DC7899.pdf -- Converted by SEC Publisher 4.2, created by BCL Technologies Inc., for SEC Filing








	
EXHIBIT 10.9







	
PROMISSORY NOTE






	
Up to $24,500,000 
		
 		
February 16, 2010 
	
	
 
		
 		
New York, New York 
	




     FOR VALUE RECEIVED, Raser Technologies, Inc., a Delaware corporation, Intermountain Renewable Power, LLC, a Delaware limited liability company (“IRP”), Raser Power Systems, LLC, a Delaware
limited liability company, Western Renewable Power, LLC, a Delaware limited liability company, RT Patent Company, Inc., a Delaware corporation and Columbia Renewable Power, LLC, a Delaware limited liability company (collectively, "Raser"), hereby promises to pay to MERRILL LYNCH, PIERCE, FENNER & SMITH 


INCORPORATED, a Delaware corporation ("MLP"), the Shortfall (as defined in the Redemption Agreement (as defined below)), but in no event more than the principal sum of
Twenty-Four Million Five Hundred Thousand Dollars ($24,5000,000), in lawful money of the United States of America and in immediately available funds, on the dates and in the principal amounts provided herein; provided that if IRP has not caused the Thermo No.1 BE-01, LLC (the “Company”) to distribute the Interconnection Assets (as defined in the deed of trust securing this Note) to IRP in accordance
with Section 6.1(e) of the Amended and Restated Limited Liability Agreement of the Company, dated as of August 31, 2008, as amended, by the date (the “Trigger Date”) which is thirty (30) days following the satisfaction of the conditions to the release of the Interconnection Assets set forth in Article XI of that certain Account and Security Agreement by and
between the Company and Deutsche Bank Trust Company Americas, dated as of August 31, 2008, as amended (the “Account and Security Agreement”), then the principal amount of this Note
shall be increased by One Hundred Thousand Dollars ($100,000) for each month following the Trigger Date (or portion of a month on a pro rated basis based on the number of days in such month) during which the Company holds title to the
Interconnection Assets.


     This Note is the Raser Note referenced in that certain Membership Interest Redemption Agreement dated as of December 3, 2009 (as amended, supplemented or otherwise modified in accordance with the
terms thereof and in effect from time to time, the "Redemption Agreement") among Raser, the Company, MLP, and IRP and evidences the
amount owing by Raser on the date hereof under the Raser Guaranty as the result of any shortfall in the Redemption Consideration paid by the Company to MLP under the Redemption Agreement. Capitalized terms used but not defined in this Note have the
respective meanings assigned to them in the Redemption Agreement.


     Raser has caused IRP to instruct and will cause the Company to pay to MLP all amounts to be distributed (or paid pursuant to Section 3.2.1.5 of the Account and Security Agreement) to IRP (as the Class
B Investor) or a transferee or an Affiliate of IRP (pursuant to instructions from IRP or the transferee or Affiliate described above) to be applied against the outstanding principal and accrued but unpaid interest under this Note, and Raser will
cause IRP 











and its Affiliates to instruct the Company and the Collateral Agent accordingly on the Effective Date of the Redemption Agreement or any later date on which a payment would be made to a transferee or Affiliate of IRP for whom such
instruction was not previously made. If, notwithstanding such instruction, IRP or the transferee or Affiliate described in the preceding sentence receives any distribution from the Company while any principal or unpaid interest remains outstanding
hereunder, IRP or such transferee or Affiliate will pay the same amount to MLP, to be applied to reduce such outstanding principal and unpaid interest within three (3) Business Days of receipt of such distribution by IRP or such transferee or
Affiliate. All amounts paid to MLP hereunder shall be applied first to the payment of accrued but unpaid interest and then to principal. This Note shall mature, and all amounts unpaid and outstanding hereunder shall be due and payable in full, on
the date which is February 15, 2011 (provided that if such date is not a Business Day, payment hereunder will be due and payable on the first Business Day immediately following such date).


     Principal amounts and unpaid interest outstanding under this Note shall bear interest at a rate of (i) fifteen percent (15%) per annum from the date hereof through August 15, 2010, and eighteen
percent (18%) per annum from August 16, 2010 through February 15, 2011 or until paid in full.


     The amounts due hereunder may be prepaid by Raser at any time. The Company hereby waives notice of presentment, demand, protest or notice of any other kind hereunder.


