“; *provided*that the Adjusted LIBOR Rate shall be deemed to be not less than 2.00% perannum.”          (d) Aggregate Mortgaged Vessel Value. Section 1.01 of the Credit Agreement ishereby amended by amending the definition of “Aggregate Mortgaged Vessel Value” by(i) adding the phrase “Liens permitted by Section 6.02(q), Liens securingobligations under Ship Mortgages or” immediately after the phrase “other than theLien of the Mortgage Trustee,” and (ii) adding the phrase “permitted by Section6.02(a) or (b)” immediately after the phrase “provided that, to the extent suchLiens”.          (e) Aggregate Non-Mortgaged Vessel Value. Section 1.01 of the CreditAgreement is hereby amended by inserting the following definition of “AggregateNon-Mortgaged Vessel Value” in proper alphabetical order as follows:     “‘**Aggregate Non-Mortgaged Vessel Value**’ shall mean, as of the applicable dateof determination, an amount equal to the sum (without duplication) of the amounts(disregarding any such amount which is less than zero) determined by subtractingthe following clause (b) from the following clause (a) for each Pledged Subsidiary(as defined below) that owns a Non-Mortgaged Vessel:     (a) the Vessel Percentage (as defined below) of the aggregate fair market value of the Non-Mortgaged Vessels setforth on Schedule I to the Second Amendment (or in a supplement thereto in form andsubstance reasonably satisfactory to the Administrative Agent delivered to theAdministrative Agent by the Borrower in connection with a Permitted Acquisition)or, if more recent, as determined by the most recent Desktop Appraisal required tobe delivered hereunder, so long as such Vessel is owned by a Wholly OwnedSubsidiary (a “**Pledged Subsidiary**”) (x) 100% of the Equity Interests of which havebeen pledged to the Collateral Agent to secure the Obligations in accordance withthe terms of the Loan Documents or (y) if such Wholly Owned Subsidiary is a CFC (asdefined in Section 5.11(d)), at least 66% of the total voting power of alloutstanding Voting Stock of such CFC (or, if such CFC is the Wholly OwnedSubsidiary of a first-tier CFC, of such first-tier CFC) (the “**Pledged CFC**”) and100% of the Equity Interests not constituting Voting Stock of the Pledged CFC havebeen pledged to the Collateral Agent to secure the Obligations in accordance withthe terms of the Loan Documentsless     (b) 100% of the aggregate amount of, without duplication, (i) Indebtedness for borrowed money of such Pledged Subsidiary(including guarantees of Indebtedness for borrowed money) and, if such Vessel isowned by a Subsidiary of such Pledged Subsidiary, the Subsidiaries of such PledgedSubsidiary that are parent entities of such Subsidiary and (ii) liabilities thatwould be required to be set forth on a balance sheet of such Pledged Subsidiary or,if such Vessel is owned by a Subsidiary of such
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Pledged Subsidiary, a balance sheet of such Pledged Subsidiary and theSubsidiaries of such Pledged Subsidiary that are parent entities of such Subsidiaryon a consolidated basis, in each case, prepared in accordance with GAAP as of thedate of such date of determination, other than, in each case (without duplication),(x) Indebtedness incurred and liabilities that would be included in determining theamount under clause (b) of the definition of “Collateral Maintenance Ratio” and (y)Indebtedness and liabilities owing to a Loan Party to the extent the SecuredParties have a perfected security interest therein;provided, however, that, if on any date of determination, there exists a material defect in title with respect toany such Vessel, the fair market value of such Vessel for purposes of thisdefinition shall be $0.For purposes of the definition of Aggregate Non-Mortgaged Vessel Value, “**Vessel Percentage**”shall mean (i) 75% for a Pledged Subsidiary that satisfies therequirements of subclause(x) of clause (a) of the definition of Aggregate Non-Mortgaged Vessel Value and (ii) 50%for a Pledged Subsidiary that satisfies the requirements ofsubclause (y) of such clause(a).”          (f) AggregateSubject Collateral Value. Section 1.01 of the Credit Agreementis hereby amended by inserting the following definition of “Aggregate SubjectCollateral Value” in proper alphabetical order as follows:     “‘**Aggregate Subject Collateral Value**’ shall mean, as of the applicable date ofdetermination, the sum of (a) the Aggregate Mortgaged Vessel Value, (b) theAggregate Non-Mortgaged Vessel Value and (c) 75% of the book value of the EligibleAccounts minus the aggregate amount of reserves established by Borrower as requiredby GAAP in respect of the Eligible Accounts.          (g) AlternateBase Rate. Section 1.01 of the Credit Agreement is herebyamended by amending the first sentence of the definition of “Alternate Base Rate”in its entirety as follows:     “‘**Alternate Base Rate**’ shall mean, for any day, a fluctuating rate per annum(rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the greatestof (a) the Base Rate in effect on such day, (b) the Federal Funds Effective Rate ineffect on such day plus 0.50% and (c) the Adjusted LIBOR Rate for an InterestPeriod of one-month beginning on such day (or if such day is not a Business Day, on theimmediately preceding Business Day) plus 100 basis points.”          (h) AlternateCovenant Period. Section 1.01 of the Credit Agreement is hereby amended by inserting thefollowing definition of “Alternate Covenant Period” in proper alphabetical order asfollows:     “‘**Alternate Covenant Period**’ shall mean the period commencing on October 1,2009, and ending on June 30, 2010.”
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          (i) ApplicableMargin; Applicable Fee. Section 1.01 of the Credit Agreement is hereby amended as follows:          (i) Section 1.01 of the Credit Agreement is hereby amended by amending the definition of“Applicable Margin” in its entirety to read as follows:     “‘**Applicable Margin**’ shall mean, for any day, (a) with respect to anyEurodollar Loan, 6.50%, and (b) with respect to any ABR Loan, 5.50%; provided that,after the Amendment Effective Date, the Applicable Margin shall be subject to thefollowing pricing grid:           Eurodollar Loan ABR LoanIf the aggregate principalamount of Term Loansoutstanding is less than orequal to $684,250,000, butgreater than $484,250,000  5.00%  4.00%         If the aggregate principalamount of Term Loansoutstanding is less than orequal to $484,250,000  4.00%  3.00%Any change in the Applicable Margin resulting from a reduction of the aggregate principalamount of Term Loans outstanding shall be effective on the date of such reduction.”.          (ii) Section 1.01 of the Credit Agreement is hereby amended by amending thedefinition of “Applicable Fee” in its entirety to read as follows:     “‘**Applicable Fee**’ shall mean, for any day, with respect to any Commitment,1.00%.”          (j) AvailableAmount; Available Equity Proceeds Amount. (i) Section 1.01 ofthe Credit Agreement is hereby amended by amending the definition of “AvailableAmount” in its entirety as follows:          “‘**Available Amount**’ shall mean, at any time,     (a) the sum of (i) 50% of the Consolidated Net Income of the Borrower for theperiod (taken as one accounting period) from the beginning of the fiscal quartercommencing July 1, 2009 (the “**Basket Restart Date**”) to the end of the Borrower’smost recently ended fiscal quarter for which financial statements were required tobe delivered pursuant to Section 5.01 (or, if such Consolidated Net
