ex10_2.htm


    Exhibit
      10.2

    


    THE
      SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
      SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”).  THESE
      SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A)
      TO
      THE COMPANY, (B) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 OF
      REGULATION S UNDER THE SECURITIES ACT, (C) IN COMPLIANCE WITH RULE 144 OR 144A
      THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
      LAWS, (D) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT, OR (E) IN A
      TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT OR
      ANY
      APPLICABLE STATE SECURITIES LAWS, AND THE HOLDER HAS, PRIOR TO SUCH SALE,
      FURNISHED TO THE COMPANY AN OPINION OF COUNSEL OR OTHER EVIDENCE OF EXEMPTION,
      IN EITHER CASE REASONABLY SATISFACTORY TO THE COMPANY.  HEDGING
      TRANSACTIONS INVOLVING THESE SECURITIES MAY NOT BE CONDUCTED UNLESS IN
      COMPLIANCE WITH THE U.S. SECURITIES ACT.

    


     

     

     AMENDED
      AND RESTATED 17% SECURED PROMISSORY NOTE

     

    AMERICA
      WEST RESOURCES, INC

     

     

    DUE
      October 9, 2009

     

    


    
      	
              Original
                Issue Date: October 9, 2008

            	
              US
                $1,866,666.66

            


    

    


    This
      Amended and Restated Secured Promissory Note  (the “Note”) amends and
      restates in it entirety the 17% Secured  Promissory Note due October
      9, 2009 issued by America West
      Resources, Inc, a Nevada corporation (the “Company”),
      in favor
      of Denly ACI Partners,
      Ltd., a Texas limited partnership (together with its permitted
      successors
      and assigns, the “Holder”), in
      accordance with exemptions from registration
      under the Securities Act of 1933, as amended (the “Securities Act”) and
      pursuant to the terms and provisions and in reliance upon the representations
      and warranties set forth in that certain Loan Agreement (as amended, modified,
      restated and replaced from time to time, the "Loan Agreement") of
      even date among the Company, the Holder and _____________________ (together
      with its permitted successors
      and assigns, the “Other
      Holder”).  Capitalized
      terms
      used herein which are not otherwise defined are used with the same meanings
      given such terms in the Loan Agreement.

     

    Article
      I. 

    
    

     

    Section
      1.01                                
 Principal
      and
      Interest.  For value received, the Company hereby promises to
      pay to the order of the Holder, in lawful money of the United States of America
      and in immediately available funds the principal sum of ___________________________,
      or the outstanding principal amount advanced hereunder, whichever is
      the
      lesser, and accrued but unpaid interest on the earliest of (i) September 17,
      2009 (the “Maturity
      Date”), or (ii) the occurrence of an Event of Default (as defined in
Section 3.01)
      or (iii) the occurrence of a Redemption Event (as defined in

     


    
      
        
           

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    Section
      1.02), with
      partial payments being required upon each Partial Redemption Event (as defined
      in Section
      1.02).

     

    (a) The
      unpaid principal balance of this Note shall accrue interest at the rate of
      10%
      per annum until the Maturity Date or such earlier date as the same may become
      payable hereunder.

     

    (b) On
      the
      earlier of a Redemption Event and the Maturity Date, the entire unpaid principal
      and accrued interest shall be paid to the Holder.

     

    (c) Except
      as
      otherwise set forth in this Note, the Company may not prepay any portion of
      the
      principal amount of this Note without the prior written consent of the
      Holder.

     

    Section
      1.02                                
 Redemption.  Upon
      the closing of (i) any debt financing of $13,000,000 or more either by the
      Company or its subsidiaries or the last of any such debt financings which taken
      together equal $13,000,000 or more either by the Company or its subsidiaries,
      or
      (ii) any equity financing of $10,000,000 or more by the Company or its
      subsidiaries or the last of any such equity financings which taken together
      equal $10,000,000 or more either by the Company or its subsidiaries, or (iii)
      the last of any combination of debt financings and equity financings either
      by
      the Company or its subsidiaries which taken together equal $10,000,000.00 or
      more (a “Redemption
      Event”), the Company shall pay in full all of the principal and interest
      under then accrued and unpaid on this Note.  Upon the closing of an
      equity financing (or a series of equity financings) less than $10,000,000 by
      the
      Company or its subsidiaries (a “Partial Redemption
      Event”), the Company shall pay an amount equal to 25% of the proceeds of
      the financing or series of financings and such amount shall be applied first
      to
      accrued interest then unpaid and next to principal of this Note.  The
      foregoing notwithstanding, the closing of $10,000,000 or less in equity that
      occurs on or before December 31, 2008, shall not result in a Redemption Event
      or
      Partial Redemption Event and shall not be aggregated with subsequent equity
      financings for purposes of calculating a Partial Redemption Event.

