exv4w5






Exhibit 4.5




EXCHANGE AGENT AND DEPOSITARY AGREEMENT




          This Exchange Agent & Depositary Agreement (this “Agreement”) is entered into as of
this ___day of ___2010 by and between United Maritime Group, LLC, a Florida limited liability
company (the “Company”) and United Maritime Group Finance Corp., a Delaware corporation
(“Finance Corp.,” and, together with the Company, the “Issuers”), and Wells Fargo
Bank, National Association, a national banking association having a corporate trust office in
Minneapolis, Minnesota (hereinafter referred to from time to time as “Wells Fargo”).




          WHEREAS, the Issuers are offering to exchange all of their outstanding 11 3/4% Senior Secured
Notes due 2015, issued on December 22, 2009 (the “Notes”) for new 11 3/4% Senior Secured
Notes due 2015 (the “Exchange Notes”) upon the terms and subject to the conditions set
forth in the Prospectus filed by the Issuers upon the effectiveness of their Registration Statement
on Form S-4, File No. 333-165796, initially filed on March 30, 2010, as amended (the
“Prospectus”), and the related Letter of Transmittal, which together, as they may be
supplemented or amended from time to time, constitute the “Offer.” All capitalized terms
not defined herein shall have the meaning ascribed to such term in the Offer.




          WHEREAS, the Issuers hereby appoint Wells Fargo to act as the exchange agent and depositary
(together, the “Exchange Agent”) in connection with the Offer. References hereinafter to
“you” shall refer to Wells Fargo Bank, National Association, as Exchange Agent.




          The Offer is expected to be commenced by the Issuers on or about the date of the Prospectus.
The Letter of Transmittal that accompanies the Offer (or in the case of book-entry securities, the
Automated Tender Offer Program (“ATOP”) of DTC (as defined below)) is to be used by the
holders of the Notes to accept the Offer. The Letter of Transmittal contains instructions with
respect to the delivery of certificates for Notes tendered in connection therewith.




          The Offer shall expire at the time set forth in the section of the Prospectus captioned “The
Exchange Offer — Expiration Date; Extensions; Termination; Amendments” (the “Expiration
Date”). Subject to the terms and conditions set forth in the Prospectus, the Issuers expressly
reserve the right to extend the Offer from time to time and may extend the Offer by giving oral
(promptly confirmed in writing) or written notice to you before 9:00 a.m., New York City time, on
the business day following the scheduled Expiration Date.




          The Issuers expressly reserve the right, in their sole discretion, to (1) delay accepting any
validly tendered Notes or (2) terminate or amend the Offer, in each case, by giving oral or written
notice (any such oral notice to be promptly confirmed in writing) of such delay, termination or
amendment to the Exchange Agent. Any such delay in acceptance, termination or amendment will be
followed as promptly as practicable by a public announcement thereof by the Issuers.




          In carrying out your duties as Exchange Agent, you are to act in accordance with the following
instructions:




You will perform such duties and only such duties as are specifically set forth in the section of
the Prospectus captioned “The Exchange Offer” or as specifically set forth herein;
provided, however, that in no way will your general duty to act in good faith
be discharged by the foregoing.



You will establish a book-entry account in respect of the Notes at The Depository Trust Company
(“DTC”), in connection with the Offer. Any financial institution that is a participant
in the DTC system may make book-entry delivery of the Notes by causing DTC to transfer such
Notes into the account maintained by you, pursuant to this section, in accordance with DTC’s
procedures for such transfer, and you may affect a withdrawal of Notes through such account by
book-entry movement as requested by the participant. The account shall be maintained until
all Notes tendered pursuant to the Offer shall have been either accepted or returned.



