exv10w3






Exhibit 10.3




 

 




INTERCREDITOR AGREEMENT



among



BANK OF AMERICA, N.A.,

in its capacity as Administrative Agent, Collateral Agent, and Security Trustee

and



WELLS FARGO BANK, NATIONAL ASSOCIATION

in its capacity as Trustee, Collateral Agent and Security Trustee



and



GS MARITIME INTERMEDIATE HOLDING LLC



UNITED MARITIME GROUP, LLC



U.S. UNITED BARGE LINE, LLC



U.S. UNITED OCEAN SERVICES, LLC



U.S. UNITED BULK TERMINAL, LLC



U.S. UNITED INLAND SERVICES, LLC



UMG TOWING, LLC



U.S. UNITED BULK LOGISTICS, LLC



U.S. UNITED OCEAN HOLDING, LLC



U.S. UNITED OCEAN HOLDING II, LLC



TINA LITRICO, LLC



MARY ANN HUDSON, LLC



SHEILA MCDEVITT, LLC



MARIE FLOOD, LLC



UNITED MARITIME GROUP FINANCE CORP.



Dated and effective as of December 22, 2009



 

 





Intercreditor Agreement

1









 







INTERCREDITOR AGREEMENT SYNOPSIS




	 	 	 
	Vessels Subject to Instrument:

	 	The Whole of each Vessel listed in Schedule 1 attached hereto
	 
	 	 
	Type of Instrument:

	 	Intercreditor Agreement
	 
	 	 
	Date of Instrument:

	 	December 22, 2009
	 
	 	 
	Names and Addresses of Parties:
	 	 
	 
	 	 
	Mortgagee (Revolving Facility Mortgages):

	 	Bank of America, N.A., (“Administrative Agent, Collateral Agent and Security Trustee”)
	(First Preferred Ship Mortgage dated

	 	300 Galleria Parkway, Suite 800
	December 22, 2009)

	 	Atlanta, Georgia 30339
	 

	 	Attention: John M. Olsen
	 
	 	 
	Mortgagee (Noteholder Mortgages):

	 	Wells Fargo Bank, National Association
	 

	 	(“Trustee, Notes Collateral Agent and Security
	(Preferred Ship Mortgage dated December

	 	Trustee”)
	22, 2009)

	 	7000 Central Parkway, Suite 550
	 

	 	Atlanta, Georgia 30328
	 
	 	 
	Borrowers:

	 	United Maritime Group, LLC
	 

	 	U.S. United Barge Line, LLC
	Address for each:
	 	U.S. United Ocean Services, LLC
	c/o 601 South Harbour Island Blvd.
	 	U.S. United Bulk Terminal, LLC
	Tampa FL 33602

	 	U.S. United Inland Services, LLC
	 

	 	Tina Litrico, LLC
	 

	 	Mary Ann Hudson, LLC
	 

	 	Sheila McDevitt, LLC
	 

	 	Marie Flood, LLC
	 
	 	 
	Guarantors:

	 	GS Maritime Intermediate Holding LLC
	 

	 	UMG Towing, LLC
	Address for each:

	 	U.S. United Bulk Logistics, LLC
	c/o 601 South Harbour Island Blvd.

	 	U.S. United Ocean Holding, LLC
	Tampa FL 33602
	 	U.S. United Ocean Holding II, LLC
	 

	 	United Maritime Group Finance Corp.







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INTERCREDITOR AGREEMENT




     INTERCREDITOR AGREEMENT dated December 22, 2009 (as amended, amended and restated,
supplemented or otherwise modified from time to time in accordance with the provisions hereof, this
“Intercreditor Agreement”), by and among BANK OF AMERICA, N.A., as the administrative agent
and the collateral agent and the security trustee for the benefit of itself and the other Revolving
Facility Secured Parties defined below (in such capacities, the “Collateral Agent and Security
Trustee”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as trustee under the Indenture defined
below (the “Trustee”) and as collateral agent and security trustee for the Noteholder
Secured Parties defined below (in such capacity, the “Notes Collateral Agent and Security
Trustee”), and acknowledged by UNITED MARITIME GROUP, LLC, a Florida limited liability company
(“Holdings”), U.S. UNITED BARGE LINE, LLC, a Florida limited liability company
(“Barge”), U.S. UNITED OCEAN SERVICES, LLC, a Florida limited liability company
(“Ocean”), U.S. UNITED BULK TERMINAL, LLC, a Louisiana limited liability company
(“Terminal”), TINA LITRICO, LLC, a Delaware limited liability company (“Tina”),
MARY ANN HUDSON, LLC, a Delaware limited liability company (“Mary Ann”), SHEILA MCDEVITT,
LLC, a Delaware limited liability company (“Sheila”), MARIE FLOOD, LLC, a Delaware limited
liability company (“Marie”), U.S. UNITED INLAND SERVICES, LLC, a Delaware limited liability
company (“Inland”, and together with Holdings, Barge, Ocean, Terminal, Tina, Mary Ann,
Sheila and Marie, collectively, “Borrowers”), GS MARITIME INTERMEDIATE HOLDING LLC, a
Delaware limited liability company (“GS”), UMG TOWING, LLC, a Florida limited liability
company (“Towing”), U.S. UNITED BULK LOGISTICS, LLC, a Delaware limited liability company
(“Logistics”), U.S. UNITED OCEAN HOLDING, LLC, a Delaware limited liability company
(“Ocean Holding I”), U.S. UNITED OCEAN HOLDING II, LLC, a Delaware limited liability
company (“Ocean Holding II”), UNITED MARITIME GROUP FINANCE CORP., a Delaware corporation
(“Finance”, and together with GS, Towing, Logistics, Ocean Holding I, and Ocean Holding II,
collectively, “Guarantors”), and each of the other Grantors (as defined below) that
acknowledge this Intercreditor Agreement from time to time.



RECITALS:



     WHEREAS, each of the Borrowers, the lenders from time to time party thereto (the
“Revolving Lenders”), and the Collateral Agent and Security Trustee are parties to a Loan
and Security Agreement, dated as of the date hereof (as amended, amended and restated,
supplemented, waived, refinanced, replaced or otherwise modified from time to time in accordance
with the provisions hereof, the “Credit Agreement”); and



     WHEREAS, each of the Guarantors have executed a guaranty (the “Guaranty”) in favor of
the Revolving Lenders, pursuant to which the Guarantors guarantee the obligations of the Borrowers
under the Credit Agreement and the other Revolving Facility Security Documents; and



     WHEREAS, in connection with the Credit Agreement and the Guaranty, the Borrowers and
Guarantors are parties to the Revolving Facility Security Documents (such term and each other
capitalized term used but not defined in these recitals having the meaning given it in




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Article I below) in favor of the Collateral Agent and Security Trustee for the benefit of the
Revolving Facility Secured Parties; and




     WHEREAS, Holdings, the other Grantors and the Trustee are parties to an Indenture, dated as of
the date hereof (as amended, amended and restated, supplemented, waived, refinanced, replaced or
otherwise modified from time to time, with the same or a different Trustee, in accordance with the
provisions hereof, the “Indenture”), governing the Notes; and



     WHEREAS, in connection with the Indenture, Holdings and each of the other Grantors are parties
to a Security Agreement dated as of the date hereof (as amended, amended and restated, supplemented
or otherwise modified from time to time in accordance with the provisions hereof, the
“Noteholder Security Agreement”) and to the other Noteholder Security Documents in favor of
the Notes Collateral Agent and Security Trustee for the benefit of the Noteholder Secured Parties;
and



     WHEREAS, pursuant to the terms of the Credit Agreement and the other Revolving Facility
Documents, the Revolving Lenders have agreed to make loans and other extensions of credit to the
Borrowers on the condition, among others, that the Revolving Credit Obligations shall be secured by
Senior Liens on, and security interests in, the Collateral; and



     WHEREAS, pursuant to the terms of the Purchase Agreement, it is a condition that the
Noteholder Obligations shall be secured by Junior Liens on, and security interests in, the
Collateral; and



     WHEREAS, the Credit Agreement and the Purchase Agreement require, among other things, that the
parties thereto set forth in this Intercreditor Agreement, among other things, their respective
rights, obligations and remedies with respect to the Collateral;



     NOW THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:



ARTICLE I



DEFINITIONS.



          SECTION 1.01. Certain Defined Terms As used in the Intercreditor Agreement, the
following terms have the meanings specified below:



     “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as
now and hereinafter in effect, or any successor statute.



     “Bankruptcy Law” means the Bankruptcy Code and any other federal, state or foreign
bankruptcy, insolvency, receivership or similar law.



     “Collateral” means assets, real or personal, tangible or intangible, now owned or
hereafter acquired by any Grantor now or at any time hereafter subject to a Lien securing any
Noteholder Obligations or Revolving Credit Obligations, including all proceeds of such assets.



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     “Collateral Agent and Security Trustee” has the meaning assigned to such term in the
preamble to this Intercreditor Agreement and includes any successor or replacement collateral agent
appointed in accordance with the terms of the Revolving Facility Documents.



     “Commitments” has the meaning assigned to such term in the Credit Agreement as in
effect on the date hereof, including any increase thereof pursuant to Section 2.2 of the Credit
Agreement as in effect on the date hereof.



     “Credit Agreement” has the meaning assigned to such term in the recitals to this
Intercreditor Agreement.



     “Debt Documents” means, collectively, the Revolving Facility Documents and the
Noteholder Documents.



     “DIP Financing” has the meaning assigned to such term in Section 6.01(a) (ii).



     “DIP Financing Liens” has the meaning assigned to such term in Section 6.01(a)
(ii).



     “Disposition” means, with respect to any asset, any sale, lease, exchange, transfer or other
disposition of such asset or any interest therein for Fair Market Value (as reasonably determined
by the Collateral Agent and Security Trustee), including, without limitation, the creation of any
Lien on or with respect to such asset. “Dispose” shall have a correlative meaning.



     “Enforcement Action” means, with respect to any portion of the Collateral, (a) the
taking of any action to enforce or realize upon any Lien on the Collateral, including the
institution of any foreclosure proceedings or the noticing of any public or private sale or other
disposition of any of the Collateral pursuant to Article 9 of the UCC or other applicable law, (b)
the exercise of any right or remedy provided to a secured creditor or otherwise on account of a
Lien on any of the Collateral under the Revolving Facility Documents, the Noteholder Documents
(including the enforcement of any right under any account control agreement, landlord waiver or
bailee’s letter or any similar agreement or arrangement), applicable law, in an Insolvency
Proceeding or otherwise, including the election to retain Collateral in satisfaction of a Lien, (c)
the taking of any action or the exercise of any right or remedy in respect of the collection on,
set off against, marshaling of, or foreclosure on the Collateral or the proceeds of Collateral, (d)
the Disposition of all or any portion of the Collateral, by private or public sale, other
disposition or any other means permissible under applicable law, or (e) the exercise of any other
enforcement right relating to the Collateral (including the exercise of any voting rights relating
to any stock or other equity interests and including any right of recoupment or set-off) whether
under the Revolving Facility Documents, the Noteholder Documents, applicable law, in an Insolvency
Proceeding or otherwise.



     “Exigent Circumstance” means an event, condition or circumstance that materially and
imminently threatens the ability of the Collateral Agent and Security Trustee to realize upon all
or a material portion of the Collateral, such as, without limitation, fraudulent removal,
concealment, destruction (other than to the extent covered by insurance), material waste,
abscondment or abandonment thereof.




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     “Event of Default” has the meaning assigned to such term in the Credit Agreement or
the Indenture, as the context may require.



     “Fair Market Value” means the amount at which an asset (or an interest therein) would
change hands between a willing buyer and a willing seller, neither being under compulsion to buy or
sell and both having reasonable knowledge of the relevant facts.



     “Grantors” means the Borrowers, GS, Holdings and each of their respective Subsidiaries
that shall have created any Lien in favor of the Collateral Agent and Security Trustee or the Notes
Collateral Agent and Security Trustee on all or any part of its assets (whether real or personal,
or tangible or intangible) to secure any of the Obligations.



     “Holdings” has the meaning assigned to such term in the preamble to this Intercreditor
Agreement.



     “Indenture” has the meaning assigned to such term in the recitals to this
Intercreditor Agreement.



     “Insolvency Proceeding” means (a) any voluntary or involuntary proceeding under the
Bankruptcy Code or any other Bankruptcy Law with respect to any Grantor, (b) any voluntary or
involuntary appointment of a receiver, trustee, custodian, sequestrator, conservator or similar
official for any Grantor or for a substantial part of the property or assets of any Grantor, (c)
any voluntary or involuntary winding-up or liquidation of any Grantor, or (d) a general assignment
for the benefit of creditors by any Grantor.



     “Intercreditor Agreement” has the meaning assigned to such term in the preamble to
this Intercreditor Agreement.



     “Junior Liens” means, with respect to any Collateral, (a) the Noteholder Liens on such
Collateral and (b) the Revolving Facility Liens on such Collateral securing Revolving Credit
Obligations the principal amount of which exceeds the Maximum Priority Revolving Loan Debt.



     “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third person with respect to such securities.



     “Maximum Priority Revolving Loan Debt” shall mean, as of any date of determination,
(a) the sum of (x) the aggregate amount of Commitments as then in effect plus (y) ten percent (10%)
of the aggregate amount of Commitments as then in effect, plus (b) any interest on such amount (and
including, without limitation, any interest which would accrue and become due but for the
commencement of Insolvency Proceeding, whether or not such amounts are allowed or allowable in
whole or in part in such case or similar proceeding), plus (c) any fees, costs, expenses and
indemnities payable under any of the Revolving Facility Documents (and including, without
limitation, any fees, costs, expenses and indemnities which would accrue and become




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due but for the commencement of Insolvency Proceeding, whether or not such amounts are allowed or
allowable in whole or in part in such case or similar proceeding).