     

    Section
      1.03                                
 Absolute
      Obligation/Ranking.  Except as expressly provided herein, no
      provision of this Note shall alter or impair the obligation of the Company,
      which is absolute and unconditional, to pay the principal of, and interest
      on,
      this Note at the time, place, and rate, and in the coin or currency, herein
      prescribed.  This Note is a direct debt obligation of the
      Company.  This Note ranks pari passu with all
      other Notes now or hereinafter issued by the Company pursuant to the provisions
      of the Loan Agreement, upon the same terms and conditions of this Note (the
      “Other
      Notes”).

     

    Section
      1.04                                
 Different
      Denominations.  This Note is exchangeable for an equal
      aggregate principal amount of Notes of different authorized denominations,
      as
      requested by the Holder surrendering the same.  No service charge will
      be made for such registration of transfer or exchange.

     

    Section
      1.05                                
 Investment
      Representations. Holder hereby makes the following representations and
      warranties:

     

    (a) Investment
      Purpose.  Holder is acquiring the Note, and the Bridge Shares
      for its own account for investment only and not with a view towards, or for
      resale in connection with,

     


    
      
        
           

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    (b) the
      public sale or distribution thereof, except pursuant to sales registered or
      exempted under the Securities Act.  The Holder agrees not to sell,
      hypothecate or otherwise transfer the Holder’s securities unless such securities
      are registered under the federal and applicable state securities laws or unless,
      in the opinion of counsel satisfactory to the Company, an exemption from such
      law is available.

     

    (c) Accredited
      Investor
      Qualifications.  The Holder (i) if a natural person, represents
      that the Holder has reached the age of 21 and has full power and authority
      to
      execute and deliver this Agreement and all other related agreements or
      certificates and to carry out the provisions hereof and thereof; (ii) if a
      corporation, partnership, or limited liability company or partnership, or
      association, joint stock company, trust, unincorporated organization or other
      entity, represents that such entity was not formed for the specific purpose
      of
      acquiring the Note, such entity is duly organized, validly existing and in
      good
      standing under the laws of the state of its organization, the consummation
      of
      the transactions contemplated hereby is authorized by, and will not result
      in a
      violation of state law or its charter or other organizational documents, such
      entity has full power and authority to execute and deliver this Agreement and
      all other related agreements or certificates and to carry out the provisions
      hereof and thereof and to purchase and hold the Note, the execution and delivery
      of this Agreement has been duly authorized by all necessary action, this
      Agreement has been duly executed and delivered on behalf of such entity and
      is a
      legal, valid and binding obligation of such entity; or (iii) if executing this
      Agreement in a representative or fiduciary capacity, represents that it has
      full
      power and authority to execute and deliver this Agreement in such capacity
      and
      on behalf of the subscribing individual, ward, partnership, trust, estate,
      corporation, or limited liability company or partnership, or other entity for
      whom the Holder is executing this Agreement, and such individual, partnership,
      ward, trust, estate, corporation, or limited liability company or partnership,
      or other entity has full right and power to perform pursuant to this Agreement
      and make an investment in the Company, and represents that this Agreement
      constitutes a legal, valid and binding obligation of such entity.  The
      execution and delivery of this Agreement will not violate or be in conflict
      with
      any order, judgment, injunction, agreement or controlling document to which
      the
      Holder is a party or by which it is bound;

     

    (d) Solicitation.  The
      Holder is unaware of, is in no way relying on, and did not become aware of
      the
      offering of the Note through or as a result of, any form of general solicitation
      or general advertising including, without limitation, any article, notice,
      advertisement or other communication published in any newspaper, magazine or
      similar media or broadcast over television or radio, in connection with the
      offering and sale of the Note and is not subscribing for the Notes and did
      not
      become aware of the offering of the Note through or as a result of any seminar
      or meeting to which the Holder was invited by, or any solicitation of a
      subscription by, a person not previously known to the Holder in connection
      with
      investments in securities generally;

     

    (e) Holder
      Liquidity.  Holder has adequate means of providing for Holder’s
      current financial needs and foreseeable contingencies and has no need for
      liquidity of its investment in the Note for an indefinite period of time and
      is
      aware that an investment in the Note involves a number of significant
      risks.