You are to examine each of the Letters of Transmittal and certificates for Notes (or confirmation
of book-entry transfer into your account at DTC) and any other documents delivered or mailed
to you by or for holders of the Notes to ascertain whether: (a) the Letters of Transmittal and
any such other documents are duly


 









 






executed and properly completed in accordance with instructions set forth therein; and (b)
the Notes have otherwise been properly tendered. In each case where the Letter of
Transmittal or any other document has been improperly completed or executed or any of the
certificates for Notes are not in proper form for transfer or some other irregularity in
connection with the acceptance of the Offer exists, you will endeavor to inform the
presenters of the need for fulfillment of all requirements and to take any other action as
may be reasonably necessary or advisable to cause such irregularity to be corrected.



With the approval of the Chief Executive Officer, the Chief Financial Officer, the General Counsel
or any Vice President of the Issuers (such approval, if given orally, to be promptly confirmed
in writing), or any other party designated in writing by such officer of the Issuers, you are
authorized to waive any irregularities in connection with any tender pursuant to the Offer.



          Tenders of Notes may be made only as set forth in the section of the Prospectus captioned “The
Exchange Offer — How to Tender” and Notes shall be considered properly tendered or delivered to you
only when tendered in accordance with the procedures set forth therein.




Notwithstanding the provisions of Section 4 of this Agreement, Notes that the Chief Executive
Officer, the Chief Financial Officer, the General Counsel or any Vice President of the Issuers
shall approve as having been properly tendered shall be considered to be properly tendered
(such approval, if given orally, shall be promptly confirmed in writing).



You shall advise the Issuers with respect to any Notes received subsequent to the Expiration Date
and accept their instructions with respect to disposition of such Notes.



You shall accept tenders:



in cases where the Notes are registered in two or more names only if signed by all
named holders;



in cases where the signing person (as indicated on the Letter of Transmittal) is
acting in a fiduciary or a representative capacity only when proper evidence of his or
her authority so to act is submitted; and



from persons other than the registered holder of Notes, provided that customary
transfer requirements, including payment of any applicable transfer taxes, if any, are
fulfilled.



          You shall accept partial tenders of Notes (only to the extent that the partial tender is equal
to $2,000 in aggregate principal amount and any integral multiple of $1,000 in excess thereof) and
deliver certificates for Notes to the registrar for split-up and return any untendered Notes to the
holder (or such other person as may be designated in the Letter of Transmittal) as promptly as
practicable after expiration or termination of the Offer.




Upon satisfaction or waiver of all of the conditions to the Offer, the Issuers will notify you
(such notice, if given orally, to be promptly confirmed in writing) of their acceptance,
promptly after the Expiration Date, of all Notes properly tendered indicating the aggregate
principal amount of Notes accepted. You, on behalf of the Issuers, will exchange, in
accordance with the terms hereof, accepted Notes for Exchange Notes and cause such Notes to be
cancelled. Delivery of the Exchange Notes will be made on behalf of the Issuers by you at the
rate of $1,000 principal amount of Exchange Notes for each $1,000 principal amount of the
corresponding series of Notes tendered promptly after notice (such notice if given orally, to
be promptly confirmed in writing) of acceptance of such Notes by the Issuers;
provided, however, that no notes of $2,000 or less shall be accepted in part;
provided further, however, that in all cases, Notes tendered pursuant
to the Offer will be exchanged only after timely receipt by you of certificates for such Notes
(or confirmation of book-entry transfer into your account at DTC), a properly completed and
duly executed Letter of Transmittal (or manually signed facsimile thereof) with any required
signature guarantees and any other required documents, or an agent’s message in lieu thereof.
You shall issue Exchange Notes only in initial denominations of $2,000 or any integral
multiple of $1,000 in excess thereof.






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Notes tendered pursuant to the Offer are irrevocable, except that, subject to the terms and upon
the conditions set forth in the Prospectus and the Letter of Transmittal, Notes tendered
pursuant to the Offer may be withdrawn at anytime prior to the Expiration Date.



The Issuers shall not be required to exchange any Notes tendered if any of the conditions set
forth in the Offer are not met. Notice of any decision by the Issuers not to exchange any
Notes tendered shall be given (such notice, if given orally, to be promptly confirmed in
writing) by the Issuers to you.