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Income for such period is a deficit, less 100% of such deficit); *plus*(ii) 100% of theaggregate Net Cash Proceeds received by the Borrower since the Basket Restart Date fromEquity Issuances that are not applied or required to be applied towards mandatoryprepayments pursuant to Section 2.10(e) (the “**Equity Component Amount**”); *less*(iii)payments made by Borrower pursuant to Section 6.08(c);     *less*     (b) the Equity Component Amount theretofor utilized to (i) pay any amounts inconnection with a Permitted Stock Acquisition, (ii) pay, prepay, redeem or acquireany Permitted Senior Secured Notes, any Indebtedness incurred underSection 6.01(k)or any other Material Indebtedness (including, without limitation or duplication, aSpecified Existing Notes Payment (as defined in 6.11(a)) or (iii) cause compliancewith Section 6.10(a)(ii) as set forth inSection 2.10(e); and     (c) the amount thereof theretofor utilized for Investments under clause (i) ofSection 6.04 and Dividends under clause (d) ofSection 6.08.”          (ii) Section 1.01 of the Credit Agreement is hereby further amended byinserting the following definition of “Available Equity Proceeds Amount” in properalphabetical order as follows:          “‘**Available Equity Proceeds Amount**’ shall mean, at any time, the excess of (a)the Equity Component Amount at such time over (b) the aggregate amount of paymentsdescribed in clauses (b)  and (c)  of the definition of “Available Amount” that weremade on account of such Equity Component Amount (assuming for the purpose of thisdefinition that payments described in such clause (c)  were made first on account ofamounts determined pursuant to clause (a)(i) of the definition of “AvailableAmount”).”          (k) BasketRestart Date. Section 1.01 of the Credit Agreement is hereby amended by insertingthe following definition of “Basket Restart Date” in proper alphabetical order as follows:     “‘**BasketRestart Date**’ shall have the meaning assigned to such termin clause(a) of the definition of “Available Amount”.”          (l) Changein Control. Section 1.01 of the Credit Agreement is hereby amendedby: (A) replacing each reference to the word “approved” with the word “recommended” in clause (c) of the definition of“Change in Control” and (B) amending clause (a) of the definition of “Change inControl” in its entirety as follows:          “(a) at any time a change of control, fundamental change or similar eventoccurs under any Permitted Senior Secured Notes, Indebtedness incurred underSection 6.01(k) or other Material Indebtedness if the effect of such change orevent is to cause, or to permit the holder or holders of such Material Indebtednessor a trustee or other representative on its or their behalf to cause, such MaterialIndebtedness to become due
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prior to its stated maturity or become subject to a mandatory offer to purchase by the obligor;”.          (m) CollateralMaintenance Ratio. Sections 1.01, 2.10, 5.11 and 6.06 of theCredit Agreement are hereby amended as follows:          (i) Section 1.01 of the Credit Agreement is hereby amended by deleting eachreference to “1.25 to 1.00” in the definitions of “Asset Swap”, “Flag JurisdictionTransfer” and “Permitted Acquisition” and replacing each such reference with “1.50to 1.00”.          (ii) Section 1.01 of the Credit Agreement is hereby further amended byamending the definition of “Collateral Maintenance Ratio” in its entirety asfollows:     “‘**Collateral Maintenance Ratio**’ shall mean, as of the applicable date ofdetermination, the ratio of (a) the Aggregate Subject Collateral Value to (b) thesum, without duplication, of (i) the sum of all Loans outstanding, LC Exposure andunused Revolving Commitments, (ii) the sum of all other obligations secured by aShip Mortgage that are then due and payable, and (iii) the aggregate amount ofobligations secured by a Lien on a Mortgaged Vessel that is permitted pursuant toSection 6.02(q) (it being understood that the amount determined pursuant tosubclauses (ii) and (iii) shall not have been deducted in determining the AggregateMortgaged Vessel Value).”          (iii) Clause (ii) of Section 2.10(c) of the Credit Agreement is hereby amendedby (A) adding the phrase “and to the extent the aggregate of such Net Cash Proceedsof Asset Sales does not exceed $25,000,000 in the fiscal year of Borrower in whichsuch Net Cash Proceeds are received by Borrower or any of its Subsidiaries”immediately after the phrase “so long as no Default has occurred and iscontinuing”, (B) replacing the phrase “clauses(iii) and (iv) of Section 6.13” withthe phrase “clauses (iii), (iv),(v) and (vi) of Section 6.13” and (C) deleting thereference to “1.25 to 1.00” therein and replacing such reference with “1.50 to1.00”.          (iv) Clause (i) of Section 2.10(f) of the Credit Agreement is hereby amendedby deleting the reference to “1.25 to 1.00” therein and replacing such referencewith “1.50 to 1.00”.          (v) Clause (e) of Section 5.11 of the Credit Agreement is hereby amended bydeleting the reference to “1.25 to 1.00” therein and replacing such reference with“1.50 to 1.00”.          (vi) Clause (b) of Section 6.06 of the Credit Agreement is hereby amended bydeleting the phrase “the Collateral Maintenance Ratio would exceed 1.25 to 1.00and”.
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          (vii) Clause (k) of Section 6.06 of the Credit Agreement is hereby amended bydeleting the reference to “1.25 to 1.00” therein and replacing such reference with“1.50 to 1.00”.          (n) ConsolidatedEBITDA. Section 1.01 of the Credit Agreement is herebyamended by amending the definition of “Consolidated EBITDA” by: (A) amendingsubclause (i) of clause (b) thereof by replacing the reference to “ConsolidatedInterest Expense” therein with a reference to “consolidated interest expense” and(B) adding the phrase “, the Second Amendment and the transactions contemplatedthereby, any Equity Issuance, any sale of Delta Towing Assets and any offering ofPermitted Senior Secured Notes” immediately prior to the “,” at the end ofsubclause (v) of clause (b) thereof.          (o) ConsolidatedFixed Charge Coverage Ratio. Section 1.01 of the CreditAgreement is hereby amended by amending the definition of “Consolidated FixedCharge Coverage Ratio” in its entirety as follows:     “‘**Consolidated Fixed Charge Coverage Ratio**’ shall mean, for any Test Period,the ratio of     (a) the sum of (i) Consolidated EBITDA for such Test Period plus (ii) theamount indicated in the Compliance Certificate delivered with respect to such TestPeriod as the amount to be added to Consolidated EBITDA for purposes of theConsolidated Fixed Charge Coverage Ratio for such Test Period (provided that thesum of all such amounts during the term of the Agreement shall not exceed$130,000,000 or, if different (i.e., either higher or lower) than $130,000,000, theCash Component of the Liquidity Amount as of June 30, 2009)     to          (b) Consolidated Fixed Charges for such Test Period.”          (p) ConsolidatedInterest Expense. Section 1.01 of the Credit Agreement ishereby amended by amending the definition of “Consolidated Interest Expense” by (i) deleting the “and” at the end of clause(a) of the proviso to such definition, (ii) re-lettering clause (b) of the provisoto such definition as new clause (c), and (iii) adding a new clause (b) as follows:“, (b) to the extent directly related to the Second Amendment or the issuance of anyPermitted Senior Secured Notes, debt issuance costs, debt discount or premium and otherfinancing fees and expenses (including any amortization with respect thereto) shall beexcluded from the calculation of Consolidated Interest Expense and”          (q) DefaultingLenders. Section 1.01 and Article II of the Credit Agreementare hereby amended as follows:
