EXHIBIT
10.1

    

     

    FIRST
AMENDMENT TO

    EAST
TENNESSEE MATERIALS

    &
ENERGY CORPORATION

    PROMISSORY
NOTE

    


     

    This
First Amendment, dated December 29, 2008 (“First Amendment”), to the East
Tennessee Materials & Energy Corporation (“M&EC”) Promissory Note, dated
June 7, 2001 (the “Note”), in the principal sum of $3,673,732.56, together with
variable interest on the unpaid principal balance at the rate and method set out
therein, made payable to Performance Development Corporation (“PDC”), amends the
Note as provided herein.

     

    WHEREAS,
as of December 31, 2008, and prior to the payment of the installment payment due
on December 31, 2008, as described in Section 1 of this First Amendment, the
unpaid balance of principal and accrued interest due on the Note will be
$3,066,226.64 (the “Remaining Balance”), consisting of the remaining unpaid
principal balance due under the Note and all of the interest due on the Note for
the periods after May 31, 2001, through December 31, 2008, all of which interest
was due and payable in one lump sum on December 31, 2008;

     

    WHEREAS,
PDC has represented to M&EC that it has not assigned or transferred, in any
manner, the Note, or any portion thereof, and is still the owner in all respects
of the Note;

     

    WHEREAS,
M&EC and PDC have agreed that the Note is hereby amended so that the
Remaining Balance due on the Note shall be payable, in the same manner and
amount, and with accrued interest on the same basis as set out in, that certain
letter dated December 22, 2008 (“Extension Letter”) from Camella Lucas, Revenue
Officer, Internal Revenue Service, to PDC, extending the terms and conditions of
the IRS Form 433-D, Installment Agreement, with PDC referred to in the Note
(“Installment Agreement”), as follows:

     

    1.           The
requirement to pay the Remaining Balance due on December 31, 2008 under the Note
is hereby deleted, and M&EC shall pay the Remaining Balance due on the Note
in the following installments:

     

    $500,000.00
payable on December 31, 2008 prior to noon;

    $­100,000.00
payable on January 27, 2009;

    $100,000.00
payable on February 27, 2009;

    $100,000.00
payable on March 27, 2009;

    $100,000.00
payable on April 27, 2009;

    $100,000.00
payable on May 27, 2009; and

    


    The
unpaid Remaining Balance, together with any accrued and unpaid interest due on
the unpaid Remaining Balance as required under the Note and as computed by the
IRS pursuant thereto, shall be payable by M&EC on June 30,
2009.

     

    2.           As
set forth in the Note, no payments shall be made by M&EC to PDC or any of
PDC’s affiliates, unless otherwise agreed in writing by M&EC and
PDC.  Rather, pursuant to the existing written instructions from PDC,
M&EC shall make all payments in the amounts and on the dates set forth in
Section 1 above of this First Amendment directly to the IRS, attn. Camella
Lucas, Revenue Officer, against PDC’s obligations as set forth in the Extension
Letter amending the Installment Agreement.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    3.           All
of the other terms and provisions of the Note shall remain
unchanged.

     

    4.           The
Note, as modified and amended by this First Amendment, shall remain in full
force and effect.

     

    5.           PDC
has represented to M&EC that PDC has not assigned or transferred the Note,
or any portion thereof, in any manner and is the sole owner, in all respects, of
the Note.

     

    6.           Each
of the parties hereto represent and warrant to the other that the execution and
delivery of this First Amendment have been duly and validly authorized and
approved by all requisite corporate action on its part.

     

    7.           PDC
shall mark the original of the Note as follows:  “As Amended by the
First Amendment, dated December 29, 2008”, and a copy of the Note, as so marked,
shall be delivered promptly to counsel of the maker at the following
address:  Conner & Winters, LLP, 1700 One Leadership Square, 211
North Robinson Avenue, Oklahoma City, Oklahoma 73102, Attn. Irwin H. Steinhorn,
Esq.

     

    8.           M&EC
acknowledges receipt of a copy of the Extension Letter.

     

    9.           This
First Amendment may be executed in one or more counterparts, all of which shall
be considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties hereto and delivered
to each of the other parties hereto.

     

    IN
WITNESS WHEREOF, the parties have entered into this First Amendment on the date
set forth above.

     

    
      
        
          
            
              
                	 	EAST TENNESSEE ENERGY
      & MATERIALS CORPORATION
	 	 	 
	 	 	 	 
	
                         

                      	
                        By:
      

                      	/s/ Dr.
      Louis F. Centofanti	 
	 	 	Dr.
      Louis F. Centofanti, President	 
	 	 	 	 
	 	 	 	 
	 	(“M&EC”)	 


              

            

          

        

      

    

     

    


    


    
      
        
          
            
              	 	PERFORMANCE DEVELOPMENT
      CORPORATION	 
	 	 	 
	 	 	 	 
	
                       

                    	
                      By:
      

                    	/s/ Joe
      W. Anderson	 
	 	 	Joe
      W. Anderson, Chairman & Chief Executive Officer	 
	 	 	 	 
	 	 	 	 
	 	(“PDC”)