Court File and Parties

Court File No.: CV-25-00738246-00CL
Date: 2025-04-09
Ontario Superior Court of Justice – Commercial List

In the Matter of an APPLICATION UNDER SECTION 192 OF THE Canada Business Corporations Act, R.S.C. 1985, c. C-44, as amended, and Rules 14.05(2) and 14.05(3) of the Rules of Civil Procedure

And in the Matter of a PROPOSED ARRANGEMENT OF SHERRITT INTERNATIONAL CORPORATION AND 16743714 CANADA INC., AND INVOLVING SHERRITT INTERNATIONAL OIL AND GAS LIMITED, SHERRITT INTERNATIONAL (BAHAMAS) INC., SHERRITT POWER (BAHAMAS) INC., SICOG OIL AND GAS LIMITED, SHERRITT UTILITIES INC., CANADA NORTHWEST OILS (EUROPE) B.V., 672538 ALBERTA LTD., 672539 ALBERTA LTD., SI SUPPLY & SERVICES LIMITED, SI FINANCE LTD., DYNATEC TECHNOLOGIES LTD., 1683740 ALBERTA LTD., OG FINANCE INC., POWER FINANCE INC., SBCT LOGISTICS LTD., SIC MARKETING SERVICES (UK) LIMITED AND THE COBALT REFINERY HOLDING COMPANY LTD.

RE: Sherritt International Corporation and 16743714 Canada Inc., Applicants

Before: Osborne J.

Counsel:
Robert J. Chadwick, Caroline Descours, Carlie Fox and Josh Sloan, for the Applicants
Kevin Zych and Joshua Foster, for the Initial Consenting Noteholders

Heard: 2025-04-09

Endorsement

1 . At the conclusion of the hearing earlier today, I granted the Final Order with reasons to follow. These are those reasons.

2 . The Applicants, Sherritt International Corporation (“Sherritt” or the “Company”) and 16743714 Canada Inc. (“714” and together with Sherritt, the “Applicants”) have brought this Application pursuant to section 192 of the Canada Business Corporations Act , R.S.C. 1985, c. C‑44, as amended (the “ CBCA ”), for approval of a plan of arrangement (the “Arrangement”).

3 . Defined terms in this Endorsement have the meaning given to them in my Endorsement made in this Application on March 4, 2025 in respect of the motion for an Interim Order or in the Application materials unless otherwise stated. That Initial Order Endorsement is incorporated by reference herein. Accordingly, I have not set out here all of the particulars of the background for and context to the Transaction and the proposed Arrangement.

4 . The Applicants are CBCA corporations. As further described below, the principal purpose of the proposed Arrangement is to amalgamate the Applicants and restructure certain debt obligations to stabilize the Company’s financial position.

5 . The Transaction will result in, among other things, an exchange of the Company’s 8.50% senior second lien secured notes due November 30, 2026 (the “Senior Secured Notes”) at par, and the Company’s 10.75% unsecured PIK option notes due August 31, 2029 (the “Junior Notes” and together with the Senior Secured Notes, the “Existing Notes”) at 60% of par, in each case for Amended Senior Secured Notes with the maturity date of November 30, 2031, subject to certain conditions, at an annual interest rate of 9.25%, and certain additional amended terms (the “Amended Senior Secured Notes”).

6 . In particular, the Senior Secured Notes will be exchanged for the Amended Senior Secured Notes in the principal amount equal to the principal amount of Senior Secured Notes outstanding as at the Effective Date. Holders of Senior Secured Notes will be paid their accrued interest in cash. All accrued and unpaid interest outstanding will be calculated at the contractual non-default rate up to but not including the Effective Date.