If, pursuant to the Offer, the Issuers do not accept for exchange all or part of the Notes
tendered, you shall as soon as practicable after the expiration or termination of the Offer
return those certificates for unaccepted Notes (or effect appropriate book-entry transfer),
together with any related required documents and the Letters of Transmittal relating thereto
that are in your possession, to the persons who deposited them.



All certificates for Exchange Notes and unaccepted Notes shall be forwarded by first-class
certified mail, return receipt requested, under a blanket surety bond protecting you and the
Issuers from loss or liability arising out of the non-receipt or non-delivery of such
certificates, (b) by registered mail insured separately for the replacement value of such
securities or (c) in the cases of Notes tendered by book-entry transfer, by book-entry
transfer to the DTC account specified by the holder of the Notes in the Letter of Transmittal
(or agent’s message in lieu thereof).



You are not authorized to pay or offer to pay any concessions, commissions or solicitation fees
to any broker, dealer, bank or other persons or to engage or utilize any person to solicit
tenders.



As Exchange Agent hereunder you:



shall not be liable for any action or omission to act unless the same constitutes
your own gross negligence, willful misconduct or bad faith, and in no event shall you
be liable to a securityholder, the Issuers or any third party for special, indirect or
consequential damages, or lost profits, arising in connection with this Agreement;



shall have no duties or obligations other than those specifically set forth herein
or in the section of the Prospectus captioned “The Exchange Offer” or in the Letter of
Transmittal, or as specifically set forth or as may be subsequently agreed to in
writing between you and the Issuers; provided, however, that in no
event will your general duty to act in good faith be discharged by the foregoing;



will be regarded as making no representations and having no responsibilities as to
the validity, sufficiency, value or genuineness of any of the certificates or the Notes
represented thereby deposited with you pursuant to the Offer, and will not be required
to and will make no representation as to the validity, value or genuineness of the
Offer;



shall not be obligated to take any legal action hereunder which might in your
judgment involve any expense or liability, unless you shall have been furnished with
indemnity reasonably satisfactory to you;



may conclusively rely on and shall be protected in acting in reliance upon any
certificate, instrument, opinion, notice, letter, telegram or other document or
security delivered to you and reasonably believed by you to be genuine and to have been
signed or presented by the proper person or persons;



may act upon any tender, statement, request, document, certificate, agreement or
other instrument whatsoever not only as to its due execution and validity and
effectiveness of its provisions, but also as to the truth and accuracy of any
information contained therein, which you shall in good faith reasonably believe to be
genuine or to have been signed or presented by the proper person or persons;



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may conclusively rely on and shall be protected in acting upon written or oral
instructions from any authorized officer of the Issuers;



may consult with counsel of your selection with respect to any questions relating
to your duties and responsibilities and the written opinion of such counsel shall be
full and complete authorization and protection in respect of any action taken, suffered
or omitted to be taken by you hereunder in good faith and in accordance with the advice
or opinion of such counsel; and



shall not advise any person tendering Notes pursuant to the Offer as to the wisdom
of making such tender or as to the market value or decline or appreciation in market
value of any security, including the Notes.



You shall take such action as may from time to time be requested by the Issuers (and such other
action as you may deem appropriate) to furnish copies of the Prospectus, Letter of Transmittal
and the Notice of Guaranteed Delivery (as described in the Prospectus), or such other forms as
may be approved from time to time by the Issuers, to all persons requesting such documents and
to accept and comply with telephone requests for information relating to the Offer, provided
that such information shall relate only to the procedures for accepting (or withdrawing from)
the Offer. All other requests for information relating to the Offer shall be directed to the
Issuers, Attention: Walt Bromfield, Chief Financial Officer, with a copy to Willkie Farr &
Gallagher LLP, 787 Seventh Avenue, New York, NY 10019, Attention: Cristopher Greer, Esq.



