EXHIBIT 10.35
SECOND SUPPLEMENTAL SUBSIDIARY GUARANTEE AGREEMENT
Second Supplemental Subsidiary Guarantee Agreement (this "Supplemental
Subsidiary Guarantee 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 terms of the Swap Agreements, each of the
Counterparties agreed to provide the Borrower with an interest rate swap to
enable the Borrower to manage its interest rate exposure. As a condition to
providing such Swap Agreements and any other Swap Agreements from time to time
outstanding, each of the Counterparties has requested that the Subsidiary
Guarantors, jointly and severally, guarantee the Obligations of the Borrower
under the Swap Agreements by entering into the Guarantee Agreement and securing
the Subsidiary Guarantors' obligations hereunder by granting to the Agent, on
behalf of the Counterparties, a lien in, to and under the Guarantee Collateral.
The Borrower has requested that the SEABULK ARKANSAS (the "Released Vessels")
owned by one of the Subsidiary Guarantors be released from the Mortgages 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 Counterparties
to release the Released Vessel, Seabulk Falcon II, Inc. ("Owner") has agreed to
grant to the Agent, on behalf of the Counterparties, 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 Subsidiary
Guarantee 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 Counterparties, as follows:
(i) Owner hereby confirms that it unconditionally and
irrevocably guarantees, jointly and severally, to the Agent and the
Counterparties (i) 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 each of the Swap Agreements and (ii)
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 each of the Swap Agreements (items (i) and (ii), 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 amounts (including amounts in respect of fees and
indemnification owing to the Agent or the Counterparties) due under the Swap
Agreements, Owner will promptly pay the same within ten (10) days after receipt
of written demand therefor from the Agent or any Counterparty. Owner further
hereby confirms that it 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 Swap Agreements,
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 Counterparties.
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 Subsidiary
Guarantee Agreement notwithstanding any extension or renewal of any Subsidiary
Guarantee Obligation. Owner confirms that it is subject to all the provisions of
the Subsidiary Guarantee 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 5.02 of the Subsidiary Guarantee 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 Owner is entitled in respect of the New Vessel and the other Vessels that
it owns subject to the Mortgages.
SECTION 2. The Subsidiary Guarantee Agreement, as supplemented and
amended by this Second Supplemental Subsidiary Guarantee Agreement and all other
Subsidiary Guarantee Agreements supplemental thereto, is in all respects
ratified and confirmed, and the Subsidiary Guarantee Agreement, this Second
Supplemental Subsidiary Guarantee Agreement and all Subsidiary Guarantee
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 Supplemental
Subsidiary Guarantee Agreement by any of the provisions of the Subsidiary
Guarantee Agreement, such required provision shall control.
SECTION 4. All covenants and agreements in this Second Supplemental
Subsidiary Guarantee Agreement by Owner shall bind its successors and assigns,
whether so expressed or not.
SECTION 5. In case any provision in this Second Supplemental Subsidiary
Guarantee 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 Subsidiary Guarantee
Agreement, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Counterparties any
benefit or any legal or equitable right, remedy or claim under this Second
Supplemental Subsidiary Guarantee 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.
2
SECTION 8. All terms used in this Second Supplemental Subsidiary
Guarantee Agreement not otherwise defined herein that are defined in Appendix A
to the Subsidiary Guarantee Agreement shall have the meanings set forth therein.
SECTION 9. This Second Supplemental Subsidiary Guarantee 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.
3
WHEREOF, the parties have caused this Supplemental Subsidiary Guarantee
Agreement to be duly executed as of the date first written above.
SEABULK INTERNATIONAL, INC.,
as Borrower,
/s/ XXXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Attorney-in-Fact
FORTIS CAPITAL CORP.
as Agent,
/s/ CHR. XXXXXX XXXXXX
---------------------------------
Name: Chr. Xxxxxx Xxxxxx
Title: Vice President
/s/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
SEABULK FALCON II, INC., hereby
acknowledges and agrees to the terms,
conditions and provisions of the above
Second Supplemental Subsidiary Guarantee
Agreement.
/s/ XXXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Attorney-in-Fact
4
