Exhibit 4.1
CONVERTIBLE TERM NOTE
| $5,000,000.00 | Dallas, Texas | May 24, 2016 |
FORVALUE RECEIVED, the undersigned, AQUA METALS, INC., a Delaware corporation (hereincalled “Borrower”),herebypromises to pay to INTERSTATE EMERGING INVESTMENTS, LLC or its permitted assigns (hereincalled “Lender”), theprincipalsum of FIVE MILLION AND 00/100 Dollars ($5,000,000.00), together with interest on the unpaidprincipalbalance thereof as hereinafter set forth, bothprincipaland interest payable ashereinprovided in lawful money of the United States of America at the offices ofLenderunder theCredit Agreement,orat such other place as from time to time may be designated by the holder of this Convertible TermNote.
This Convertible TermNote(a) is issued and delivered under that certainCredit Agreementdated as of May 18, 2016 amongBorrowerandLender(herein, as from time to time supplemented, amendedorrestated, called the “Credit Agreement”), and is a “ConvertibleTerm Note” as defined therein,(b) is subject to the terms and provisions of theCredit Agreement, which contains provisions for payments and prepaymentshereunder, conversion of principal and interest hereunder into common stock of Borrower,and acceleration of the maturityhereofupon the happening of certain stated events, and(c) is secured by and entitled to the benefits of certain Security Documents (as identified and defined in theCredit Agreement). Payments on this Convertible TermNoteshall be made and applied as providedhereinand in theCredit Agreement. Reference isherebymade to theCredit Agreementfor a description of certain rights, limitations of rights, obligations and duties of the parties hereto and for the meanings assigned to terms used and not definedhereinand to theSecurity Documentsfor a description of the nature and extent of the security thereby provided and the rights of the parties thereto.
Unless earlier converted into common stock of Borrower, theprincipalamount of this Convertible TermNote, together with all interest accrued hereon, shall be due and payable in full on theMaturity Date and otherwise as provided in the Credit Agreement. Interest on this Convertible TermNoteshall be payable as provided in theCredit Agreement.
Notwithstanding the foregoing paragraph and all other provisions of this Convertible TermNote, in no event shall the interest payable hereon, whether beforeorafter maturity, exceed the maximum amount of interest which, under applicableLaw, may be contracted for, charged,orreceived on this Convertible TermNote, and this Convertible TermNoteisexpresslymade subject to the provisions of theCredit Agreementwhich more fully set out the limitations on how interest accrues hereon. In the event applicableLawprovides for an interest ceiling under Chapter 303 of theTexas Finance Code (the “Texas Finance Code”)as amended, for that day, the ceiling shall be the “weekly ceiling” as defined in theTexas Finance Codeand shall be used in this Convertible TermNotefor calculating theMaximum Rateand for all other purposes. The term “applicable law” as used in this Convertible TermNoteshall mean the Laws of the State of Texasorthe Laws of the United States, whichever Laws allow the greater interest, as such Laws now existormay be changedoramendedorcome into effect in the future.
[Aqua Metals, Inc. – Convertible Term Note]
If this Convertible TermNoteis placed in the hands of an attorney for collection after default,orif allorany part of theindebtednessrepresentedherebyis proved, establishedorcollected in any courtorin any bankruptcy, receivership, debtor relief, probateorother court proceedings,Borrowerand all endorsers, sureties and guarantors of this Convertible TermNotejointly and severally agree to pay reasonable attorneys’ fees and collection costs to the holderhereofin addition to theprincipaland interest payablehereunder.
Borrowerand all endorsers, sureties and guarantors of this Convertible TermNote herebyseverally waive demand, presentment, notice of demand and of dishonor and nonpayment of this Convertible TermNote, protest, notice of protest, notice of intention to accelerate the maturity of this Convertible TermNote, declarationornotice of acceleration of the maturity of this Convertible TermNote, diligence in collecting, the bringing of any suit against any party and any notice ofordefense on account of any extensions, renewals, partial paymentsorchanges in any manner oforin this Convertible TermNote orin any of its terms, provisions and covenants,orany releasesorsubstitutions of any security,orany delay, indulgenceorother act of any trusteeorany holderhereof, whether beforeorafter maturity.
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[Aqua Metals, Inc. – Convertible Term Note]
This Convertible TermNoteand the rights and duties of the parties hereto shall be governed by theLawsof the State ofTexas(without regard to principles of conflicts of law), except to the extent the same are governed by applicable federalLaw.
THISConvertible TermNote IS SUBJECT TO THE TERMS AND CONDITIONS OF THAT CERTAIN INTERCREDITOR AGREEMENT BETWEEN LENDER AND GREEN BANK, N.A. DATED AS OF THE DATE HEREOF.
| | AQUA METALS, INC. |
| | | |
| | By: | /s/ Stephen R. Clarke |
| | | Name: Stephen R. Clarke |
| | | Title: President and Chief Executive Officer |
[Aqua Metals, Inc. – Convertible Term Note]