     “Mortgaged Real Estate” has the meaning assigned to such term in the Credit Agreement
as in effect on the date hereof.



     “Noteholder Actionable Default Notice” has the meaning assigned to such term in
Section 3.02.



     “Noteholder Actionable Default” means (a) any payment default with respect to any of
the Noteholder Obligations which results in an Event of Default under the Indenture, (b) an Event
of Default under the Indenture and the acceleration by the Noteholders of the maturity of all the
Notes in accordance with the terms of the Indenture, or (c) the commencement of an Insolvency
Proceeding with respect to any Grantor which results in an Event of Default under the Indenture.



     “Noteholder Collateral” means all “Collateral”, as defined in the Noteholder Security
Agreement, and any other assets of any Grantor now or at any time hereafter subject to Liens
securing any Noteholder Obligations pursuant to any Noteholder Security Document.



     “Noteholder Documents” means the Indenture, the Notes and the Noteholder Security
Documents.



     “Noteholder Liens” means Liens on the Noteholder Collateral created under the
Noteholder Security Documents to secure any Noteholder Obligations.



     “Noteholder Mortgages” means, collectively, each of the mortgages, deeds of trust,
leasehold mortgages and security documents and any other agreement, document or instrument pursuant
to which any Lien upon any of the Mortgaged Real Estate is granted by any Grantor to secure any
Noteholder Obligations or under which rights or remedies with respect to any such Lien are
governed, including the Fleet Mortgages and the Mortgages (as such terms are defined in the
Indenture).



     “Noteholder Obligations” means, collectively, the “Obligations”, as defined in the
Noteholder Security Agreement as in effect on the date hereof (including, all amounts accruing on
or after the commencement of any Insolvency Proceeding relating to any Grantor, or that would have
accrued or become due under the terms of the Noteholder Documents but for the effect of the
Insolvency Proceeding or other applicable law, and irrespective of whether a claim for all or any
portion of such amounts is allowable or allowed in such Insolvency Proceeding).



     “Noteholder Secured Parties” means, at any time, (a) each Noteholder, (b) the Trustee,
(c) the Notes Collateral Agent and Security Trustee, (d) each other “Secured Party” as defined in
the Noteholder Security Agreement (as in effect on the date hereof) to which any Noteholder
Obligations are owed, and (e) the successors and assigns of each of the foregoing.



     “Noteholder Security Agreement” has the meaning assigned to such term in the recitals
to this Intercreditor Agreement.





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     “Noteholder Security Documents” means the Noteholder Security Agreement, the
Noteholder Mortgages, each Copyright Agreement, each Patent Agreement and each Trademark Agreement
(in each case as defined in the Noteholder Security Agreement) and any other agreement, document or
instrument pursuant to which a Lien is granted by any Grantor to secure any Noteholder Obligations
or under which rights or remedies with respect to any such Lien are governed.



     “Noteholders” means the Noteholders or the Holders under and as defined in the
Indenture.



     “Notes” means the 113/4% Senior Secured Notes due 2015 issued by Holdings and Finance
Corp. and guaranteed by the Grantors, and any notes issued in substitution or exchange therefor and
any additional Notes issued pursuant to the Indenture.



     “Notes Collateral Agent and Security Trustee” has the meaning assigned to such term in
the preamble to this Intercreditor Agreement and includes any successor or replacement collateral
agent appointed in accordance with the terms of the Noteholder Documents.



     “Obligations” means the Noteholder Obligations and the Revolving Credit
Obligations.



     “Permitted Enforcement Actions” has the meaning assigned to such term in Section
3.01.



     “Permitted Specified Enforcement Actions” has the meaning assigned to such term in
Section 3.01(v).



     “Person” means any individual, sole proprietorship, partnership, limited liability
company, joint venture, joint-stock company, trust, unincorporated organization, association,
corporation, government or any agency or political subdivision thereof or any other entity.



     “Priority Lien” has the meaning assigned to such term in Section 3.06.



     “Purchase Agreement” means the Purchase Agreement dated as of December 22, 2009, among
Holdings, the Grantors party thereto and the initial purchasers named therein.



     “Refinance” means, in respect of any indebtedness or commitments to provide
indebtedness, including, without limitation, any Revolving Credit Obligations or Noteholder
Obligations, as applicable, to refinance, extend, renew, restructure (including by the amendment
and restatement of any instrument or agreement evidencing such indebtedness) or replace or to issue
other indebtedness or commitments to provide indebtedness in exchange or replacement for, such
indebtedness or commitments to provide indebtedness, in whole or in part. “Refinanced” and
“Refinancing” shall have correlative meanings.



     “Refinancing Notice” has the meaning assigned to such term in Section 7.03(a).



     “Replacement Collateral Agent” has the meaning assigned to such term in Section
7.03(a).




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     “Replacement Revolving Credit Obligations” has the meaning assigned to such term in
Section 7.03(a).



     “Replacement Revolving Facility Documents” has the meaning assigned to such term in
Section 7.03(a).



     “Representative” means (a) with respect to the Revolving Facility Secured Parties, the
Collateral Agent and Security Trustee and (b) with respect to the Noteholder Secured Parties, the
Trustee and the Notes Collateral Agent and Security Trustee.



     “Revolving Credit Obligations” means, collectively, the “Obligations”, as defined in
the Credit Agreement as in effect on the date hereof (including, all amounts accruing on or after
the commencement of any Insolvency Proceeding relating to any Grantor, or that would have accrued
or become due under the terms of the Revolving Facility Documents but for the effect of the
Insolvency Proceeding or other applicable law, and irrespective of whether a claim for all or any
portion of such amounts is allowable or allowed in such Insolvency Proceeding).



     “Revolving Facility Collateral” means all “Collateral”, as defined in the Credit
Agreement, and any other assets of any Grantor now or at any time hereafter subject to Liens
securing any Revolving Credit Obligations pursuant to any Revolving Facility Security Document.



     “Revolving Facility Documents” means the “Loan Documents”, as defined in the Credit
Agreement.



     “Revolving Facility First Lien Collateral Transition Date” means the date on which all
Liens created under the Revolving Security Documents on all of the Revolving Facility Collateral
shall have been released.



     “Revolving Facility Liens” means Liens on the Revolving Facility Collateral created
under Revolving Facility Security Documents to secure any Revolving Credit Obligations.



     “Revolving Facility Mortgages” means, collectively, each of the mortgages, deeds of
trust, leasehold mortgages and any other agreement, document or instrument pursuant to which a Lien
on Mortgaged Real Estate or Vessels is granted by any Grantor to secure any Revolving Credit
Obligations or under which rights or remedies with respect to any such Lien are governed, including
the Fleet Mortgages and the Mortgages (as such terms are defined in the Credit Agreement) .



     “Revolving Facility Secured Parties” means, at any time, (a) the Revolving Lenders,
(b) the Collateral Agent and Security Trustee, (c) each Lender (or Affiliate of any Lender) that
provides Bank Products (in each case as such terms in this clause (c) are defined in the Credit
Agreement as in effect on the date hereof) to any Grantor and (d) the successors and assigns of
each of the foregoing.



     “Revolving Facility Security Documents” means the Credit Agreement, the Revolving
Facility Mortgages and each Patent Assignment (as defined in the Credit Agreement) and Trademark
Security Agreement (as defined in the Credit Agreement) and any other agreement,





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document or instrument pursuant to which a Lien is granted any Grantor to secure any Revolving
Credit Obligations or under which rights or remedies with respect to any such Lien are governed.




     “Revolving Lenders” has the meaning assigned to such term in the recitals to this
Intercreditor Agreement.



     “Second Lien Release” has the meaning assigned to such term in Section 3.05.



     “Secured Parties” means the Noteholder Secured Parties and the Revolving Facility
Secured Parties.



     “Security Agreement” means the Credit Agreement or the Noteholder Security Agreement.



     “Security Documents” means the Revolving Facility Security Documents and the
Noteholder Security Documents.



     “Senior Liens” means, with respect to any Collateral, (a) the Revolving Facility Liens
on such Collateral (other than any Revolving Facility Liens securing Revolving Credit Obligations
the principal amount of which exceeds the Maximum Priority Revolving Loan Debt) and (b) the
Noteholder Liens on such Collateral, to the extent that such Collateral is subject to any Revolving
Facility Liens securing Revolving Credit Obligations the principal amount of which exceeds the
Maximum Priority Revolving Loan Debt.



     “Senior Priority Discharge Date” means, subject to the terms of Section 7.02, the
earlier of (a) the Revolving Facility First Lien Collateral Transition Date and (b) the payment in
full in cash of the Revolving Credit Obligations (excluding for the purposes of this clause (b)
such Revolving Credit Obligations in excess of the Maximum Priority Revolving Loan Debt) and the
termination of the Commitments of the Revolving Lenders to provide loans or other extensions of
credit pursuant to the Credit Agreement.



     “Standstill Period” has the meaning assigned to such term in Section 3.02.



     “TIA” means the Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as in
effect on the date hereof.



     “Trustee” has the meaning assigned to such term in the preamble to this Intercreditor
Agreement and includes any successor or replacement agent appointed in accordance with the
Noteholder Documents.



     “Uniform Commercial Code” or “UCC” means the Uniform Commercial Code (or any similar
or equivalent legislation) as in effect from time to time in any applicable jurisdiction.



     “Vessels” shall the mean the Vessels more particularly described on Schedule 1
attached hereto, as amended from time to time by a writing executed by each of the Collateral Agent
and Security Trustee and the Notes Collateral Agent and Security Trustee, which vessels have been
mortgaged to Collateral Agent and Security Trustee and the Notes Collateral Agent and Security





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Trustee and which are more particularly described in the Fleet Mortgages (as such term is defined
in the Indenture).




               SECTION 1.02. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, restated, supplemented or otherwise modified, (b) any reference herein
(i) to any Person shall be construed to include such Person’s successors and assigns and (ii) to
Holdings or any other Grantor shall be construed to include Holdings or such Grantor as debtor and
debtor-in-possession and any receiver or trustee for Holdings or any other Grantor, as the case may
be, in any Insolvency Proceeding, (c) the words “herein”, “hereof” and “hereunder”, and words of
similar import, shall be construed to refer to this Intercreditor Agreement in its entirety and not
to any particular provision hereof, (d) all references herein to Articles, Sections or Annexes
shall be construed to refer to Articles or Sections of, or Annexes to, this Intercreditor
Agreement, (e) the words “asset” and “property” shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights, and (f) the terms “Revolving Facility Documents”,
“Noteholder Documents”, or any instrument, mortgage, note agreement or other document included
within any such defined terms, shall mean such instrument, mortgage, note agreement or other
document, as amended, restated, renewed, extended, supplemented, substituted or otherwise modified
from time to time (to the extent not otherwise prohibited herein).



ARTICLE II



LIEN PRIORITIES.



               SECTION 2.01. Relative Priorities. Notwithstanding the time, manner, order or method
of grant, creation, attachment or perfection of any Junior Lien or any Senior Lien, and
notwithstanding any provision of the UCC or any other applicable law, the provisions of any
Security Document or any other Debt Document, any defect or deficiency or alleged deficiency in any
of the foregoing or any other circumstance whatsoever, each Representative, for itself and on
behalf of its respective Secured Parties, hereby agrees that, until the Senior Priority Discharge
Date, (a) any Senior Lien now or hereafter held by or for the benefit of any Revolving Facility
Secured Party shall be senior in right, priority, perfection, operation, effect and all other
respects to any and all Junior Liens now or hereafter held by or for the benefit of any Noteholder
Secured Party, (b) any Senior Lien now or hereafter held by or for the benefit of any Noteholder
Secured Party shall be senior in right, priority, perfection, operation, effect and all other
respects to any and all Junior Liens now or hereafter held by or for the benefit of any Revolving
Facility Secured Party, (c) any Junior Lien now or hereafter held by or for the benefit of any
Noteholder Secured Party shall be junior and subordinate in right, priority, operation, effect and
all other respects to any and all Senior Liens now or hereafter held by or for the benefit of any
Revolving Facility Secured Party, and (d) any Junior Lien now or hereafter held





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by or for the benefit of any Revolving Facility Secured Party shall be junior and subordinate in
right, priority, operation, effect and all other respects to any and all Senior Liens now or
hereafter held by or for the benefit of any Noteholder Secured Party, in each case, on the terms
set forth herein. Until the Senior Priority Discharge Date, the Senior Liens shall be and remain
senior in right, priority, operation, effect and all other respects to any Junior Liens for all
purposes, in each case, on the terms set forth herein, whether or not any Senior Liens are
subordinated in any respect to any other Lien securing any other obligation of Holdings, any other
Grantor or any other Person and whether or not any such Senior Liens are voided, avoided,
invalidated, lapsed or unperfected.




               SECTION 2.02. Prohibition on Contesting Liens. Each of the Collateral Agent and
Security Trustee, for itself and on behalf of the other Revolving Facility Secured Parties, and the
Notes Collateral Agent and Security Trustee, for itself and on behalf of the other Noteholder
Secured Parties, agrees that it will not, and hereby waives any right to, contest or support any
other Person in contesting, in any proceeding (including any Insolvency Proceeding), the priority,
validity or enforceability of any Junior Lien or any Senior Lien, as the case may be; provided,
that nothing in this Intercreditor Agreement shall be construed to prevent or impair the rights of
the Collateral Agent and Security Trustee or any other Revolving Facility Secured Party to enforce
this Intercreditor Agreement or their rights hereunder.