7 . Each Senior Secured Noteholder that is an Early Consenting Senior Secured Noteholder will receive its Senior Secured Noteholder Early Consent Consideration. Initial Early Consenting Senior Secured Noteholders will receive a cash payment equal to 4% of the principal amount of Senior Secured Consent Notes. Each Early Consenting Senior Secured Noteholder that is not an Initial Early Consenting Senior Secured Noteholder will receive 3%. Accordingly, and as discussed further below, the difference in consideration these respective Noteholders will receive is 1%.

8 . The Junior Notes, together with all accrued and unpaid interest to the Effective Date, will be exchanged for Amended Senior Secured notes in a principal amount equal to 60% of the principal amount of Junior Notes outstanding on the Effective Date.

9 . Each holder of Junior Notes that has voted in favour of the CBCA Plan or otherwise supported it in a manner acceptable to the Applicants will be an Early Consenting Junior Noteholder. Each will receive its Junior Noteholder Early Consent Consideration as additional consideration for the exchange of its Junior Notes, in the form of additional Amended Senior Secured Notes in a principal amount equal to 5% of the principal amount of Junior Consent Notes.

10 . The proposed Transaction does not affect Sherritt’s shareholders, the Revolving Bank Facility Lenders, or any other obligations of the Company outside the Existing Notes. The Sherritt Group will continue to satisfy its obligations to employees, suppliers, customers and governmental authorities in the ordinary course of business.

11 . The Company is pursuing the Arrangement with the support of the Initial Consenting Noteholders. They collectively hold approximately 42% of the Senior Secured Notes. The Initial Consenting Noteholders and Sherritt entered into a Support Agreement pursuant to which the Initial Consenting Noteholders have agreed to support the Transaction and vote in favour of the Arrangement.

12 . The Company has also entered into Exchange Agreements with the Initial Consenting Noteholders for an exchange of approximately $17.1 million of their Amended Senior Secured Notes for newly issued Common Shares, consisting of approximately 19.9% of the Company’s Common Shares to be effected immediately following, and conditional upon, the implementation of the CBCA Plan. The Company does not seek approval of that Subsequent Exchange Transaction as part of the Arrangement, and that approval is not within the scope of this Application. It will require approval of the TSX.

13 . Sherritt is of the view that it is in the best interests of the Company and its stakeholders to complete the CBCA Transaction given that, if approved and completed, it would extend the maturity of significant debt obligations in the form of the Senior Secured Notes, the aggregate outstanding principal of which is approximately $220 million. The maturity of that obligation will be extended from November, 2026 up to 2031.

14 . In addition, the outstanding principal debt of the Company will be reduced by approximately $25 million. Annual interest costs will be correspondingly reduced. The proposed Subsequent Exchange Transaction will further reduce the Company’s debt by approximately $17.1 million and reduce its annual interest expense by an additional amount of approximately $2 million.

15 . The proposed CBCA Plan does affect non- CBCA entities. Certain direct or indirect wholly owned subsidiaries of Sherritt are Existing Notes Guarantors that are affected by the CBCA Plan in that they will remain as guarantors of the Amended Senior Secured Notes to the extent that Existing Notes are exchanged for Amended Senior Secured Notes. Those subsidiaries are organized under the laws of various jurisdictions. In addition, and as part of this CBCA Transaction, SICOG’s guarantee issued in respect of the Existing Notes will be cancelled and related security interests will be released.

16 . The Applicants submit that these Transactions will result in a more sustainable capital structure that the Sherritt Business can support in the context of volatile commodity prices and challenging business conditions.

17 . All of this will, it is submitted, bring about substantial accretive benefits to stakeholders in large part, through the increased stability of Sherritt.

18 . The Arrangement and the terms thereof are described in further detail in the Management Information Circular. All of that material is part of the Court record.

19 . The Company has obtained a fairness opinion from Morrison Park Advisors Inc., in respect of the CBCA Transaction to the effect that it is fair, from a financial point of view, to the Company, that the Noteholders would be in a better position from a financial point of view under the CBCA Transaction than if the Company were liquidated, and that the consideration to be paid under the CBCA Plan to the Senior Noteholders and the Junior Noteholders is fair, from a financial point of view to those constituencies, respectively.

