduct of Landlord or its officers, managers, agents or
employees.

     

    Section 8.06. The Tenant shall
also furnish insurance for such other hazards and in such amounts as the
Landlord may reasonably require and as at the time are commonly insured against
with respect to Structures similar in character, general location and use and
occupancy to the Demised Premises in relative amounts normally carried with
respect thereto. The Landlord reserves the right at any time and from time to
time to require that the limits for any of the insurance required pursuant to
Article VIII be increased
to limits as at the time are reasonable with respect to Tenant's use and to
Structures similar in character, general location and use and occupancy to the
Demised Premises.

     

    
      
        
        

      

      
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    Section 8.07. Tenant is and
shall be in exclusive control and possession of the Demised Premises as provided
herein, and Landlord shall not be liable to Tenant for any loss suffered by
Tenant under any circumstances, including, but not limited to (i) that arising
from the negligence of Landlord, its agents, servants, invitees, contractors or
subcontractors, or from defects, errors or omissions in the construction or
design of the Demised Premises including the structural and nonstructural
portions thereof; or (ii) loss of or injury to Tenant or to Tenant's property or
that for which Tenant is legally liable from any cause whatsoever, including but
not limited to theft or burglary; or (iii) that which results from or is
incidental to the furnishing of or failure to furnish or the interruption in
connection with the furnishing of any service which Landlord is obligated to
furnish pursuant to this Lease; or (iv) that which results from any inspection,
repair, alteration or addition or the failure thereof undertaken or failed to be
undertaken by Landlord; or (v) any interruption to Tenant's business, however
occurring.

     

    The
aforesaid exculpatory Section is to induce the Landlord, in its judgment, to
avoid or minimize covering risks which are better quantified and covered by
Tenant either through insurance (or self-insurance or combinations thereof if
specifically permitted pursuant to this Lease), thereby avoiding the need to
increase the rent charged Tenant to compensate the Landlord for the additional
costs in obtaining said coverage or reserving against such losses.

     

    Tenant
shall indemnify, defend and save Landlord harmless against and from all
liabilities, claims, suits, fines, penalties, damages, losses, fees, costs and
expenses (including reasonable attorneys' fees) which may be imposed upon,
incurred by or asserted against Landlord by reason of:

     

    (a) Any work
or thing done in, on or about the Demised Premises or any part thereof by or on
behalf of Tenant;

     

    (b) Any use,
occupation, condition, operation of the Demised Premises or any part thereof or
of any street, sidewalk, curb, or space adjacent thereto or any occurrence on
any of the same on the part of Tenant;

     

    (c) Any act
or omission on the part of Tenant or any subtenant or any employees, licensees
or invitees;

     

    (d) Any
accident, injury (including death) or damage to any third party or property
owned by someone other than Tenant and not under the care, custody or control of
Tenant occurring in, on or about the Demised

     

    
      
        
        

      

      
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    (a) Premises,
or any part thereof or in, on or about any street, alley, sidewalk, curb, vault,
passageway or space adjacent thereto, unless caused by Landlord, its agents or
employees; and

     

    (e) Any
failure on the part of Tenant to perform or comply with any of the covenants,
agreements, terms or conditions contained in this Lease.

    


    The
provisions of this Section shall survive the expiration or earlier termination
of the Lease.

     

    Section 8.08. Any policies
required to be furnished by Tenant pursuant to this Article VIII will
unequivocally provide an undertaking by the insurers to notify Landlord and the
mortgagees or ground lessors of Landlord in writing not less than thirty (30)
days prior to any material change, reduction in coverage, cancellation, or other
termination thereof.

    


    ARTICLE
IX

    Repairs

     

    Section 9.01. The Tenant shall
keep the Demised Premises in good condition and repair, and shall redecorate,
paint and renovate the Demised Premises as may be necessary to keep them in good
condition and repair and good appearance. The Tenant shall keep the Demised
Premises and all parts thereof in a clean and sanitary condition and free from
trash, inflammable material and other objectionable matter. Tenant shall, at its
sole cost and expense, throughout the Term of this Lease, as extended or
renewed, maintain a dumpster for depositing its trash and refuse. Under no
circumstances will Tenant store any trash or refuse outside the Structures
except in such dumpster. The Tenant shall comply with all of the requirements
and recommendations as announced from time to time by the engineering department
or any other similar enforcement department of the fire insurance company
insuring the Demised Premises or any agencies or departments of the Town of
Newton including by way of example but not limitation the health or fire
department. The Tenant shall keep the sidewalks, parking lot and roadways
forming part of the Demised Premises clean and free of obstructions, snow and
ice. Except as hereinafter in this Lease set forth, throughout the Term of this
Lease, the Tenant, at its sole cost and expense, will take good care of the
Demised Premises including by way of example but not limitation, the tanks,
racks, roof, boiler, heating systems, plumbing systems, electrical system and
sprinkler, gas fired unit heaters, rooftop heating, ventilating and air
conditioning ("HVAC") units, overhead doors, overhead door openers, exhaust
fans, ventilating fans, plumbing fixtures, lights, outlets, electrical panels,
exit lights, emergency lights, exterior lighting, fences, landscaping, tree
trimming and weed removal, and the sidewalks and curbs adjoining the Demised
Premises and will keep the same in good order and condition and

     

    
      
        
        

      

      
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    make all
necessary repairs thereto, interior and exterior, ordinary and extraordinary,
foreseen and unforeseen. Tenant shall return the Demised Premises at the end of
the Term in the same condition they were in at the commencement, subject to
reasonable wear and tear. In addition, the Tenant shall replace, at the Tenant's
expense, all window and glass in and on the Demised Premises which may become
broken after the date of Tenant's occupancy. All repairs made by Tenant shall be
equal in quality and class to the original work. The Tenant shall quit and
surrender the Demised Premises at the end of the Term in "broom-clean condition"
and in as good condition as the reasonable use thereof will permit. When used in
this Article, the term "repairs" shall mean those ordinary and extraordinary and
shall include all necessary replacements and renewals.