               SECTION 2.03. No New Liens. The Notes Collateral Agent and Security Trustee, for
itself and on behalf of the other Noteholder Secured Parties agrees that, until the Senior Priority
Discharge Date, no Noteholder Secured Party will permit any of the Grantors, any Subsidiary of any
Grantor or any other Person to grant or permit any additional Liens on any asset to secure any
Noteholder Obligation unless such Grantor, Subsidiary or other Person has granted, or substantially
concurrently therewith grants, a Senior Lien on such asset to secure the Revolving Credit
Obligations, with each such Lien to be subject to the provisions of this Intercreditor Agreement.
To the extent that the provisions of the immediately preceding sentence are not complied with for
any reason, without limiting any other right or remedy available to the Collateral Agent and
Security Trustee or the other Revolving Facility Secured Parties, the Notes Collateral Agent and
Security Trustee agrees, for itself and on behalf of the other Noteholder Secured Parties, that any
amounts received by or distributed to any Noteholder Secured Party pursuant to or as a result of
any Lien granted and existing in contravention of this Section 2.03 shall be subject to Section
4.02. Notwithstanding the foregoing or any other provision in this Intercreditor Agreement to the
contrary, the provisions of this Section are not intended to, nor shall they be deemed to, affect
in any manner the enforceability against any Grantor or any other Person of any such Lien granted
and existing contrary to the terms of this Section.



               SECTION 2.04. Similar Liens and Agreements. Each Representative, for itself and on
behalf of its respective Secured Parties, agrees that it is their intention that the specific
assets which are included in the Revolving Facility Collateral and the Noteholder Collateral be
identical. In furtherance of the foregoing, the parties hereto agree to cooperate in good faith in
order to determine, upon any reasonable request by the Collateral Agent and Security Trustee or the
Notes Collateral Agent and Security Trustee, as the case may be, the specific assets included in
the Revolving Facility Collateral and the Noteholder Collateral, the steps taken to perfect the
Liens thereon in accordance with this Intercreditor Agreement and the





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identity of the respective parties obligated under the Revolving Facility Documents and the
Noteholder Documents in respect of the Revolving Credit Obligations and the Noteholder Obligations,
respectively.




ARTICLE III



ENFORCEMENT RIGHTS WITH RESPECT TO THE COLLATERAL.



               SECTION 3.01. Exercise of Rights and Remedies.




     (a) Until the Senior Priority Discharge Date, whether or not any Insolvency Proceeding
has been commenced, the Collateral Agent and Security Trustee and the other Revolving
Facility Secured Parties shall have the exclusive right to take any Enforcement Action with
respect to Collateral, in each case, without any consultation with or the consent of the
Notes Collateral Agent and Security Trustee or any other Noteholder Secured Party;
provided, that, notwithstanding the foregoing, the Notes Collateral Agent and
Security Trustee may:




     (i) in any Insolvency Proceeding, file a proof of claim or statement of
interest with respect to the Noteholder Obligations; provided, that, in the
event the Notes Collateral Agent and Security Trustee has failed to file any such
proof of claim or statement of interest within 30 days prior to the bar date
applicable to such claim, the Collateral Agent and Security Trustee may (but shall
not be obligated to) file any such proof of claim or statement of interest on
behalf of the Notes Collateral Agent and Security Trustee and the other Noteholder
Secured Parties (subject to the Collateral Agent and Security Trustee providing the
Notes Collateral Agent and Security Trustee and other Noteholder Secured Parties
with a reasonable and customary indemnification with respect to any liabilities
that may be incurred by the Notes Collateral Agent and Security Trustee arising
with respect to any such proof of claim in such Insolvency Proceeding by Collateral
Agent and Security Trustee or statement of interest in such Insolvency Proceeding
by Collateral Agent and Security Trustee); provided, further, that,
(A) if the Collateral Agent and Security Trustee files any such proof of claim as
contemplated above and the Trustee or Notes Collateral Agent and Security Trustee
shall subsequently timely file a proper proof of claim in such Insolvency
Proceeding, such subsequent proper proof of claim filed by the Trustee or the Notes
Collateral Agent and Security Trustee shall supersede any such proof of claim
theretofore filed by the Collateral Agent and Security Trustee on behalf of the
Notes Collateral Agent and Security Trustee and the other Noteholder Secured
Parties and such proof of claim theretofore filed by the Collateral Agent and
Security Trustee on behalf of the Notes Collateral Agent and Security Trustee and
the other Noteholder Secured Parties shall thereupon be deemed to be withdrawn, and
(B) the foregoing provisions of this clause (a)(i) shall not be construed to
authorize the Collateral Agent and Security Trustee to authorize or consent to or
accept or adopt on behalf of the Notes Collateral Agent and Security Trustee or any
other Noteholder Secured Party, any plan of reorganization, arrangement, adjustment
or composition affecting the Notes or any claims with respect thereto





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or otherwise authorize the Collateral Agent and Security Trustee to authorize or
consent to or accept or adopt on behalf of the Notes Collateral Agent and Security
Trustee or any other Noteholder Secured Party any matter inconsistent with the
provisions of this Agreement;




     (ii) take any action to preserve or protect the validity and enforceability of
the Junior Liens; provided, that no such action is (A) materially adverse
to the Senior Liens or the rights of the Collateral Agent and Security Trustee or
any other Revolving Facility Secured Party to exercise remedies in respect thereof
or (B) inconsistent with the terms of this Intercreditor Agreement, including,
without limitation, the automatic release of Junior Liens provided for in Section
3.04;




     (iii) file any responsive or defensive pleadings in opposition to any motion,
claim, adversary proceeding or other pleading made by any Person objecting to or
otherwise seeking the disallowance of the claims of the Noteholder Secured Parties,
including any claims secured by the Noteholder Collateral, or otherwise make any
agreements or file any motions pertaining to the Noteholder Obligations, in each
case, to the extent not inconsistent with the terms of this Intercreditor
Agreement;




     (iv) exercise rights and remedies as unsecured creditors to the extent (and
only to the extent) provided in Section 3.03 (the actions described in clauses
(a)(i) through (a)(iv) of this Section 3.01 being referred to herein as the
“Permitted Enforcement Actions”); and




     (v) following the termination of the Standstill Period, take any Enforcement
Action in accordance with the terms of Section 3.02 (the actions described in
clauses (a)(i) through (a)(v) of this Section 3.01 being referred to herein as the
“Permitted Specified Enforcement Actions”).


Except for the Permitted Specified Enforcement Actions, unless and until the Senior Priority
Discharge Date, the sole rights of the Notes Collateral Agent and Security Trustee and the other
Noteholder Secured Parties with respect to the Noteholder Collateral shall be to enforce the terms
of this Intercreditor Agreement and receive such Collateral (or the proceeds thereof), if any,
remaining after the Senior Priority Discharge Date has occurred (to the extent (and only to the
extent) required by the Noteholder Documents and this Intercreditor Agreement).





     (b) In exercising rights and remedies with respect to the Collateral, the Collateral
Agent and Security Trustee and the other Revolving Facility Secured Parties may enforce the
provisions of the Revolving Facility Security Documents and exercise remedies thereunder,
all in such order and in such manner as they may determine in their sole discretion. Such
exercise and enforcement shall include, without limitation, the rights of an agent
appointed by them to Dispose of Revolving Facility Collateral upon foreclosure, to incur
expenses in connection with any such Disposition and to exercise all the rights and
remedies of a secured creditor under the Uniform Commercial Code in effect in any
jurisdiction, the Bankruptcy Code or any other Bankruptcy Law, with





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respect to such Collateral. The Collateral Agent and Security Trustee agrees to provide at
least ten (10) business days’ prior written notice to the Notes Collateral Agent and
Security Trustee of its intention to take any Enforcement Action with respect to a material
portion of the Revolving Facility Collateral; provided, however, that
failure to give any such notice shall not in any way limit Collateral Agent and Security
Trustee’s ability hereunder to take any such Enforcement Action; and notwithstanding the
foregoing, if an Exigent Circumstance has occurred and is continuing, Collateral Agent and
Security Trustee may take Enforcement Action with respect to any material portion of the
Collateral without prior written notice to Notes Collateral Agent and Security Trustee, and
Collateral Agent and Security Trustee hereby agrees to provide written notice of such
Enforcement Action reasonably promptly thereafter.




     (c) (i) The Notes Collateral Agent and Security Trustee, for itself and on behalf of
the other Noteholder Secured Parties, hereby acknowledges and agrees that no covenant,
agreement or restriction contained in any Noteholder Security Document or any other
Noteholder Document shall be deemed to prohibit, restrain or otherwise restrict in any way
the rights and remedies of the Collateral Agent and Security Trustee or the other Revolving
Facility Secured Parties with respect to the Revolving Facility Collateral as set forth in
this Intercreditor Agreement and the other Revolving Facility Documents.




          (ii) The Collateral Agent and Security Trustee, for itself and on behalf of the other
Revolving Facility Secured Parties, hereby acknowledges and agrees that no covenant,
agreement or restriction contained in any Revolving Facility Security Document or any other
Revolving Facility Document shall be deemed to prohibit, restrain or otherwise restrict in
any way the rights and remedies of the Notes Collateral Agent and Security Trustee or the
other Noteholder Secured Parties with respect to the Noteholder Collateral as set forth in
this Intercreditor Agreement and the other Revolving Facility Documents.



               SECTION 3.02. No Interference; Standstill Period. The Notes Collateral Agent and
Security Trustee, for itself and on behalf of the other Noteholder Secured Parties, agrees that,
whether or not any Insolvency Proceeding has been commenced, the Noteholder Secured Parties:




     (a) will not, prior to the Senior Priority Discharge Date, except for Permitted
Enforcement Actions, take any Enforcement Action; provided, that the Notes
Collateral Agent and Security Trustee may commence or take any Enforcement Action after a
period (the “Standstill Period”) beginning on the date that the Notes Collateral
Agent and Security Trustee provides written notice (a “Noteholder Actionable Default
Notice”) to the Collateral Agent and Security Trustee that a Noteholder Actionable
Default has occurred (it being understood and agreed that such notice shall be invalid and
void ab initio if such Noteholder Actionable Default has not occurred) and ending 150 days
from the date of receipt by the Collateral Agent and Security Trustee of such Noteholder
Actionable Default Notice; provided, further, that, (A) notwithstanding the
expiration of the Standstill Period or anything herein to the contrary, in no event shall
the Notes Collateral Agent and Security Trustee or any other Noteholder Secured Party take
any Enforcement Action with respect to any portion of the Collateral if the Collateral
Agent




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and Security Trustee or any other Revolving Facility Secured Party shall have commenced, and
shall be diligently pursuing (or shall have sought or requested relief from or modification of
the automatic stay or any other stay in any Insolvency Proceeding to enable the commencement and
pursuit thereof), any Enforcement Action with respect to such portion of the Collateral to which
such Enforcement Action directly relates (including, without limitation, the diligent pursuit of
any of the following: solicitation of bids from third parties to conduct the liquidation of all
or a material portion of the Collateral, the engagement or retention of sales brokers, marketing
agents, investment bankers, accountants, auctioneers or other third parties for the purpose of
valuing, marketing and selling all or a material portion of the Collateral, notification of
accounts debtors to make payments to the Collateral Agent and Security Trustee or its agents,
any action to take possession of all or a material portion of the Collateral, or commencement
and diligent pursuit of any legal proceedings or actions against or with respect to all or a
material portion of the Collateral) and (B) after the expiration of the Standstill Period, so
long as neither the Collateral Agent and Security Trustee nor the other Revolving Facility
Secured Parties have commenced any Enforcement Action (including, without limitation, an
Enforcement Action described in the immediately preceding parenthetical clause), in the event
that and for so long as the Noteholder Secured Parties (or the Notes Collateral Agent and
Security Trustee on their behalf) have commenced any Enforcement Action with respect to any
portion of the Collateral to the extent permitted hereunder and are diligently pursuing (or
shall have sought or requested relief from or modification of the automatic stay or any other
stay in any Insolvency Proceeding to enable the commencement and pursuit thereof) such actions,
neither the Collateral Agent and Security Trustee nor the other Revolving Facility Secured
Parties shall take any action of a similar nature with respect to such portion of the Collateral
to which such Enforcement Action directly relates (including, without limitation, the diligent
pursuit of any of the following: solicitation of bids from third parties to conduct the
liquidation of all or a material portion of the Collateral, the engagement or retention of sales
brokers, marketing agents, investment bankers, accountants, auctioneers or other third parties
for the purpose of valuing, marketing and selling all or a material portion of the Collateral,
notification of accounts debtors to make payments to the Collateral Agent and Security Trustee
or its agents, any action to take possession of all or a material portion of the Collateral, or
commencement and diligent pursuit of any legal proceedings or actions against or with respect to
all or a material portion of the Collateral); provided, that all other provisions of
this Intercreditor Agreement (including the turnover provisions of Section 4.02) are complied
with;




     (b) will not contest, protest or object to any foreclosure action or proceeding brought by
the Collateral Agent and Security Trustee or any other Revolving Facility Secured Party, or any
other enforcement or exercise by any Revolving Facility Secured Party of any rights or remedies
relating to the Revolving Facility Collateral under the Revolving Facility Documents or
otherwise, so long as Junior Liens attach to the proceeds thereof subject to the relative
priorities set forth in Section 2.01;




     (c) subject to the rights of the Noteholder Secured Parties under clause (a) above, will
not object to the forbearance by the Collateral Agent and Security Trustee or any other
Revolving Facility Secured Party from commencing or pursuing any





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foreclosure action or proceeding or any other enforcement or exercise of any rights or
remedies with respect to the Revolving Facility Collateral;



     (d) will not, prior to the Senior Priority Discharge Date, except for Permitted
Specified Enforcement Actions, take or receive any Collateral or any proceeds thereof in
connection with the exercise of any right or enforcement of any remedy (including any right
of setoff) with respect to any such Collateral or in connection with any insurance policy
award under a policy of insurance relating to any such Collateral or any condemnation award
(or deed in lieu of condemnation) relating to any such Collateral;




     (e) will not, except for Permitted Specified Enforcement Actions and except as
otherwise provided herein, take any action with respect to the Collateral that would
materially hinder, in any manner, any exercise of rights or remedies under the Revolving
Facility Documents with respect to the Collateral or the rights or remedies of the
Revolving Facility Secured Parties under applicable law with respect to the Collateral,
including any Disposition of any Collateral, whether by foreclosure or otherwise; and




     (f) will not, except for Permitted Specified Enforcement Actions, object to the manner
in which the Collateral Agent and Security Trustee or any other Revolving Facility Secured
Party may seek to enforce the Senior Liens, regardless of whether any action or failure to
act by or on behalf of the Collateral Agent and Security Trustee or any other Revolving
Facility Secured Party is, or could possibly be, adverse to the interests of the Noteholder
Secured Parties, and will not assert, and hereby waive, to the fullest extent permitted by
law, any right to demand, request, plead or otherwise assert or claim the benefit of any
marshalling, appraisal, valuation or other similar right that may be available under
applicable law with respect to the Collateral or any similar rights a junior secured
creditor may have under applicable law; and




     (g) will not attempt, directly or indirectly, whether by judicial proceeding or
otherwise, to challenge or question the validity or enforceability of any Revolving
Facility Security Document, including this Intercreditor Agreement, or the validity or
enforceability of the priorities, rights or obligations established by this Intercreditor
Agreement.



