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EXHIBIT 10.10
THIRD AMENDMENT
TO CONSTRUCTION LOAN AGREEMENT
This THIRD AMENDMENT TO CONSTRUCTION LOAN AGREEMENT (this "
Agreement "), dated as of September 18, 2006, is
entered into by and among the following parties:
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(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 (formerly known as Tie Investors, 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 (i) that certain Release,
dated February 22, 2005, by and among the Parties,
(ii) that certain Limited Waiver and First Amendment to
Construction Loan dated July 7, 2005, by and among the
Parties, and (iii) that certain Second Amendment to
Construction Loan Agreement dated as of December 29, 2005, by
and among the Parties (as so amended, the " Loan Agreement
"), pursuant to which the Lender agreed to make available to the
Borrower Group certain financial accommodations,
B. The Borrower and the Borrower Affiliates have requested that,
subject to the terms, conditions, covenants and limitations
contained in this Agreement, the Lender amend certain terms and
conditions of the Loan Agreement and the Note to defer the payment
of principal on the Note in the manner set forth below.
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
Agreement.
ACKNOWLEDGEMENTS:
(a) The Borrower and the Borrower Affiliates hereby acknowledge
and agree to the accuracy of all Recitals included in this
Agreement.
(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 (as defined
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in the Loan Agreement) 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, in
each instance as amended and modified by this Agreement.
(c) The Borrower and the Borrower Affiliates acknowledge and
agree that (i) as of September 15, 2006, the outstanding
principal and accrued but unpaid amount of the Obligations is
$14,209,611, of which $14,000,000.00 is the amount of outstanding
principal of the Note and $209,611 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 Agreement shall have the meanings
ascribed to them in the Loan Agreement.
2. AMENDMENTS TO LOAN DOCUMENTS .
2.1 The following definitions in Section 1.1 of the
Loan Agreement are hereby amended and restated in their entirety to
read as follows:
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"Loan Documents" This Agreement, the Limited Waiver and
First Amendment to Construction Loan Agreement dated as of
July 7, 2005, the Second Amendment to Construction Loan
Agreement dated as of December 29, 2005, this Third Amendment
to Construction Loan Agreement dated as of the date hereof, the
Note, the Deed of Trust, the Security Agreement, the Patent
Security Agreement, the Intercreditor Agreement, the Voting
Agreement, the Non-Compete Agreement, the NATK Royalty Agreement,
the TieTek Royalty Agreement, the Membership Pledge Interest
Agreements, the Solvency Certificates, and any other documents to
be executed by Borrower or any of their respective shareholders
pertaining to the Loan, and as the same may be amended from time to
time.
"Note" collectively, (i) that certain Second
Amendment to Amended and Restated Promissory Note, dated as of the
date hereof, in the stated principal amount of $14,000,000, made by
TieTek LLC, payable to the order of the Lender, (ii) any other
promissory notes evidencing any portion of the Loan, including any
instruments amended and restated by the instrument referred to in
clause (i) immediately preceding, and (iii) any
promissory notes or other agreement evidencing any renewals,
extensions, increases, amendments, modifications, restatements or
payment-in-kind in respect of any of the foregoing."
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2.2 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 (as
defined in the Loan Agreement), and such Loan Documents, as amended
hereby, are hereby ratified and affirmed.
3. CONDITIONS PRECEDENT TO EFFECTIVENESS . The
effectiveness of this Agreement is subject to the fulfillment of
each of the following terms and conditions to the satisfaction of
Lender in its sole discretion at or before 2:00 p.m. (Dallas time)
on September 30, 2006.
3.1. The Lender shall have received fully executed copies of the
Securities Purchase Agreement dated as of September 15, 2006
(the "2006 SPA") among the Company and certain purchasers of shares
of common stock and warrants named therein (the "Purchasers"), in
form and substance satisfactory to Lender.
3.2. The Lender shall have received a legal opinion of the
Borrower’s counsel in form and substance satisfactory to the
Lender as to much matters as Lender may request with respect to
each member of the Borrower Group, this Agreement, the Loan
Agreement, the other Loan Documents and each agreement and
instrument delivered in connection with, or contemplated by, this
Agreement.
3.3 The Lender shall have received evidence satisfactory to the
Lender that each Purchaser deposited its full Subscription Amount
pursuant to the Escrow Agreement.
3.4. The Lender shall have received the Second Amendment to
Amended and Restated Promissory Note in form of attached hereto as
Exhibit A, appropriately executed by TieTek LLC.
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4. LENDER CONSENT . By execution hereof,
Lender hereby consents to (i) the amendment to the Note to
provide that all amounts otherwise due under the Note shall become
due on July 1, 2008 in the manner described in the Note and
(ii) the transactions contemplated by the 2006 SPA.
5. RATIFICATIONS, REPRESENTATIONS AND WARRANTIES .
5.1. The terms and provisions set forth in this Agreement shall
supersede all inconsistent terms and provisions set forth in the
Loan Agreement and, except as expressly set forth in this
Agreement, the terms and provisions of the Loan Agreement and each
of the other Loan Documents are ratified and confirmed and shall
continue in full force and effect. The Parties hereto agree that
the Loan Agreement shall continue to be legal, valid, binding and
enforceable in accordance with its terms.
5.2. The Borrower and the Borrower Affiliates hereby represent
and warrant to the Lender as follows:
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(a) the execution, delivery and performance of this Agreement
and any and all other agreements executed and/or delivered in
connection herewith or therewith have been authorized by all
requisite action on the part of the Borrower and the Borrower
Affiliates and will not violate (i) the Regulations of the
Borrower; or (ii) the articles of incorporation or bylaws of
any of the Borrower Affiliates;
(b) the representations and warranties contained in this
Agreement, the Loan Agreement and the Loan Documents are true and
correct in all material respects on and as of the date hereof as
though made on and as of such date;
(c) no Default or Event of Default under the Loan Agreement or
the Loan Documents has occurred or is continuing;
(d) the consummation of the transactions contemplated hereby
will not (i) violate any provision of the organizational
documents or governing instruments of the Borrower or either of the
Borrower Affiliates, (ii) violate any judgment, order, ruling,
injunction, decree or award of any court, administrative agency or
governmental body against, or binding upon, the Borrower or either
of the Borrower Affiliates, or (iii) constitute a violation by
the Borrower or the Borrower Affiliates of any law or regulation of
any jurisdiction applicable to the Borrower or the Borrower
Affiliates;
(e) this Agreement was reviewed by the Borrower and the Borrower
Affiliates, who acknowledge and agree that the Borrower and the
Borrower Affiliates (i) understand fully the terms of this
Agreement and the consequences of the issuance hereof,
(ii) have been afforded an opportunity to have this Agreement
reviewed by, and to discuss this Agreement with, such attorneys and
other persons as the Borrower or the Borrower Affiliates may wish,
and (iii) have entered into this Agreement of their own free
will and accord and without threat or duress; and
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