     The following shall be events of default under this note: (i) failure to pay any amounts due and payable under this Note on the date such payment is due; (ii) a breach of Section 2.5 of the Redemption
Agreement by Raser or any of its Affiliates or (iii) a failure by IRP or the Company, as applicable, to (a) take all steps that either is legally entitled to take and that are reasonably necessary to cause the Collateral Agent to release the
collateral and to cause the Company to transfer such collateral to IRP as described in Section 2.2.2 of the Redemption Agreement, or (b) cause such collateral to become subject to the Lien under the DTSA as soon as practicable, but in no event later
than ten Business Days following the satisfaction of the relevant release conditions contained in Article XI of the Account and Security Agreement, in each case as required under Section 2.2.2 of the Redemption Agreement. Upon the occurrence of an
event of default, MLP shall have the right, by written notice to Raser at the address for Raser given in the Redemption Agreement, to declare all principal and accrued but unpaid interest under this Note immediately due and payable, and to exercise
any and all remedies provided in any deed of trust or other security agreement providing collateral security for this Note, and to take any other actions at law or in equity that MLP may be entitled to take with respect to this Note.











     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK.


	
RASER TECHNOLOGIES, INC.,

a Delaware corporation



By: /s/ Richard D. Clayton

Name: Richard D. Clayton

Title: Principal Executive Officer







INTERMOUNTAIN RENEWABLE POWER, LLC, a Delaware limited liability company 


	
By: /s/ Richard D. Clayton 

Name: Richard D. Clayton

Title: Member



RASER POWER SYSTEMS, LLC, 

a Delaware limited liability company 



By: /s/ Richard D. Clayton

Name: Richard D. Clayton

Title: Member



WESTERN RENEWABLE POWER, LLC,

a Delaware limited liability company



By: /s/ Richard D. Clayton

Name: Richard D. Clayton

Title: Member



RT PATENT COMPANY, INC., 

a Delaware corporation 



By: /s/ Richard D. Clayton

Name: Richard D. Clayton

Title: Principal Executive Officer







COLUMBIA RENEWABLE POWER, LLC, a Delaware limited liability company


	
By: /s/ Richard D. Clayton

Name: Richard D. Clayton

Title: Member







EXHIBIT 10.9











	
PROMISSORY NOTE






	
Up to $24,500,000 
		
 		
February 16, 2010 
	
	
 
		
 		
New York, New York 
	




     FOR VALUE RECEIVED, Raser Technologies, Inc., a Delaware corporation, Intermountain Renewable Power, LLC, a Delaware limited liability company (“IRP”), Raser Power Systems, LLC, a Delaware
limited liability company, Western Renewable Power, LLC, a Delaware limited liability company, RT Patent Company, Inc., a Delaware corporation and Columbia Renewable Power, LLC, a Delaware limited liability company (collectively, "Raser"), hereby promises to pay to MERRILL LYNCH, PIERCE, FENNER & SMITH 


INCORPORATED, a Delaware corporation ("MLP"), the Shortfall (as defined in the Redemption Agreement (as defined below)), but in no event more than the principal sum of
Twenty-Four Million Five Hundred Thousand Dollars ($24,5000,000), in lawful money of the United States of America and in immediately available funds, on the dates and in the principal amounts provided herein; provided that if IRP has not caused the Thermo No.1 BE-01, LLC (the “Company”) to distribute the Interconnection Assets (as defined in the deed of trust securing this Note) to IRP in accordance
with Section 6.1(e) of the Amended and Restated Limited Liability Agreement of the Company, dated as of August 31, 2008, as amended, by the date (the “Trigger Date”) which is thirty (30) days following the satisfaction of the conditions to the release of the Interconnection Assets set forth in Article XI of that certain Account and Security Agreement by and
between the Company and Deutsche Bank Trust Company Americas, dated as of August 31, 2008, as amended (the “Account and Security Agreement”), then the principal amount of this Note
shall be increased by One Hundred Thousand Dollars ($100,000) for each month following the Trigger Date (or portion of a month on a pro rated basis based on the number of days in such month) during which the Company holds title to the
Interconnection Assets.