    


    In case
the Tenant shall fail or neglect at any time to make any of the repairs or
replacements hereinabove agreed to be made by it and shall continue such failure
or neglect after fourteen (14) days' notice in writing thereof from the
Landlord, unless the critical nature of the repair requires immediate attention
in which event the repair or replacement shall be made within twenty-four (24)
hours after such written notice, then the Landlord or its agents, at the option
of the Landlord, may enter the Demised Premises and make such repairs or
replacements at the cost and expense of the Tenant and in case of the Tenant's
failure to pay therefor, the same cost and expense shall be deemed Additional
Rent and be due and payable as such, or the Landlord may, at its option,
terminate this Lease or pursue any of its other remedies hereunder.

     

    Notwithstanding
any provision in this section to the contrary, Landlord acknowledges that it is
Landlord's intent to purchase fuel from Tenant and/or execute a throughput
agreement with Tenant and in doing so Landlord or its officers, managers, agents
or employees may be on the Demised premises; accordingly, Landlord shall be
solely responsible for any and all repairs as may be reasonably necessary caused
by the negligence or recklessness of Landlord or its officers, managers, agents
or employees on the Demised Premises.

     

    Section 9.02. The Tenant shall
not, without the prior written consent of the Landlord, which shall not be
unreasonably withheld, make any alterations, additions or improvements with
respect to the Demised Premises.

     

    If so
requested by the Landlord, the Tenant will remove all improvements made by it
under this Lease prior to the expiration of the Term and leave the Demised
Premises in such condition as it was at the commencement of the Term of this
Lease, reasonable wear and tear excepted. In the event the Tenant so fails to
remove such improvements, the Landlord may do so and collect from the Tenant, as
Additional Rent, its costs and expense of doing so. All erections, alterations,
additions and improvements, whether temporary or permanent in character, which
may be made upon or to the Demised Premises either by the Landlord or the
Tenant, except furniture or movable trade fixtures installed at the expense of
the Tenant, shall be the property of the Landlord and shall remain
upon and be surrendered with the Demised Premises as a part thereof at the
termination of this Lease, without compensation to the Tenant. All furniture,
movable trade fixtures and personalty of the Tenant remaining in the Demised
Premises after the expiration of the Term shall be deemed abandoned and may be
removed by Landlord who may collect from the Tenant, as Additional Rent, its
costs and expenses of so removing.

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    Section 9.03. The Landlord
may, as a condition to granting its consent to any alteration, addition or
improvement referred to in Section 9.02 above, require the
following:

     

    (a) Plans and
Specifications therefor are first submitted to the Landlord;

     

    (b) Provided
the Landlord has approved the same, the said Plans and Specifications are
appropriately filed (if necessary) with the applicable Governmental Agency;
and

     

    (c) Consent
(if necessary) is granted by the applicable Governmental Agency for any of the
said alterations, improvements, construction or repairs.

    


    ARTICLE X

    Casualty

     

    Section 10.01. If the Demised
Premises or the Structures is damaged or destroyed by fire, explosion, the
elements or otherwise during the Term so as to render the Demised Premises
wholly unusable or unfit for occupancy, or should the Demised Premises be so
badly injured that the same cannot be repaired within one hundred eighty (180)
days from the happening of such injury, then, and in such case, the Term hereby
created shall, at the option of either the Landlord or the Tenant, terminate
upon the giving of a notice of termination. If a notice of termination is given,
the Term of this Lease shall terminate effective as of the date of such damage
or destruction, and the Tenant shall immediately surrender the Demised Premises
and all the Tenant's interest therein to the Landlord, without abatement or
refund of the Basic Rent and Additional Rent and the Landlord may re-enter and
repossess the Demised Premises discharged from this Lease and may remove all
parties therefrom. In the event of any such termination, Tenant shall be
entitled to a return of all unearned rents, operating costs, and assessments
paid on a prorated basis.

     

    Section 10.02. Should the
Demised Premises be rendered unusable for Tenant's use and unfit for occupancy,
but yet be repairable within one hundred eighty (180) days from the happening of
said injury, the Tenant will restore the Structures and the Demised Premises,
and repair the same with reasonable speed, without refund or abatement of the
Basic Rent and Additional Rent.

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

    Section 10.03. If the Demised
Premises shall be so slightly damaged as not to be rendered unusable for
Tenant's use and unfit for occupancy, the Tenant shall repair the same with
reasonable promptness and the Basic Rent and Additional Rent shall not abate.
The Tenant shall immediately notify the Landlord in case of fire or other damage
to the Demised Premises.

     

    ARTICLE
XI

    Condemnation

     

    Section 11.01. If, during the
Term of this Lease, 10% or more of the area of the Demised Premises shall be
taken or noticed to be taken under any power of eminent domain or condemnation,
or less than 10% of the area of the Demised Premises shall be taken or noticed
to be taken under any power of eminent domain or condemnation but that portion
taken or noticed to be taken renders the Demised Premises reasonably unsuitable
for its intended use, then Tenant shall have the option within 30 days of
Tenant's notification of such eminent domain or condemnation action or
proceeding of (1) exercising an option to purchase the Real Property for the sum
of $500,000 less any amount of the $250,000 Basic Rent payment made by Tenant to
Landlord not repaid by Landlord pursuant to the procedures set forth in Section
25.01 of this Lease or (2) terminating this Lease and obtaining a full refund of
all unearned rents, operating costs and assessments already paid on a prorated
daily basis and have no further obligation to Landlord. Upon notice of Tenant's
intent to exercise the purchase option, Landlord shall prior to closing of such
purchase remove and satisfy any mortgages or liens, and cure any restrictions or
easements, encroachments or encumbrances that would render the Demised Premises
uninsurable. No part of any award shall belong to the Tenant except that nothing
contained herein is intended to affect or limit the Tenant's claim for fixtures
or other improvements owned by Tenant provided the same does not diminish the
Landlord's award. It is expressly understood and agreed that the provisions of
this Article XI shall not be applicable to any condemnation or taking for
governmental occupancy for a limited period of time. Notwithstanding the
foregoing, Tenant shall not have the right to exercise the purchase option
granted in this Section in the event that prior to the exercise of the option,
the Real Property is subject to an eminent domain notice pursuant to which the
Real Property or any portion thereof is to be taken for an amount in excess of
$500,000. In such event, this Lease shall be deemed terminated and the sole
obligations of the parties shall be as set forth in Section 5.02
hereinabove.