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          (i) Section 1.01 of the Credit Agreement is hereby amended by inserting thefollowing definition of “Defaulting Lender” in proper alphabetical order asfollows:     “‘**Defaulting Lender**’ shall mean any Revolving Lender, as reasonably determinedby the Administrative Agent, that (a) has failed to fund any portion of its Loansor participations in Letters of Credit or Swingline Loans required to be funded byit hereunder within two Business Days of the date required to be funded by ithereunder, (b) has notified the Administrative Agent, any Issuing Bank, theSwingline Lender, any Lender and/or Borrower in writing that it does not intend tocomply with any of its funding obligations under this Agreement or has made apublic statement to the effect that it does not intend to comply with its fundingobligations under this Agreement or under agreements that would include thisAgreement, (c) has failed, within three Business Days after request by theAdministrative Agent, to confirm that it will comply with the terms of thisAgreement relating to its obligations to fund prospective Loans and participationsin then outstanding Letters of Credit and Swingline Loans, (d) has otherwise failedto pay over to the Administrative Agent or any other Lender any other amountrequired to be paid by it hereunder within three Business Days of the date whendue, unless the subject of a good faith dispute, or (e) in the case of a RevolvingLender that has a Commitment, LC Exposure or Swingline Exposure outstanding at suchtime, shall take any action or be (or is) the subject of any action or proceedingof a type described in Section 8.01(g) or (h) (or any comparable proceedinginitiated by a regulatory authority having jurisdiction over such RevolvingLender).”          (ii) Section 1.01 of the Credit Agreement is hereby amended by adding thefollowing proviso at the end of the definition of “Required Lenders”:“; *provided*that the Loans, LC Exposure and unused Commitments held or deemed held by anyDefaulting Lender shall be excluded for purposes of makinga determination of Required Lenders.”          (iii) Section 1.01 of the Credit Agreement is hereby amended by adding thefollowing proviso at the end of the definition of “Required Revolving Lenders”:“; *provided*that the Revolving Commitments held or deemed held by any Defaulting Lendershall be excluded for purposes of making a determination of Required Revolving Lenders.”          (iv) Section 2.16(b) of the Credit Agreement is hereby amended by replacingthe words “or if any Lender defaults in its obligation to fund Loans hereunder”with the words “or if any Revolving Lender becomes a Defaulting Lender”.          (v) A new Section 2.20 of the Credit Agreement is hereby added to the CreditAgreement as follows:
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     “**SECTION2.20 Defaulting Lenders**. Notwithstanding any provision of this Agreement tothe contrary, if any Revolving Lender becomes a Defaulting Lender, then the followingprovisions shall apply for so long as such Revolving Lender is a Defaulting Lender:     (a) if any LC Exposure exists at the time a Revolving Lender becomes aDefaulting Lender, then Borrower shall within fifteen Business Days (or such longerperiod as the Administrative Agent and relevant Issuing Banks may agree to)following written notice by the Administrative Agent (A) cash collateralize suchDefaulting Lender’s LC Exposure in accordance with the procedures set forth inSection 2.18(i) for so long as such LC Exposure is outstanding, or (B) enter intoother arrangements reasonably satisfactory to the Administrative Agent, the IssuingBanks, the Swingline Lender and the Borrower;     (b) so long as any Revolving Lender is a Defaulting Lender, the SwinglineLender shall not be required to fund any Swingline Loan and no Issuing Bank shallbe required to issue, amend or increase any Letter of Credit, unless such SwinglineLender or Issuing Bank is satisfied that the related exposure will be cashcollateralized in accordance with Section 2.20(a) (or such other arrangements asare reasonably satisfactory to the Administrative Agent, the Issuing Banks, theSwingline Lender and the Borrower).Therights and remedies against a Defaulting Lender under thisSection 2.20 are in additionto other rights and remedies that Borrower, the Administrative Agent, the Issuing Banks,the Swingline Lender and the non-Defaulting Lenders may have against such DefaultingLender. The arrangements permitted or required by thisSection 2.20 shall be permittedunder this Agreement, notwithstanding any limitation on Liens or otherwise.”          (r) EligibleAccounts. Section 1.01 and Annex I of the Credit Agreement arehereby amended as follows:          (i) Section 1.01 of the Credit Agreement is hereby amended by inserting thefollowing definition of “Eligible Accounts” in proper alphabetical order asfollows:          “‘**EligibleAccounts**’ shall have the meaning set forth on Annex I hereto.”          (ii) Annex I to the Credit Agreement is hereby amended in its entirety byreplacing Annex I to the Credit Agreement in its entirety withAnnex B attachedhereto.          (s) ExcessCash Flow. Sections 1.01 and 2.10 of the Credit Agreement arehereby amended as follows:
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          (i) Section 1.01 of the Credit Agreement is hereby amended by inserting thefollowing definition of “ECF Percentage” in proper alphabetical order as follows:     “‘**ECF Percentage**’ shall mean (a) with respect to the fiscal year of theBorrower that ends during the Alternate Covenant Period, 100% and (b) otherwise,50%.”          (ii) Section 1.01 of the Credit Agreement is hereby amended by amending clause (b) ofthe definition of “Excess Cash Flow” in its entirety as follows:     “(b) any prepayments of Term Loans, and any prepayments of Revolving Loans andSwingline Loans to the extent accompanied by corresponding permanent reductions inthe Revolving Commitments, during such Excess Cash Flow Period, in each case otherthan (i) any voluntary prepayments, (ii) amounts already reflected in Debt Serviceand (iii) prepayments required by Section 2.10(g), in each case to the extent notfinanced with the proceeds of Indebtedness permitted pursuant toSection 6.01(k),(n) or (o);”          (iii) Section 2.10(g) of the Credit Agreement is hereby amended by (A)deleting the phrase “an aggregate amount equal to 50%” and substituting thereforthe phrase “an aggregate amount equal to the ECF Percentage”, (B) amending thefirst proviso therein in its entirety as follows: “; *provided*, *however*, that, tothe extent Borrower has made a voluntary prepayment of Term Loans pursuant toSection 2.10(a) during the applicable Excess Cash Flow Period or, withoutduplication, following the last day of such Excess Cash Flow Period but on or priorto the date any payment in respect of such Excess Cash Flow Period is required tobe made pursuant to this Section 2.10(g) (and such payment was not previously usedto reduce the prepayment required by this Section 2.10(g)), the amount required tobe paid under this Section 2.10(g) with respect to such Excess Cash Flow Periodshall be reduced by the amount of such voluntary prepayment;” and (C) deleting the following proviso:“*provided*, *further, however*, that no prepayment or portion of a prepayment shall berequired pursuant to this Section 2.10(g) if the aggregate outstanding amount of Term Loansshall be less than $550.0 million or to the extent such prepayment would cause theaggregate outstanding amount of Term Loans to be reduced to less than $550.0 million”.          (t) Indebtedness. Section 1.01 of the Credit Agreement is hereby amended byamending the definition of “Indebtedness” by amending the penultimate sentencethereof in its entirety as follows:“Notwithstanding the foregoing or anything to the contrary contained herein, theIndebtedness of any person shall exclude indemnification, adjustment of purchase price,earn-out or similar obligations (including any Earn Out Obligations) of such person, ineach case, incurred or assumed in connection with the acquisition or
