EXHIBIT 10.2
PROMISSORY NOTE
$40,000,000.00
October 16, 2009
FOR VALUE RECEIVED
and WITHOUT GRACE, in the installments hereinafter
provided, the undersigned ("Maker") promises to pay to
the order of GUGGENHEIM
ENERGY OPPORTUNITIES FUND, LP
("PAYEE") the sum of FORTY MILLION
DOLLARS
($40,000,000.00), or so much thereof as may be advanced to or for
the benefit of
Maker by Payee pursuant to that certain Senior Secured
Advancing Line of Credit
Agreement dated of even date herewith
between Maker, Guggenheim Corporate
Funding, LLC, as Administrative Agent
(the "ADMINISTRATIVE AGENT") for the
parties designated as lenders thereto
("LENDERS") and the Lenders (as may be
amended, modified, supplemented or
restated from time to time, the "CREDIT
AGREEMENT"), together with interest as
set forth in the Credit Agreement;
provided, however, that it is the intention
of Maker and Payee to comply
strictly with all applicable usury laws as in
effect from time to time; and
there is no intention to contract
for, nor shall there ever be collected,
charged or received on this Promissory Note (this "NOTE"), interest
in excess of
that which would accrue and be payable on the basis of the Highest
Lawful Rate.
All payments
of principal and interest are payable in lawful money
of
the United States of America to Administrative Agent as set
forth in the Credit
Agreement.
Each advance by
Payee to Maker and each payment of principal hereunder
by Maker shall be reflected by a notation made by Payee
on its records or on a
ledger appended to this Note and the
aggregate unpaid amount of advances
reflected by said notations shall be deemed rebuttably
presumptive evidence of
the principal amount owing under this Note.
This Note is
issued pursuant to the Credit Agreement, and reference is
made to the Credit Agreement for matters governed
thereby, including, without
limitation, certain events which will entitle the
holder hereof to accelerate
the maturity of all amounts due hereon. Capitalized
terms used but not defined
herein shall have the same meanings as in the Credit Agreement.
If under any
circumstances the aggregate amounts paid on
this Note
include amounts
