Exhibit 10.7
INTERCREDITOR AGREEMENT
This Intercreditor Agreement is entered into on the dates set forth
below, but effective as of January 1, 2009, by and among Xxxxx Xxxxx ("Xxxxx"),
No Logo Air, Inc. ("No Logo Air") and Ter Mast Beheer Utrecht B.V. (each a
"Creditor" and collectively, the "Creditors"), and Blackwater Midstream Corp.
("Blackwater").
RECITALS
WHEREAS, each of the Creditors has loaned monies to Blackwater in
connection with the acquisition of a bulk liquid storage facility located in
Westwego, Louisiana by Blackwater New Orleans, L.L.C., the wholly-owned
subsidiary of Blackwater;
WHEREAS, as security for the repayment of the said loans, Blackwater
has granted each of the Creditors a security interest in its membership
interests in Blackwater New Orleans, L.L.C. (the "Collateral");
WHEREAS, the Creditors desire to agree as to the priority, as among
themselves, of the security interests granted by Blackwater, notwithstanding the
priority that might otherwise result from the filing of UCC-1 Financing
Statements noticing their respective security interests; and
WHEREAS, the Creditors desire to agree with respect to the sharing of
costs, etc. in the event enforcement of the security interests in the Collateral
becomes necessary.
AGREEMENT
NOW, THEREFORE, the Creditors do hereby agree as follows:
1. Each Creditor shall file, or cause to be filed, in the appropriate
jurisdiction, a UCC-1 Financing Statement noticing the security interest
each has been granted in the Collateral by Blackwater.
2. Notwithstanding the priorities that might otherwise result from the filing
of such UCC-1 Financing Statements, the Creditors agree that each of them
shall rank equally in terms of priority with respect to the security
interests granted in the Collateral.
3. In the event enforcement of the security interests in the Collateral by one
or more of the Creditors becomes necessary:
a) the Creditors shall cooperate with each other in the prosecution of
any and all enforcement actions against Blackwater, including without
limitation, and the extent allowed by law, the consolidation of all
enforcement actions into the first-filed of such actions;
b) each of the Creditors shall share pro-rata in any net recovery
resulting from any enforcement action, in proportion to the
then-outstanding amount of the Obligations due and owing each Creditor;
and
c) each of the Creditors shall share pro-rata in the fees and costs
incurred by any Creditor in connection with the enforcement action,
including without limitation reasonable attorneys fees.
4. Blackwater hereby acknowledges the Creditors' agreements as set forth
herein, and agrees to be bound by the terms and conditions of this
Intercreditor Agreement.
5. Whenever possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable
in any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other
provision or any other jurisdiction, but this Agreement shall be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
6. This Agreement shall bind the parties hereto and their respective
successors and assigns and shall inure to the benefit of and be enforceable
by the parties hereto and their respective successors and assigns.
7. The law of the State of Nevada shall govern all issues and questions
concerning the relative rights and obligations of the parties to this
Agreement.
8. This Agreement may be executed in separate counterparts, none of which need
contain the signature of more than one party hereto but each of which shall
be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Thus done and signed on the dates set forth below, but effective as of
January 1, 2009.
NO LOGO AIR, INC.
/s/ Xxxxx Xxxxx By: /s/ Mathijs van Houweninge
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XXXXX XXXXX Mathijs van Houweninge
Date: January 20, 2009 Date: January 20, 2009
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TER MAST BEHEER UTRECHT B.V. BLACKWATER MIDSTREAM CORP.
By: /s/ Mathijs van Houweninge By: /s/ Xxxxxxx X. Xxxxx
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Print Name: Mathijs van Houweninge Xxxxxxx X. Xxxxx, President
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Title:
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Date: January 20, 2009 Date: January 20, 2009
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By: /s/ Mathijs van Houweninge
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Print Name: Mathijs van Houweninge
Title: