EXHIBIT 10.34
SECOND SUPPLEMENTAL CREDIT AGREEMENT
Second Supplemental Credit Agreement (this "Supplemental Credit
Agreement") dated August 6, 2004, among Seabulk International, Inc., a Delaware
corporation (the "Borrower") and Fortis Capital Corp. (the "Agent").
PRELIMINARY STATEMENT
Pursuant to the Amended and Restated Credit Agreement, dated as of
August 5, 2003, as amended by Amendment No. 1 thereto dated March 26, 2004, and
as further amended by that certain Supplemental Credit Agreement dated as of
June 17, 2004 (the "Credit Agreement"), among Seabulk International, Inc., (the
"Borrower"), the Subsidiary Guarantors named therein, the Released Subsidiary
Guarantors named therein, Fortis, NIB Capital Bank N.V. ("NIB"), The Governor &
Company of The Bank of Scotland and each other financial institution which may
hereafter execute and deliver an Assignment and Acceptance with respect to the
Credit Agreement pursuant to Section 10.11 thereof (any one individually, a
"Lender", and collectively, the "Lenders"), Fortis, as administrative agent on
behalf of the Lenders (when acting in its capacity as administrative agent under
any Transaction Document, herein referred to, together with any successor
administrative agent, as the "Agent") and as book runner and as an arranger
(when acting in such capacity, an "Arranger") and NIB, as an arranger (when
acting in such capacity, an "Arranger", and together with Fortis, the
"Arrangers"), the Lenders agreed to make the Facility available to the Borrower,
in accordance with the terms of the Credit Agreement. As a condition to
providing such Facility, each of the Lenders has requested that the Subsidiary
Guarantors, jointly and severally, guarantee the Obligations of the Borrower
under the Credit Agreement by entering into the Guarantee Agreement and securing
the Subsidiary Guarantors' obligations hereunder by granting to the Agent, on
behalf of the Lenders, a lien in, to and under the Collateral (as defined
herein). The Borrower has requested that the SEABULK ARKANSAS (the "Released
Vessel") owned by one of the Subsidiary Guarantors be released from the Mortgage
thereon and that the SEABULK FALCON II owned by the Assignor, a wholly-owned
subsidiary of the Borrower, be substituted therefor. In order to induce the
Lenders to release the Released Vessel, Seabulk Falcon II, Inc. ("Owner") has
agreed to grant to the Agent, on behalf of the Lenders, a lien in, to and under
the SEABULK FALCON II (the "New Vessel") and the Collateral related thereto so
that the New Vessel shall be deemed for all purposes a "Vessel" under the
Transaction Documents.
All things necessary to make this Second Supplemental Credit Agreement
a valid agreement of the Borrower, Owner and the other Subsidiary Guarantors in
accordance with its terms have been done.
NOW, THEREFORE, and in consideration of the premises, it is mutually
covenanted and agreed, for the equal and proportionate benefit of the Agent and
each of the Lenders, as follows:
(i) Owner hereby confirms that it unconditionally and
irrevocably guarantees, jointly and severally, to the Agent and each of the
Lenders (i) the full and prompt payment of the principal of the Notes and the
indebtedness represented thereby and the L/C Obligations when and as the same
shall become due and payable, whether at the stated maturity thereof, by
acceleration, call for redemption or otherwise; (ii) the full and prompt payment
of interest on the Notes and the L/C Obligations when and as the same shall
become due and payable (including interest at the Overdue Rate on any part of
the principal amount, interest amount or other amount due under this Agreement
and not paid when due); (iii) the full and prompt payment of an amount equal to
each and all of the payments and other sums when and as the same shall become
due, required to be paid by the Borrower under the terms of the Credit Agreement
and under each of the other Transaction Documents to which it is a party and
(iv) the full and prompt performance and observance by the Borrower of the
obligations, covenants and agreements required to be performed and observed by
the Borrower under the terms of the Credit Agreement and under each of the other
Transaction Documents to which it is a party (items (i) through (iv), the
"Subsidiary Guarantee Obligations"). Owner hereby confirms that it irrevocably
and unconditionally agrees that upon any default by the Borrower in the payment,
when due, of any principal of, interest on or other amounts (including amounts
in respect of fees and indemnification owing to the Agent or the Lenders) due
under the Notes, the Credit Agreement or any other Transaction Document, Owner
will promptly pay the same within ten (10) days after the receipt of written
demand therefore from the Agent or any Lender. Owner further confirms that it
hereby irrevocably and unconditionally agrees that upon any default by the
Borrower in any of its obligations, covenants and agreements required to be
performed and observed by the Borrower under the Credit Agreement and under each
of the other Transaction Documents to which it is a party, Owner will effect the
observance of such obligations, covenants and agreements within ten (10) days
after receipt of written demand therefor from the Agent or any Lender.
Owner further confirms that it agrees that the Subsidiary Guarantee
Obligations may be extended or renewed, in whole or in part, without notice or
further assent from Owner and that Owner will remain bound under the Credit
Agreement notwithstanding any extension or renewal of any Subsidiary Guarantee
Obligation. Owner confirms that it is subject to all the provisions of the
Credit Agreement applicable to a Subsidiary Guarantor. Without limiting the
effect of the foregoing, Owner hereby agrees that it is hereby bound by the
provisions of Section 6.19 of the Credit Agreement relating to the assignment to
the Agent as security, and hereby grants to the Agent a security interest in
(subject to the provisions of the Assignment of Earnings and Insurances), all
the freights, hires, charters and Insurances to which such Additional Guarantor
is entitled in respect of the New Vessel and the other Vessels that it owns
subject to the Mortgages.
SECTION 2. The Credit Agreement, as supplemented and amended by this
Second Supplemental Credit Agreement and all other Credit Agreements
supplemental thereto, is in all respects ratified and confirmed, and the Credit
Agreement, this Second Supplemental Credit Agreement and all Credit Agreements
supplemental thereto shall be read, taken and construed as one and the same
instrument.
SECTION 3. If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Second
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Supplemental Credit Agreement by any of the provisions of the Credit Agreement,
such required provision shall control.
SECTION 4. All covenants and agreements in this Second Supplemental
Credit Agreement by Owner shall bind its successors and assigns, whether so
expressed or not.
SECTION 5. In case any provision in this Second Supplemental Credit
Agreement shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 6. Nothing in this Second Supplemental Credit Agreement,
expressed or implied, shall give to any Person, other than the parties hereto
and their successors hereunder, and the Lenders any benefit or any legal or
equitable right, remedy or claim under this Second Supplemental Credit
Agreement.
SECTION 7. THIS SECOND SUPPLEMENTAL CREDIT AGREEMENT SHALL BE GOVERNED
BY, AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 8. All terms used in this Second Supplemental Credit Agreement
not otherwise defined herein that are defined in Appendix A to the Credit
Agreement shall have the meanings set forth therein.
SECTION 9. This Second Supplemental Credit Agreement may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
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WHEREOF, the parties have caused this Second Supplemental Credit
Agreement to be duly executed as of the date first written above.
SEABULK INTERNATIONAL, INC.,
as Borrower,
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
FORTIS CAPITAL CORP.
as Agent,
/s/ Chr. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: Chr. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
SEABULK FALCON II, INC., hereby
acknowledges and agrees to the terms,
conditions and provisions of the above
Second Supplemental Credit Agreement.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
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