               SECTION 3.03. Rights as Unsecured Creditors. Each Representative and the other
Secured Parties may, in accordance with the terms of the applicable Debt Documents and applicable
law, enforce rights and exercise remedies against Holdings and any other Grantor as unsecured
creditors; provided, that no such action is otherwise prohibited by the terms of this
Intercreditor Agreement. Nothing in this Intercreditor Agreement shall prohibit the receipt by the
Notes Collateral Agent and Security Trustee or any other Noteholder Secured Party of the required
payments of principal, premium, interest, fees and other amounts due under the Noteholder Documents
so long as such receipt is not the result of (x) the enforcement or exercise by the Notes
Collateral Agent and Security Trustee or any other Noteholder Secured Party of rights or remedies
as a secured creditor (including any right of setoff) with respect to the Collateral or (y) any
contravention of this Intercreditor Agreement (including any judgment lien on the Collateral
resulting from the exercise of remedies available to an unsecured creditor).






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               SECTION 3.04. Automatic Release of Junior Liens.




     (a) The Notes Collateral Agent and Security Trustee and each other Noteholder Secured
Party agree that in the event of a Disposition of Revolving Facility Collateral subject to
any Junior Lien (regardless of whether or not an Event of Default has occurred and is
continuing under the Noteholder Documents at the time of such Disposition), such Junior
Lien on such Collateral (and, if such Collateral is all of the equity interests of a
Grantor, all obligations of such Grantor under the Noteholder Documents) shall terminate
and be released automatically, unconditionally, simultaneously and without further action
if the applicable Senior Liens on such Collateral (and, if such Collateral is all of the
equity interests of a Grantor, all obligations of such Grantor under the Revolving Facility
Documents) are released and if such Disposition either (x) is then not prohibited by the
Noteholder Documents or (y) occurs in connection with (A) a Disposition by a Grantor with
the consent of the Collateral Agent and Security Trustee at a time when an Event of Default
under the Revolving Facility Documents is continuing or (B) the foreclosure upon or other
exercise of rights and remedies with respect to such Revolving Facility Collateral at a
time when an Event of Default under the Revolving Facility Documents is continuing;
provided, that, in the case of a Disposition pursuant to subclause (y) above, the
proceeds of any such Disposition received by any Revolving Facility Secured Party shall be
applied to repay Revolving Credit Obligations (and, after the commencement of an
Enforcement Action and during its continuance, an equal and concomitant permanent reduction
of the Commitments); provided, further, that, in the case of a Disposition
pursuant to subclause (x) or (y) above, the Junior Lien shall remain in full force and
effect with respect to any proceeds of such Disposition that remain after the satisfaction
in full of the Revolving Credit Obligations.




     (b) The Notes Collateral Agent and Security Trustee agrees to execute and deliver (at
the sole cost and expense of the Grantors) all such releases and other instruments as shall
reasonably be requested and provided by the Collateral Agent and Security Trustee to
evidence and confirm any release of Collateral provided for in this Section 3.04. Until the
Senior Priority Discharge Date, the Notes Collateral Agent and Security Trustee, for itself
and on behalf of each other Noteholder Secured Party, hereby appoints the Collateral Agent
and Security Trustee, and any officer or agent of the Collateral Agent and Security Trustee
as the Collateral Agent and Security Trustee may designate from time to time, with full
power of substitution, as the attorney-in-fact of the Notes Collateral Agent and Security
Trustee and each Noteholder Secured Party for the purpose of entering into any such release
and other instruments and carrying out the provisions of this Section 3.04, which
appointment is irrevocable and coupled with an interest.



               SECTION 3.05. Automatic Release of Senior Liens. If, in connection with any
Enforcement Action taken by the Notes Collateral Agent and Security Trustee after the expiration of
the Standstill Period that is permitted in accordance with Section 3.02, the Notes Collateral Agent
and Security Trustee, for itself and on behalf of the other Noteholder Secured Parties, (x)
releases any of the Junior Liens on any Collateral, or (y) if such Collateral is all of the equity
interests of a Grantor, releases such Grantor from its obligations under the Noteholder Documents
(in each case, a “Second Lien Release”), then the Senior Liens and other Junior





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Liens on such Collateral and, if such Collateral is all of the equity interests of such Grantor,
the obligations of any such Grantor under the Revolving Facility Documents, shall be automatically
released, and promptly upon the request of the Notes Collateral Agent and Security Trustee the
Collateral Agent and Security Trustee shall, for itself and on behalf of the other Revolving
Facility Secured Parties, execute and deliver (at the sole cost and expense of the Grantors) all
such releases and other instruments as shall be reasonably requested by the Notes Collateral Agent
and Security Trustee to evidence and confirm any release of Collateral or of a Grantor
provided for in this Section; provided, that, so long as the Senior Priority Discharge Date
has not occurred, the proceeds of, or payments with respect to, any Collateral shall be segregated
and held in trust and forthwith transferred or paid over to the Collateral Agent and Security
Trustee for the benefit of the Revolving Facility Secured Parties in accordance with Section 4.02.




               SECTION 3.06. Priority Liens. If a subordination of the Collateral Agent and Security
Trustee’s Lien on any Revolving Facility Collateral is permitted (or in good faith believed by the
Collateral Agent and Security Trustee to be permitted) under the Revolving Facility Documents to
another Lien arising under maritime law and permitted under the Revolving Facility Documents or any
other Lien with respect to which Collateral Notes Agent and Security Trustee have agreed to such
other Lien in writing (a “Priority Lien”), then the Collateral Agent and Security Trustee
is authorized to execute and deliver a subordination agreement with respect thereto in form and
substance satisfactory to it, and the Notes Collateral Agent and Security Trustee, for itself and
on behalf of the Noteholder Secured Parties, shall, upon presentation of the Collateral Agent and
Security Trustee’s executed subordination agreement, promptly execute and deliver to the Collateral
Agent and Security Trustee or the relevant Grantor an identical subordination agreement
subordinating the Liens of the Notes Collateral Agent and Security Trustee for the benefit of the
Noteholder Secured Parties to such Priority Lien.



               SECTION 3.07. Insurance and Condemnation Awards. Until the Senior Priority Discharge
Date shall have occurred, the Collateral Agent and Security Trustee and the other Revolving
Facility Secured Parties shall have the exclusive right, subject to the rights (if any) of the
Grantors under the Revolving Facility Documents, to settle and adjust any insurance policy or claim
covering or constituting Collateral and to approve any award granted in any condemnation or similar
proceeding, or any deed in lieu of condemnation, in respect of any Collateral. All proceeds of any
such policy and any such award, or any payments with respect to a deed in lieu of condemnation,
shall constitute Collateral, subject to the rights (if any) of the Grantors under the Revolving
Facility Documents, and shall be paid in accordance with Section 4.01. Until the Senior Priority
Discharge Date, if any Notes Collateral Agent and Security Trustee or any other Noteholder Secured
Party shall, at any time, receive any proceeds of any such insurance policy or any such award or
payment in violation of this Section 3.07, it shall immediately transfer and pay over such proceeds
to the Collateral Agent and Security Trustee in accordance with Section 4.02.





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ARTICLE IV




PAYMENTS.



               SECTION 4.01. Application of Proceeds. Until the Senior Priority Discharge Date, any
Collateral or proceeds thereof received by a Representative shall be applied by such Representative
(a) first, to the Revolving Credit Obligations (other than the principal amount thereof in excess
of the Maximum Priority Revolving Loan Debt), (b) second, to the Noteholder Obligations, (c) third,
to the Revolving Credit Obligations in excess of the Maximum Priority Revolving Loan Debt, and (c)
fourth, to the applicable Grantor, or in each case as a court of competent jurisdiction may
otherwise direct. After the Senior Priority Discharge Date, the Collateral Agent and Security
Trustee shall deliver to the Notes Collateral Agent and Security Trustee any remaining Collateral
and any proceeds thereof then held by it, together with any necessary endorsements, or as a court
of competent jurisdiction may otherwise direct, to be applied by the Notes Collateral Agent and
Security Trustee (a) first, to the Noteholder Obligations and (c) second, to the applicable
Grantor, or in each case as a court of competent jurisdiction may otherwise direct.



               SECTION 4.02. Payment Over. Until the Senior Priority Discharge Date, each Noteholder
Secured Party (other than the Notes Collateral Agent and Security Trustee) hereby agrees that any
Revolving Facility Collateral or any proceeds thereof (together with assets or proceeds subject to
Liens referred to in the penultimate sentence of Section 2.03) received directly or indirectly by
such Noteholder Secured Party in contravention of this Intercreditor Agreement shall be segregated
and held in trust and forthwith transferred or paid over to the Collateral Agent and Security
Trustee for the benefit of the Revolving Facility Secured Parties in the same form as received,
together with any necessary endorsements, or as a court of competent jurisdiction may otherwise
direct. Until the Senior Priority Discharge Date, the Notes Collateral Agent and Security Trustee
hereby agrees that any Revolving Facility Collateral or any proceeds thereof (together with assets
or proceeds subject to Liens referred to in the penultimate sentence of Section 2.03) received
directly or indirectly by the Notes Collateral Agent and Security Trustee (w) in connection with
any Disposition of, or collection on, such Collateral upon any Enforcement Action, (x) in
connection with any insurance policy claim or any condemnation award (or deed in lieu of
condemnation) to the extent constituting Collateral or (y) as contemplated under Sections 2.03,
3.02, 3.05, 3.07, 6.01 or 6.02 (whether as a matter of law or otherwise), shall be segregated and
held in trust and forthwith transferred or paid over to the Collateral Agent and Security Trustee
for the benefit of the Revolving Facility Secured Parties in the same form as received, together
with any necessary endorsements, or as a court of competent jurisdiction may otherwise direct.
Until the Senior Priority Discharge Date, the Notes Collateral Agent and Security Trustee, for
itself and on behalf of each other Noteholder Secured Party, hereby appoints the Collateral Agent
and Security Trustee, and any officer or agent of the Collateral Agent and Security Trustee as may
be designated by the Collateral Agent and Security Trustee from time to time, with full power of
substitution, the attorney-in-fact of each Noteholder Secured Party for the purpose of carrying out
the provisions of this Section 4.02, which appointment is irrevocable and coupled with an interest.
For purposes of this Section 4.02, payments made by Grantors to any Noteholder Secured Party with
the proceeds of a loan by Revolving Facility Secured Parties shall not be construed to constitute
proceeds of Collateral.




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               SECTION 4.03. Unenforceable Liens. Notwithstanding anything to the contrary contained
herein, if in any Insolvency Proceeding a determination is made that any Lien encumbering any
Revolving Facility Collateral is not enforceable for any reason, then the Notes Collateral Agent
and Security Trustee and the Noteholder Secured Parties agree that, any distribution or recovery
they may receive with respect to, or allocable to, the value of the assets intended to constitute
such Collateral or any proceeds thereof, to the extent that such assets constitute Noteholder
Collateral, shall (until the Senior Priority Discharge Date) be segregated and held in trust and
forthwith paid over to the Collateral Agent and Security Trustee for the benefit of the Revolving
Facility Secured Parties in the same form as received without recourse, representation or warranty
(other than a representation of the Notes Collateral Agent and Security Trustee that it has not
otherwise sold, assigned, transferred or pledged any right, title or interest in and to such
distribution or recovery) but with any necessary endorsements or as a court of competent
jurisdiction may otherwise direct until the Senior Priority Discharge Date. Until the Senior
Priority Discharge Date, the Notes Collateral Agent and Security Trustee, for itself and on behalf
of each other Noteholder Secured Party, hereby appoints the Collateral Agent and Security Trustee,
and any officer or agent of the Collateral Agent and Security Trustee as may be designated by the
Collateral Agent and Security Trustee from time to time, with full power of substitution, the
attorney-in-fact of each Noteholder Secured Party for the limited purpose of carrying out the
provisions of this Section 4.03 and taking any action and executing any instrument that the
Collateral Agent and Security Trustee may deem necessary or advisable to accomplish the purposes of
this Section 4.03, which appointment is irrevocable and coupled with an interest.



ARTICLE V




PLEDGED OR CONTROLLED COLLATERAL.