You are authorized to cooperate with and to furnish information to any organization (and its
representatives) designated from time to time by the Issuers in the manner directed or
authorized by the Issuers in connection with the Offer and any tenders thereunder.



You shall advise by e-mail or facsimile transmission Walt Bromfield, the Chief Financial Officer
of each of the Issuers and Curtis Hogan of Willkie Farr & Gallagher LLP (at the facsimile
numbers 813-273-0248 and 212-728-9744, respectively, or the e-mail
addresses,Walt.Bromfield@united-mar.com and chogan@willkie.com, respectively), and such other
person or persons as the Issuers may request, daily (and more frequently during the week
immediately preceding the Expiration Date, if requested) up to and including the Expiration
Date, as to the aggregate principal amount of Notes which have been tendered pursuant to the
Offer and the items received by you pursuant to this Agreement, separately reporting and
giving cumulative totals as items properly received and items improperly received. In
addition, you also will inform, and cooperate in making available to, the Issuers or any such
other person or persons upon oral request made from time to time prior to the Expiration Date
of such other information as they may reasonably request. Such cooperation shall include,
without limitation, the granting by you to the Issuers and such person as the Issuers may
request of access to those persons on your staff who are responsible for receiving tenders, in
order to ensure that immediately prior to the Expiration Date and each other Expiration Date,
if any, the Issuers shall have received information in sufficient detail to enable it to
decide whether to extend the Offer. You shall then prepare a final list of all persons whose
tenders were accepted, the aggregate principal amount of Notes tendered and the amount
accepted and deliver such list to the Issuers.



Letters of Transmittal and Notices of Guaranteed Delivery shall be stamped by you as to the date,
and, after the expiration of the Offer, the time, of receipt thereof and shall be preserved by
you for a period of time at least equal to the period of time you preserve other records
pertaining to the transfer of securities. You shall dispose of unused Letters of Transmittal
and other surplus materials.



For services rendered as Exchange Agent hereunder, you shall be entitled to such compensation as
set forth on Schedule I attached hereto. The provisions of this section shall survive the
termination of this Agreement.



You hereby acknowledge receipt of the Prospectus and the Letter of Transmittal. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and the Letter of
Transmittal (as they may be amended from time to time), on the other hand, shall be resolved
in favor of the latter two documents, except with respect to your duties, liabilities and
indemnification as Exchange Agent.






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The Issuers covenant and agree to fully indemnify and hold you harmless against any and all loss,
liability, cost or expense, including reasonable attorneys’ fees and reasonable expenses,
incurred without gross negligence, willful misconduct or bad faith on your part, arising out
of or in connection with any act, omission, delay or refusal made by you in reliance upon any
signature, endorsement, assignment, certificate, order, request, notice, instruction or other
instrument or document reasonably believed by you to be valid, genuine and sufficient and in
accepting any tender or effecting any transfer of Notes reasonably believed by you in good
faith to be authorized, and in delaying or refusing in good faith to accept any tenders or
effect any transfer of Notes, provided, however, that the Issuers shall not be
liable for indemnification for any loss, liability, cost or expense, including attorneys’ fees
and expenses to the extent arising out of or in connection with your gross negligence, willful
misconduct or bad faith. In each case, the Issuers shall be notified by you, in accordance
with Section 28 hereof, of the written assertion of a claim against you or of any other action
commenced against you, promptly after you shall have received any such written assertion or
shall have been served with a summons in connection therewith or otherwise notified of the
commencement of an action. The Issuers shall be entitled to participate at their own expense
in the defense of any such claim or other action and, if the Issuers so elect, the Issuers
shall assume the defense of any suit brought to enforce any such claim. In the event that the
Issuers shall assume the defense of any such suit, the Issuers shall not be liable for the
fees and expenses of any additional counsel thereafter retained by you, so long as the Issuers
shall retain counsel satisfactory to you to defend such suit; provided, that the
Issuers shall not be entitled to assume the defense of any such action if the named parties to
such action include both you and the Issuers and representation of both parties by the same
legal counsel would, in the written opinion of your counsel, be inappropriate due to actual or
potential conflicting interests between you and the Issuers. You shall not enter into a
settlement or other compromise with respect to any indemnified loss, liability or expense
without the prior written consent of the Issuers, which shall not be unreasonably withheld.
The provisions of this section shall survive the termination of this Agreement.