     

    
      
        
        

      

      
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    ARTICLE XII

    Compliance
With Laws, Etc.

     

    Section 12.01. The Tenant
shall not do or permit anything to be done in the Demised Premises which shall
constitute a public nuisance or which will conflict with the regulations of the
Fire Department or with any insurance policy upon said improvements or any part
thereof.

     

    Section 12.02. The Tenant
shall, at its own expense, obtain all necessary environmental and operating
permits and comply with all present and future requirements of law and with all
present and future ordinances or orders, rules and regulations of any State,
Municipal or other public authority affecting the Demised Premises and with all
requirements of the Fire Insurance Exchange or similar body, and of any
liability insurance company insuring the Landlord against liability for
accidents in or connected with the Demised Premises including, but not limited
to laws, ordinance, orders, rules and regulations which apply to the interior or
exterior of the Demised Premises, the structural or nonstructural parts thereof,
and to make all improvements and repairs required by such laws, ordinances,
orders, rules and regulations, ordinary or extraordinary, foreseen or
unforeseen.

     

    Section 12.03. Environmental
Matters.

     

    (a) Except as
specifically set forth in this Section 12.03, Tenant shall maintain the Demised
Premises and Real Property in compliance with all federal, state and local laws,
ordinances, rules, regulations and policies, now existing or hereafter amended,
enacted or promulgated, regarding the environment, health or safety which apply
to the Demised Premises and Real Property or their use, including without
limitation the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Section 9601 and the regulations promulgated thereunder, New
Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. ("Spill
Act"); the New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq.;
the New Jersey Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq.; the New
Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq.; and the New
Jersey Underground Storage of Hazardous Substances Act, N.J.S.A. 58:10A-21 et
seq. and Hazardous Discharge Site Remediation Act, N.J.S.A. 58:10B-1 et seq.
(all such laws, ordinances, rules, regulations and policies collectively
referred to herein as "Environmental Laws").

     

    (b) Tenant
hereby represents that its North American Industrial Classification
System (hereinafter "NAICS") code is _________________, as determined
by reference to the NAICS codes dated and published in 2002 by the Executive
Office of the President of the United States, Office of Management
and Budget, ISBN 0-934213-87-9 NTIS PB2002-502024, and its operations shall
consist of the operations described in Section 5.01. Tenant shall, at its own
cost and expense, comply with ISRA whenever an obligation to do so arises.
Tenant shall, at its own cost and expense, make all submissions to, provide all
information to, and comply with all requirements of the New Jersey Department of
Environmental Protection (hereinafter "NJDEP") pursuant to ISRA, including the
establishment of any required Remediation Funding Sources, as that term is
defined in Environmental Laws.

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

     

    (c) Should
the NJDEP determine that any investigation or remediation of Hazardous
Substances must be undertaken pursuant to Environmental Laws, including ISRA,
then Tenant shall, at Tenant's own expense, conduct such investigation and
remediation including, without limitation, the preparation of a Remedial Action
Workplan and submission of the Remediation Funding Sources. As used in this
Lease, "Hazardous Substances" shall mean any hazardous substance, hazardous
waste, toxic substance, pollutant or contaminant as any of those terms are
defined in any Environmental Laws, and any substance the presence of which may
result in liability under common law.

     

    (d) At no
expense to Landlord, Tenant shall promptly provide all information requested by
Landlord regarding or in furtherance of compliance with Environmental Laws.
Tenant shall sign any affidavit concerning compliance with Environmental Laws
submitted to it by Landlord which is true, accurate and complete; if an
affidavit is not true, accurate and complete, Tenant shall provide the necessary
information to make it true, accurate or complete and shall then sign
same.

     

    (e) Tenant
shall promptly supply Landlord with any notices, correspondence and submissions
of any nature made by Tenant to, or received by Tenant from, the NJDEP, the
United States Environmental Protection Agency, or any other local, state or
federal authority concerning compliance with Environmental Laws.

     

    (f) Intentionally
omitted.

     

    (g) At any
time upon request of the Landlord, Tenant shall give Landlord and its
representatives access to the Demised Premises during normal business hours in
order to inspect the Demised Premises, inspect any documents pertaining to
Tenant's compliance with Environmental Laws, or perform any work in order to
determine that the Demised Premises or its use by Tenant comply with
Environmental Laws.

     

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

     

    (h) Tenant
shall commence and complete full compliance with Environmental Laws, as required
by this Lease, including any required investigation or remediation, prior to the
termination or expiration of this Lease. Notwithstanding the expiration or
earlier termination of this Lease, if there exists a violation of, or failure to
comply with, Environmental Laws at the Demised Premises or Real Property for
which Tenant is responsible under Environmental Laws or this Lease or if Tenant
has failed to fulfill its obligations under this Section 12.03, and as a
consequence thereof, Landlord is unable to rent the Demised Premises or Real
Property, then the Landlord shall treat the Tenant as one who has not removed at
the end of its Term, and thereupon be entitled to all remedies against the
Tenant provided by law in that situation.

     

    (i) In the event that a lien shall be
filed (i) against the Demised Premises or Real Property during the term of this
Lease arising in whole or in part out of Hazardous Substances spilled or
discharged after the Commencement Date of this Lease, or (ii) after the term of
this Lease arising from a violation of Environmental Laws which occurred during
the term of this Lease, unless caused by Landlord or its representatives,
pursuant to and in accordance with Environmental Laws, including without
limitation, the Spill Act or the federal Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. § 9601 et seq., then Tenant shall,
within thirty (30) days from the time Tenant is given notice of the lien, or
within such shorter period of time in the event that the United States, New
Jersey, or any agency or subdivision of either such entity has commenced steps
to cause the Demised Premises or Real Property to be sold pursuant to the lien,
pay the claim and remove the lien from the Demised Premises or Real
Property.

     

    (j) Tenant shall indemnify, defend and
hold Landlord harmless from all fines, suits, procedures, claims, liabilities,
costs and actions of any kind, including attorneys' fees (including those
incurred to enforce this indemnity or for any other purpose), arising out of or
in any way connected with (1) any spills or discharges of Hazardous Substances
at the Demised Premises or Real Property, except those which occurred prior to
the date Tenant first took possession of the Demised Premises or (2) arising out
of Tenant's failure to comply with the provisions of this Section
12.03.

