blackwater_ex1004.htm


    
      
        

      
Exhibit 10.4

     

    
      SUBORDINATION
AGREEMENT

       

      THIS
SUBORDINATION AGREEMENT (this "Agreement"), dated as of February 12, 2010 is
among BLACKWATER NEW ORLEANS, L.L.C. ("Borrower"), BLACKWATER MIDSTREAM CORP.
("Midstream"), and JPMORGAN CHASE BANK, N.A.. ("Bank"), who agree as
follows:

       

      RECITALS

       

      A.           Borrower
and Bank have entered into that certain Credit Agreement dated as of December
23, 2008 (as it may from time to time be amended, modified or supplemented, the
"Credit Agreement"), pursuant to which the Bank agreed to make credit facilities
available to Borrower upon and subject to the terms and conditions
thereof.

       

      B.           Midstream
has heretofore loaned Borrower $3,000,000 (the "Subordinated Advance"), which
loan proceeds were derived from a subordinated debt issuance of Midstream (the
"Subordinated Advance").

       

      C..           As
a condition to increasing the Credit Facilities, Bank requires that Borrower
subordinate the Subordinated Advance to all indebtedness of Borrower to Bank,
now existing and hereafter arising, including the Credit
Facilities.

       

      AGREEMENT

       

      1.             
Subordination.
The parties hereto agree as follows:

       

      (a)           Midstream
hereby subordinates the Subordinated Advance to the payment and performance in full of all
indebtedness of the Borrower to the Bank, now existing and hereafter
arising.

       

      (b)           Midstream
and Borrower agree that they will not amend the terms of the Subordinated
Advance in any respect without the consent of the Bank.

       

      (c)           Midstream
and Borrower agree that so long as any indebtedness of the Borrower to the Bank
pursuant to the Credit Agreement is outstanding, the Borrower will not make and
Midstream will not receive any payments of principal on the Subordinated
Advance. So long as no Event of Default (as defined in the Credit Agreement)
exists, Borrower may pay and Midstream may receive payments of interest on the
Subordinated Advance, but following the occurrence and during the continuance of
an Event of Default, Borrower will not make and Midstream will not receive any
payments of interest on the Subordinated Advance.

       

      (d)           Borrower
and Midstream represent that the Subordinated Advance is unsecured as of the
date of this Agreement and agree that Borrower will not grant (and Midstream
will not accept) a security interest in or pledge of any assets of the Borrower
as security for the Subordinated Advance.

       

      2.           Continuance
of Agreement. This Agreement shall continue until the payment in full of
the indebtedness of the Borrower to the Bank.

       

      3.           WAIVER
OF JURY TRIAL. BORROWER, MIDSTREAM AND BANK HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO WHICH, THE BORROWER, MIDSTREAM AND BANK MAY BE PARTIES,
ARISING OUT OF OR IN ANY WAY PERTAINING TO THIS AGREEMENT. IT IS AGREED AND
UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS
AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS. THIS WAIVER IS KNOWINGLY,
WILLINGLY AND VOLUNTARILY MADE BY BORROWER, MIDSTREAM AND BANK, AND BORROWER,
MIDSTREAM AND BANK HEREBY REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION
HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN
ANY WAY MODIFY OR NULLIFY ITS EFFECT. BORROWER, MIDSTREAM AND BANK FURTHER
REPRESENT THAT THEY HAVE BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND
IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF THEIR OWN
FREE WILL, AND THAT THEY HAVE HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH
COUNSEL.


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      


       

      4.           Amendments,
Etc. No amendment or waiver of any provision of this Agreement nor
consent to any departure by Borrower, Midstream or the Bank therefrom shall in
any event be effective unless the same shall be in writing and signed by
Borrower, Midstream and the Bank, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.

       

      5.           Counterparts.
This Agreement may be executed in separate counterparts, each of which when so
executed and delivered shall be deemed to be effective and all of which when
taken together shall constitute one and the same instrument. Delivery by any
party of telecopied copies of executed counterparts shall constitute delivery
hereof by such party.

       

      IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.

       

       

      
        	BORROWER:	
                BLACKWATER NEW
      ORLEANS, L.L.C.

                 

                By:  Blackwater Midstream Corp., its Manager

                 

                       By:  /s/ Dale
      Chatagnier                          
      

                              
      Name:  Dale Chatagnier

                             
      Title:  Secretary

              
	 	 
	 	 
	MIDSTREAM:	
                BLACKWATERMIDSTREAM,
      CORP.

                 

                By:  /s/ Dale
      Chatagnier                          
      

                          Name:  Dale
      Chatagnier

                          Title: 
      Secretary

                

              
	 	 
	LENDER:	
                JPMORGAN
      CHASE BANK, N.A.

                 

                By:  /s/
      William C.
      Richard                                     
      

                        Name:  William C.
      Richard

                        Title: 
  SVP