     


    
      
        
           

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    (f) Reliance
      on
      Exemptions.  Holder understands that the Note is being offered
      and sold to it in reliance on specific exemptions from the registration
      requirements of United States federal and state securities laws and that the
      Company is relying in part upon the truth and accuracy of, and such Holder’s
      compliance with, the representations, warranties, agreements, acknowledgments
      and understandings of such Holder set forth herein in order to determine the
      availability of such exemptions and the eligibility of such Holder to acquire
      such securities.

     

    (g) Information.  Holder
      and its advisors, if applicable, have been furnished with all materials relating
      to the business, finances and operations of the Company and information it
      deemed material to making an informed investment decision regarding its purchase
      of the Note and Bridge Shares.  Holder and its advisors, if
      applicable, have been afforded the opportunity to review the reports, schedules,
      forms, statements and other documents required to be filed by it with the SEC
      pursuant to the reporting requirements of the Securities and Exchange Act of
      1934.  Holder and its advisors, if applicable, have been afforded the
      opportunity to ask questions of the Company and its
      management.  Holder has sought such accounting, legal and tax advice
      as it has considered necessary to make an informed investment decision with
      respect to its acquisition of the Note and Bridge Shares.

     

    (h) No
      Other Representations or
      Information.  In evaluating the suitability of an investment in
      the Note, the Holder has not relied upon any representation or information
      (oral
      or written) other than as stated in this Note and in the Loan Agreement and
      other Loan Documents (as defined in the Loan Agreement).  No oral or
      written representations have been made, or oral or written information
      furnished, to the Holder or its advisors, if any, in connection with the
      offering of the Notes which are in any way inconsistent with the information
      contained in this Agreement.

     

    (i) Transfer
      or
      Resale.  Holder understands that the Note has not been and is
      not being registered under the Securities Act or any state securities laws,
      and
      may not be offered for sale, sold, assigned or transferred except in compliance
      with applicable securities laws.

     

    Section
      1.06                                
 Reliance
      on Note
      Register.  Prior to due presentment to the Company for transfer
      or conversion of this Note, the Company and any agent of the Company may treat
      the person in whose name this Note is duly registered on the Note Register
      as
      the owner hereof for the purpose of receiving payment as herein provided and
      for
      all other purposes, whether or not this Note is overdue, and neither the Company
      nor any such agent shall be affected by notice to the contrary.

     

    Section
      1.07                                
 In
      addition to the rights and remedies given it by this Note, the Loan Agreement
      and the other Loan Documents, the Holder shall have all those rights and
      remedies allowed by applicable laws.  The rights and remedies of the
      Holder are cumulative and recourse to one or more right or remedy shall not
      constitute a waiver of the others.

     

    Article
      II. 

    
    

     

    Section
      2.01                                
 Amendments
      and Waiver of
      Default.  The Note may not be amended without the consent of
      the Holder.

     


    
      
        
           

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    Article
      III.

     

    Section
      3.01                                
 Events
      of
      Default.  As used herein, the term "Event of Default" shall
      have the same meaning given such term in the Loan Agreement.

     

    Section
      3.02                                
 If
      any
      Event of Default occurs, the full principal amount and accrued interest of
      this
      Note then remaining unpaid, together with any other amounts owing in respect
      thereof to the date of acceleration shall become, at the Holder’s election,
      immediately due and payable in cash.  This Note shall bear interest at
      the Default Rate as provided in the Loan Agreement.  The Holder may
      immediately and without expiration of any grace period enforce any and all
      of
      its rights and remedies hereunder and all other remedies available to it under
      the Loan Agreement, the other Loan Documents, and applicable
      law.  Such declaration may be rescinded and annulled by the Holder at
      any time prior to payment hereunder and the Holder shall have all rights as
      a
      Note holder until such time, if any, as the full payment under this Note shall
      have been received by it.  No such rescission or annulment shall
      affect any subsequent Event of Default or impair any right consequent
      thereon.

     

     

    
      	
              Article
                IV. 

            


    

     

    Section
      4.01                                
 Security.  Payment
      of this Note is secured by, and this Note is entitled to the benefits of, all
      security agreements, collateral assignments, deeds of trust, mortgages and
      lien
      instruments executed by the Company (or other similar instruments, or any
      guaranties, endorsements or other agreements, executed by any other party)
      (collectively, the "Security Documents"),
      to secure, guarantee or otherwise provide for payment hereof, in favor of or
      for
      the benefit of the Holder, including those which have been previously executed
      or are executed concurrently herewith or subsequently hereto.