     

    (k) Notwithstanding any provision in this
section to the contrary, Landlord acknowledges that it is Landlord's intent to
purchase fuel from Tenant and/or execute a throughput agreement with Tenant and
in doing so Landlord or its officers, managers, agents or employees may be on
the Demised Premises; accordingly, Landlord shall be solely responsible for any
and all resulting damages of any
kind caused by the negligence or recklessness of Landlord or its officers,
managers, agents or employees on the Demised Premises. Landlord further agrees
to defend, indemnify and hold harmless Tenant from any such claims, penalties,
suits, liabilities, fines, damages, losses, fees, costs, and expenses which may
be imposed by such negligent or reckless conduct of Landlord or its officers,
managers, agents or employees.

     

    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    

     

    (l) Tenant's
obligations and liabilities under this Section 12.03 shall survive the
expiration or earlier termination of this Lease and shall continue so long as
Landlord remains responsible or liable for either any spills or discharges of
Hazardous Substances at the Demised Premises or Real Property or any violations
of Environmental Laws.

     

    ARTICLE
XIII

    Subordination/Estoppels

     

    Section 13.01. This Lease and
any option contained herein is and shall be subject and subordinate to all
present and future first mortgages or first deeds of trust affecting the Demised
Premises. The Tenant shall execute any instrument which may be deemed necessary
or desirable by the Landlord to further effect or to evidence the subordination
of this Lease to any such first mortgage or first deed of trust. The Landlord
may assign this Lease to any such first mortgagee or first trust deed holder in
connection with any such lien superior to this Lease, and the Tenant shall
execute any instrument which may be necessary or desirable by the Landlord or
the holder of said lien in connection with said assignment. Any expense incurred
in the preparing or recording of such assignment or subordination to any such
holder shall be without expense or cost to the Tenant.

     

    Section 13.02. The Tenant
further agrees, within ten (10) days of Landlord's written request, to certify
by written instrument duly executed and acknowledged to any first mortgagee,
first trust deed holder or purchaser, or any proposed first mortgage lender,
first trust deed holder or purchaser, that this Lease is in full force and
effect, or if not, in what respect it is not, that this Lease has not been
modified, or the extent to which it has been modified, that there are no
existing defaults hereunder to the best of the knowledge of the party so
certifying, or specifying the defaults, if any, and any other information which
Landlord shall reasonably require. Any such certification shall be without
prejudice as between the Landlord and the Tenant, it being agreed that any
document required hereunder shall not be used in any litigation between the
Landlord and the Tenant.

     

    Section 13.03. At the time of
the closing of the transfer of title of the Real Property to Tenant pursuant to
the purchase options granted to Tenant under Sections 11.01 and 25.01 of this
Lease, Landlord shall transfer the Real Property to Tenant free of all
claims, encumbrances and rights of others. In the event a lien, mortgage, other
encumbrance, encroachment, easement or title issue making the Demised Premises
uninsurable with a title company is discovered prior to Tenant executing such
purchase option, Landlord shall at Landlord's expense remove and satisfy any
such encumbrance prior to closing of the transfer of title to the Real Property
to Tenant, but in no event less than thirty days of notice and demand by Tenant
that such lien, mortgage, other encumbrance, encroachment, easement or title
issue be removed and satisfied. If Landlord fails to remove and satisfy any such
encumbrance prior to closing of the transfer of title to the Real Property to
Tenant, but in no event less than thirty days of notice and demand by Tenant,
Tenant may remove or satisfy any such encumbrance and seek indemnification for
any costs, attorneys' fees and monies paid to third parties to remove and/or
satisfy said lien, mortgage, other encumbrance, encroachment, easement or title
issue.

     

    
      
        
        

      

      
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    ARTICLE
XIV

    Defaults,
Remedies

     

    Section 14.01. If, during the
Term, any one or more of the following acts or occurrences (any one of such
occurrences or acts being hereinafter called an Event of Default) shall
happen:

     

    (a) The
Tenant shall default in making any payment of Basic Rent or any Additional Rent
(including without limitation, all sums due under the Note) as and when the same
shall become due and payable, and such default shall continue for a period of
ten (10) days after notice from the Landlord that such payment is due and
unpaid; or

     

    (b) The
Tenant shall default in the performance of or compliance with any of the other
covenants, agreements, terms or conditions of this Lease to be performed by the
Tenant (other than any default curable by payment of money), and such default
shall continue for a period of fourteen (14) days after written notice thereof
from the Landlord to the Tenant, or, in the case of a default which cannot with
due diligence be cured within fourteen (14) days, the Tenant shall fail to
proceed promptly (except for unavoidable delays) after the giving of such notice
and with all due diligence to cure such default and thereafter to prosecute the
curing hereof with all due diligence (it being intended that as to a default not
susceptible of being cured with due diligence within fourteen (14) days, the
time within which such default may be cured shall be extended for such period as
may be reasonably necessary to permit the same to be cured with all due
diligence); or

     

    (c) The
Tenant or any guarantor of this Lease shall file a voluntary petition in
bankruptcy or shall be adjudicated a bankrupt or insolvent,
or shall file any petition or answer seeking any reorganization, composition,
readjustment or similar relief under any present or future bankruptcy or other
applicable law, or shall seek or consent to or acquiesce in the appointment of
any trustee, receiver, or liquidator of the Tenant or any guarantor of this
Lease or of all or any substantial part of its properties or of all or any part
of the Demised Premises; or

     

    
      
        
        

      

      
        17

        
          

        

      

      
        
        

      

    

     

