Exhibit 10.1
LIMITED WAIVER TO
CONSTRUCTION LOAN
AGREEMENT
This LIMITED WAIVER TO CONSTRUCTION
LOAN AGREEMENT (this “ Limited Waiver ”), dated
as of August 17, 2009, is entered into by and among the
following parties:
(a) TIETEK LLC, a Delaware limited
liability company (the “ Borrower ”);
(b) NORTH AMERICAN TECHNOLOGIES
GROUP, INC., a Delaware corporation (the “ Company
”), and TIETEK TECHNOLOGIES, INC., a Texas corporation
(“ TTT ”) (the Company and TTT shall be
collectively referred to as the “ Borrower Affiliates
” and the Borrower Affiliates and the Borrower shall be
collectively referred to as the “ Borrower Group
”); and
(c) OPUS 5949 LLC, a Texas limited
liability company (the “ Lender ” and, together
with the Borrower Group, the “ Parties
”).
RECITALS
A. The Borrower, the Borrower
Affiliates, and the Lender entered into that certain Construction
Loan Agreement, dated as of February 5, 2004, as amended by
(1) that certain Release, dated February 22, 2005,
(2) that certain Limited Waiver and First Amendment to
Construction Loan Agreement, dated July 7, 2005, (3) that
certain Second Amendment to Construction Loan Agreement, dated
December 29, 2005, (4) that certain Third Amendment to
Construction Loan Agreement, dated September 18, 2006, and
(5) that certain Fourth Amendment to Construction Loan
Agreement, dated July 24, 2007 (as so amended and as further
amended, restated, supplemented or otherwise modified from time to
time, the “ Loan Agreement ”), pursuant to which
the Lender agreed to make available to the Borrower Group certain
financial accommodations and modifications to the Loan
Documents.
B. The Borrower and the Borrower
Affiliates have requested that, subject to the terms, conditions,
covenants and limitations contained in this Limited Waiver, the
Lender agree that the interest payment otherwise due and payable by
Borrower under the Loan Agreement and the other Loan Documents on
July 1, 2009 and waived until July 31, 2009 pursuant to
the Limited Waiver to Construction Loan Agreement dated
July 1, 2009, would be further waived until August 17,
2009, and that any Default or Event of Default that has occurred or
may occur, solely by reason of the failure of Borrower to make such
interest payment when otherwise due and payable under the Loan
Agreement (the “Specified Interest Payment Default”),
shall be waived until 5:00 p.m. (Dallas time) on August 31,
2009;
C. The Lender has agreed to the
actions described in Paragraph B preceding, in each instance
upon and subject to the terms, conditions, covenants and
limitations contained in this Limited Waiver.
ACKNOWLEDGMENTS:
(a) The Borrower and the Borrower
Affiliates hereby acknowledge and agree to the accuracy of all
Recitals included in this Limited Waiver.
(b) The Borrower and the Borrower
Affiliates acknowledge and agree that all amounts advanced to, or
for the benefit of, the Borrower, including, but not limited to,
the Loan prior to the date hereof are, and shall continue to be,
obligations under the Loan Documents (the “
Obligations ”) and subject to all the terms and
conditions in the Loan Agreement and the other Loan
Documents.
(c) The Borrower and the Borrower
Affiliates acknowledge and agree that (i) as of July 31,
2009, the outstanding principal and accrued but unpaid amount of
the Obligations is $14,353,888.89, of which $14,000,000.00 is the
amount of outstanding principal of the Note and $53,888.89 is the
amount of accrued but unpaid interest thereon; and (ii) the
Obligations are enforceable against the Borrower without offset,
reduction, or counterclaim.
AGREEMENTS
NOW, THEREFORE, in consideration of
the premises herein contained and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the
Parties hereto, intending to be legally bound, agree to the above
Recitals, Acknowledgments and as follows:
1. DEFINITIONS . All
capitalized terms used but not otherwise defined in this Limited
Waiver shall have the meanings ascribed to them in the Loan
Agreement.