               SECTION 5.01. General. The Collateral Agent and Security Trustee agrees that if it shall at
any time hold a Senior Lien on any Noteholder Collateral that can or is required to be perfected or
the priority of which can be enhanced by the possession or control of such Collateral or of any
account in which such Collateral is held, and if such Collateral or any such account is in fact in
the possession or under the control of such Collateral Agent, or of agents or bailees of the
Collateral Agent and Security Trustee, the Collateral Agent and Security Trustee shall, solely for
the purpose of perfecting the Junior Liens granted under the Noteholder Security Documents and,
subject to the terms and conditions of this Article V, also hold and/or maintain control of such
Collateral for the benefit of the Notes Collateral Agent and Security Trustee and the other
Noteholder Secured Parties as agent on behalf of and representative (as defined in Section
1-201(35) of the UCC) of the Notes Collateral Agent and Security Trustee and on behalf and for the
benefit of the Notes Collateral Agent and Security Trustee and other Noteholder Secured Parties. It
is agreed that the obligations of the Collateral Agent and Security Trustee and the rights of the
Notes Collateral Agent and Security Trustee and the other Noteholder Secured Parties in connection
with any such bailment arrangement will be in all respects subject to the provisions of Articles II
and III. Notwithstanding anything to the contrary herein, the Collateral Agent and Security Trustee
will be deemed to make no representation as to the adequacy of the steps taken by it to perfect the
Junior Lien on any such Collateral and shall have no responsibility, duty, obligation or liability
to the Notes Collateral Agent and Security Trustee or other Noteholder Secured Party or any other
Person for such perfection or failure to




 - 21 - 









 





perfect, it being understood that the sole purpose of this Article is to enable the
Noteholder Secured Parties to obtain a perfected Junior Lien in such Collateral to the extent, if
any, that such perfection results from the possession or control of such Collateral or any such
account by the Collateral Agent and Security Trustee. Subject to Section 7.04, at such time as the
Revolving Credit Obligations shall have been paid and satisfied in full and any commitment to
extend credit that would constitute such Revolving Credit Obligations shall have been terminated,
the Collateral Agent and Security Trustee shall use its commercially reasonable efforts to promptly
take all such actions in its power (at the sole cost and expense of the Grantors) as shall be
reasonably requested by the Notes Collateral Agent and Security Trustee or the applicable Grantor,
as the case may be, to transfer the possession and control of such Collateral or any such account,
together with any necessary endorsements but without recourse or warranty, (i) if the Noteholder
Obligations are outstanding at such time, to the Notes Collateral Agent and Security Trustee (in
each case, to the extent that the Notes Collateral Agent and Security Trustee has a Lien on such
Collateral or account after giving effect to any prior or concurrent releases of Liens), and (ii)
if no Noteholder Obligations are outstanding at such time, to the applicable Grantor.




               SECTION 5.02. Control Accounts. GS, Holdings and their subsidiaries, to the extent required by
the Credit Agreement or Security Documents, shall maintain deposit accounts and securities accounts
(collectively, together with all accounts and sub-accounts relating to any such deposit account or
securities account, the “Control Accounts”) which are subject to the control of the Collateral
Agent and Security Trustee and Note Collateral Agent and Security Trustee, respectively. The
Collateral Agent and Security Trustee will act as agent on behalf of the Notes Collateral Agent and
Security Trustee and the other Noteholder Secured Parties for the purpose of perfecting the Liens
of the Notes Collateral Agent and Security Trustee and the other Noteholder Secured Parties granted
under the Notes Security Documents in all such Control Accounts and the cash, funds, checks, notes,
“securities entitlements” (as such terms are defined in the UCC), instruments and other assets from
time to time on deposit in any Control Account as provided in Section 5.01 (but will have no duty,
responsibility or obligation to the Noteholder Secured Parties except as set forth in the last
sentence of this Section). Unless the Junior Liens on such Collateral shall have been or
concurrently are released, after the occurrence of the Senior Priority Discharge Date, (a) the
Collateral Agent and Security Trustee shall, at the request of the Trustee, transfer control of all
cash and other assets in any such Control Account maintained with it to the Notes Collateral Agent
and Security Trustee, and (b) the Collateral Agent and Security Trustee, GS, Holdings and the Notes
Collateral Agent and Security Trustee (at the expense of GS and Holdings) shall have each control
agreement assigned to the Notes Collateral Agent and Security Trustee or otherwise have control of
any other Control Accounts to be transferred to the Notes Collateral Agent and Security Trustee (or
for other arrangements with respect to each such Depositary Account satisfactory to the Notes
Collateral Agent and Security Trustee to be made), in each case (in the case of clauses (a) and
(b)) by delivering to the appropriate party or parties, at the expense of GS, Holdings or such
subsidiary, such documents, instruments and agreements as are required to effectuate such transfers
and assignments pursuant to the terms of the control agreements related to such
Control Accounts, to the extent that the Noteholder Documents would entitle the Notes
Collateral Agent and Security Trustee, or would require GS, Holdings or any of their subsidiaries,
to take such actions if such assets or cash were held by GS, Holdings or such subsidiary.




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ARTICLE VI




INSOLVENCY PROCEEDINGS.



               SECTION 6.01. DIP Financing and Asset Sales.




     (a) Until the Senior Priority Discharge Date, in the event of any Insolvency
Proceeding, each Noteholder Secured Party agrees that it:




     (i) will not oppose or object to the use of any Collateral constituting cash
collateral under Section 363 of the Bankruptcy Code, or any comparable provision of
any other Bankruptcy Law, unless the Collateral Agent and Security Trustee, or a
representative authorized by the Collateral Agent and Security Trustee, shall
oppose or object to such use of cash collateral;




     (ii) will not oppose or object to (or join with any third party in opposing or
objecting to) any post-petition financing, whether provided by the Revolving
Facility Secured Parties or any other Person, under Section 364 of the Bankruptcy
Code, or any comparable provision of any other Bankruptcy Law (a “DIP Financing”),
or the Liens on the Collateral securing any DIP Financing (“DIP Financing Liens”),
unless (A) the aggregate principal amount of such DIP Financing, together with the
Revolving Credit Obligations as of such date, exceeds the Maximum Priority
Revolving Loan Debt or (B) the Revolving Facility Secured Parties, or a
representative authorized by the Revolving Facility Secured Parties, shall then
oppose or object to such DIP Financing or such DIP Financing Liens, and, unless
preceding clauses (A) or (B) shall apply, to the extent that such DIP Financing
Liens are senior to, or rank pari passu with, the Senior Liens, the Notes
Collateral Agent and Security Trustee will, for itself and on behalf of the other
Noteholder Secured Parties, subordinate the Junior Liens to the Senior Liens and
the DIP Financing Liens on substantially similar terms as set forth in this
Intercreditor Agreement (as reasonably determined by the Notes Collateral Agent and
Security Trustee); provided, that the foregoing shall not prevent the Noteholder
Secured Parties from proposing a DIP Financing to any Grantors or to a court of
competent jurisdiction, so long as such DIP Financing provides for the payment in
full in cash of all of the Revolving Credit Obligations on the date of the initial
advance under such DIP Financing and all of the Revolving Credit Obligations are
paid in full in cash on such date; and




     (iii) except to the extent permitted by clause (b) of this Section 6.01,
whether in connection with the use of cash collateral as described in clause (a)(i)
above or a DIP Financing or otherwise, will not request adequate protection or any
other relief in connection with such use of cash collateral, DIP Financing or DIP
Financing Liens (unless (A) the aggregate principal amount of such DIP Financing,
together with the Revolving Credit Obligations as of such date, exceeds the Maximum
Priority Revolving Loan Debt or (B) the Revolving Facility Secured Parties, or a
representative authorized by the Revolving Facility




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Secured Parties, shall then oppose or object to such DIP Financing or such
DIP Financing Liens).




     (b) If, in connection with any DIP Financing or use of cash collateral, (A) any
Revolving Facility Secured Party is granted adequate protection in the form of a Lien on
additional collateral, the Notes Collateral Agent and Security Trustee may, for itself and
on behalf of the other Noteholder Secured Parties, seek or request adequate protection in
the form of a Lien on such additional collateral, which Lien will be subordinated to the
Senior Liens and DIP Financing Liens on the same basis as the other Junior Liens are
subordinated to the Senior Liens under this Intercreditor Agreement or (B) any Noteholder
Secured Party is granted adequate protection in the form of a Lien on additional
collateral, the Collateral Agent and Security Trustee shall, to the extent permitted by
court order, for itself and on behalf of the other Revolving Facility Secured Parties, be
granted adequate protection in the form of a Lien on such additional collateral that is
senior to such Junior Lien as security for the Revolving Credit Obligations (with the
understanding that, whether or not any such senior Lien is granted to the Collateral Agent
and Security Trustee on such collateral, any amounts or other proceeds received in respect
of such Lien shall be subject to the provisions of Section 4.02).



               SECTION 6.02. Reorganization Securities. If, in any Insolvency Proceeding, debt obligations
of the reorganized debtor secured by Liens upon any property of the reorganized debtor are
distributed, pursuant to a plan of reorganization or similar dispositive restructuring plan, on
account of both the Revolving Credit Obligations and the Noteholder Obligations, then, to the
extent the debt obligations distributed on account of the Revolving Credit Obligations and on
account of the Noteholder Obligations are secured by Liens upon the same assets or property, the
provisions of this Intercreditor Agreement will survive the distribution of such debt obligations
pursuant to such plan and will apply with like effect to the Liens securing such debt obligations
(provided, that, for the avoidance of doubt, if such debt obligations as subject to a Junior Lien
(after giving effect to this Section 6.02), any holders of Noteholder Obligations receiving such
distribution pursuant to a plan of reorganization or similar dispositions restructuring plan shall
be entitled to retain such distribution).



ARTICLE VII




MODIFICATIONS TO DEBT DOCUMENTS; REFINANCINGS.



               SECTION 7.01. Noteholders’ Purchase Option




          (a) Exercise of Option. On or after the occurrence and during the continuance of an
Event of Default under the Credit Agreement, the occurrence of any Noteholder Actionable
Default, the acceleration of all of the Revolving Credit Obligations or the receipt by
Notes Collateral Agent of written notice from Collateral Agent and Security Trustee of its
intention to commence an Enforcement Action, or the actual commencement of any Enforcement
Action by the Collateral Agent and Security Trustee or by any Revolving Facility Secured
Party, all or any portion of the Noteholder Secured Parties shall have the option at any
time within thirty (30) days of such acceleration or written notice, upon three (3)
business days’ prior written notice by Notes




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Collateral Agent to Collateral Agent and Security Trustee, to purchase all (but not
less than all) of the Revolving Credit Obligations from the Revolving Facility Secured
Parties. Such notice from Notes Collateral Agent to Collateral Agent and Security Trustee
shall be irrevocable.




          (b) Purchase and Sale. On the date specified by Notes Collateral Agent in such notice
(which shall not be less than five (5) business days, nor more than twenty (20) days, after
the receipt by Collateral Agent and Security Trustee of the notice from Notes Collateral
Agent of its election to exercise such option), Revolving Facility Secured Parties (or the
applicable portion thereof) shall, subject to any required approval of any court or other
regulatory or governmental authority then in effect, if any, sell to Noteholder Secured
Parties, and Noteholder Secured Parties shall purchase from Revolving Facility Secured
Parties, all of the Revolving Credit Obligations. Notwithstanding anything to the contrary
contained herein, in connection with any such purchase and sale, Revolving Facility Secured
Parties shall retain all rights under the Revolving Facility Documents to be indemnified or
held harmless by Grantors in accordance with the terms thereof.




          (c) Payment of Purchase Price.




     (i) Upon the date of such purchase and sale, Noteholder Secured Parties shall
(A) pay to Collateral Agent and Security Trustee for the account of the Revolving
Facility Secured Parties as the purchase price therefor the full amount of all of
the Revolving Credit Obligations then outstanding and unpaid (including principal,
interest, fees and expenses, including reasonable attorneys’ fees and legal
expenses), (B) furnish cash collateral to Collateral Agent in connection with any
issued and outstanding letters of credit, banker’s acceptances or similar
instruments or guarantees or indemnities in respect thereof issued under the
Revolving Facility Documents (but not in any event in an amount greater than one
hundred five (105%) percent of the aggregate undrawn face amount of such letters of
credit, banker’s acceptances or similar instruments or guarantees or indemnities in respect thereof) and (C) agree to
reimburse Revolving Facility Secured Parties for any loss, cost, damage or expense
(including reasonable attorneys’ fees and legal expenses) in connection with any
commissions, fees, costs or expenses related to any issued and outstanding letters
of credit, banker’s acceptances or similar instruments as described above and any
checks or other payments provisionally credited to the Revolving Credit
Obligations, and/or as to which Revolving Facility Secured Parties have not yet
received final payment.




     (ii) Such purchase price and cash collateral shall be remitted by wire
transfer in federal funds to such bank account of Collateral Agent as Collateral
Agent may designate in writing to Notes Collateral Agent and Security Trustee for
such purpose. Interest shall be calculated to but excluding the business day on
which such purchase and sale shall occur if the amounts so paid by Noteholder
Secured Parties to the bank account designated by Collateral Agent are received in
such bank account prior to 12:00 noon, New York City time and interest shall be
calculated to and including such business day if the amounts so paid by




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Noteholder Secured Parties to the bank account designated by Collateral
Agent are received in such bank account later than 12:00 noon, New York City time.




          (d) Representations Upon Purchase and Sale. Such purchase shall be expressly made
without representation or warranty of any kind by Revolving Facility Secured Parties as to
the Revolving Credit Obligations, the Collateral or otherwise and without recourse to
Revolving Facility Secured Parties, except that each Revolving Facility Secured Party shall
represent and warrant, severally, as to it: (i) the amount of the Revolving Credit
Obligations being purchased from it are as reflected in the books and records of such
Revolving Facility Secured Party (but without representation or warranty as to the
collectibility, validity or enforceability thereof), (ii) that such Revolving Facility
Secured Party owns the Revolving Credit Obligations being sold by it free and clear of any
liens or encumbrances, and (iii) such Revolving Facility Secured Party has the right to
assign the Revolving Credit Obligations being sold by it and the assignment is duly
authorized. Upon the purchase by Noteholder Secured Parties of the Revolving Credit
Obligations, Noteholder Secured Parties agree to indemnify and hold Revolving Facility
Secured Parties harmless from and against all loss, cost, damage or expense (including
reasonable attorneys’ fees and legal expenses) suffered or incurred by Revolving Facility
Secured Parties arising from or in any way relating to acts or omissions of Collateral
Agent or any of the other Noteholder Secured Parties after the purchase.