    (d) If,
within sixty (60) days after the filing of an involuntary petition in bankruptcy
against the Tenant or any guarantor of this Lease, or the commencement of any
proceeding against the Tenant or such guarantor seeking any reorganization,
composition, readjustment or similar relief under any law, such proceeding shall
not have been dismissed, or if, within sixty (60) days after the appointment,
without the consent or acquiescence of the Tenant or such guarantor, of any
trustee, receiver or liquidator of the Tenant or such guarantor, or of all or
any part of the Demised Premises, such appointment shall not have been vacated
or stayed on appeal or otherwise, or if, within sixty (60) days after the
expiration of any such stay, such appointment shall have been vacated, or if,
within sixty (60) days after the taking possession, without the consent or
acquiescence of the Tenant or such guarantor, of the property of the Tenant, or
of such guarantor by any governmental office or agency pursuant to statutory
authority for the dissolution or liquidation of the Tenant or such guarantor,
such taking shall not have been vacated or stayed on appeal or otherwise;
or

     

    (e) If the
Demised Premises shall be abandoned by the Tenant for a period of thirty (30)
consecutive days then, and
in any such event, and during the continuance thereof, the Landlord may, at its
option, then or thereafter while any such Event of Default shall continue and
notwithstanding the fact that the Landlord may have any other remedy hereunder
or at law or in equity, by notice to the Tenant, designate a date, not less than
ten (10) days after the giving of such notice, on which this Lease shall
terminate; and thereupon, on such date the Term of this Lease and the estate
hereby granted shall expire and terminate upon the date specified in such notice
with the same force and effect as if the date specified in such notice was the
date hereinbefore fixed for the expiration of the Term of this Lease, and all
rights of the Tenant hereunder shall expire and terminate, but the Tenant shall
remain liable as hereinafter provided. Additionally, Tenant agrees to pay, as
Additional Rent, all attorney's fees and other expenses incurred by the Landlord
in enforcing any of the obligations under this Lease, this covenant to survive
the expiration or sooner termination of this Lease.

     

    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    

     

    Section 14.02. If this Lease
is terminated as provided in Section 14.01, or as permitted by law, the Tenant
shall peaceably quit and surrender the Demised Premises to the Landlord, and the
Landlord may, without further notice, enter upon, re-enter, possess and
repossess the same by summary proceedings, ejectment or other legal proceedings,
and again have, repossess and enjoy the same as if this Lease had not been made,
and in any such event neither the Tenant nor any person claiming through or
under the Tenant by virtue of any law or an order of any court shall be entitled
to possession or to remain in possession of the Demised Premises, and the
Landlord, at its option, shall forthwith, notwithstanding
any other provision of this Lease, be entitled to recover from the Tenant (in
lieu of all other claims for damages on account of such termination) as and for
liquidated damages an amount equal to the excess of all Basic Rent and
Additional Rent reserved hereunder for the unexpired portion of the Term of this
Lease discounted at the rate of six (6%) percent per annum to the then present
worth, over the fair rental value of the Demised Premises at the time of
termination for such unexpired portion of the Term. Nothing herein contained
shall limit or prejudice the right of the Landlord, in any bankruptcy or
reorganization or insolvency proceeding, to prove for and obtain as liquidated
damages by reason of such termination an amount equal to the maximum allowed by
any bankruptcy or reorganization or insolvency proceedings, or to prove for and
obtain as liquidated damages by reason of such termination, an amount equal to
the maximum allowed by any statute or rule of law whether such amount shall be
greater or less than the excess referred to above.

     

    Section 14.03. If the Landlord
re-enters and obtains possession of the Demised Premises, as provided in Section
14.02 of this Lease, following an Event of Default, the Landlord shall have the
right, without notice, to repair or alter the Demised Premises in such manner as
the Landlord may deem necessary or advisable so as to put the Demised Premises
in good order and to make the same rentable, and shall have the right, at the
Landlord's option, to relet the Demised Premises or a part thereof, and the
Tenant shall pay to the Landlord on demand all reasonable expenses incurred by
the Landlord in obtaining possession, and in altering, repairing and putting the
Demised Premises in good order and condition and in reletting the same,
including reasonable fees of attorneys and architects, and all other reasonable
expenses or commissions, and the Tenant shall pay to the Landlord upon the rent
payment dates following the date of such re-entry and including the date for the
expiration of the Term of this Lease in effect immediately prior to such
re-entry, the sums of money which would have been payable by the Tenant as Basic
Rent and Additional Rent hereunder on such rent payment dates if the Landlord
had not re-entered and resumed possession of the Demised Premises, deducting
only the net amount of Basic Rent and Additional Rent, if any, which the
Landlord shall actually receive (after deducting from the gross receipts the
expenses, costs and payments of the Landlord which in accordance with the terms
of this Lease would have been borne by the Tenant) in the meantime from and by
any reletting of the Demised Premises, and the Tenant shall remain liable for
all sums otherwise payable by the Tenant under this Lease, including but not
limited to the expense of the Landlord aforesaid, as well as for any deficiency
aforesaid, and the Landlord shall have the right from time to time to begin and
maintain successive actions or other legal proceedings against the Tenant for
the recovery of such
deficiency, expenses or damages or for a sum equal to any Basic Rent payment and
Additional Rent.

     

    
      
        
        

      

      
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    Section 14.04. The Tenant
hereby waives all right of redemption to which the Tenant or any person under it
may be entitled by any law now or hereafter in force. In the event of an Event
of Default which results in the Landlord recovering possession of the Demised
Premises, Landlord shall be under an ongoing obligation to mitigate Tenant's
damages. The Landlord's remedies hereunder are in addition to any remedy allowed
by law.

     

    Section 14.05. In the event of
any breach or threatened breach by Tenant of any of the agreements, terms,
covenants or conditions contained in this Lease, Landlord shall be entitled to
enjoin such breach or threatened breach and shall have the right to invoke any
right or remedy allowed at law or in equity or by statute or otherwise as though
re-entry, summary dispossess proceedings, and other remedies were not provided
for in this Lease. During the pendency of any proceedings brought by Landlord to
recover possession by reason of default, Tenant shall continue all money
payments required to be made to Landlord, and Landlord may accept such payments
for use and occupancy of the Demised Premises. In such event, Tenant waives its
right in such proceedings to claim as a defense that the receipt of such money
payments by Landlord constitutes a waiver by Landlord of such
default.

    


    ARTICLE
XV

    Assignment
and Sublease

     

    Section 15.01. The Tenant may
not mortgage, pledge, hypothecate, assign, transfer, sublet, license or
otherwise deal with this Lease or the Demised Premises in any manner without
Landlord's consent which may be withheld in Landlord's sole discretion; except
that Tenant shall have the one-time right to transfer its interest to a
designee, upon written notice to Landlord.