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disposition of any business or assets of the Borrower or any Subsidiary or Equity Interestsof a Subsidiary, other than guarantees of Indebtedness incurred by any person acquiring allor any portion of such business, assets or Equity Interests for the purpose of financing orin contemplation of any such acquisition; *provided*that in the case of a disposition, themaximum aggregate liability in respect of all such obligations shall at no time exceed thegross proceeds actually received by the Borrower and its Subsidiaries in connection withsuch disposition.”.          (u) Saleor Joint Venture of Inland Barge Business. Sections 1.01, 2.10,5.11, 6.06, 6.13 and 6.14 of the Credit Agreement are hereby amended as follows:          (i) Section 1.01 of the Credit Agreement is hereby amended by inserting thefollowing definitions in proper alphabetical order:     “‘**Inland Barge Assets**’ shall mean, collectively, the business conducted by thefleet of six conventional and eleven posted barge rigs owned by THE OffshoreDrilling Company that operate inland in marshes, rivers, lakes and shallow bay orcoastal waterways along the U.S. Gulf Coast.     ‘**Inland Barge Joint Venture**’ shall mean any one or more persons that,collectively, acquire (whether by purchase, merger, capital contribution orotherwise), or are formed solely for the purpose of acquiring, all or substantiallyall of the Inland Barge Assets, provided that the Borrower, directly or indirectly,owns (on a pro forma basis after giving effect to such acquisition) a portion ofthe Equity Interest of each such person.”     ‘**Permitted Joint Venture’**shall mean any joint venture involving any Company(which joint venture may be a Subsidiary) created in connection with any Asset Saleor Investment otherwise permitted under this Agreement.”          (ii) Clause (b) of Section 5.11 of the Credit Agreement is hereby amended byadding the words “, the Inland Barge Joint Venture or any Permitted Joint Venture,as applicable” after each instance of the words “the Delta Towing Joint Venture”.          (iii) Clause (c) of Section 5.11 of the Credit Agreement is hereby amended byinserting the parenthetical “(unless such Subsidiary is the Delta Towing JointVenture, the Inland Barge Joint Venture or any Permitted Joint Venture, asapplicable, and Borrower owns (directly or indirectly) less than 80% of the EquityInterests of the Delta Towing Joint Venture, the Inland Barge Joint Venture or suchPermitted Joint Venture, as applicable, in which case Borrower shall usecommercially reasonable efforts to cause the Delta Towing Joint Venture, the InlandBarge Joint Venture or such Permitted Joint Venture, as applicable, to take theactions set forth in this clause)” after the phrase “the Closing Date” therein.          (iv) Section 6.06 of the Credit Agreement is hereby amended by (A) deletingthe “and” at the end of clause (j) thereof, (B) deleting the “.” at the end ofclause
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(k) thereof and replacing it with the word “; and” and (C) adding a new clause (l) as follows:     “(l) an Asset Sale involving all or any portion of the Inland Barge Assets orany Equity Interests of the Inland Barge Joint Venture, in each case to the extentthat (i) the consideration received by Borrower or the relevant Subsidiary in suchAsset Sale is equal to or greater than the fair market value of the assets subjectto such Asset Sale, (ii) no Default exists or would exist after giving effect tosuch Asset Sale, (iii) after giving effect to such Asset Sale the Domestic AssetPercentage would exceed 50%, (iv) if such Asset Sale involves the disposition of aMortgaged Vessel, after giving effect to such Asset Sale the Collateral MaintenanceRatio would exceed 1.50 to 1.00, (v) if such Asset Sale involves the disposition ofa Mortgaged Vessel and the fair market value of the assets subject to such AssetSale (inclusive of the fair market value of the assets subject to any related AssetSale) would exceed $50.0 million, a Current Desktop Appraisal shall be in effect,(vi) if the fair market value of such assets would exceed $25.0 million, Borrowershall have delivered to the Agents an Officer’s Certificate certifying that suchAsset Sale complies with this clause (l) (which shall have attached theretoreasonably detailed back-up data and calculations showing such compliance) and(vii) if, after giving effect to such Asset Sale involving Equity Interests of theInland Barge Joint Venture, the Inland Barge Joint Venture is a SubsidiaryGuarantor (or is required to be a Subsidiary Guarantor), then each person (otherthan a Company) owning Equity Interests of the Inland Barge Joint Venture shallhave executed and delivered to Agents a Minority Holder Acknowledgment, Consent and Waiver.”          (v) Section 6.13 of the Credit Agreement is hereby amended by: (A) replacingin clause (iii) thereof the phrase “issuances described in the proviso to theimmediately succeeding clause (iv)” with the phrase “issuances described in theprovisos to the immediately succeeding clauses (iv),(v) and (vi)”, (B) adding inclause (iv) thereof immediately after the phrase “issuances described in theproviso to the immediately preceding clause (iii)” the phrase “and the proviso tothe immediately succeeding clauses (v) and (vi)”, (C) deleting the “and” at the endof clause (iii) thereof, (D) deleting the “.” at the end of clause (iv) thereof and(E) adding the following new clauses (v) and (vi) as follows:     “(v) the Inland Barge Joint Venture may issue Equity Interests to personsother than a Company, *provided*that (A) neither the issuer of such Equity Interestsnor any of its Subsidiaries owns any Mortgaged Vessel, (B) such issuance would bepermitted as an Asset Sale (regardless of whether the proceeds of such issuance areless than $1.0 million) under Section 6.06(l), (C) each such person executes anddelivers to the Agents a Minority Holder Acknowledgment, Consent and Waiver priorto such issuance, unless the issuer of such Equity Interests (after giving effectto such issuance) is not a Subsidiary of Borrower and (D) for the avoidance ofdoubt, the Net Cash Proceeds of each such issuance are applied in accordance withthe terms of Section 2.10(c); *provided, however*, that the Net Cash Proceeds of suchissuances shall not be required to be applied as a mandatory prepayment in
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accordancewith Section 2.10(c) until the aggregate amount of such Net Cash Proceeds andthe Net Cash Proceeds of issuances described in the provisos to the immediately precedingclauses (iii) and (iv) of thisSection 6.13, in each case not theretofor applied inaccordance with Section 2.10(c),exceeds $2.5 million, at which time all such Net CashProceeds shall be promptly applied by Borrower as a mandatory prepayment in accordance withSection 2.10(c); and     (vi) any Permitted Joint Venture may issue Equity Interests to persons otherthan a Company, *provided*that (A) neither the issuer of such Equity Interests norany of its Subsidiaries owns any Mortgaged Vessel, (B) such issuance would bepermitted as an Asset Sale (regardless of whether the proceeds of such issuance areless than $1.0 million) under Section 6.06(a),(b), (c) or (g), (C) each suchperson executes and delivers to the Agents a Minority Holder Acknowledgment,Consent and Waiver prior to such issuance, unless the issuer of such EquityInterests (after giving effect to such issuance) is not a Subsidiary of Borrowerand (D) for the avoidance of doubt, the Net Cash Proceeds of each such issuance areapplied in accordance with the terms of Section 2.10(c); *provided*, *however*, thatthe Net Cash Proceeds of such issuances shall not be required to be applied as amandatory prepayment in accordance with Section 2.10(c) until the aggregate amount of such Net Cash Proceeds and theNet Cash Proceeds of issuances described in the provisos to the immediatelypreceding clauses (iii), (iv) and (v) of thisSection 6.13, in each case nottheretofor applied in accordance with Section 2.10(c), exceeds $2.5 million, atwhich time all such Net Cash Proceeds shall be promptly applied by Borrower as amandatory prepayment in accordance with Section 2.10(c).”          (vi) Section 6.14 of the Credit Agreement is hereby amended by: (A) deletingthe word “or” at the end of clause (i)(B) thereof, (B) adding the following newclause (i)(D) immediately after clause (i)(C) thereof:“(D) the Inland Barge Joint Venture, so long as the Equity Interests of the Inland BargeJoint Venture held by persons other than a Company were issued in a transaction that wouldcomply with clause (v) of Section 6.13 or (E) any Permitted Joint Venture, so long as theEquity Interests of such Permitted Joint Venture were issued in a transaction that wouldcomply with clause (vi) of Section 6.13, or”          (v) IntercreditorAgreement. Section 1.01 of the Credit Agreement is herebyamended by inserting the following definition of “Intercreditor Agreement” inproper alphabetical order as follows:     “‘**Intercreditor Agreement**’ shall have the meaning assigned to such term inclause (q) of Section 6.02.”          (w) LIBORRate. Section 1.01 of the Credit Agreement is hereby amended byamending the definition of “LIBOR Rate” by (i) replacing the words “Page 3750 onthe Telerate System Incorporated Service” with the words “Reuters Screen LIBOR1Page” and (ii) adding the following as the penultimate sentence:
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“Notwithstandingthe foregoing, for purposes of clause (c) of the definition of AlternateBase Rate, the rates referred to above shall be the rates as of 11:00 a.m., London, Englandtime, on the date of determination (rather than the second London Business Day precedingthe date of determination).”          (x) LiquidityAmount. Section 1.01 of the Credit Agreement is hereby amended by inserting thedefinition of “Liquidity Amount” in proper alphabetical order as follows:     “‘**Liquidity Amount**’ shall mean, at any time, the sum of (a) cash and CashEquivalents on hand of Borrower and its Subsidiaries that is not Restricted Cash(less the aggregate amount of checks, wires and other transfers written or madeagainst such cash and Cash Equivalents, but which have not been theretofordeducted) (the “**Cash Component**”) and (b) availability of Revolving Commitments formaking Revolving Loans.”          (y) Non-MortgagedVessels. Section 1.01 of the Credit Agreement is hereby amended by inserting the following definition of “Non-Mortgaged Vessels” in proper alphabetical order asfollows:     “‘**Non-Mortgaged Vessels**’ shall mean the Vessels set forth on Schedule I to theSecond Amendment (or in a supplement thereto in form and substance reasonablysatisfactory to the Administrative Agent delivered to the Administrative Agent bythe Borrower in connection with a Permitted Acquisition).”          (z) PermittedAcquisition; Specified Existing Notes Payment. Section 1.01 ofthe Credit Agreement is hereby amended as follows:          (i) The definition of “Permitted Acquisition” is amended by adding theparenthetical “(as in effect immediately prior to the amendments made theretopursuant to the Second Amendment, except in the case of a Permitted StockAcquisition, in which case, such covenants shall be the covenants as in effect asof the date of such Permitted Stock Acquisition)” immediately after each referenceto “Sections 6.10(a) and (b)” or“Section 6.10” set forth therein;          (ii) Section 1.01 of the Credit Agreement is hereby amended by inserting thefollowing definitions in proper alphabetical order:     **“‘Permitted Stock Acquisition’**shall mean any transaction for (a) theacquisition of one or more Vessels and related assets or all or substantially allof the property of any person or of any business or division of any person or (b)the acquisition (including by merger or consolidation) of the Equity Interests ofany person that becomes a Subsidiary after giving effect to such transaction, ineach case, so long as the consideration in connection with such transactionconsists solely of (i) Qualified Capital Stock of Borrower, (ii) the Net CashProceeds of an
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Equity Issuance in an aggregate amount not exceeding the Available Equity Proceeds Amountthat is then in effect or (iii) a combination of the foregoing.’     ‘**Specified Existing Notes Payment**’ shall have the meaning assigned to suchterm in Section 6.11(a).’”          (aa) PermittedRefinancing; Permitted Debt Requirements. Section 1.01 of theCredit Agreement is hereby amended by inserting the following definitions in properalphabetical order:     “‘**Permitted Debt Maturity Requirements**’ shall have the meaning assigned tosuch term in Section 6.01(k).     ‘**Permitted Refinancing**’ shall mean, as to any Indebtedness, the Incurrence ofother Indebtedness to refinance, extend, renew, defease, restructure, replace or refund (collectively, “**refinance**”) such existingIndebtedness; *provided*that, in the case of such other Indebtedness, the followingconditions are satisfied:     (a) any such refinancing Indebtedness is in an aggregate principalamount not greater than the aggregate principal amount of the Indebtednessbeing refinanced, plus the amount of any premiums, interest and/ordiscounts required to be paid thereon and reasonable fees and expensesassociated therewith;     (b) such refinancing Indebtedness has a later or equal final maturityand longer or equal weighted average life to maturity than theIndebtedness being refinanced;     (c) the respective obligor or obligors shall be the same on therefinancing Indebtedness as on the Indebtedness being refinanced (exceptfor newly formed or acquired Subsidiaries which also become obligors inrespect of the Obligations);     (d) the security, if any, for the refinancing Indebtedness shall beof the same type as that for the Indebtedness being refinanced (except tothe extent that less security is granted to holders of refinancingIndebtedness), and, in the event the holders of such Indebtedness beingrefinanced (or any agent or trustee on their behalf) were at the time ofsuch refinancing subject to an intercreditor or similar agreement with theSecured Parties and/or the Agents, the holders of such refinancingIndebtedness shall become subject to such intercreditor or similaragreement on terms and conditions satisfactory to the Agents; *provided*that, if after the incurrence of such refinancing Indebtedness, additionaltypes of Collateral or additional assets are granted as Collateral for theObligations, such additional types of Collateral or additional assets mayalso secure such refinancing
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Indebtedness to the extent the Indebtedness being refinanced was required to besecured by the same Collateral securing the Obligations;     (e) the refinancing Indebtedness is subordinated in right of paymentto the Obligations to the same degree, if any, or to a greater degree asthe Indebtedness being refinanced; and     (f) in the event any term or terms of the Indebtedness beingrefinanced were required hereunder to be consented to by the RequiredLenders or the Administrative Agent, the equivalent term or terms in therefinancing Indebtedness shall be, in the aggregate, not materially lessfavorable to the Lenders than those contained in the Indebtedness beingrefinanced, unless otherwise consented to by the Required Lenders (suchconsent not to be unreasonably withheld), in the case where Required Lenders consented with respectto the prior Indebtedness, or the Administrative Agent (such consent notto be unreasonably withheld), in the case where the Administrative Agentconsented with respect to the prior Indebtedness.”          (bb) PermittedSenior Secured Notes. Section 1.01 of the Credit Agreement ishereby amended by inserting the following definition of “Permitted Senior SecuredNotes” in proper alphabetical order as follows:     “‘**Permitted Senior Secured Notes**’ shall have the meaning assigned to such termin clause (n) of Section 6.01.”          (cc) PreferredStock Issuance. Section 1.01 of the Credit Agreement is herebyamended by amending the definition of “Preferred Stock Issuance” by replacing thereference to “(m)” therein with a reference to“(o)”.          (dd) RestrictedCash. Section 1.01 of the Credit Agreement is hereby amendedby inserting the following definition of “Restricted Cash” in proper alphabeticalorder as follows:     “‘**Restricted Cash**’ shall mean, when referring to cash or Cash Equivalents ofBorrower and its Subsidiaries, that such cash or Cash Equivalents (a) appear (orwould be required to appear) as “restricted” on a consolidated balance sheet ofBorrower and its Subsidiaries (unless such appearance is related to the LoanDocuments or Liens created thereunder) or (b) are subject to any Lien in favor ofany person (other than Permitted Liens described in clauses (a), (j), (l)(including cash collateral provided under Section 2.20)and (q) of Section 6.02).”          (ee) RetainedExcess Cash Flow. Section 1.01 of the Credit Agreement ishereby amended by inserting the following definition of “Retained Excess Cash Flow”in proper alphabetical order as follows:
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     “‘**Retained Excess Cash Flow**’ shall mean, initially, zero,as increased from time to time, for the fiscal year ending on (or about) December 31, 2010and each fiscal year thereafter, on each date that the Borrower has made the prepaymentrequired under Section 2.10(g) with respect to such fiscal year, the amount of Excess CashFlow for the fiscal year with respect to which such prepayment was made multiplied by 50%,and as decreased from time to time, at any time a payment, prepayment, redemption oracquisition is made pursuant to clause (a)(ii)(A) of Section 6.11, by the amount expendedwith respect thereto.”          (ff) Second Amendment. Section 1.01 and Article IX of the Credit Agreement are hereby amended as follows:          (i) Section 1.01 of the Credit Agreement is hereby amended by inserting thefollowing definitions in proper alphabetical order as follows:          “‘**Amendment Effective Date**’ shall have the meaning set forth in the SecondAmendment.     ‘**Second Amendment**’ shall mean that certain Amendment No. 2 to this Agreement,dated as of July 23, 2009, among the Borrower, the Subsidiary Guarantors, theIssuing Banks executing such Amendment No. 2 on the signature pages thereto, andUBS AG, STAMFORD BRANCH, as the Administrative Agent, the Collateral Agent and anIssuing Bank.”          (ii) A new Section 9.10 of the Credit Agreement is hereby added to the CreditAgreement as follows:     “**SECTION 9.10 Second Amendment**. The Lenders and the Issuing Banks authorizethe Administrative Agent and the Collateral Agent , as applicable, to enter intoand execute such agreements and documents to effect the transactions contemplatedby the Second Amendment, including execution of the Intercreditor Agreement onbehalf of the Lenders and the Issuing Banks, and the Lenders and the Issuing Banksagree to be bound by the terms of such Intercreditor Agreement. Notwithstandinganything to the contrary in this Agreement or in any other Loan Document, the Liensgranted to the Collateral Agent in favor of the Secured Parties pursuant to thisAgreement and the other Loan Documents and the exercise of any right related to anyCollateral shall be subject, in each case, to the terms of the IntercreditorAgreement.”          (gg) Test Period. Section 1.01 of the Credit Agreement is hereby amended byamending the definition of “Test Period” in its entirety as follows:
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     “A ‘**Test Period**’ in effect at any time shall mean the period of fourconsecutive fiscal quarters of Borrower ended on or prior to such time (taken asone accounting period) in respect of which financial statements for each quarter orfiscal year in such period have been or were required to be delivered pursuant toSection 5.01(a) or (b), without giving effect to any grace period applicablethereto.”          (hh) Wholly Owned Subsidiary. Section 1.01 of the Credit Agreement is herebyamended by amending the definition of “Wholly Owned Subsidiary” in its entirety asfollows:     “‘**Wholly Owned Subsidiary**’ shall mean, as to any person, (a) any corporation100% of whose capital stock is at the time owned by such person and/or one or moreWholly Owned Subsidiaries of such person and (b) any partnership, association, joint venture, limited liability company orother entity in which such person and/or one or more Wholly Owned Subsidiaries ofsuch person have a 100% equity interest at such time, in each case, other than (i)directors’ qualifying shares or (ii) shares or other equity interests required bylaw to be held by a resident of the relevant jurisdiction (except, in the case ofclauses (i) and (ii), for directors’ qualifying shares or such other shares orequity interests that confer on the person owning such qualifying shares or equityinterests Control of any such corporation, partnership, association, joint venture,limited liability company or other entity referenced in clauses (a) or (b) above).”          (ii) GAAP Terms. Section 1.04 of the Credit Agreement is hereby amended by(A) inserting the parenthetical “(including Capital Lease Obligations and CapitalExpenditures)” immediately following the phrase “financial covenants, standards orterms in this Agreement” in the second and third sentences therein and (B) addingthe following proviso at the end of the first sentence of such Section 1.04:“; *provided*that if for purposes of determining the outstanding amount of any Indebtedness(including, for the avoidance of doubt, any determination of Consolidated Indebtedness),(x) any election by the Borrower to measure an item of Indebtedness using fair value (aspermitted by SFAS 159 issued by the Financial Accounting Standards Board in February 2007,or any similar accounting standard) shall be disregarded and such determination shall bemade as if such election had not been made and (y) any original issue discount with respectto such Indebtedness shall not be deducted in determining the outstanding amount of suchIndebtedness.”          (jj) Incremental Facilities. Section 2.19 of the Credit Agreement is herebyamended by: (A) deleting the reference to “the Revolving Maturity Date” occurringin clause (a) thereof and inserting in its place the phrase “the AmendmentEffective Date”, and (B) inserting the phrase “prior to the Amendment EffectiveDate,” immediately after the reference to “(y)” in clause (a) thereof.          (kk) Representations and Warranties.
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          (i) Section 3.04(b) of the Credit Agreement is hereby amended by deleting thereference to “December 31, 2006” therein and replacing it with a reference to“March 31, 2009”.          (ii) Section 3.10 of the Credit Agreement is hereby amended by inserting thefollowing immediately after the last sentence thereof:“The Secured Parties are not directly or indirectly secured, as such terms are used inRegulation U, by any Margin Stock owned by a Company in violation of, or in a manner thatis inconsistent with, the provisions of the regulations of the Board,including Regulation T, U or X. No Company owns any Margin Stock, except to the extentBorrower has reported such ownership in writing to the Administrative Agent fordistribution to the Lenders.”          (iii) Section 3.12 of the Credit Agreement is hereby amended by inserting thefollowing proviso immediately after the reference to “on the Closing Date)”:“; *provided*that in no event shall the proceeds of any concurrent or substantiallyconcurrent borrowing of Revolving Loans or Swingline Loans be used to prepay the TermLoans”.          (ll) Conditions to Credit Extensions. Clause (c)(i) of Section 4.02 of theCredit Agreement is hereby amended by adding the following parenthetical at the endthereof: “(in which case such representations and warranties shall be true andcorrect in all material respects as of such earlier date)”.          (mm) Affirmative Covenants. Sections 5.01, 5.02 and 5.12 and Article V of theCredit Agreement are hereby amended as follows:          (i) Section 5.01 of the Credit Agreement is hereby amended by: (A) by deletingthe word “and” at the end of clause (e) thereof, (B) re-lettering clause (f) ofsuch Section 5.01 as a new clause (g) and (C) adding a new clause (f) as follows:          “(f) Annual Budgets. Within 60 days after the beginning of each fiscal yearcommencing with the fiscal year ending December 31, 2010, a detailed budget forBorrower in form reasonably satisfactory to the Administrative Agent, but toinclude estimated balance sheets, statements of income and statements of cash flow,for each fiscal quarter of such fiscal year prepared in summary form, in each case,with appropriate presentation and discussion of the principal assumptions uponwhich such budgets are based, accompanied by the statement of a Financial Officerof Borrower to the effect that the budget of Borrower is based upon assumptionsbelieved to be reasonable at the time of preparation thereof (it being recognizedby the Agents and the Lenders that any results of operation forecasted therein arenot to be viewed as facts and that the actual results of operation during theperiod or periods covered by such budget may differ from the amounts set forth insuch budget, and such differences may be material); and”.