          SECTION 7.02. Matters Relating To Debt Documents.




          (a) Generally, Subject to Section 7.02(b) and Section 7.02(c) as applicable,
the Revolving Facility Documents may be amended, restated, supplemented or otherwise modified in accordance with their terms, and
Revolving Credit Obligations and the Noteholder Obligations may be Refinanced, in
each case, without notice to, or the consent of, any Revolving Facility Secured
Party or any Noteholder Secured Party and without affecting the subordination of
the Junior Liens hereunder or the provisions of this Intercreditor Agreement
defining the relative rights of the Revolving Facility Secured Parties and the
Noteholder Secured Parties; provided, however, that the holders of the indebtedness
(and the Liens securing such indebtedness) resulting from any such Refinancing, or
a duly authorized agent on their behalf, shall have agreed in writing to be bound
by the terms of this Intercreditor Agreement pursuant to such documents or
agreements (including amendments or supplements to this Intercreditor Agreement) as
the Collateral Agent and Security Trustee or the Notes Collateral Agent and
Security Trustee, as the case may be, shall reasonably request and in form and
substance reasonably acceptable to the Collateral Agent and Security Trustee or the
Notes Collateral Agent and Security Trustee, as the case may be.




          (b) Amendments to Revolving Credit Facility Documents. No right of the Collateral
Agent and Security Trustee or any of the other Revolving Facility Secured Parties to
enforce any provision of this Agreement or any of the Revolving Facility Documents shall at
any time in any way be prejudiced or impaired by any act or




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failure to act on the part of any Grantor or by any act or failure to act by
Collateral Agent and Security Trustee or any other Revolving Facility Secured Party, or by
any noncompliance by any Person with the terms, provisions and covenants of this Agreement,
any of the Revolving Facility Documents or any of the Noteholder Documents, regardless of
any knowledge thereof which the Collateral Agent and Security Trustee or any of the other
Revolving Facility Secured Parties may have or be otherwise charged with. Without in any
way limiting the generality of the foregoing sentence (but subject to the rights of the
Grantors under the Revolving Facility Documents), the Collateral Agent and any of the other
Revolving Facility Secured Parties may, at any time and from time to time, without the
consent of, or notice to, the Notes Collateral Agent or any other Noteholder Secured Party,
without incurring any liabilities to the Notes Collateral Agent or any other Noteholder
Secured Party and without impairing or releasing the Lien priorities and other benefits
provided in this Agreement (even if any right of subrogation or other right or remedy of
the Notes Collateral Agent or any other Noteholder Secured Party is affected, impaired or
extinguished thereby) do any one or more of the following:




     (i) change the manner, place or terms of payment or change or extend the time
of payment of, or amend, renew, exchange, increase or alter, the terms of any of
the Revolving Loan Debt or any Lien on any Collateral or guaranty thereof or any
liability of any Grantor, or any liability incurred directly or indirectly in
respect thereof (including any increase in or extension of the Revolving Credit
Obligations as permitted herein and in the Revolving Credit Facility) or otherwise amend, renew, exchange, extend, modify or
supplement in any manner any Liens held by the Collateral Agent, the Security
Trustee or any of the other Revolving Facility Secured Parties, the Revolving
Credit Obligations or any of the Revolving Facility Documents;




     (ii) sell, exchange, release, surrender, realize upon, enforce or otherwise
deal with in any manner and in any order any part of the Collateral or any
liability of any Grantor to the Collateral Agent or any of the other Revolving
Facility Secured Parties, or any liability incurred directly or indirectly in
respect thereof in accordance with the terms hereof;




     (iii) exercise or delay in or refrain from exercising any right or remedy
against any Grantor or any other Person, elect any remedy and otherwise deal freely
with any Grantor or any Collateral and any security and any guarantor or any
liability of any Grantor to any of the Revolving Facility Secured Parties or any
liability incurred directly or indirectly in respect thereof.




     provided, that, in all events and notwithstanding the foregoing, Noteholder Secured
Parties shall not be deemed to consent to any amendment, modification, supplement,
restatement, Refinancing or waiver to the Revolving Facility Documents that:




          (A) results in the sum of (i) the aggregate principal amount of loans
outstanding under the Revolving Facility Documents, plus (ii) the unused portion of
the Commitments under the Revolving Facility Documents, plus (iii)




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the aggregate face amount of all letters of credit issued or deemed issued
and outstanding under the Revolving Facility Documents plus (iv) all other
Indebtedness for borrowed money under the Revolving Facility Documents (including
all derivative obligations) (in the case of each of the foregoing clauses (i),
(ii), (iii) and (iv), as determined after giving effect to such amendment,
modification or waiver) exceeding the Maximum Priority Revolving Loan Debt,




     (B) increases the “Applicable Margins” or similar component of the interest
rate under the Revolving Facility Documents in a manner that would result in the
total yield on the Revolving Credit Obligations to exceed by more than two (2%)
percent per annum the total yield on the Revolving Credit Obligations as in effect
on the date hereof (excluding increases resulting from the accrual or payment of
interest at the default rate),




     (C) modifies or adds any covenant or event of default under the Revolving
Facility Documents that directly restricts Borrowers or any Guarantor from making
payments of the Noteholder Obligations that would otherwise be permitted under the
Revolving Facility Documents as in effect on the date hereof,




     (D) subordinates the Liens of the Revolving Facility Secured Parties to any
other debt of Grantors,




     (E) extends the stated maturity date of the Revolving Credit Obligations to a
date beyond the stated maturity date of the Noteholders under the Noteholder
Agreement (as in effect on the date hereof or as hereafter extended), or




     (F) contravenes the provisions of this Agreement;




          (c) Amendments to Noteholder Agreements. Without the prior written consent of the
Collateral Agent, no Noteholder Agreement may be amended, supplemented or otherwise
modified, and no new Noteholder Agreement may be entered into, to the extent such
amendment, supplement or other modification or new document would:




     (i) contravene the provisions of this Agreement,




     (ii) increase the “Applicable Percentage” or similar component of the interest
rate under the Noteholder Agreements in a manner that would result in the total
yield on the Noteholder Obligations to exceed by more than two percent (2%) the
total yield on the Noteholder Obligations as in effect on the date of the
Noteholder Agreement (excluding increases resulting from the accrual of interest at
the default rate),




     (iii) change to earlier dates any scheduled dates for payment of principal of
or interest on Noteholder Obligations,




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     (iv) change any covenant, default or event of default provisions set
forth in the Noteholder Agreements in a manner materially adverse to the Revolving
Facility Secured Parties,




     (v) change the prepayment provisions set forth in the Noteholder Agreements to
increase the amount of any required prepayment,




     (vi) add to the Collateral other than as specifically provided by this
Agreement, or




     (vii) otherwise confer additional rights on the Noteholder Secured Parties
that would be materially adverse to the Revolving Facility Secured Parties.



               SECTION 7.03. Effect of Refinancing of Indebtedness under Revolving
Facility Documents.




     (a) If, substantially contemporaneously with the Senior Priority Discharge Date,
Holdings or any of its subsidiaries Refinances indebtedness outstanding (including in
respect of committed amounts in respect of which no indebtedness is outstanding) under the
Revolving Facility Documents and Holdings gives to the Notes Collateral Agent and Security
Trustee written notice (the “Refinancing Notice”) electing to apply the provisions of this
Section 7.02 to such Refinancing indebtedness, then (i) the Senior Priority Discharge Date
shall automatically be deemed not to have occurred for all purposes of this Intercreditor
Agreement, (ii) such Refinancing indebtedness and all other obligations under or in
connection with the loan, security, guarantee and credit documents evidencing such
indebtedness, including, without limitation, any additional indebtedness or commitment
increases not in violation of Section 7.01(b) (the “Replacement Revolving Credit
Obligations”) shall automatically be treated as Revolving Credit Obligations for all
purposes of this Intercreditor Agreement, including for purposes of the Lien priorities and
rights in respect of Collateral set forth herein, the credit agreement and other documents
evidencing or relating to such Refinancing indebtedness (the “Replacement Revolving
Facility Documents”) shall automatically be treated as the Credit Agreement and the
Revolving Facility Documents and, in the case of Replacement Revolving Facility Documents
that are security documents pursuant to which any Grantor has granted a Lien to secure any
Replacement Revolving Credit Obligation, as the Revolving Facility Security Documents for
all purposes of this Intercreditor Agreement, (iv) the collateral agent and security
trustee under the Replacement Revolving Facility Documents (the “Replacement Collateral
Agent”) shall be deemed to be the Collateral Agent and Security Trustee for all purposes of
this Intercreditor Agreement, and (v) the lenders under the Replacement Revolving Facility
Documents shall be deemed to be the Revolving Lenders for all purposes of this
Intercreditor Agreement. For clarity, in the event of a partial refinancing, the
Replacement Revolving Credit Obligations and the portion of the Revolving Credit
Obligations that were not Refinanced shall both be entitled to the benefits of this
Agreement but shall be represented under this Agreement by a single Collateral Agent. Upon
receipt of a Refinancing Notice, which notice shall include the identity of the Replacement
Collateral Agent, the Notes Collateral Agent and Security Trustee shall




 - 29 - 









 







promptly enter into such documents and agreements (including amendments or
supplements to this Intercreditor Agreement) as such Replacement Collateral Agent may
reasonably request in order to provide to the Replacement Collateral Agent the rights,
remedies and powers and authorities contemplated hereby, in each case consistent in all
respects with the terms of this Intercreditor Agreement.




(b) On or after the date hereof, and prior to the Senior Priority Discharge Date,
Holdings will be permitted to designate as a Revolving Facility Secured Party hereunder
each Person who is, or who becomes, the holder of Indebtedness incurred by Holdings or any
Grantor that is permitted to constitute Revolving Credit Obligations hereunder and is permitted under the terms of the Revolving Facility
Documents to be equally and ratably secured with the obligations in respect of such
Revolving Credit Obligations, it being understood and agreed that while any Revolving
Credit Obligations are outstanding (and prior to the Senior Priority Discharge Date of such
Revolving Credit Obligations) the interests of such new Revolving Facility Secured Parties
shall be represented by the Collateral Agent and Security Trustee in accordance with the
terms hereof. Holdings shall effect such designation by delivering to each other party
hereto (other than its affiliates) a notice; provided, however, that the failure to so
deliver a copy of such notice shall not affect the status of such debt as Revolving Credit
Obligations if the other requirements of this Section are complied with. Notwithstanding
the foregoing, nothing in this Section will be construed to allow Holdings or any Grantor
to incur additional Indebtedness unless otherwise permitted by the terms of all Revolving
Facility Documents and Noteholder Documents in effect at the time of such incurrence.



               SECTION 7.04. No Waiver by Revolving Facility Secured Parties. Other than the Permitted
Specified Enforcement Actions, nothing contained herein shall prohibit or in any way limit the
Collateral Agent and Security Trustee or any other Revolving Facility Secured Party from opposing,
challenging or objecting to, in any Insolvency Proceeding or otherwise, any action taken, or any
claim made, by the Notes Collateral Agent and Security Trustee or any other Noteholder Secured
Party with respect to any Collateral, including any request by the Notes Collateral Agent and
Security Trustee or any other Noteholder Secured Party for adequate protection (other than any such
request made pursuant to Section 6.01) or any exercise by the Notes Collateral Agent and Security
Trustee or any other Noteholder Secured Party of any of its rights and remedies under the
Noteholder Documents or otherwise.



               SECTION 7.05. Reinstatement. If, in any Insolvency Proceeding or otherwise, all or part of
any payment with respect to any Revolving Credit Obligations previously made shall be rescinded for
any reason whatsoever, then such Revolving Credit Obligations shall be reinstated to the extent of
the amount so rescinded and, if theretofore terminated, this Intercreditor Agreement shall be
reinstated in full force and effect and such prior termination shall not diminish, release,
discharge, impair or otherwise affect the Lien priorities and the relative rights and obligations
of the Revolving Facility Secured Parties and the Noteholder Secured Parties provided for herein.




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ARTICLE VIII




REPRESENTATIVE MATTERS.



               SECTION 8.01. No Reliance; Information. Each Representative, on behalf of its respective
Secured Parties, acknowledges that (a) such Secured Parties have, independently and without
reliance upon, in the case of the Revolving Facility Secured Parties, any Noteholder Secured Party
and, in the case of the Noteholder Secured Parties, any Revolving Facility Secured Party, to the
extent such Secured Parties shall have conducted a credit analysis, made their own credit analysis
and decision to enter into the Debt Documents to which they are party based on such documents and information as they have deemed
appropriate and (b) such Secured Parties will, independently and without reliance upon, in the case
of the Revolving Facility Secured Parties, any Noteholder Secured Party and, in the case of the
Noteholder Secured Parties, any Revolving Facility Secured Party, and based on such documents and
information as they shall from time to time deem appropriate, continue to make their own credit
decision in taking or not taking any action under this Intercreditor Agreement or any other Debt
Document to which they are party. The Revolving Facility Secured Parties and the Noteholder Secured
Parties shall have no duty to disclose to any Noteholder Secured Party or to any Revolving Facility
Secured Party, respectively, any information relating to GS, Holdings or any of their Subsidiaries
(including any Grantor), or any other circumstance bearing upon the risk of nonpayment of any of
the Revolving Credit Obligations or the Noteholder Obligations, as the case may be, that is known
or becomes known to any of them or any of their Affiliates. In the event any Revolving Facility
Secured Party or any Noteholder Secured Party, in its sole discretion, undertakes at any time or
from time to time to provide any such information to, respectively, any Noteholder Secured Party or
any Revolving Facility Secured Party, it shall be under no obligation (i) to make, and shall not
make or be deemed to have made, any express or implied representation or warranty, including with
respect to the accuracy, completeness, truthfulness or validity of the information so provided,
(ii) to provide any additional information or to provide any such information on any subsequent
occasion, or (iii) to undertake any investigation.