    


    ARTICLE XVI

    Notices

     

    Section 16.01. Any notice by
either party to the other shall be in writing and shall be deemed to have been
duly given only if (a) delivered personally or (b) sent by registered mail or
certified mail, return receipt requested, in a postpaid envelope or (c) sent by
recognized overnight courier service such as Federal Express, addressed at the
address set forth below, or at such other address as it shall designate by
notice, as follows:

     

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    

     

    
      	 	If
      to Landlord:	
              Able
      Energy, Inc.

              198
      Green Pond Road Rockaway, New Jersey 07866

            
	 	 	 
	 	with
      copy to:	
              Able
      Energy, Inc.

              1140
      Avenue of the Americas Suite 1800

              New
      York, New York 10036 Attn: Gregory Frost, CEO

            
	 	 	 
	
               
      

            	
              If
      to Tenant:

            	
              North
      Jersy Oil, Inc., or its designee 68 North Dell

              Kenvil,
      New Jersey 07847

              Attn:
      John McGinley

            
	 	 	 
	 	

              with
      copy to:

            	

              Erik
      A. Hassing, Esq. Bell & Hassing

              150 Mineral Springs
      Drive Rockaway, NJ 07866

            


    

     

    Any
notice so sent shall be deemed given upon its receipt or rejection as evidenced
by a return receipt or upon delivery if personally served.

    


    ARTICLE
XVII

    Holding
Over

     

    Section 17.01. If the Tenant
shall remain in the Demised Premises after the expiration of the Term without
having executed and delivered a new lease with the Landlord, such holding over
shall not constitute a renewal or extension of this Lease. The Landlord may, at
its option, elect to treat the Tenant as one who has not removed at the end of
its Term, and thereupon be entitled to all the remedies against the Tenant
provided by law in that situation, or the Landlord may elect, at its option, to
construe such holding over as a tenancy from month to month, subject to all the
terms and conditions of this Lease, except as to duration thereof, and in that
event the Tenant shall pay installments of Monthly Basic Rent as provided for
pursuant to N.J.S.A. 2A:42-6, but in no event less than the rate provided herein
for the last month of the Term.

     

    
      
        
        

      

      
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ARTICLE
XVIII

    Liens

     

    Section 18.01. This Lease may
be cancelled by the Landlord if any mechanic's lien is filed against the Demised
Premises as a result of alterations, additions or improvements made by the
Tenant and not discharged by payment or bonding within thirty (30) days after
notice by the Landlord to the Tenant. In addition, after thirty (30) days'
written notice to the Tenant, the Landlord, at its option, may pay and discharge
such lien, without inquiring into the validity thereof, and the Tenant shall, on
demand of the Landlord, reimburse the Landlord as Additional Rent hereunder for
the total expense incurred by the Landlord in discharging such
lien.

     

    ARTICLE
XIX

    Condition
of Demised Premises, Loss, Etc.

     

    Section 19.01. After the
commencement of the Tenant's occupancy, the Landlord shall not be responsible
for the loss of, or damage to, Tenant's property or that under its care, custody
or control, or injury to Tenant occurring in or about the Demised Premises, or
for any business interruption loss, for any reason whatsoever, to include but
not be limited to: any existing or future condition, defect, matter or thing in
the Demised Premises; the acts, omissions or negligence of other persons or
tenants in and about the Demised Premises; theft or burglary from the Demised
Premises; and defects, errors or omissions in the construction or design of the
Demised Premises and/or the Structures including the structural and
nonstructural portions thereof. Tenant covenants and agrees to make no claim for
any such loss, damage or injury at any time.

     

    Notwithstanding
any provision in this section to the contrary, Landlord acknowledges that it is
Landlord's intent to purchase fuel from Tenant and/or execute a throughput
agreement with Tenant and in doing so Landlord or its officers, managers, agents
or employees may be on the Demised Premises; accordingly, Landlord shall be
solely responsible for any and all resulting damages of any kind caused by the
negligence or recklessness of Landlord or its officers, managers, agents or
employees on the Demised Premises. Landlord further agrees to defend, indemnify
and hold harmless Tenant from any such claims, penalties, suits, liabilities,
fines, damages, losses, fees, costs, and expenses which may be imposed by such
negligent or reckless conduct of Landlord or its officers, managers, agents or
employees.

     

    
      
        
        

      

      
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    ARTICLE
XX

    Inspection

     

    Section 20.01. The Landlord,
or its agents, shall have the right to enter the Demised Premises at reasonable
hours to examine the same, provided Landlord does not interfere with Tenant's
use and occupancy thereof.

     

    ARTICLE
XXI

    Throughput
Rights

     

    Section 21.01. Upon receipt by
Tenant of the Approvals, Tenant shall grant to Landlord or its affiliates
"throughput" rights to utilize the Demised Premises for storage and distribution
rights of all fuel products, in exchange for similar rights which Landlord shall
grant to Tenant to use Landlord's facility located in Rockaway, New Jersey. The
charges for the use of both facilities shall be at the rate of five cents
($0.05) per gallon to be accounted for by the parties on a monthly basis. No
throughput rights shall be granted by Tenant to any third-party without
Landlord's written consent which may not be unreasonably withheld.

     

    ARTICLE XXII

    Credit Facility

     

    Section 22.01. Upon the
Commencement Date, Tenant shall provide Landlord with a Five Hundred Thousand
($500,000.00) Dollar line of credit to purchase fuel products from third party
suppliers with at least eight (8) day credit terms or, in the alternative, store
at Landlord's Rockaway terminal facility home heating oil having a wholesale
cost of a minimum of $500,000 so that Landlord may utilize this fuel
for its customers and pay Tenant for such fuel on at least eight (8)
day credit terms. This line of credit or alternative storage of fuel arrangement shall be
provided by Tenant to Landlord for a period of at least six (6) months from the
Commencement Date. In consideration of such credit facility Landlord
shall pay to Tenant the sum of two cents ($0.02) per
gallon for each gallon purchased by Landlord through such credit facility. Upon
default by Landlord under the terms of the credit facility agreement tenant
shall be entitled to offset against any monies owed to Landlord by Tenant under
the terms of this Lease and the promissory note attached thereto the amount of
monies owed to Tenant under the credit facility.