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          (ii) Section 5.02 of the Credit Agreement is hereby amended by amending clause(iv) thereof in its entirety as follows:     “(iv) the occurrence of a Casualty Event in respect of which the damage to anyproperty or properties of Borrower or any of its Subsidiaries is in excess of $10.0 million in the aggregate; and”.          (iii) Section 5.12 of the Credit Agreement is hereby amended by inserting thefollowing parenthetical immediately after the phrase “any document” in the firstsentence thereof:“(including opinions of counsel with respect to Ship Mortgages and other matters that arenot covered by the UCC)”.          (iv) Article V of the Credit Agreement is hereby amended by inserting thefollowing new Section 5.18 in the proper numerical order:     “**SECTION 5.18 Additional Mortgaged Vessels**. As soon as reasonably practicable, but inno event later than September 30, 2009 (or such later date that the Administrative Agentmay agree in its sole discretion), (i) execute and deliver to the Administrative Agent andthe Collateral Agent a new Ship Mortgage or amendments or supplements to an existing ShipMortgage as the Administrative Agent or the Collateral Agent shall deem reasonablynecessary or advisable to grant to the Mortgage Trustee, for its benefit and for thebenefit of the other Secured Parties, a Lien on each Vessel listed on Annex C to the SecondAmendment, subject to no Liens other than Permitted Liens, (ii) take all actions reasonablyrequested by the Collateral Agent or the Administrative Agent to cause such Lien to be dulyperfected to the extent required by such Ship Mortgage in accordance with all applicableRequirements of Law, including the filing of such Ship Mortgage or amendment or supplementto an existing Ship Mortgage in the appropriate vessel registry and (iii) deliver suchother documentation as the Administrative Agent may reasonably request in connection withthe foregoing, including, certificates, copies of searches and filings and favorablewritten opinions of counsel and other items of the types required to have been deliveredpursuant to Section 4.01(o), all in form, content and scope reasonably satisfactory to theAdministrative Agent.”.          (nn) Negative Covenants. Sections 6.01, 6.02, 6.08, 6.11 and 6.12 of theCredit Agreement are hereby amended as follows:          (i) Section 6.01 of the Credit Agreement is hereby amended by amending clause(b) thereof in its entirety as follows:     ”(b) (i) Indebtedness outstanding on the Closing Date and listed on Schedule6.01(b), and (ii) Permitted Refinancings thereof;”
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          (ii) Clause (g) of Section 6.01 of the Credit Agreement is hereby amended byinserting the following proviso immediately after the reference to “this Section6.01”:“; *provided*that any Subsidiary which incurs a Contingent Obligation in respect ofIndebtedness of Borrower or any other Loan Party shall be (or shall simultaneouslytherewith become) a Subsidiary Guarantor;”          (iii) Section 6.01 of the Credit Agreement is hereby further amended byamending clause (k) thereof in its entirety to read as follows:     “(k) (A) unsecured Indebtedness of Borrower Incurred on terms comparable tosimilarly situated issuers (as reasonably determined by the Administrative Agent);*provided*that     (i) the Administrative Agent shall have been provided the terms ofsuch Indebtedness no less than five Business Days prior to the incurrencethereof,     (ii) no Default exists immediately before or after the incurrence ofsuch Indebtedness,     (iii) after giving effect to such Incurrence on a Pro Forma Basis,Borrower shall be in compliance with all covenants set forth in Sections6.10(a) and (b) as of the most recent Test Period (assuming for purposesof Section 6.10, that such Incurrence, all other Incurrences ofIndebtedness, and the use of the proceeds of such Incurrence (includingthe repayment or refinancing of other Indebtedness) since the first day ofthe relevant Test Period for each of the financial covenants set forth inSection 6.10 ending on or prior to the date of such transaction, hadoccurred on the first day of such relevant Test Period);     (iv) with respect to any such Indebtedness incurred on or after theAmendment Effective Date, such Indebtedness (1) does not have a finalmaturity date that is prior to, and does not require any scheduledamortization of principal prior to, the date falling 91 days after theTerm Loan Maturity Date, and (2) is not mandatorily redeemable orredeemable at the option of the holder thereof, in whole or in part, priorto the date falling 91 days after the Term Loan Maturity Date (excludingfor purposes of this subclause (iv), (x) any mandatory redemptionresulting from a change in control (or other fundamental change) or anasset sale offer requirement (provided that Borrower shall have compliedwith the terms of this Agreement with respect to any Asset Sale resultingin such asset sale offer, including any prepayment required under Section2.10(c) hereof) and (y) any conversion of any such Indebtedness solelyinto Qualified Capital Stock
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of Borrower) (the requirements set forth in this subclause (iv), the “***PermittedDebt Maturity Requirements***”),     (v) with respect to any such Indebtedness incurred on or after theAmendment Effective Date, 100% of the Net Cash Proceeds of suchIndebtedness shall be applied to prepay the Term Loans in accordance withSection 2.10(d) or be applied to pay, prepay or redeem other Indebtednessof Borrower substantially concurrently with the incurrence of suchIndebtedness; and     (vi) Borrower shall have delivered to the Administrative Agent anOfficer’s Certificate certifying that such Incurrence complies with thisclause (k) (which shall have attached thereto reasonably detailedcalculations showing such compliance); and     (B) Permitted Refinancings thereof; provided that the resultingrefinancing Indebtedness satisfies the Permitted Debt MaturityRequirements;”          (iv) Section 6.01 of the Credit Agreement is hereby further amended by: (A)deleting the word “and” at the end of clause (l) thereof, (B) re-lettering clause(m) of such Section 6.01 as new clause (o), and (C) adding the following newclauses (m) and (n) as follows:     “(m) Indebtedness of Borrower and its Subsidiaries representing deferredcompensation to employees of Borrower and its Subsidiaries incurred in the ordinarycourse of business;     (n) (A) Indebtedness of Borrower Incurred on or after the Amendment EffectiveDate on terms comparable to similarly situated issuers (as reasonably determined bythe Administrative Agent), 100% of the Net Cash Proceeds of which shall be solelyapplied to prepay the Term Loans in accordance with Section 2.10(d); *provided*that     (i) the Administrative Agent shall have been provided the terms ofsuch Indebtedness no less than five Business Days (or, in the case ofpricing terms, three Business Days) prior to the incurrence thereof,     (ii) no Default exists immediately before or after the incurrence ofsuch Indebtedness,     (iii) after giving effect to such Incurrence on a Pro Forma Basis,Borrower shall be in compliance with all covenants set forth in Sections6.10(a) and (b) as of the most recent Test Period (assuming for purposesof Section 6.10, that such Incurrence, all other Incurrences ofIndebtedness, and the use of the proceeds of such Incurrence (includingthe repayment or
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refinancing of other Indebtedness) since the first day of the relevant Test Periodfor each of the financial covenants set forth in Section 6.10 ending on or prior tothe date of such transaction, had occurred on the first day of such relevant TestPeriod),     (iv) such Indebtedness shall comply with the Permitted Debt MaturityRequirements, and     (v) Borrower shall have delivered to the Administrative Agent anOfficer’s Certificate certifying that such Incurrence complies with thisclause (n) (which shall have attached thereto reasonably detailedcalculations showing such compliance) (any such notes issued pursuant tothis clause (n) being referred to herein as “**Permitted Senior SecuredNotes**”), and     (B) Permitted Refinancings thereof; and”          (v) Section 6.02 of the Credit Agreement is hereby amended by (A) deleting theword “and” at the end of clause (o) thereof, (B) re-lettering clause (p) of suchSection 6.02 as new clause (r), and (C) adding the following new clauses (p) and(q) as follows:     “(p) Liens incurred in the ordinary course of business arisingfrom contractual rights of setoff, which Liens do not secure Indebtedness forborrowed money;     (q) Liens securing Indebtedness incurred pursuant to Section 6.01(n)(including all obligations (including interest, premiums, fees, costs, expenses andother monetary amounts related thereto) arising from the documentation relating tosuch Indebtedness); *provided*that each party in whose favor such Liens were created(or an agent or trustee on its behalf) shall have entered into an intercreditoragreement with the Collateral Agent, in form and substance reasonably acceptable tothe Administrative Agent and the Collateral Agent (such intercreditor agreement,the “**Intercreditor Agreement**”); and”          (vi) Section 6.02 of the Credit Agreement is hereby further amended by addingthe phrase “or permitted under clause (q) of this Section 6.02” to the end of theproviso set forth at the end of such Section 6.02.          (vii) Clause (c) of Section 6.08 of the Credit Agreement is hereby amended bydeleting each reference to “$10.0 million” occurring therein and inserting in itsplace the phrase “$5.0 million”.          (viii) Clause (d) of Section 6.08 of the Credit Agreement is hereby amended byadding the parenthetical “(as in effect immediately prior to the amendments madethereto pursuant to the Second Amendment)” immediately after each reference to“Sections 6.10(a) and (b)” or “Section 6.10” set forth therein.