You shall arrange to comply with all applicable withholding and tax reporting requirements under
the tax laws of the United States, including those relating to missing Tax Identification
Numbers, and shall file any appropriate reports with the Internal Revenue Service (e.g., 1099,
1099B, etc.) as directed in writing by the Issuers.



You shall deliver or cause to be delivered in a timely manner to each governmental authority to
which any transfer taxes are payable in respect of the transfer of Notes to the Issuers, the
Issuers’ payment in the amount of all transfer taxes so payable; provided,
however, that you shall reimburse the Issuers for amounts refunded to you in respect
of your payment of any such transfer taxes, at such time as such refund is received by you.



This Agreement and your appointment as Exchange Agent hereunder shall be construed and enforced in
accordance with the laws of the State of New York applicable to agreements made and to be
performed entirely within such state, and without regard to conflicts of laws principles, and
shall inure to the benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.



This Agreement may be executed in two or more counterparts (including by facsimile), each of which
shall be deemed to be an original and all of which together shall constitute one and the same
agreement.



In case any provision of this Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.



This Agreement shall not be deemed or construed to be modified, amended, rescinded, cancelled or
waived, in whole or in part, except by a written instrument signed by a duly authorized
representative of the party to be charged. This Agreement may not be modified orally.



Unless otherwise provided herein, all notices, requests and other communications to any party
hereunder shall be in writing (including facsimile or similar writing) and shall be given to
such party, addressed to it, at its address or telecopy number set forth below:



If to the Issuers:






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United Maritime Group, LLC

601 S. Harbour Island Blvd.

Tampa, FL 33602

Attn: Walt Bromfield, Chief Financial Officer

Fax:  (813) 273-0248



with a copy (which shall not constitute notice) to:



Cristopher Greer, Esq.

Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, NY 10019

Fax: (212) 728-9214



If to the Exchange Agent:



Wells Fargo Bank, National Association



By Facsimile (for Eligible Institutions only):

(612) 667-6282

Attn. Bondholder Communications



For Information or Confirmation by telephone:

(800) 344-5128, Option 0



By Registered or Certified Mail:

WELLS FARGO BANK, N.A.

Corporate Trust Operations

MAC N9303-121

PO Box 1517

Minneapolis, MN 55480



By Regular Mail or Overnight Courier:

WELLS FARGO BANK, N.A.

Corporate Trust Operations

MAC N9303-121

Sixth & Marquette Avenue

Minneapolis, MN 55479



In Person by Hand Only:

WELLS FARGO BANK, N.A.

12th Floor – Northstar East Building

Corporate Trust Operations

608 Second Avenue South

Minneapolis, MN 55479




Unless terminated earlier by the parties hereto, this Agreement shall terminate 90 days following
the Expiration Date. Notwithstanding the foregoing, Sections 19 and 21 shall survive the
termination of this Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Issuers any certificates for Notes, funds or property then held by you as
Exchange Agent under this Agreement.



This Agreement shall be binding and effective as of the date hereof.



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


United Maritime Group, LLC




	 	 	 	 	 

	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 
	 
	 	 	 	 
	United Maritime Group Finance Corp.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 
	 
	 	 	 	 
	Wells Fargo Bank, National Association, as Exchange Agent and Depositary
	 
	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:
	 	 	 	 






(Signature page for Exchange Agent & Depositary Agreement)














 





Schedule I




COMPENSATION OF EXCHANGE AGENT:




			
	Exchange Agent & Depositary Services:	 	$[  •  ]