AMENDED AND RESTATED SECURED CONVERTIBLE TERM NOTE A
THIS
NOTE AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS. THIS NOTE AND THE COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE
MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THIS NOTE UNDER SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO AMERICAN TECHNOLOGIES GROUP, INC. THAT SUCH REGISTRATION IS
NOT
REQUIRED.
AMENDED
AND RESTATED
FOR
VALUE
RECEIVED, each of AMERICAN TECHNOLOGIES GROUP, INC., a Nevada corporation (the
“Parent”),
and
the other Companies listed on Exhibit
A
attached
hereto (such other companies together with the Parent, each a “Company”
and
collectively, the “Companies”),
jointly and severally, promises to pay to LAURUS MASTER FUND, LTD., c/o M&C
Corporate Services Limited, P.O. Box 309 GT, ▇▇▇▇▇▇ House, South Church Street,
▇▇▇▇▇▇ Town, Grand Cayman, Cayman Islands, Fax: ▇▇▇-▇▇▇-▇▇▇▇ (the “Holder”)
or its
registered assigns or successors in interest, the sum of Three Million Dollars
($3,000,000), together with any accrued and unpaid interest hereon, on September
6, 2008 (the “Maturity
Date”)
if not
sooner paid.
This
Amended and Restated Secured Convertible Term Note (this “Note”)
is
intended to be a registered obligation within the meaning of Treasury Regulation
Section 1.871-14(c)(1)(i) and each Company (or its agent) shall register this
Note (and thereafter shall maintain such registration) as to both principal
and
any stated interest. Notwithstanding any document, instrument or agreement
relating to this Note to the contrary, transfer of this Note (or the right
to
any payments of principal or stated interest thereunder) may only be effected
by
(i) surrender of this Note and either the reissuance by the Company of this
Note
to the new holder or the issuance by the Company of a new instrument to the
new
holder, or (ii) transfer through a book entry system maintained by the Company
(or its agent), within the meaning of Treasury Regulation Section
1.871-14(c)(1)(i)(B).
Capitalized
terms used herein without definition shall have the meanings ascribed to such
terms in that certain ▇▇▇▇▇▇▇ and Restated Security Agreement dated as of
January 31, 2007 by and among the Companies and the Holder (as amended,
restated, modified and/or supplemented from time to time, the “Security
Agreement”).
The
following terms shall apply to this Note:
ARTICLE
I
CONTRACT
RATE AND AMORTIZATION
1.1 Contract
Rate.
Subject
to Sections 4.2 and 5.10, interest payable on the outstanding principal amount
of this Note (the “Principal
Amount”)
shall
accrue at a rate per annum equal to the “prime rate” published in The
Wall Street Journal
from
time to time (the “Prime
Rate”),
plus
two percent (2%) (the “Contract
Rate”).
The
Contract Rate shall be increased or decreased as the case may be for each
increase or decrease in the Prime Rate in an amount equal to such increase
or
decrease in the Prime Rate; each change to be effective as of the day of the
change in the Prime Rate. The Contract Rate shall not at any time be less than
eight and one-quarter of one percent (8.25%). Interest shall be (i) calculated
on the basis of a 360 day year, and (ii) payable monthly, in arrears, commencing
on October 1, 2005 on the first business day of each consecutive calendar month
thereafter through and including the Maturity Date, and on the Maturity Date,
whether by acceleration or otherwise.
1.2 Contract
Rate Adjustments and Payments.
The
Contract Rate shall be calculated on the last business day of each calendar
month hereafter (other than for increases or decreases in the Prime Rate which
shall be calculated and become effective in accordance with the terms of Section
1.1) until the Maturity Date (each a “Determination
Date”)
and
shall be subject to adjustment as set forth herein.
1.3 Principal
Payments.
Amortizing payments of the aggregate principal amount outstanding under this
Note at any time (the “Principal
Amount”)
shall
be made, jointly and severally, by the Companies on January 1, 2005 and on
the
first business day of each succeeding month thereafter through and including
the
Maturity Date (each, an “Amortization
Date”).