     This Note is the Raser Note referenced in that certain Membership Interest Redemption Agreement dated as of December 3, 2009 (as amended, supplemented or otherwise modified in accordance with the
terms thereof and in effect from time to time, the "Redemption Agreement") among Raser, the Company, MLP, and IRP and evidences the
amount owing by Raser on the date hereof under the Raser Guaranty as the result of any shortfall in the Redemption Consideration paid by the Company to MLP under the Redemption Agreement. Capitalized terms used but not defined in this Note have the
respective meanings assigned to them in the Redemption Agreement.


     Raser has caused IRP to instruct and will cause the Company to pay to MLP all amounts to be distributed (or paid pursuant to Section 3.2.1.5 of the Account and Security Agreement) to IRP (as the Class
B Investor) or a transferee or an Affiliate of IRP (pursuant to instructions from IRP or the transferee or Affiliate described above) to be applied against the outstanding principal and accrued but unpaid interest under this Note, and Raser will
cause IRP and its Affiliates to instruct the Company and the Collateral Agent accordingly on the Effective Date of the Redemption Agreement or any later date on which a payment would be made to a 











transferee or Affiliate of IRP for whom such instruction was not previously made. If, notwithstanding such instruction, IRP or the transferee or Affiliate described in the preceding sentence receives any distribution from the
Company while any principal or unpaid interest remains outstanding hereunder, IRP or such transferee or Affiliate will pay the same amount to MLP, to be applied to reduce such outstanding principal and unpaid interest within three (3) Business Days
of receipt of such distribution by IRP or such transferee or Affiliate. All amounts paid to MLP hereunder shall be applied first to the payment of accrued but unpaid interest and then to principal. This Note shall mature, and all amounts unpaid and
outstanding hereunder shall be due and payable in full, on the date which is February 15, 2011 (provided that if such date is not a Business Day, payment hereunder will be due and payable on the first Business Day immediately following such
date).


     Principal amounts and unpaid interest outstanding under this Note shall bear interest at a rate of (i) fifteen percent (15%) per annum from the date hereof through August 15, 2010, and eighteen
percent (18%) per annum from August 16, 2010 through February 15, 2011 or until paid in full.


     The amounts due hereunder may be prepaid by Raser at any time. The Company hereby waives notice of presentment, demand, protest or notice of any other kind hereunder.


     The following shall be events of default under this note: (i) failure to pay any amounts due and payable under this Note on the date such payment is due; (ii) a breach of Section 2.5 of the Redemption
Agreement by Raser or any of its Affiliates or (iii) a failure by IRP or the Company, as applicable, to (a) take all steps that either is legally entitled to take and that are reasonably necessary to cause the Collateral Agent to release the
collateral and to cause the Company to transfer such collateral to IRP as described in Section 2.2.2 of the Redemption Agreement, or (b) cause such collateral to become subject to the Lien under the DTSA as soon as practicable, but in no event later
than ten Business Days following the satisfaction of the relevant release conditions contained in Article XI of the Account and Security Agreement, in each case as required under Section 2.2.2 of the Redemption Agreement. Upon the occurrence of an
event of default, MLP shall have the right, by written notice to Raser at the address for Raser given in the Redemption Agreement, to declare all principal and accrued but unpaid interest under this Note immediately due and payable, and to exercise
any and all remedies provided in any deed of trust or other security agreement providing collateral security for this Note, and to take any other actions at law or in equity that MLP may be entitled to take with respect to this Note.











     THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK.


	
RASER TECHNOLOGIES, INC.,

a Delaware corporation



By: /s/ Richard D. Clayton

Name: Richard D. Clayton

Title: Principal Executive Officer







INTERMOUNTAIN RENEWABLE POWER, LLC, a Delaware limited liability company 


	
By: /s/ Richard D. Clayton 

Name: Richard D. Clayton

Title: Member



RASER POWER SYSTEMS, LLC, 

a Delaware limited liability company 



By: /s/ Richard D. Clayton

Name: Richard D. Clayton

Title: Member



WESTERN RENEWABLE POWER, LLC,

a Delaware limited liability company



By: /s/ Richard D. Clayton

Name: Richard D. Clayton

Title: Member



RT PATENT COMPANY, INC., 

a Delaware corporation 



By: /s/ Richard D. Clayton

Name: Richard D. Clayton

Title: Principal Executive Officer







COLUMBIA RENEWABLE POWER, LLC, a Delaware limited liability company


	
By: /s/ Richard D. Clayton

Name: Richard D. Clayton

Title: Member