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          (ix) Clause (a) of Section 6.11 of the Credit Agreement is hereby amended inits entirety to read as follows:     “(a) make any voluntary or optional payment or prepayment on or redemption oracquisition for value of, or any prepayment or redemption as a result of any asset sale,change of control or similar event of,     (i) any Indebtedness under any Subordinated Indebtedness, except asotherwise permitted by an Intercompany Note or this Agreement;     (ii) any Indebtedness incurred under Section 6.01(k) (other thanpayments, prepayments, redemptions or acquisitions of such Indebtednessmade (1) in connection with a Permitted Refinancing of such Indebtednessunder Section 6.01(k)(B) or (2) solely with Qualified Capital Stock ofBorrower), unless:     (A) after giving effect to such payment, prepayment,redemption or acquisition on a Pro Forma Basis, Borrower shall be incompliance with all covenants set forth in Sections 6.10(a) and (b)(as in effect immediately prior to the amendments made theretopursuant to the Second Amendment, except in the case of a payment,prepayment, redemption or acquisition of Borrower’s 3.375%Convertible Senior Notes due 2038 made solely with the Net CashProceeds from Equity Issuances in an amount not to exceed theAvailable Equity Proceeds Amount that is then in effect (suchpayment, prepayment, redemption or acquisition, a “**SpecifiedExisting Notes Payment**”), in which case, such covenants shall be thecovenants as in effect as of the date of such Specified ExistingNotes Payment) as of the most recent Test Period (assuming forpurposes of Section 6.10 (as in effect immediately prior to theamendments made thereto pursuant to the Second Amendment, except inthe case of a Specified Existing Notes Payment, in which case, suchcovenants shall be the covenants as in effect as of the date of suchSpecified Existing Notes Payment), that such payment, prepayment,redemption or acquisition (including all Incurrences of Indebtednessin connection therewith and all Dividends consummated since thefirst day of the relevant Test Period ending on or prior to the dateof such payment, prepayment, redemption or acquisition), hadoccurred on the first day of such relevant Test Period),     (B) the aggregate amount of such payment, prepayment,redemption or acquisition does not exceed the Available Amount thatis then in effect;
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     (C) no Default exists immediately before or after suchpayment, prepayment, redemption or acquisition; and     (D) Borrower shall have delivered to the Administrative Agentan Officer’s Certificate certifying that such payment, prepayment,redemption or acquisition has been made under, and in compliancewith, this subclause (ii) (which shall have attached theretoreasonably detailed calculations showing such compliance, with suchbackup information as the Administrative Agent may reasonablyrequest); or     (iii) any Indebtedness incurred under Section 6.01(n), except (A) inan amount not exceeding Retained Excess Cash Flow so long as no Defaultexists immediately before or after such payment, prepayment, redemption oracquisition, (B) with the Net Cash Proceeds from Equity Issuances in anamount not to exceed the Available Equity Proceeds Amount that is then ineffect, so long as (1) Borrower shall have delivered to the AdministrativeAgent an Officers’ Certificate certifying as to the aggregate amount ofsuch Net Cash Proceeds applied to pay, prepay, redeem or acquire suchIndebtedness, and (2) no Default exists immediately before or after suchpayment, prepayment, redemption or acquisition, (C) in connection with aPermitted Refinancing of such Indebtedness, (D) in the case of anyprepayment or redemption as a result of any asset sale, change of controlor similar event, to the extent permitted by the Intercreditor Agreement,(E) redemptions thereof made solely with Qualified Capital Stock ofBorrower and (F) to the extent that (1) the Term Loans and (2) anyIndebtedness secured on a pari passu basis with the Term Loans incurred torefinance (as defined in the definition of “Permitted Refinancing”) theTerm Loans (or any portion thereof) to the extent the terms of suchIndebtedness described in this subclause (2) would require a proportionalpayment described in this subclause (F) are substantially concurrentlyprepaid in a proportional amount (as determined by the AdministrativeAgent based on the then-outstanding Term Loans and then-outstandingprincipal amount of the Permitted Senior Secured Notes and, if applicable,any such other Indebtedness requiring a proportional payment, as set forthin an Officers’ Certificate delivered by Borrower in connection with suchpayment, prepayment, redemption or acquisition), so long as no Defaultexists immediately before or after such payment, prepayment, redemption oracquisition;”          (x) Clause (b) of Section 6.11 of the Credit Agreement ishereby further amended by (A) adding the words “or Section 6.01(n)”immediately after the reference to “Section 6.01(k)” and (B) adding the followingparenthetical at the end of such clause:
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     “(it being understood that, for purposes of this clause (b), the provisions of anyIndebtedness incurred to refinance (as defined in the definition of Permitted Refinancing)any other Indebtedness shall be subject to the terms set forth in the definition ofPermitted Refinancing and shall not be deemed to be amendments or modifications of theprovisions of the Indebtedness being refinanced).”          (xi) Section 6.12 of the Credit Agreement is hereby amended by adding thewords “or Section 6.01(n)” immediately after the reference to “Section 6.01(k)”.          (oo)Financial Covenants. Section 6.10 of the Credit Agreement is herebyamended as follows:          (i) Clause (a) of Section 6.10 of the Credit Agreement is hereby amended in itsentirety to read as follows:     “(a) Maximum Total Leverage Ratio/Liquidity. (i) Permit the Total LeverageRatio, as of the last day of any Test Period occurring during a period set forthbelow, to exceed the ratio set forth opposite such period below:   **Period** **Total Leverage Ratio** Closing Date - June 30, 2010 3.75 to 1.00July 1, 2010 - September 30, 2010 8.00 to 1.00October 1, 2010 - December 31, 2010 7.50 to 1.00January 1, 2011 - March 31, 2011 7.00 to 1.00April 1, 2011 - June 30, 2011 6.75 to 1.00July 1, 2011 - September 30, 2011 6.00 to 1.00October 1, 2011 - December 31, 2011 5.50 to 1.00January 1, 2012 - March 31, 2012 5.25 to 1.00April 1, 2012 - June 30, 2012 5.00 to 1.00July 1, 2012 - September 30, 2012 4.75 to 1.00October 1, 2012 - December 31, 2012 4.50 to 1.00January 1, 2013 - March 31, 2013 4.25 to 1.00April 1, 2013 and thereafter 4.00 to 1.00*provided*that, notwithstanding anything to the contrary herein, solely with respect tocompliance with this Section 6.10(a) that is required to be demonstrated pursuant to Sections5.01(c), 6.01(k), and 6.01(n) and for purposes of determining the permissibility of aPermitted Stock Acquisition, compliance with this Section
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6.10(a)(i) shall not be required for any Test Period ending during the Alternate CovenantPeriod; and               (ii) Permit the Liquidity Amount (x) for the period commencing on October 1,2009 and ending on December 31, 2010, to be less than $100,000,000, (y) for theperiod commencing on January 1, 2011 and ending on December 31, 2011, to be lessthan $75,000,000 and (z) at any time on or after January 1, 2012, to be less than$50,000,000, in each case, at the close of business for any three (3) consecutiveBusiness Days during such period; *provided*that it shall not be a breach of thiscovenant if the failure to comply with this covenant resulted solely from a Lenderbecoming a Defaulting Lender (including because the Revolving Commitment of suchLender is not available for borrowing) unless the Borrower is in breach of thiscovenant on the thirtieth day following the date such Lender became a DefaultingLender or at any time thereafter.”          (ii) Clause (b) of Section 6.10 of the CreditAgreement is hereby amended in its entirety to read as follows:     “(b) Minimum Fixed Charge Coverage Ratio. Permit the Consolidated FixedCharge Coverage Ratio, as of the last day of any Test Period occurring during aperiod set forth below, to be less than the ratio set forth opposite such periodbelow:     **Consolidated Fixed**  **Charge****Period** **Coverage Ratio** Closing Date - June 30, 2009 1.15 to 1.00July 1, 2009 - December 31, 2011 1.00 to 1.00January 1, 2012 - March 31, 2012 1.05 to 1.00April 1, 2012 - June 30, 2012 1.10 to 1.00July 1, 2012 and thereafter 1.15 to 1.00“          (iii) The Compliance Certificate shall be amended in substantially the form ofExhibit A hereto.          (pp) Notice. Section 10.01 of the Credit Agreement is hereby amended byamending clause (i) thereof in its entirety as follows:          “(i) if to any LoanParty, to Borrower at:Hercules Offshore, Inc.