Exhibit 10.6
SECOND
AMENDED AND RESTATED
PROMISSORY NOTE
$9,000,000.00
Oklahoma City, Oklahoma
as of October 7, 2005
For value
received, the undersigned, BEARD PINNACLE, LLC, an Oklahoma
limited liability company (the "Maker"), agrees to all of the terms
of this
Promissory Note (this "Note") and promises to pay to the order of
PinnOak
Resources, LLC, a Delaware limited liability company (the payee,
its successors
and assigns are hereinafter called the "Holder"), at Pointe Plaza
Suite 300, 601
Technology Drive, Canonsburg, PA 15317-9523, or at such other place
as may be
designated in writing by the Holder of this Note, the principal sum
of NINE
MILLION DOLLARS ($9,000,000.00) or, if less than such amount, the
aggregate
unpaid principal amount of all advances or loans made by the Holder
to the
Maker, and all interest accruing thereon. This Note will be payable
as follows:
1.
Interest will accrue on the unpaid principal balance of this Note
at
the per
annum interest rate equal to the Wall Street Journal Prime Rate
(the
"Index") plus two percent (2%) (the "Applicable Rate"). Interest
will
commence
to accrue as advances or loans are made on the Note and
thereafter
until this Note is paid in full.
2. If
Holder and Maker enter into a Subscription Agreement on or
before
May 1,
2006, providing for the sale and issuance of a membership
interest
in Maker
to Holder and/or its affiliates (the "Subscription Agreement"),
then (i)
all unpaid principal amounts advanced pursuant to the terms of
this Note
and all unpaid interest accrued thereon, up to a maximum amount
of
$2,800,000, shall be immediately applied to the purchase or
subscription price for that membership interest, (ii) any funding
provided
by Holder
plus accrued and unpaid interest in excess of $2,800,000 will
be
repaid to
Holder, and (iii) this Note shall then be cancelled and of no
further
force or effect. If there is insufficient funding available to
Beard Pinnacle to pay
amounts due under this Note as per (ii) above, the
provisions
under alternative 3 of the Smith Branch Project letter
agreement
between the Holder and Maker dated February 7, 2006 (the
"Agreement") shall apply.
3. This Note, as
amended and restated, has been made to memorialize the
loans made
to date and additional loans agreed to be made by the Holder to
the Maker
in connection with the Agreement. The parties have agreed that
if the
Holder makes additional loans to the Maker pursuant to the
Agreement,
the provisions of the Agreement concerning repayment or
conversion
of this Note and the release of any collateral will govern.
Both
principal and interest owing pursuant to the terms of this Note
are
payable in the lawful currency of the United States of America and
in
immediately available funds. All advances made on the Note will be
ap