Subject to Article III below, commencing on the first Amortization Date, the
Companies shall, jointly and severally, make monthly payments to the Holder
on
each Repayment Date, each such payment in the amount of (a) $50,000 on the
first
Business Day of each month from January, 2006 through March, 2006, (b) $98,275
on the first Business Day of April, 2006 and May, 2006 and (c) $98,275 on the
first Business Day of each month from March, 2007 through the Maturity Date,
in
each case, together with any accrued and unpaid interest on such portion of
the
Principal Amount plus any and all other unpaid amounts which are then owing
under this Note, the Security Agreement and/or any other Ancillary Agreement
(collectively, the “Monthly
Amount”).
Any
outstanding Principal Amount together with any accrued and unpaid interest
and
any and all other unpaid amounts which are then owing by the Companies to the
Holder under this Note, the Security Agreement and/or any other Ancillary
Agreement shall be due and payable on the Maturity Date.
ARTICLE
II
CONVERSION
AND REDEMPTION
2.1 Payment
of Monthly Amount.
(a) Payment
in Cash or Common Stock.
If the
Monthly Amount (or a portion of such Monthly Amount if not all of the Monthly
Amount may be converted into shares of Common Stock pursuant to Section 3.2)
is
required to be paid in cash pursuant to Section 2.1(b), then the Companies
shall, jointly and severally, pay the Holder an amount in cash equal to 100%
of
the Monthly Amount (or such portion of such Monthly Amount to be paid in cash)
due and owing to the Holder on the Amortization Date. If the Monthly Amount
(or
a portion of such Monthly Amount if not all of the Monthly Amount may be
converted into shares of Common Stock pursuant to Section 3.2) is required
to be
paid in shares of Common Stock pursuant to Section 2.1(b), the number of such
shares to be issued by the Parent to the Holder on such Amortization Date (in
respect of such portion of the Monthly Amount converted into shares of Common
Stock pursuant to Section 2.1(b)), shall be the number determined by dividing
(i) the portion of the Monthly Amount converted into shares of Common Stock,
by
(ii) the then applicable Fixed Conversion Price. For purposes hereof, subject
to
Section 3.6 hereof, the initial “Fixed
Conversion Price”
means
$0.99.
(b) Monthly
Amount Conversion Conditions.
Subject
to Sections 2.1(a), 2.2, and 3.2 hereof, the Holder shall convert into
shares of Common Stock all or a portion of the Monthly Amount due on each
Amortization Date if the following conditions (the “Conversion
Criteria”)
are
satisfied: (i) the average closing price of the Common Stock as reported by
Bloomberg, L.P. on the Principal Market for the five (5) trading days
immediately preceding such Amortization Date shall be greater than or equal
to
120% of the Fixed Conversion Price and (ii) the amount of such conversion does
not exceed twenty-five percent (25%) of the aggregate dollar trading volume
of
the Common Stock for the period of twenty-two (22) trading days immediately
preceding such Amortization Date. If subsection (i) of the Conversion Criteria
is met but subsection (ii) of the Conversion Criteria is not met as to the
entire Monthly Amount, the Holder shall convert only such part of the Monthly
Amount that meets subsection (ii) of the Conversion Criteria. Any portion of
the
Monthly Amount due on an Amortization Date that the Holder has not been able
to
convert into shares of Common Stock due to the failure to meet the Conversion
Criteria, shall be paid in cash by the Companies at the rate of 100% of the
Monthly Amount otherwise due on such Amortization Date, within three (3)
business days of such Amortization Date.
2.2 No
Effective Registration.
Notwithstanding anything to the contrary herein, none of the Companies’
obligations to the Holder may be converted into Common Stock unless (a) either
(i) an effective current Registration Statement (as defined in the Registration
Rights Agreement) covering the shares of Common Stock to be issued in connection
with satisfaction of such obligations exists or (ii) an exemption from
registration for resale of all of the Common Stock issued and issuable is
available pursuant to Rule 144 of the Securities Act and (b) no Event of Default
(as hereinafter defined) exists and is continuing, unless such Event of Default
is cured within any applicable cure period or otherwise waived in writing by
the
Holder.
