blackwater_8k-ex1002.htm

 

    
      

    

    Exhibit 10.2

    
 

    
      
         

      

      FIRST
AMENDMENT TO CREDIT AGREEMENT

       

      THIS
FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment"), dated as of
February 12, 2010, is between BLACKWATER NEW ORLEANS, L.L.C. (the "Borrower")
and JPMORGAN CHASE BANK, N.A. ("Bank"), as follows:

       

      RECITALS

       

      A.           Borrower
and Bank have executed a Credit Agreement, dated as of December 23, 2008 and a
letter agreement dated April 21, 2009 (collectively, the "Credit Agreement")
relating to an initial loan in the principal amount of $2,500,000.

       

      B.           The
Borrower has requested an additional non-revolving line of credit in the amount
of $2,150,000, and the Bank is willing to make such loan on the terms and
conditions set forth below.

       

      NOW,
THEREFORE, in consideration of their mutual covenants and undertakings, the
parties hereto agree as
follows:

       

      1.           Section
1 (Credit Facilities) of the
Credit Agreement is hereby amended to add a new subsection 1.2 to read as
follows:

       

      
        	
              	
                1.2 

              	
                Loans.
      The Bank has heretofore made a $2,500,000 term loan to the Borrower and
      upon satisfaction of the conditions precedent set forth in this First
      Amendment, the Bank agrees to make a $2,150,000 non-revolving line of
      credit available to the Borrower to finance a portion of the construction
      of three tanks and a dock on the Property. Advances will be made monthly
      upon the Bank's receipt of a request for advance, copies of any draw
      request and for copies of invoices related to the work to be
      completed.

              


      

       

      2.           Section 5.2B (Distributions) of the
Credit Agreement is hereby amended to read as follows:

       

      
        	
              	
                A.

              	
                Distributions.
      Redeem, retire, purchase or otherwise acquire, directly or
      indirectly, any of its Equity Interests, return any contribution to an
      Equity Owner or, other than stock dividends and dividends paid to the
      Borrower, declare or pay any Distributions; provided, however, that if
      there is no existing default under this Agreement or any other Related
      Documents and to do so will not cause a default under any of such
      agreements, the Borrower may pay Distributions to its Equity Owner
      (Blackwater Midstream Corp) up to the maximum amount of $2,150,000 during
      any fiscal year beginning with the fiscal year ending March 31,
      2011.

              


      

       

      3.           Section
4 (Affirmative Covenants) of the Credit Agreement is hereby amended to add a new
Section 4.13 to read as follows:

       

      
        	
              	
                4.13

              	
                Convertible
      Notes. The Borrower will cause Backwater Midstream Corp. ("BWMS")
      to restructure its convertible debt notes in the aggregate amount of
      $3,000,000, so that (i) by June 30, 2010 the holders of at least
      $1,000,000 of said notes will have either extended the maturity date of
      said notes to a date not earlier than September 30, 2014, or converted
      said notes to common stock of BWMS, or a combination of both; (ii) by
      August 31, 2010 the holders of an aggregate of at least $2,000,000 of said
      notes will have either extended the maturity date of said notes to a date
      not earlier than September 30, 2014 or converted said notes to common
      stock of BWMS, or a combination of both; and (iii) by October 31, 2010,
      the holder of an aggregate of at least $2,850,000 of such notes will have
      either extended the maturity of said notes to a date not earlier than
      September 30, 2014 or will have converted said notes to common stock of
      BWMS, or a combination of both. For purposes of this provision
      replacement of the notes with other notes with a maturity date not earlier
      than September 30, 2014 shall be considered the same as an extension of
      the maturity date of the original notes. So long as the payment thereof
      will not cause an Event of Default under Section 5.2M, the Borrower may
      make principal payments during prior to September 30, 2014 in an aggregate
      amount not to exceed $150,000.

              


      


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      


       

       

      4.              
Section 5.2M (Negative
Covenants; Fixed Charge Coverage Ratio) of the Credit Agreement is hereby
amended to substitute the following definition for "Test Period": "As used in
this subsection, the term "Test Period" means each year-to-date period ending on
June 30, September 30, December 31 and March 31 of each fiscal year, beginning
June 30, 2010.

       

      5.             
The Borrower reaffirms
that the Collateral for the Credit Facilities shall be (i) Collateral
Mortgage, Assignment of Leases and Rents and Security Agreement by the Borrower
in favor of the Bank, dated December 23, 2008, covering the Property located at
660 Labauve Drive, Westwego, Louisiana 70094; and (ii) Security Agreement by the
Borrower in favor of the Bank of even date herewith covering that certain
Terminal Services Agreement between the Borrower and Martin Products Sales, LLC,
dated as of November 9, 2009.

       

      6.             
This First Amendment shall
become effective upon receipt by the Bank of all of the
following:

       

      
        	
                 
      

              	
                (i)

              	
                A
      fully executed copy of this First
Amendment.

              


      

       

      
        	
                 
      

              	
                (ii)

              	
                A
      fully executed copy of the Security Agreement relating to the Terminal
      Services Agreement and the filing of a UCC-1 Financing Statement in
      connection therewith.

              


      

       

      
        	
                 
      

              	
                (iii)

              	
                Evidence
      of the funding of either (a) a subordinated loan by Blackwater Midstream
      Corp. to the Borrower (and the delivery of a subordination agreement
      acceptable to the Bank) or (b) an equity contribution by Blackwater
      Midstream to the Borrower, or both, in the aggregate amount of
      $3,000,000.

              


      

       

      
        	
                 
      

              	
                (iv)

              	
                Payment
      of a facility fee of $16,125 (being 0.75% of the new Credit
      Facility).

              


      

       

      
        	
                 
      

              	
                (v)

              	
                Payment
      of all fees of Bank's counsel in connection with the documentation of the
      new Credit Facility.

              


      

       

      
        	
                 
      

              	
                (vi)

              	
                Borrower's receipt of a U.S.
      Corps of Engineers permit to reconstruct the
  dock.

              


      

       

      
        	
                 
      

              	
                (vii)

              	
                Such
      other conditions as the Bank shall reasonably
  require.

              


      

       

      7.             
This First Amendment may
be executed in two or more counterparts, and all counterparts taken
together shall constitute one and the same instrument.

       

      8.              
Except as otherwise
specifically amended hereby, all of the terms and conditions of the
Credit Agreement shall remain in full force and effect.

      
         

         

         

      

      [Signatures
on following page]


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      IN
WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly
executed as of the date first written above.

       

      
         

         

        
        

         

        
          	
                  BORROWER:

                	
                  BLACKWATER
      NEW ORLEANS, L.L.C.

                
	 	 
	 	By:    
      Blackwater Midstream Corp., Manager
	 	 
	 	
                  By:  /s/ Dale
      Chatagnier                                      
      

                
	 	
                  Name:
      Dale Chatagnier

                
	 	
                  Title:
      Secretary

                
	 	 
	 	 
	BANK:	
                  JPMORGAN
      CHASE BANK, N.A,

                
	 	 
	 	By:  /s/ William C.
      Richard                                       
      
	 	
                         
      Name:  William C. Richard

                          Title: 
  SVP