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(20)
the incurrence by the Issuer or any Restricted Subsidiary of Indebtedness through the provision of bonds,
Guarantees, letters of credit or similar instruments required by any national or international maritime
commission or authority or other governmental or regulatory agencies, including, without limitation, customs
authorities; in each case, for vessels owned or chartered by, and in the ordinary course of business of, the Issuer
or any of its Restricted Subsidiaries at any time outstanding not to exceed the amount required by such
governmental or regulatory authority;
(21)
the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness in the form of customer
deposits and advance payments received in the ordinary course of business from customers for purchases in the
ordinary course of business;
(22)
any obligation in respect of a farm-in agreement or similar arrangement whereby such Person agrees to pay all
or a share of the drilling, completion or other expenses of an exploratory or development well (which agreement
may be subject to a maximum payment obligation, after which expenses are shared in accordance with the
working or participation interest therein or in accordance with the agreement of the parties) or perform the
drilling, completion or other operation on such well in exchange for an ownership interest in an oil or gas
property; and
(23)
the incurrence by the Issuer or any of its Restricted Subsidiaries of additional Indebtedness or the issuance of
Disqualified Stock by the Issuer or preferred stock by any Restricted Subsidiary in an aggregate principal
amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing
Indebtedness incurred to renew, refund, replace, defease or discharge any Indebtedness incurred pursuant to this
clause (23) not to exceed the greater of (a) $25 million and (b) 3.6% of Adjusted Consolidated Net Tangible
Assets.
Notwithstanding any other provision of this "—
Incurrence of Indebtedness and Issuance of Preferred Stock
" covenant or
the covenant described below under the caption "—
Liens
", the Issuer will not, and will not permit any of its Restricted
Subsidiaries to incur Priority Indebtedness, or permit any Indebtedness to become Priority Indebtedness by virtue of the
granting of a Lien or by reclassifying any such Indebtedness such that it becomes Priority Indebtedness, where the
aggregate amount of Priority Indebtedness of the Issuer and its Restricted Subsidiaries would exceed the greater of (i)
$150.0 million and (ii) 20.0% of Adjusted Consolidated Net Tangible Assets, determined as of the date of incurrence of
such Indebtedness (or the date such Indebtedness becomes Priority Indebtedness by such granting of a Lien or such debt
reclassification, as the case may be) after giving
pro forma
effect to the incurrence and application of the proceeds from
such Indebtedness.
The Issuer will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is
contractually subordinated in right of payment to any other Indebtedness of the Issuer or such Guarantor unless such
Indebtedness is also contractually subordinated in right of payment to the Notes and the applicable Note Guarantee on
substantially identical terms;
provided, however,
that no Indebtedness will be deemed to be contractually subordinated in
right of payment to any other Indebtedness of the Issuer or any Guarantor solely by virtue of being unsecured, by virtue
of being secured with different collateral or by virtue of being secured on a junior priority basis or by virtue of the
application of waterfall or other payment ordering provisions affecting different tranches of Indebtedness under Credit
Facilities.
For purposes of determining compliance with, and the outstanding principal amount of, any particular Indebtedness
incurred pursuant to and in compliance with this covenant:
(1)
in the event that an item or portion of an item of proposed Indebtedness meets the criteria of more than one of
the categories of Permitted Debt described in clauses (1) through (23) above, or is entitled to be incurred
pursuant to the first paragraph of this covenant, the Issuer, in its sole discretion, will be permitted to classify
such item or portion of an item of Indebtedness on the date of its incurrence and only be required to include the
amount and type of such Indebtedness in one of such clauses and from time to time to reclassify all or a portion
of such item of Indebtedness, in any manner that complies with this covenant;
(2)
Guarantees of, or obligations in respect of letters of credit relating to, Indebtedness which is otherwise included
in the determination of a particular amount of Indebtedness shall not be included; and
(3)
Indebtedness permitted by this covenant need not be permitted solely by reference to one provision permitting
such Indebtedness but may be permitted in part by one such provision and in part by one or more other
provisions of this covenant permitting such Indebtedness.
The amount of any Indebtedness outstanding as of any date will be:
(1)
in the case of any Indebtedness issued with original issue discount, the amount of the liability in respect
thereof determined in accordance with IFRS;