2.3 Optional
Redemption in Cash.
The
Companies may prepay this Note (“Optional
Redemption”)
by
paying to the Holder a sum of money equal to one hundred twenty percent (120%)
of the Principal Amount outstanding at such time together with accrued but
unpaid interest thereon and any and all other sums due, accrued or payable
to
the Holder arising under this Note, the Security Agreement or any other
Ancillary Agreement (the “Redemption
Amount”)
outstanding on the Redemption Payment Date (as defined below). The Companies
shall deliver to the Holder a written notice of redemption (the “Notice
of Redemption”)
specifying the date for such Optional Redemption (the “Redemption
Payment Date”),
which
date shall be seven (7) business days after the date of the Notice of Redemption
(the “Redemption
Period”).
A
Notice of Redemption shall not be effective with respect to any portion of
this
Note for which the Holder has previously delivered a Notice of Conversion (as
hereinafter defined) or for conversions elected to be made by the Holder
pursuant to Section 3.3 during the Redemption Period. The Redemption Amount
shall be determined as if the Holder’s conversion elections had been completed
immediately prior to the date of the Notice of Redemption. On the Redemption
Payment Date, the Redemption Amount must be paid in good funds to the Holder.
In
the event the Companies fail to pay the Redemption Amount on the Redemption
Payment Date as set forth herein, then such Redemption Notice will be null
and
void.
ARTICLE
III
HOLDER’S
CONVERSION RIGHTS
3.1 Optional
Conversion.
Subject
to the terms set forth in this Article III, the Holder shall have the right,
but
not the obligation, to convert all or any portion of the issued and outstanding
Principal Amount and/or accrued interest and fees due and payable into fully
paid and nonassessable shares of Common Stock at the Fixed Conversion Price.
The
shares of Common Stock to be issued upon such conversion are herein referred
to
as, the “Conversion
Shares.”
3.2 Conversion
Limitation.
Notwithstanding anything contained herein to the contrary, the Holder shall
not
be entitled to convert pursuant to the terms of this Note an amount that would
be convertible into that number of Conversion Shares which would exceed the
difference between (i) 4.99% of the issued and outstanding shares of Common
Stock and (ii) the number of shares of Common Stock beneficially owned by the
Holder For purposes of the immediately preceding sentence, beneficial ownership
shall be determined in accordance with Section 13(d) of the Exchange Act and
Regulation 13d-3 thereunder. The Conversion Share limitation described in this
Section 3.2 shall automatically become null and void following notice to the
Company upon the occurrence and during the continuance of an Event of Default,
or upon 75 days prior notice to the Parent. Notwithstanding anything contained
herein to the contrary, the provisions of this Section 3.2 are irrevocable
and
may not be waived by the Holder or the Parent.
3.3 Mechanics
of ▇▇▇▇▇▇’s Conversion.
In the
event that the Holder elects to convert this Note into Common Stock, the Holder
shall give notice of such election by delivering an executed and completed
notice of conversion in substantially the form of Exhibit
B
hereto
(appropriate completed) (“Notice
of Conversion”)
to the
Parent and such Notice of Conversion shall provide a breakdown in reasonable
detail of the Principal Amount, accrued interest and fees that are being
converted. On each Conversion Date (as hereinafter defined) and in accordance
with its Notice of Conversion, the Holder shall make the appropriate reduction
to the Principal Amount, accrued interest and fees as entered in its records
and
shall provide written notice thereof to the Parent within two (2) business
days
after the Conversion Date. Each date on which a Notice of Conversion is
delivered or telecopied to the Parent in accordance with the provisions hereof
shall be deemed a Conversion Date (the “Conversion
Date”).