               SECTION 8.02. Authorization of Representatives. By accepting the benefits of this
Intercreditor Agreement and the other Revolving Facility Security Documents, each Revolving
Facility Secured Party hereby authorizes the Collateral Agent and Security Trustee to enter into
this Intercreditor Agreement and to act on its behalf as collateral agent hereunder and in
connection herewith. By accepting the benefits of this Intercreditor Agreement and the other
Noteholder Security Documents, each Noteholder Secured Party hereby authorizes the Notes Collateral
Agent and Security Trustee to enter into this Intercreditor Agreement and to act on its behalf as
collateral agent hereunder and in connection herewith.



               SECTION 8.03. Representations and Warranties of Each Representative. Each Representative
represents and warrants to the other parties hereto that it has been authorized by the Secured
Parties under and as defined in the Credit Agreement or the Noteholder Security Agreement, as
applicable, to enter into this Intercreditor Agreement.



               SECTION 8.04. Further Assurances. Each of the Collateral Agent and Security Trustee, for
itself and on behalf of the other Revolving Facility Secured Parties, and the




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Notes Collateral Agent and Security Trustee, for itself and on behalf of the other
Noteholder Secured Parties, agrees that it will execute, or will cause to be executed, any and all
further documents, agreements and instruments, and take all such further actions, as may be
required under any applicable law, or which the Collateral Agent and Security Trustee or the Notes
Collateral Agent and Security Trustee may reasonably request, to effectuate the terms of this
Intercreditor Agreement, including the relative Lien priorities provided for herein. Without
limiting the foregoing, whenever a Representative shall be required, in connection with the
exercise of its rights or the performance of its obligations hereunder, to determine the existence
or amount of any Revolving Credit Obligations (or the existence of any commitment to extend credit
that would constitute Revolving Credit Obligations) or Noteholder Obligations, or the existence of
any Lien securing any such obligations, or the Collateral subject to any such Lien, it may request
that such information be furnished to it in writing by the other Representative and shall be
entitled to make such determination on the basis of the information so furnished; provided,
however, that if a Representative shall fail or refuse reasonably promptly to provide the requested
information, the requesting Representative shall be entitled to make any such determination by such
method as it may, in the exercise of its reasonable discretion after consultation with Holdings,
determine, including by reliance upon a certificate of Holdings. Each Representative may rely
conclusively, and shall be fully protected in so relying, on any determination made by it in
accordance with the provisions of the preceding sentence (or as otherwise directed by a court of
competent jurisdiction) and shall have no liability to GS, Holdings or any of their subsidiaries,
any Secured Party or any other Person as a result of such determination.




               SECTION 8.05. No Warranties or Liability.




     (a) The Collateral Agent and Security Trustee, for itself and on behalf of the other Revolving
Facility Secured Parties, acknowledges and agrees that, except for the representations and
warranties set forth in Section 8.03, neither the Notes Collateral Agent and Security Trustee nor
any other Noteholder Secured Party has made any express or implied representation or warranty,
including with respect to the execution, validity, legality, completeness, collectibility or
enforceability of any of the Noteholder Documents, the ownership of any Collateral or the
perfection or priority of any Liens thereon. The Notes Collateral Agent and Security Trustee, for
itself and on behalf of the other Noteholder Secured Parties, acknowledges and agrees that, except
for the representations and warranties set forth in Section 8.03, neither the Collateral Agent and
Security Trustee nor any other Revolving Facility Secured Party has made any express or implied
representation or warranty, including with respect to the execution, validity, legality,
completeness, collectibility or enforceability of any of the Revolving Facility Documents, the
ownership of any Collateral or the perfection or priority of any Liens thereon.




     (b) Each Noteholder Secured Party acknowledges and agrees that neither the Collateral
Agent and Security Trustee nor any other Revolving Facility Secured Party shall have any
duties or other obligations to such Noteholder Secured Party with respect to any
Collateral, other than to transfer to the Notes Collateral Agent and Security Trustee any
proceeds of any such Collateral that constitutes Collateral remaining in its possession
following any Disposition of such Collateral (in each case, unless the Junior Liens on all
such Collateral are terminated and released prior to or concurrently with such sale,
transfer, disposition, payment or satisfaction), the payment and satisfaction in full of




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the Revolving Credit Obligations secured thereby and the termination of any
commitment to extend credit that would constitute Revolving Credit Obligations
secured thereby, or, if the Collateral Agent and Security Trustee shall be in possession of
all or any part of such Collateral after such payment and satisfaction in full and
termination, such Collateral or any part thereof remaining, in each case without
representation or warranty on the part of the Collateral Agent and Security Trustee or any
Revolving Facility Secured Party.




     (c) In furtherance of the foregoing, each Noteholder Secured Party acknowledges and
agrees that until the Revolving Credit Obligations shall have been paid and satisfied in
full and any commitment to extend credit that would constitute Senior Secured Obligations
shall have been terminated, the Collateral Agent and Security Trustee shall be entitled,
for the benefit of the holders of the Revolving Credit Obligations, to sell, transfer or
otherwise dispose of or deal with Collateral as provided herein and in the Revolving
Facility Security Documents without regard to any Junior Lien or any rights to which the
holders of the Noteholder Obligations would otherwise be entitled as a result of such
Junior Lien. Without limiting the foregoing, each Noteholder Secured Party agrees that
neither the Collateral Agent and Security Trustee nor any other Revolving Facility Secured
Party shall have any duty or obligation first to marshal or realize upon any type of
Collateral, or to sell, dispose of or otherwise liquidate all or any portion of such
Collateral (or any other collateral securing the Senior Secured Obligations), in any manner
that would maximize the return to the Noteholder Secured Parties, notwithstanding that the
order and timing of any such realization, sale, disposition or liquidation may affect the
amount of proceeds actually received by Noteholder Secured Parties from such realization,
sale, disposition or liquidation.




     (d) The Notes Collateral Agent and Security Trustee, for itself and on behalf of the
other Noteholder Secured Parties, agrees no Revolving Facility Secured Party shall have any
liability to the Notes Collateral Agent and Security Trustee or any other Noteholder
Secured Party, and hereby waives any claim against any Revolving Facility Secured Party,
arising out of any and all actions which the Collateral Agent and Security Trustee or any
other Revolving Facility Secured Party may take or permit or omit to take with respect to
(i) the Revolving Facility Documents (other than this Intercreditor Agreement), (ii) the
collection of the Revolving Credit Obligations, (iii) the maintenance of, the preservation
of, the foreclosure upon or the Disposition of any Collateral, (iv) any election by the
Collateral Agent and Security Trustee or any Revolving Facility Secured Parties, in any
proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b) of
the Bankruptcy Code, or (v) any borrowing of, or grant of a security interest or
administrative expense priority under Section 364 of the Bankruptcy Code to, GS, Holdings
or any of their subsidiaries, as debtor-in-possession.



ARTICLE IX




MISCELLANEOUS.



               SECTION 9.01. Obligations Absolute. The Lien priorities provided for herein and the respective
rights, interests, agreements and obligations hereunder of the Collateral Agent and Security
Trustee and the other Revolving Facility Secured Parties and the Notes




 - 33 - 









 





Collateral Agent and Security Trustee and the other Noteholder Secured Parties shall remain
in full force and effect irrespective of:





     (a) any lack of validity or enforceability of any Debt Document;




     (b) any change in the time, place or manner of payment of, or in any other term of
(including the supplement, waiver, repayment, refund, amendment, modification or
Refinancing of), all or any portion of the Revolving Credit Obligations, it being
specifically acknowledged that a portion of the Revolving Credit Obligations consists or
may consist of indebtedness that is revolving in nature, and the amount thereof that may be
outstanding at any time or from time to time may be increased or reduced and subsequently
reborrowed;




     (c) any change in the time, place or manner of payment of, or, subject to the
limitations set forth in Section 7.01(a), in any other term of, all or any portion of the
Revolving Credit Obligations;




     (d) any amendment, waiver or other modification, whether by course of conduct or
otherwise, of any Debt Document;




     (e) the securing of any Revolving Credit Obligations or Noteholder Obligations with
any additional collateral or Guarantees, or any exchange, release, voiding, avoidance or
non-perfection of any security interest in any Collateral or any other collateral or any
release of any Guarantee securing any Revolving Credit Obligations or Noteholder
Obligations;




     (f) any Insolvency Proceeding; or




     (g) any other circumstances that otherwise might constitute a defense available to, or
a discharge of, Holdings or any other Grantor in respect of the Revolving Credit
Obligations, the Noteholder Obligations or this Intercreditor Agreement.



               SECTION 9.02. Notices. Notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by fax, as follows:




     (a) if to the Collateral Agent and Security Trustee, to it at:


Bank of America, N.A.

300 Galleria Parkway, Suite 800

Atlanta, Georgia 30339 

Attention:

John M. Olsen

Telecopy No.: (404) 607-3277;





     (b) if to the Notes Collateral Agent and Security Trustee or the Trustee, to it at:


Wells Fargo Bank, National Association

Corporate Trust Services




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7000 Central Parkway, Suite
550 
Atlanta, Georgia 30328

Attention: Elizabeth Wagner

Telecopy No.: (770) 551-5118;





     (c) if to Holdings, to it at:


United Maritime Group, LLC 
601 S.
Harbour Island Blvd. 
Tampa, Florida
33602 
Attention: Walt Bromfield


Telecopy No.: (813) 273-0248; and





     (d) if to any other Grantor, to it in care of Holdings as provided in clause (c)
above.



     Any party hereto may change its address or fax number for notices and other communications
hereunder by notice to the other parties hereto (and for this purpose a notice to Holdings shall be
deemed to be a notice to each Grantor). All notices and other communications given to any party
hereto in accordance with the provisions of this Intercreditor Agreement shall be deemed to have
been given on the date of receipt (if a Business Day) and on the next Business Day (in all other
cases) if delivered by hand or overnight courier service or sent by fax or on the date five (5)
Business Days after dispatch by certified or registered mail if mailed, in each case delivered,
sent or mailed (properly addressed) to such party as provided in this Section 9.02 or in accordance
with the latest unrevoked direction from such party given in accordance with this Section 9.02. As
agreed to among Holdings, the Trustee, the Notes Collateral Agent and Security Trustee and the
Collateral Agent and Security Trustee from time to time, notices and other communications may also
be delivered by e-mail to the e-mail address of a representative of the applicable Person provided
from time to time by such Person.



               SECTION 9.03. Conflicts. In the event of any conflict or inconsistency between the provisions
of this Intercreditor Agreement and the provisions of the other Debt Documents, the provisions of
this Intercreditor Agreement shall control; provided, however, that if any of the provisions of the
Noteholder Security Documents limits, qualifies or conflicts with the duties imposed by the
provisions of the TIA, the TIA shall control. Nothing contained herein is intended to affect,
solely as between the Noteholder Secured Parties and the Grantors, any of the privileges,
protections, immunities or indemnities granted by Grantors in favor of the Noteholder Secured Parties under the
Noteholder Documents. Nothing contained herein is intended to affect, solely as between the
Revolving Facility Secured Parties and the Grantors, any of the privileges, protections, immunities
or indemnities granted by Grantors in favor of the Revolving Facility Secured Parties under the
Revolving Facility Documents.



               SECTION 9.04. Effectiveness; Survival. This Intercreditor Agreement shall become effective
when executed and delivered by the parties hereto. All covenants, agreements, representations and
warranties made by any party in this Intercreditor Agreement shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and delivery of this
Intercreditor Agreement. The terms of this Intercreditor



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Agreement shall survive, and shall continue in full force and effect, in any Insolvency
Proceeding. Each Representative, for itself and on behalf of the other respective Secured Parties,
hereby waives any and all rights such Representative may now or hereafter have under applicable law
to revoke this Intercreditor Agreement or any of the provisions of this Intercreditor Agreement.




               SECTION 9.05. Severability. Any provision of this Intercreditor Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The
parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.



               SECTION 9.06. Amendments; Waivers.




     (a) No failure or delay on the part of any party hereto in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other right or power. The
rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this Intercreditor
Agreement or consent to any departure by any party therefrom shall in any event be effective unless
the same shall be permitted by clause (b) of this Section 9.06, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which given. No notice or
demand on any party hereto in any case shall entitle such party to any other further notice or
demand in similar or other circumstances.




     (b) Subject to clause (c) below, neither this Intercreditor Agreement nor any
provision hereof may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Grantors, the Collateral Agent
and Security Trustee and the Notes Collateral Agent and Security Trustee; provided,
that this Intercreditor Agreement may be amended from time to time as provided in Section
7.01.




     (c) Notwithstanding the foregoing or anything else in this Intercreditor Agreement to
the contrary, no Grantor shall have any right to consent to or approve any amendment,
modification or waiver of any provision of this Intercreditor Agreement except to the
extent its rights, interests, liabilities, obligations or privileges are directly affected.



               SECTION 9.07. Consent of Grantors. Each Grantor hereby consents to the provisions of this
Intercreditor Agreement and the intercreditor arrangements provided for herein and agrees that the
obligations of the Grantors under the Security Documents will in no way be diminished or otherwise
affected by such provisions or arrangements (except as expressly provided herein).



 - 36 - 









 






               SECTION 9.08. Applicable Law; Jurisdiction; Consent to Service of
Process.




     (a) THIS INTERCREDITOR AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD
REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.




     (b) Each party hereto hereby irrevocably and unconditionally submits, for itself and
its property, to the non-exclusive jurisdiction of any the Supreme Court of the State of
New York sitting in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Intercreditor Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or proceeding may be
heard and determined in such New York State court or, to the extent permitted by law, in
such federal court. Each party hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.