     

    Section
      4.02                                
 General
      Waivers.  The Company waives presentment for payment, demand,
      notice of intent to accelerate, notice of acceleration, protest and notice
      of
      protest, and of dishonor and diligence in collecting and the bringing of suit
      against any other party, and agrees to all renewals, extensions, partial
      payments, releases, subordinations and substitutions of security, in whole
      or in
      part, with or without notice, before or after maturity.  The failure
      by the Holder to exercise any of its rights, remedies, recourses, or powers
      upon
      the occurrence of one or more Events of Default shall not constitute a waiver
      of
      the right to exercise the same or any other right, remedy, recourse, or power
      at
      any subsequent time in respect to the same or any other Event of
      Default.  The acceptance by the Holder of any payment hereunder which
      is less than payment in full of all amounts due and payable at the time of
      such
      payment shall not constitute a waiver of the right to exercise any of the
      Holder's rights, remedies, recourses, or powers at that time, or any subsequent
      time, or nullify any prior exercise of any such right, remedy, recourse or
      power
      without the written consent of the Holder, except as and to the extent otherwise
      required by applicable law.

     

     

    
      	
              Article
                V. 

            


    

     

    Section
      5.01                                
  Notice.  Notices
      regarding this Note shall be sent to the parties at the following addresses,
      unless a party notifies the other parties, in writing, of a change of
      address:

     

     

    
      
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        986860v2

        
          

        

      

      
        
        

      

    

     

    
      	
              If
                to the Company, to:

            	
              America
                West Resources, Inc.

            
	 	
              57
                West 200 South, Suite 400

            
	 	
              Salt
                Lake City, Utah  84101

            
	 	
              Attn:
                Dan R. Baker, CEO

            
	 	 
	
              With
                a copy to:

            	
              Thomas
                C. Pritchard

            
	 	
              Brewer
                & Pritchard, P.C.

            
	 	
              3
                Riverway, Suite 1800

            
	 	
              Houston,
                Texas 77056

            
	 	 
	
              If
                to the Holder:

            	
              At
                the address set forth on the signature
                page.

            


    

    


    Section
      5.02                                
 Governing
      Law.  All questions concerning the construction, validity,
      enforcement and interpretation of this Note shall be governed by and construed
      and enforced in accordance with the internal laws of the State of Utah, without
      regard to the principles of conflicts of law thereof.  Each party
      agrees that all legal proceedings concerning the interpretations, enforcement
      and defense of the transactions contemplated by this Note (whether brought
      against a party hereto or its respective affiliates, directors, officers,
      shareholders, employees or agents) shall be commenced in the state and federal
      courts sitting in the City of Salt Lake, Salt Lake County, Utah (the “Utah
      Courts”).  Each party hereto hereby irrevocably submits to the
      exclusive jurisdiction of the Utah Courts for the adjudication of any dispute
      hereunder or in connection herewith or with any transaction contemplated hereby
      or discussed herein, and hereby irrevocably waives, and agrees not to assert
      in
      any suit, action or proceeding, any claim that it is not personally subject
      to
      the jurisdiction of any such court, or such Utah Courts are improper or
      inconvenient venue for such proceeding; provided, however, that any suit to
      foreclose any lien which secures the payment hereof may be brought by the Holder
      in the jurisdiction where the property subject to such lien is
      located.  Each party hereby irrevocably waives personal service of
      process and consents to process being served in any such suit, action or
      proceeding by mailing a copy thereof via registered or certified mail or
      overnight delivery (with evidence of delivery) to such party at the address
      in
      effect for notices to it under this Note and agrees that such service shall
      constitute good and sufficient service of process and notice
      thereof.  Nothing contained herein shall be deemed to limit in any way
      any right to serve process in any manner permitted by law.  If either
      party shall commence an action or proceeding to enforce any provisions of this
      Note, then the prevailing party in such action or proceeding shall be reimbursed
      by the other party for its attorney’s fees and other costs and expenses incurred
      with the investigation, preparation and prosecution of such action or
      proceeding.