Pursuant to the terms of the Notice of Conversion, the Parent will issue
instructions to the transfer agent accompanied by an opinion of counsel within
one (1) business day of the date of the delivery to the Parent of the Notice
of
Conversion and shall cause the transfer agent to transmit the certificates
representing the Conversion Shares to the Holder by crediting the account of
the
Holder’s designated broker with the Depository Trust Corporation (“DTC”)
through its Deposit Withdrawal Agent Commission (“DWAC”)
system
within three (3) business days after receipt by the Parent of the Notice of
Conversion (the “Delivery
Date”).
In
the case of the exercise of the conversion rights set forth herein the
conversion privilege shall be deemed to have been exercised and the Conversion
Shares issuable upon such conversion shall be deemed to have been issued upon
the date of receipt by the Parent of the Notice of Conversion. The Holder shall
be treated for all purposes as the record holder of the Conversion Shares,
unless the Holder provides the Parent written instructions to the contrary.
3.4 Late
Payments.
Each
Company understands that a delay in the delivery of the Conversion Shares in
the
form required pursuant to this Article beyond the Delivery Date could result
in
economic loss to the Holder. As compensation to the Holder for such loss, in
addition to all other rights and remedies which the Holder may have under this
Note, applicable law or otherwise, the Companies shall, jointly and severally,
pay late payments to the Holder for any late issuance of Conversion Shares
in
the form required pursuant to this Article II upon conversion of this Note,
in
the amount equal to $500 per business day after the Delivery Date. The Company
shall make any payments incurred under this Section in immediately available
funds upon demand.
3.5 Conversion
Mechanics.
The
number of shares of Common Stock to be issued upon each conversion of this
Note
shall be determined by dividing that portion of the principal and interest
and
fees to be converted, if any, by the then applicable Fixed Conversion Price.
In
the event of any conversions of a portion of the outstanding Principal Amount
pursuant to this Article III, such conversions shall be deemed to constitute
conversions of the outstanding Principal Amount applying to Monthly Amounts
for
the remaining Amortization Dates in chronological order.
3.6 Adjustment
Provisions.
The
Fixed Conversion Price and number and kind of shares or other securities to
be
issued upon conversion determined pursuant to this Note shall be subject to
adjustment from time to time upon the occurrence of certain events during the
period that this conversion right remains outstanding, as follows:
(a) Reclassification.
If the
Parent at any time shall, by reclassification or otherwise, change the Common
Stock into the same or a different number of securities of any class or classes,
this Note, as to the unpaid Principal Amount and accrued interest thereon,
shall
thereafter be deemed to evidence the right to purchase an adjusted number of
such securities and kind of securities as would have been issuable as the result
of such change with respect to the Common Stock (i) immediately prior to or
(ii)
immediately after, such reclassification or other change at the sole election
of
the Holder.
(b) Stock
Splits, Combinations and Dividends.
If the
shares of Common Stock are subdivided or combined into a greater or smaller
number of shares of Common Stock, or if a dividend is paid on the Common Stock
or any preferred stock issued by the Parent in shares of Common Stock, the
Fixed
Conversion Price shall be proportionately reduced in case of subdivision of
shares or stock dividend or proportionately increased in the case of combination
of shares, in each such case by the ratio which the total number of shares
of
Common Stock outstanding immediately after such event bears to the total number
of shares of Common Stock outstanding immediately prior to such
event.
3.7 Reservation
of Shares.
During
the period the conversion right exists, the Parent will reserve from its
authorized and unissued Common Stock a sufficient number of shares to provide
for the issuance of Conversion Shares upon the full conversion of this Note,
the
Warrants and the Options. Each Company represents that upon issuance, the
Conversion Shares will be duly and validly issued, fully paid and
non-assessable. Each Company agrees that its issuance of this Note shall
constitute full authority to its officers, agents, and transfer agents who
are
charged with the duty of executing and issuing stock certificates to execute
and
issue the necessary certificates for the Conversion Shares upon the conversion
of this Note.
3.8 Registration
Rights.
The
Holder has been granted registration rights with respect to the Conversion
Shares as set forth in the Registration Rights Agreement.
3.9 Issuance
of New Note.