     (c) Each party hereto hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or relating to
this Intercreditor Agreement in any court referred to in clause (b) of this Section. Each
party hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any such court.




     (d) Each party to this Intercreditor Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.02. Nothing in this Intercreditor
Agreement will affect the right of any party to this Intercreditor Agreement to serve
process in any other manner permitted by law.



               SECTION 9.09. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INTERCREDITOR AGREEMENT.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS INTERCREDITOR AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 9.09.




 - 37 - 









 






               SECTION 9.10. Parties in Interest. This Intercreditor Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and assigns, as well
as the other Revolving Facility Secured Parties and other Noteholder Secured Parties, all of whom
are intended to be bound by, and to be third party beneficiaries of, this Intercreditor Agreement.
No other Person shall have or be entitled to assert rights or benefits hereunder.



               SECTION 9.11. Specific Performance. Each Representative may demand specific performance of
this Intercreditor Agreement and, on behalf of itself and the respective other Secured Parties,
hereby irrevocably waives any defense based on the adequacy of a remedy at law and any other
defense that might be asserted to bar the remedy of specific performance in any action which may be
brought by the respective Secured Parties.



               SECTION 9.12. Headings. Article, Section and Annex headings used herein and the Table of
Contents hereto are for convenience of reference only, are not part of this Intercreditor Agreement
and are not to affect the construction of, or to be taken into consideration in interpreting, this
Intercreditor Agreement.



               SECTION 9.13. Counterparts. This Intercreditor Agreement may be executed in counterparts (and
by different parties hereto on different counterparts), each of which shall constitute an original
but all of which when taken together shall constitute a single contract, and shall become effective
as provided in Section 9.04. Delivery of an executed signature page to this Intercreditor Agreement
by facsimile transmission or other electronic means shall be as effective as delivery of a manually
signed counterpart of this Intercreditor Agreement.



               SECTION 9.14. Provisions Solely to Define Relative Rights. The provisions of this
Intercreditor Agreement are and are intended solely for the purpose of defining the relative rights
of the Revolving Facility Secured Parties, on the one hand, and the Noteholder Secured Parties, on
the other hand. None of Holdings, any other Grantor or any other creditor thereof shall have any
rights or obligations, except as expressly provided in this Intercreditor Agreement, and no such
other creditor thereof may rely on the terms hereof; provided, however, that Holdings and the other
Grantors shall in any event be entitled to the benefits of Sections 3.04, 3.05, 3.06, 5.01, 5.02
and7.02. Nothing in this Intercreditor Agreement is intended to or shall impair the obligations of
Holdings or any other Grantor, which are absolute and unconditional, to pay the Revolving Credit
Obligations and the Noteholder Obligations as and when the same shall become due and payable in
accordance with their terms.



               SECTION 9.15. Incorporation by Reference. In connection with its execution and performance
hereunder, the Trustee and Notes Collateral Agent and Security Trustee shall be entitled to the
rights, privileges, protections, immunities, benefits and indemnities provided to it by the
Grantors, as applicable, under the Indenture and Noteholder Security Agreement respectively. In
connection with its execution and performance hereunder, the Collateral Agent and Security Trustee
shall be entitled to the rights, privileges, protections, immunities, benefits and indemnities
provided to it by the Grantors it under the Credit Agreement.





 - 38 - 









 






     SECTION 9.16. Reciprocal Rights. The parties agree that the provisions of Sections
2.03, 3.01, 3.02, 3.04, 3.05, 3.06, 3.07, 4.02, 5.02, 6.01, 7.02, 7.03, 7.04, 7.05, including, as
applicable, the defined terms referenced therein (but only to the extent used therein), which
govern the relationship, and certain rights, restrictions, and agreements, between the Collateral
Agent, Security Trustee and Revolving Facility Secured Parties with respect to the Revolving Credit
Obligations, on the first hand, and the Notes Collateral Agent, Security Trustee and Noteholder
Secured Parties with respect to the Noteholder Obligations, on the second hand, shall, from and
after the Senior Priority Discharge Date, apply to and govern, mutatis mutandis, the relationship
between the Notes Collateral Agent, Security Trustee and Noteholder Secured Parties with respect to
the Noteholder Obligations, on the first hand, and the Revolving Facility Secured Parties with
respect to the Revolving Credit Obligations, on the second hand.



[Remainder of this page intentionally left blank]





 - 39 - 











 

 



     IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor Agreement to be
duly executed by their respective authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as Collateral Agent and 

Security Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	Steven Blumberg 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 	 	 
	STATE OF NEW YORK

	 	 	)	 	 	 
	 

	 	 	)	SS:
	COUNTY OF NEW YORK

	 	 	)	 	 	 






     The foregoing Intercreditor Agreement was acknowledged before me this       day of
December, 2009, by Steven Blumberg, as Vice President of BANK OF AMERICA, N.A., a national banking
association, as Collateral Agent and Security Trustee, described in and which executed the
foregoing instrument; that he signed his name thereto pursuant to authority granted to him by the
Board of Directors of said national banking association.



	 	 	 	 	 	 	 
	 	 	 
	 	 	NOTARY PUBLIC
	 

	 	Printed Name: 	 	 	 	 
	 	 	 	 
	 	 	My Commission Expires:
	 

	 	 	 	 





	 	 	 
	 

	 	Intercreditor Agreement






40









 






     IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor Agreement to be
duly executed by their respective authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, 

as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	Mark F.  McLaughlin 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 	 	 
	STATE OF NEW YORK

	 	 	)	 	 	 
	 

	 	 	)	SS:
	COUNTY OF NEW YORK

	 	 	)	 	 	 






     The foregoing Intercreditor Agreement was acknowledged before me this 22nd
day of December, 2009, by Mark F. McLaughlin, as Vice President of WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, as Trustee, described in and which executed the
foregoing instrument; that he signed his name thereto pursuant to authority granted to him by the
Board of Directors of said national banking association.



	 	 	 	 	 	 	 
	 	 	 
	 	 	NOTARY PUBLIC
	 

	 	Printed Name: 	 	 	 	 
	 	 	 	 
	 	 	My Commission Expires: 
	 

	 	 	 	 





[Signatures continued on next page]



	 	 	 
	

	 	Intercreditor Agreement






41









 






     IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor Agreement to be
duly executed by their respective authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, 

as Collateral Agent

 	 
	 	By:  	 	 
	 	 	Name:  	Mark F. McLaughlin  	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 	 	 
	STATE OF NEW YORK

	 	 	)	 	 	 
	 

	 	 	)	SS:
	COUNTY OF NEW YORK

	 	 	)	 	 	 






     The foregoing Intercreditor Agreement was acknowledged before me this 22nd
day of December, 2009, by Mark F. McLaughlin, as Vice President of WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, as Collateral Agent, described in and which executed
the foregoing instrument; that he signed his name thereto pursuant to authority granted to him by
the Board of Directors of said national banking association.



	 	 	 	 	 	 	 
	 	 	 
	 	 	NOTARY PUBLIC
	 

	 	Printed Name: 	 	 	 	 
	 	 	 	 
	 	 	My Commission Expires: 
	 

	 	 	 	 





[Signatures continued on next page]



	 	 	 
	

	 	Intercreditor Agreement






42









 





     IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor Agreement to be
duly executed by their respective authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, 

as Security Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	Mark F. McLaughlin  	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 	 	 
	STATE OF NEW YORK

	 	 	)	 	 	 
	 

	 	 	)	SS:
	COUNTY OF NEW YORK

	 	 	)	 	 	 






     The foregoing Intercreditor Agreement was acknowledged before me this 22nd
day of December, 2009, by Mark F. McLaughlin, as Vice President of WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, as Security Trustee, described in and which executed
the foregoing instrument; that he signed his name thereto pursuant to authority granted to him by
the Board of Directors of said national banking association.



	 	 	 	 	 	 	 
	 	 	 
	 	 	NOTARY PUBLIC
	 

	 	Printed Name: 	 	 	 	 
	 	 	 	 
	 	 	My Commission Expires: 
	 

	 	 	 	 





[Signatures continued on next page]



	 	 	 
	

	 	Intercreditor Agreement






43









 






     Each of the undersigned acknowledges the terms of and consents to the foregoing
Intercreditor Agreement:



	 	 	 	 	 
	UNITED MARITIME GROUP, LLC

 	 
	 
	By:  	 	 
	 	Name:  	Sal Litrico 	 
	 	Title:  	Chief Executive Officer 	 
	 
	U.S. UNITED BARGE LINE, LLC

 	 
	 
	By:  	 	 
	 	Name:  	Sal Litrico 	 
	 	Title:  	Chief Executive Officer 	 
	 
	U.S. UNITED OCEAN SERVICES, LLC

 	 
	 
	By:  	 	 
	 	Name:  	Sal Litrico 	 
	 	Title:  	Chief Executive Officer 	 
	 
	U.S. UNITED BULK TERMINAL, LLC

 	 
	 
	By:  	 	 
	 	Name:  	Sal Litrico 	 
	 	Title:  	Chief Executive Officer 	 
	 
	U.S. UNITED INLAND SERVICES, LLC

 	 
	 
	By:  	 	 
	 	Name:  	Sal Litrico 	 
	 	Title:  	Chief Executive Officer 	 
	 



[Signatures continued on next page]



	 	 	 
	

	 	Intercreditor Agreement






44









 






 




[Signatures continued from previous page]



	 	 	 	 	 
	UMG TOWING, LLC

 	 
	 
	By:  	 	 
	 	Name:  	Sal Litrico 	 
	 	Title:  	Chief Executive Officer 	 
	 
	U.S. UNITED BULK LOGISTICS, LLC

 	 
	 
	By:  	 	 
	 	Name:  	Sal Litrico 	 
	 	Title:  	Chief Executive Officer 	 
	 
	U.S. UNITED OCEAN HOLDING, LLC

 	 
	 
	By:  	 	 
	 	Name:  	Sal Litrico 	 
	 	Title:  	Chief Executive Officer 	 
	 
	U.S. UNITED OCEAN HOLDING II, LLC

 	 
	 
	By:  	 	 
	 	Name:  	Sal Litrico 	 
	 	Title:  	Chief Executive Officer 	 
	 
	TINA LITRICO, LLC

 	 
	 
	By:  	 	 
	 	Name:  	Sal Litrico 	 
	 	Title:  	Chief Executive Officer 	 
	 
	MARY ANN HUDSON, LLC

 	 
	 
	By:  	 	 
	 	Name:  	Sal Litrico 	 
	 	Title:  	Chief Executive Officer 	 
	 



[Signatures continued on next page]



[Signature Page to Intercreditor Agreement (Grantors)]



 









 










[Signatures continued from previous page]



	 	 	 	 	 
	SHEILA MCDEVITT, LLC

 	 
	 
	By:  	 	 
	 	Name:  	Sal Litrico 	 
	 	Title:  	Chief Executive Officer 	 
	 
	MARIE FLOOD, LLC

 	 
	 
	By:  	 	 
	 	Name:  	Sal Litrico 	 
	 	Title:  	Chief Executive Officer 	 
	 
	UNITED MARITIME GROUP FINANCE CORP.

 	 
	 
	By:  	 	 
	 	Name:  	Sal Litrico 	 
	 	Title:  	Chief Executive Officer 	 
	 
	GS MARITIME INTERMEDIATE HOLDING LLC

 	 
	 
	By:  	 	 
	 	Name:  	Sal Litrico 	 
	 	Title:  	Chief Executive Officer 	 
	 



[Signature Page to Intercreditor Agreement (Grantors)]



 









 








MASTER ACKNOWLEDGMENT



	 	 	 	 	 	 	 
	STATE OF NEW YORK

	 	 	)	 	 	 
	 

	 	 	)	SS:
	COUNTY OF NEW YORK

	 	 	)	 	 	 






     The foregoing instrument was acknowledged before me this 22nd day of
December, 2009, by Sal Litrico, as chief executive officer of the following parties: (i) UNITED
MARITIME GROUP, LLC, a Florida limited liability company, (ii) U.S. UNITED BARGE LINE, LLC, a
Florida limited liability company, (iii) U.S. UNITED OCEAN SERVICES, LLC, a Florida limited
liability company, (iv) U.S. UNITED BULK TERMINAL, LLC, a Louisiana limited liability company, (v)
U.S. UNITED INLAND SERVICES, LLC, a Delaware limited liability company, (vi) GS MARITIME
INTERMEDIATE HOLDING LLC, a Delaware limited liability company, (vii) UMG TOWING, LLC, a Florida
limited liability company, (viii) U.S. UNITED BULK LOGISTICS, LLC, a Delaware limited liability
company, (ix) U.S. UNITED OCEAN HOLDING, LLC, a Delaware limited liability company, (x) U.S. UNITED
OCEAN HOLDING II, LLC, a Delaware limited liability company, (xi) TINA LITRICO, LLC, a Delaware
limited liability company, (xii) MARY ANN HUDSON, LLC, a Delaware limited liability company, (xiii)
SHEILA MCDEVITT, LLC, , a Delaware limited liability company, (xiv) MARIE FLOOD, LLC, a Delaware
limited liability company, and (xv) UNITED MARITIME GROUP FINANCE CORP., a Delaware corporation, on
behalf of each of the foregoing parties.




	 	 	 	 	 	 	 
	 
	 	 	 
	 	 	NOTARY PUBLIC
	 

	 	Printed Name:	 	 	 	 
	 	 	 	 
	 	 	My Commission Expires:
	 

	 	 	 	 





[Signature Page to Intercreditor Agreement (Grantors)]



 









 





Schedule I to Intercreditor Agreement




LIST OF VESSELS



	 	 	 
	Name
	 	Official Number






	 	 	 
	 

	 	Intercreditor Agreement







48