     

    Section
      5.03                                
 Reduction
      in
      Interest.  It is the intention of the Company and the Holder to
      conform strictly to the applicable laws of usury.  All agreements and
      transactions between the Holder and the Company, whether now existing or
      hereafter arising, whether contained herein or in any other instrument, and
      whether written or oral, are hereby expressly limited so that in no contingency
      or event whatsoever, whether by reason of acceleration of the maturity hereof,
      late payment, prepayment, demand for prepayment or otherwise, shall the amount
      contracted for, charged or received by the Holder from the Company for the
      use,
      forbearance, or detention of the principal indebtedness or interest hereof,
      which remains unpaid from time to time, exceed the Maximum Lawful
      Amount.  Any interest payable hereunder or under any other instrument
      relating to the loan evidenced hereby that is in excess of the Maximum Lawful
      Amount, shall, in

     


    
      
        
           

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    the
      event
      of acceleration of maturity, late payment, prepayment, demand or otherwise,
      be
      applied to a reduction of the principal indebtedness hereof and not to the
      payment of interest, or if such excessive interest exceeds the unpaid balance
      of
      such principal, such excess shall be refunded to the Company.  To the
      extent not prohibited by law, determination of the Maximum Lawful Amount of
      interest shall at all times be made by amortizing, prorating, allocating and
      spreading all interest at any time contracted for, charged or received from
      the
      Company in connection with the loan in equal parts during the period of the
      full
      term of the loan evidenced hereby until repayment in full of the principal
      (including the period of any renewal or extension hereof), so that the actual
      rate of interest on account of such indebtedness does not exceed the Maximum
      Lawful Amount.  As used herein, the term "Maximum Lawful
      Amount" means the maximum amount of non-usurious interest, permitted with
      respect to the indebtedness evidenced by this Note from time to time by
      applicable law after taking into account any and all fees, payments, and other
      charges that constitute interest under applicable law.  Use of the
      term Maximum Lawful Amount shall not be deemed to imply or affirm that there
      is
      any Maximum Lawful Amount applicable to this Note.

     

    Section
      5.04                                
 WAIVER
      OF JURY
      TRIAL.  THE COMPANY AND THE HOLDER HEREBY KNOWINGLY,
      VOLUNTARILY, IRREVOCABLY AND INTENTIONALLY WAIVE, TO THE MAXIMUM EXTENT
      PERMITTED BY LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM
      ARISING OUT OF OR RELATED TO THIS NOTE OR THE TRANSACTIONS CONTEMPLATED BY
      THE
      TERMS OF THE LOAN AGREEMENT OR THE ACTIONS OF THE HOLDER IN THE ENFORCEMENT
      HEREOF OR THEREOF.

     

    Section
      5.05                                
 Severability.  The
      invalidity of any of the provisions of this Note shall not invalidate or
      otherwise affect any of the other provisions of this Note, which shall remain
      in
      full force and effect.

     

    Section
      5.06                                
 Entire
      Agreement and
      Amendments.  This Note, the Loan Agreement and the other Loan
      Documents reflect the entire understandings and agreements of the Company and
      the Holder with respect to the subject matter of the Loan
      Documents.  Any and all prior understandings and agreements and any
      and all contemporaneous understandings and agreements are incorporated in the
      Loan Documents.  Except as specifically set forth in the Loan
      Documents, there are no understandings or agreements, express or implied, with
      respect to the subject matter of the Loan Documents.  The Company
      understands that the Holder has made no commitment to renew, refinance, extend
      or rearrange the Loan, nor to advance additional funds to or on behalf of the
      Company.  The Company represents and warrants to the Holder that no
      officer, employee, representative of, or attorney for, the Holder has made
      any
      oral commitments or representations which are not incorporated in the Loan
      Documents.  This Note may be amended only by an instrument in writing
      executed by the parties hereto.

     


    
      
        
           

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    IN
      WITNESS WHEREOF, with the
      intent to be legally bound hereby, the parties hereto executed this Note as
      of
      the date first written above.

     

    
      	
              America
                West Recourses, Inc.

            
	 	 
	 	 
	
              By:

            	
              /s/
                DAN R. BAKER

            
	 	
              Dan
                R. Baker, CEO

            


    

    


    


    


    


    {HOLDER
      SIGNATURE PAGE TO FOLLOW}


    
      
        
           

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    Holder

    


    
      	
              Denly
                ACI Partners, Ltd.,

              a
                Texas limited partnership

            
	 	 
	
              By:

            	
              Denly
                ACI Mgt., LLC

              a
                Texas limited liability company

            
	 	 
	 	 
	
              By:

            	
              /s/
                DENNIS C. VON WAADEN

            
	 	
              Dennis
                C. von Waaden, Manager

            
	 	 
	 	 
	
              By:

            	
              /s/
                SALLY A. VON WAADEN

            
	 	
              Sally
                A. von Waaden, Manager

            
	 	 


    

     

    
 

    


    13809
      Research Blvd., Suite 810

    Austin,
      Texas  78750