Upon
any partial conversion of this Note, a new Note containing the same date and
provisions of this Note shall, at the request of the Holder, be issued by the
Companies to the Holder for the principal balance of this Note and interest
which shall not have been converted or paid. Subject to the provisions of
Article IV of this Note, no Company shall pay any costs, fees or any other
consideration to the Holder for the production and issuance of a new
Note.
ARTICLE
IV
EVENTS
OF DEFAULT
4.1 Events
of Default.
The
occurrence of an Event of Default under the Security Agreement shall constitute
an event of default (“Event
of Default”)
hereunder.
4.2 Default
Interest.
Following the occurrence and during the continuance of an Event of Default,
the
Companies shall, jointly and severally, pay additional interest on the
outstanding principal balance of this Note in an amount equal to the Contract
Rate plus ten percent (10%) per annum, and all outstanding Obligations,
including unpaid interest, shall continue to accrue interest at such additional
interest rate from the date of such Event of Default until the date such Event
of Default is cured or waived.
4.3 Default
Payment.
Following the occurrence and during the continuance of an Event of Default,
the
Holder, at its option, may demand repayment in full of all Obligations and/or
may elect, in addition to all rights and remedies of the Holder under the
Security Agreement and the other Ancillary Agreements and all Obligations of
the
Companies under the Security Agreement and the other Ancillary Agreements,
to
require the Company to make a Default Payment (“Default
Payment”).
The
Default Payment shall be 130% of the outstanding principal amount of the Note,
plus accrued but unpaid interest, all other fees then remaining unpaid, and
all
other amounts payable hereunder. The Default Payment shall be applied first
to
any fees due and payable to the Holder pursuant to the Notes, the Security
Agreement, and/or the other Ancillary Agreements, then to accrued and unpaid
interest due on the Notes and then to the outstanding principal balance of
the
Notes. The Default Payment shall be due and payable immediately on the date
that
the Holder has exercised its rights pursuant to this Section 4.3.
ARTICLE
V
MISCELLANEOUS
5.1 Conversion
Privileges.
The
conversion privileges set forth in Article III shall remain in full force and
effect immediately from the date hereof until the date this Note is indefeasibly
paid in full and irrevocably terminated.
5.2 Cumulative
Remedies.
The
remedies under this Note shall be cumulative.
5.3 Failure
or Indulgence Not Waiver.
No
failure or delay on the part of the Holder hereof in the exercise of any power,
right or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or privilege preclude other
or further exercise thereof or of any other right, power or privilege. All
rights and remedies existing hereunder are cumulative to, and not exclusive
of,
any rights or remedies otherwise available.
5.4 Notices.
Any
notice herein required or permitted to be given shall be in writing and provided
in accordance with the terms of the Security Agreement.
5.5 Amendment
Provision.
The
term “Note” and all references thereto, as used throughout this instrument,
shall mean this instrument as originally executed, or if later amended or
supplemented, then as so amended or supplemented, and any successor instrument
as such successor instrument may be amended or supplemented.
5.6 Assignability.
This
Note shall be binding upon each Company and its successors and assigns, and
shall inure to the benefit of the Holder and its successors and assigns, and
may
be assigned by the Holder in accordance with the requirements of the Security
Agreement. No Company may assign any of its obligations under this Note without
the prior written consent of the Holder, any such purported assignment without
such consent being null and void.
5.7 Cost
of Collection.
In case
of any Event of Default under this Note, the Companies shall, jointly and
severally, pay the Holder reasonable costs of collection, including reasonable
attorneys’ fees.
5.8 Governing
Law, Jurisdiction and Waiver of Jury Trial.