     

    
      
        
        

      

      
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    ARTICLE
XXIII

    Intentionally
Omitted

     

    ARTICLE
XXIV

    Broker

     

    Section 24.01. The Landlord
and the Tenant represent and warrant one to the other that no broker brought
about this transaction, and the Landlord and the Tenant agree to indemnify and
hold each other harmless from any and all claims of any brokers arising out of
or in connection with the negotiations of or the entering into this Lease by the
Landlord and the Tenant.

     

    ARTICLE
XXV

    Purchase
Option

    


    Section 25.01. At any time
after payment in full in cash of all of the Basic Rent (including, without
limitation, all sums due and owing under the Note) Tenant shall have the right,
exercisable on not fewer than thirty (30) days prior written notice to Landlord,
to purchase the Demised Premises in its AS IS condition for the sum of $1.00,
whereupon Landlord shall deliver a bargain and sale deed with covenants against
grantor's acts to Tenant, together with such documentation as may reasonably be
required by Purchaser's title insurance company to deliver fee simple title to
the Demised Premises subject to easements and restrictions of record, zoning
ordinances and such state of facts as may be revealed by an accurate survey of
the Demised Premises. All transfer taxes in connection with such conveyance
shall be payable by the Tenant. Notwithstanding the foregoing, Tenant shall not
have the right to exercise this purchase option in the event that prior to the
exercise of the option, the Real Property is subject to an eminent domain notice
pursuant to which the Real Property or any portion thereof is to be taken for an
amount in excess of $500,000. In such event, this Lease shall be deemed
terminated and the sole obligations of the parties shall be as set forth in
Section 5.02 hereinabove.

     

    ARTICLE
XXVI


    Waiver
of Jury Trial

     

    Section 26.01. Tenant and
Landlord both waive a trial by jury of any or all issues arising in any action
or proceeding between the parties hereto or their successors under or connected
with this Lease or any of its provisions.

     

    
      
        
        

      

      
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      ARTICLE XXVII

      Waiver of
Distraint

    

     

    Section 27.01. Landlord waives
all lien, right, interest and claim it might otherwise have in and waives its
right of distraint of, the machinery, fixtures and other property of the Tenant,
and in any other property of any nature whether on or off the Demised Premises,
belonging to the Tenant. The provisions of this Section are intended to apply to
the Landlord's common law (if any) and statutory right of distraint because of
failure to pay Basic Rent or Additional Rent. In the event Landlord is requested
to execute a lien waiver or similar document evidencing that Landlord does not
have a lien on Tenant's inventory, equipment or other personalty, then Tenant
agrees to reimburse Landlord, as Additional Rent, for the legal fees and costs
incurred by Landlord in connection with reviewing and responding to such
request.

    


    ARTICLE
XXVIII

    Intentionally
Omitted

     

    ARTICLE
XXIX

    Miscellaneous

     

    Section 29.01. Partial Invalidity.
If any term or provision of this Lease or the application thereof to any
party or circumstances shall to any extent be invalid or unenforceable, the
remainder of this Lease or the application of such term or provision to parties
or circumstances other than those to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Lease shall
be valid and enforced to the fullest extent permitted by law.

     

    Section 29.02. Waivers. One or
more waivers by either party of the obligation of the other to perform any
covenant or condition shall not be construed as a waiver of a subsequent breach
of the same or any other covenant or condition.

     

    The
receipt of Monthly Basic Rent and Additional Rent by the Landlord, with
knowledge of any breach of this Lease by the Tenant or of any default on the
part of the Tenant in the observance or performance of any of the conditions or
covenants of this Lease, shall not be deemed to be a waiver of any provision of
this Lease. Neither acceptance of the keys nor any other act or thing done by
the Landlord or any agent or employee during the Term herein demised shall be
deemed to be an acceptance of a surrender of said Demised Premises, excepting
only an agreement in writing signed by the Landlord accepting or agreeing to
accept such a surrender.

     

    
      
        
        

      

      
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      Section 29.03. Number, Gender.
Wherever herein the singular number is used, the same shall include the
plural, and the masculine gender shall include the feminine and neuter
genders.

       

      Section 29.04. Successors, Assigns.
The terms, covenants and conditions herein contained shall be binding
upon and inure to the benefit of the respective parties and their successors and
assigns.

       

      Section 29.05. Headings. The
Article and marginal headings herein are intended for convenience in finding the
subject matters, are not to be taken as part of this Lease and are not to be
used in determining the intent of the parties to this Lease.

       

      Section 29.06. Entire Agreement.
This instrument contains the entire and only agreement between the
parties and no oral statements or representations or prior written matter not
contained in this instrument shall have any force or effect. This Lease shall
not be modified in any way or terminated except by a writing executed by both
parties.

       

      Section 29.07. Landlord. The
term "Landlord" as used in this Lease means only the holder, for the time being,
of the Landlord's interest under this Lease so that in the event of any transfer
of title to the Demised Premises the Landlord shall be and hereby is entirely
freed and relieved of all obligations of the Landlord hereunder accruing after
such transfer, and it shall be deemed without further agreement between the
parties that such grantee, transferee or assignee has assumed and agreed to
observe and perform all obligations of the Landlord hereunder arising during the
period it is the holder of the Landlord's interest hereunder.

       

      Section 29.08. Words of Duty.
Whenever in this Lease any words of obligation or duty are used, such
words or expressions shall have the same force and effect as though made in the
form of covenants.

       

      Section 29.09. Cumulative Remedies.
The specified remedies to which the Landlord or the Tenant may resort
under the terms of this Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which the Landlord or the
Tenant may lawfully be entitled in case of any breach or threatened breach of
any provision of this Lease.

       

      Section 29.10. No Option. The
submission of this Lease Agreement for examination does not constitute a
reservation of, or option for, the Demised Premises, and this Lease Agreement
becomes effective as a Lease Agreement only upon execution and delivery thereof
by Landlord and Tenant.