2. LIMITED WAIVER . Subject
to the terms and conditions set forth in this Limited Waiver and
the Borrower’s and the Borrower Affiliates’
acknowledgments and agreements set forth above, and expressly
conditioned upon the absence of any Event of Default other than the
Specified Interest Payment Default, the Lender hereby
(a) agrees that the interest payment otherwise due and payable
by Borrower under the Loan Agreement and the other Loan Documents
on July 1, 2009, and previously waived until July 31,
2009, and August 17, 2009 shall be waived until
August 31, 2009 and (b) waives the Specified Interest
Payment Default until 5:00 p.m. (Dallas time) on August 31,
2009. The waiver agreed to herein (i) is temporary only and,
if the interest payment waived by this Limited Waiver has not
otherwise been made to and received by the Lender at or prior to
5:00 p.m. (Dallas time) on August 31, 2009, the waiver shall
terminate and, as a result, the waiver shall no longer be valid and
shall not impair, restrict or limit any right or remedy of the
Lender with respect to the Specified Interest Payment Default under
the Loan Agreement or any of the other Loan Documents, (ii) is
strictly limited to the Specified Interest Payment Default, shall
not be deemed to be a consent to any amendment, waiver or
modification of any term or condition of the Loan Agreement and the
other Loan Documents, and except as expressly set forth in this
Limited Waiver, all the other terms, provisions and conditions of
the Loan Agreement and the other Loan Documents shall remain in
full force and effect, (iii) shall not extend nor be deemed to
extend to any other Default or Event of Default that may now exist
or hereafter arise under the Loan Agreement or any of the other
Loan Documents, (iv) shall not impair, restrict or limit any
right or remedy of the Lender with respect to any other Default or
Event of Default that may now exist or hereafter arise under the
Loan Agreement or any of the other Loan Documents, and
(v) shall not constitute any course of dealing or other basis
for altering any obligation of any member of the Borrower Group or
any right, privilege or remedy of the Lender under the Loan
Agreement or any of the other Loan Documents. No failure on the
part of any Lender to provide a notice hereunder or otherwise
exercise, and no delay in providing any notice or otherwise
exercising, any right, power, remedy or privilege under this
Limited Waiver, shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power, remedy or privilege
under this Limited Waiver preclude any other or further exercise
thereof or the exercise of any other right, power, remedy or
privilege.
3. REFERENCES TO LOAN AGREEMENT,
ETC. All references to the “Loan Agreement” or the
“Construction Agreement” or other similar terms
intended to refer to the Loan Agreement in each of the Loan
Documents and in any other documents or agreements by, between or
among any of the Borrower Group and their respective affiliates,
and or for the benefit of the Lender will from and after the date
hereof refer to the Loan Agreement, as amended hereby, and all
obligations of the Borrower Group under the Loan Agreement, as
amended hereby, shall be secured by and be entitled to the benefits
of said Loan Documents and such other documents and agreements. All
Loan Documents heretofore executed by all or any of the Borrower
Group shall remain in full force and effect to secure the Loan, and
such Loan Documents, as amended hereby, are hereby ratified and
affirmed.
4. ADDITIONAL AGREEMENTS
.
4.1. Access to Information .
The Borrower shall provide to the Lender summary weekly production
reports and monthly the same or substantially the same information
that Borrower and the Borrower Affiliates provide to the members of
its Board of Directors and to its management including without
limitation, specific performance reports or measurements, financial
plans and budgets, and any other information reasonably requested
by Lender, and shall be discussed in a weekly conference call with
the Lender’s representatives or agents.
4.2. Audits and Field Exams .
Until all of the Obligations owing to the Lender have been
indefeasibly paid in full, the Lender, and its agents, appraisers,
and advisors shall have the right of full access to, and may visit,
the Borrower’s and the Borrower Affiliates’ business,
upon reasonable notice, to (i) inspect the collateral of the
Lender; (ii) visit and conduct field exams of the
Borrower’s and the Borrower Affiliates’ business,
(iii) take copies and extracts from the Borrower’s and
the Borrower Affiliates’ books and records and inspect the
Borrower’s and the Borrower Affiliates’ facility,
(iv) conduct on-site monitoring thereof, and (v) obtain
information requested by the Lender as to such matters relating to
the Borrower’s and the Borrower Affiliates’ business
operations. The Borrower’s and the Borrower Affiliates’
officers and employees shall fully cooperate with such efforts by
the Lender, and its agents and advisors.
4.3. Consent to Relief . In
the event of any breach of the Loan Documents or any of the
Borrower’s and the Borrower Affiliates’ agreements or
acknowledgements under this Limited Waiver, then, to the extent
that the Lender establishes before a court of appropriate
jurisdiction that any of the foregoing has occurred, the Borrower
and the Borrower Affiliates consent to injunctive relief,
including, but not limited to, the appointment of a receiver for
the benefit of the Lender, in order to enforce the terms of this
Limited Waiver and the Loan Documents and to effect the remedies
sought herein and under applicable law.
4.4. Cooperation of Borrower
Affiliates . To the extent that compliance with any of the
agreements or acknowledgements under this Limited Waiver requires
action or cooperation by the Borrower Affiliates, each of the
Borrower Affiliates agree to provide such cooperation and take such
action, including, but not limited to, providing to the Lender
complete access to the Borrower’s and the Borrower’s
Affiliates’ books, records, and facilities to confirm or
supplement any information provided to Lender.
4.5. Meeting with Management
. The Borrower and the Borrower Affiliates agree to cause their
respective management and boards of directors to, upon
Lender’s request, attend informational meetings with the
Lender to discuss and review the Borrower’s and the Borrower
Affiliates’ business affairs and plans. In the event that
Lender has questions or concerns regarding the status of the
Borrower or any of the Borrower Affiliates, in addition to the
meetings described above, the Lender may request a telephonic
meeting with such management or boards of directors, or other
representatives of the Borrower or any of the Borrower Affiliates,
which meeting shall occur within 48 hours of such
request.
4.6. Event of Default . If at
any time the Borrower or any member of the Borrower Group contests
the validity of the Loan Agreement, this Limited Waiver, the Note
or any other Loan Document, such event shall constitute an Event of
Default under the Loan Agreeme