(a) THIS
NOTE
SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
(b) EACH
COMPANY HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED
IN
THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION
TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN ANY COMPANY, ON THE ONE HAND,
AND THE HOLDER, ON THE OTHER HAND, PERTAINING TO THIS NOTE OR ANY OF THE OTHER
ANCILLARY AGREEMENTS OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE
OR
ANY OF THE ANCILLARY AGREEMENTS; PROVIDED,
THAT
EACH COMPANY ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF NEW YORK;
AND FURTHER PROVIDED,
THAT
NOTHING IN THIS NOTE SHALL BE DEEMED OR OPERATE TO PRECLUDE THE HOLDER FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT
THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE
HOLDER. EACH COMPANY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT AND EACH COMPANY
HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM
NON CONVENIENS.
EACH
COMPANY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL
ADDRESSED TO THE COMPANY AT THE ADDRESS SET FORTH IN THE SECURITY AGREEMENT
AND
THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF THE COMPANY’S
ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER
POSTAGE PREPAID.
(c) EACH
COMPANY DESIRES THAT ITS DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS
OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, EACH COMPANY HERETO WAIVES ALL RIGHTS
TO
TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE HOLDER AND/OR ANY
COMPANY ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS NOTE, ANY OTHER
ANCILLARY AGREEMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO.
5.9 Severability.
In the
event that any provision of this Note is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any such provision which
may prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision of this Note.
5.10 Maximum
Payments.
Nothing
contained herein shall be deemed to establish or require the payment of a rate
of interest or other charges in excess of the maximum permitted by applicable
law. In the event that the rate of interest required to be paid or other charges
hereunder exceed the maximum rate permitted by such law, any payments in excess
of such maximum rate shall be credited against amounts owed by the Companies
to
the Holder and thus refunded to the Companies.
5.11 Security
Interest.
The
Holder has been granted a security interest (i) in certain assets of the
Companies as more fully described in the Security Agreement and (ii) pursuant
to
the Stock Pledge Agreement dated as of the date hereof.
5.12 Construction.
Each
party acknowledges that its legal counsel participated in the preparation of
this Note and, therefore, stipulates that the rule of construction that
ambiguities are to be resolved against the drafting party shall not be applied
in the interpretation of this Note to favor any party against the
other.
5.13 Amendment
and Restatement.
This
Note amends and restates in its entirety (and is given in substitution for
but
not in satisfaction of) that certain $3,000,000 Secured Convertible Term Note
A
dated as of September 7, 2005 executed by the Companies in favor of the Holder
(the “Prior
Note”).
This
Note does not effect a refinancing of all or any portion of the Obligations
heretofore evidenced by the Prior Note, it being the intention of the Companies
and the Holder to avoid effectuating a novation of such
Obligations.
[Balance
of page intentionally left blank; signature page follows]
IN
WITNESS WHEREOF,
the
Companies have caused this Secured Convertible Term Note to be signed in its
name effective as of this 7th day of September, 2005.
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AMERICAN
TECHNOLOGIES GROUP, INC.
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Name: |
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| Title | ||
WITNESS:
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NORTH
TEXAS STEEL COMPANY, INC.
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| By: | ||
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Name: |
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| Title | ||
WITNESS:
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OMAHA
HOLDINGS CORP.
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| By: | ||
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Name: |
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| Title | ||
WITNESS:
EXHIBIT
A
OTHER
COMPANIES
North
Texas Steel Company, Inc., a Texas corporation
Omaha
Holdings Corp., a Delaware corporation
EXHIBIT
B
NOTICE
OF CONVERSION
(To
be
executed by the Holder in order to convert all or part of
the
Secured Convertible Term Note into Common Stock)
[Name
and
Address of Company]
The
undersigned hereby converts $_________ of the principal due on [specify
applicable Repayment Date] under the Amended and Restated Secured Convertible
Term Note effective as of September 7, 2005 (the “Note”)
issued
by American Technologies Group, Inc. (the “Parent”)
and
the other Companies named and as defined therein by delivery of shares of Common
Stock of the Parent (“Shares”)
on and
subject to the conditions set forth in the Note.
| 1. Date of Conversion | ______________________________ | |
| 2. Shares To Be Delivered: | ______________________________ |
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AMERICAN
TECHNOLOGIES GROUP, INC.
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| By: | ||
| Name: |
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| Title: |
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