       

      Section 29.11. Accord and
Satisfaction. No payment by Tenant or receipt by Landlord of a lesser
amount than the Monthly Basic Rent and additional charges payable hereunder
shall be deemed to be other than a payment on account of the earliest
stipulated
Monthly Basic Rent and Additional Rent, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment for Basic Rent or
Additional Rent be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such Basic Rent and Additional Rent or pursue any other remedy
provided herein or by law.

       

      
        
          
          

        

        
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      Section 29.12. Corporate Authority.
If Tenant is a corporation, Tenant represents and warrants that this
Lease and the undersigned's execution of this Lease has been duly authorized and
approved by the corporation's Board of Directors. The undersigned officers and
representatives of the corporation executing this Lease on behalf of the
corporation represent and warrant that they are officers of the corporation with
authority to execute this Lease on behalf of the corporation, and within fifteen
(15) days of execution hereof, Tenant will provide Landlord with a corporate
resolution confirming the aforesaid.

       

      Section 29.13. Lease Commencement.
Notwithstanding anything contained herein to the contrary, if Landlord,
for reasons beyond its control cannot deliver possession of the Demised Premises
to Tenant at the commencement of the agreed Term as set forth in Section 2.01,
this Lease shall not be void or voidable, but in that event, the Term shall be
for the full Term as specified above to commence from and after the date
Landlord shall have delivered possession of the Demised Premises to Tenant, and,
if requested by Landlord, Landlord and Tenant shall, by a writing signed by the
parties, ratify and confirm said commencement and termination
dates.

       

      Section 29.14. Real Estate Taxes.
As used in this Lease, Real Estate Taxes shall mean the property taxes
and assessments imposed upon the Real Property including the Structures, or upon
the Basic Rent and Additional Rent, as such, payable to Landlord, including, but
not limited to, real estate, city, county, village, school and transit taxes, or
taxes, assessments or changes levied, imposed, or assessed against the Demised
Premises including the Structures by any other taxing authority, whether general
or specific, ordinary or extraordinary, foreseen or unforeseen. If due to a
future change in the method of taxation, any franchise, income or profit tax or
other tax shall be levied against Landlord in substitution for, or in lieu of,
or in addition to, any tax which would otherwise constitute a Real Estate Tax,
such franchise, income or profit tax or other tax shall be deemed to be a Real
Estate Tax for the purposes hereof; conversely, any additional real estate tax
hereafter imposed in substitution for, or in lieu of, any franchise, income or
profit tax or other tax (which is not in substitution for, or in lieu of, or in
addition to, a Real Estate Tax as hereinbefore provided) shall not be deemed a
Real Estate Tax for the purposes hereof.

       

      Section 29.15. Additional Rent.
Additional Rent shall mean all sums in addition to Basic Rent payable by
Tenant to Landlord pursuant to the provisions of this Lease for the collection
of which Landlord shall have all the remedies as are permitted for the
collection of Basic Rent.

       

      
        
          
          

        

        
          27

          
            

          

        

        
          
          

        

      

       

      Section 29.16. Force Majeure.
Force Majeure shall mean and include those situations beyond Landlord's
control, including by way of example and not by way of limitation, acts of God;
accidents; repairs; strikes; shortages of labor, supplies or materials;
inclement weather; or, where applicable, the passage of time while waiting for
an adjustment of insurance proceeds. Any time limits required to be met by
either party hereunder, whether specifically made subject to Force Majeure or
not, except those related to the payment of Basic Rent or Additional Rent and
except as to the time periods set forth in Article XVII, shall, unless
specifically stated to the contrary elsewhere in this Lease, be automatically
extended by the number of days by which any performance called for is delayed
due to Force Majeure.

       

      Section 29.17. Applicable Law.
This Lease shall be governed by and construed and enforced in accordance
with the laws by the Courts of the State of New Jersey (excluding New Jersey
conflict laws) and by the Courts of New Jersey.

       

      Section 29.18. Lease Not To Be
Recorded. This Lease shall not be filed of record by or on behalf of
Tenant in any office or place of public record. If Tenant fails to comply with
the terms hereof by recording or attempting to record this Lease or a notice
thereof, such act shall not operate to bind or cloud the title to the Demised
Premises. Landlord shall, nevertheless, have the right forthwith to institute
appropriate legal proceedings to have the same removed from record which may
include a claim for damages, reasonable attorneys fees, costs and expenses. If
Tenant or any agent, broker or counsel acting for Tenant shall cause or permit
this Lease or a copy thereof to be filed in an office or place of public record,
Landlord, at its option, and in addition to Landlord's other rights and
remedies, may treat such act as an Event of Default under this Lease on the part
of Tenant.

       

      ARTICLE
XXX

      Personal
Liability

    

     

    Section 30.01. Notwithstanding
anything to the contrary provided in this Lease, it is specifically understood
and agreed, such agreement being a primary consideration for the execution of
this Lease by Landlord, that there shall be absolutely no personal liability on
the part of Landlord, its successors, assigns or any mortgagee in possession
(for the purposes of this Section, collectively referred to as "Landlord"), with
respect to any of the terms, covenants and conditions of this Lease except for
the obligation of Landlord to repay to Tenant the Basic Rent payment of $250,000
under the terms set forth in Section 5.02 of this Lease , and that Tenant shall
look solely to the equity of Landlord in the Structures for the satisfaction of
each and every remedy of Tenant in the event of any breach by Landlord of any of
the terms, covenants and conditions of this Lease to be performed by Landlord,
such exculpation of liability to be absolute and without any exceptions
whatsoever.

     

    
      
        
        

      

      
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    IN WITNESS WHEREOF, the
parties hereto have hereunto set their hands and seals the day and year first
above written.

     

     

    
      
        	 	ABLE
      ENERGY, INC., Landlord	 
	 	 	 
	 	 	 
	
                 

              	By:
      /s/ Gregory D. Frost	 
	 	Name:
      Gregory D. Frost	 
	 	Title:
      Chief Executive Officer	 
	 	 	 
	 	North
      Jersey Oil, Inc., or its designee, Tenant	 
	 	 	 
	 	By:
      /s/ John Mc. McGinley	 
	 	Name: John
      Mc. McGinley	 
	 	Title:
      President                     
      	 


      

       

       

      29