20 . Following receipt of the fairness opinion, the Board unanimously determined that the proposed Arrangement is in the best interests of the Company and its stakeholders.

21 . Following the granting of the Interim order on March 4, 2025, the Applicants provided notice as provided in that Interim Order to the Noteholders and other stakeholders.

22 . Also, following the Interim Order and the public announcement of the Transaction on March 4, 2025, Sherritt engaged with a number of stakeholders with a view to obtaining additional support for the consensual implementation of the Transaction, following which, and with the consent of the Initial Consenting Noteholders, the Company amended the terms of the Transaction to increase the Junior Notes Exchange Ratio from 0.50 as originally proposed, to 0.60. The subsequent Press Release of March 21, 2025 extended the early consent deadline until March 28.

23 . The two Noteholders Meetings were held on April 4, 2025, at which meetings the Arrangement was approved by 99.67% of the 186,651 votes (representing approximately 84.33% of the aggregate principal amount of the outstanding Senior Secured Notes) cast by Senior Secured Noteholders, and by 93.75% of the 56,405 votes (representing approximately 80.23% of the aggregate principal amount of the outstanding Junior Notes) cast by Junior Noteholders that voted on the Noteholders’ Arrangement Resolutions.

24 . If the final order is granted in this Application, that order will constitute the basis for an application for exemption from the registration requirements of section 3(a)(10) of the United States Securities Act of 1933 , as amended. The Applicants have advised this Court that they intend to rely on the orders of this Court for that exemption with respect to the Amended Senior Secured Notes.

Analysis and Consideration of Factors

25 . Section 192 of the CBCA , pursuant to which approval of the Arrangement is sought, provides that a corporation may apply for such an approval where three prerequisites are met:

a. the transaction must qualify as an “arrangement” within the meaning of section 192(1);

b. the corporation must not be insolvent; and

c. it must be impracticable to effect the same fundamental change under any other provision of the CBCA .

26 . In making such an order, the Court must be satisfied that:

a. the statutory procedures and any court-ordered requirements have been met;

b. the application has been put forward in good faith; and

c. the arrangement is fair and reasonable.

See: Re Magna International Inc. 2010 ONSC 4123 at paras 99-105 , aff’d 2010 ONSC 4685 at paras. 31-41 , BCE Inc. v. 1976 Debentureholders , 2008 SCC 69 (“BCE”) at para. 137 and Essar Steel Canada Inc. (Re) , 2014 ONSC 4285 (“Essar”) at para. 85 .

27 . I will address each of these requirements although in so doing I note that all of these requirements were considered and found to have been satisfied when the Interim Order was granted, and there has been no material change since that time that would lead to a different conclusion for the purposes of the final approval order sought today.

28 . I am satisfied based on the evidence that the Applicants are acting in good faith.

29 . I am also satisfied that the statutory requirements are met. Sherritt, the parent company of the Sherritt Group, has its head office in Toronto. It was continued under the CBCA and its Common Shares trade on the TSX.

30 . Neither Applicant is insolvent. Both are able to pay their respective liabilities as they become due, and the realizable value of the assets of each is not less than the aggregate of its corresponding liabilities and stated capital of all classes of shares. Our courts have held that the solvency requirement is satisfied where either at least one of the applicant companies is solvent or where the applicants will be solvent after the arrangement is implemented.

31 . 714 is a wholly owned subsidiary of Sherritt and is also a CBCA company with the registered head office in Toronto. It does not currently carry on operations or have material assets or liabilities. The intention is that it will amalgamate with Sherritt pursuant to the CBCA Plan.

32 . Notice to the CBCA Director is required pursuant to section 192(5), and has been provided. By correspondence filed with the Court, the Director confirmed that it did not need or intend to appear or be heard on the motion for the Interim Order within the Application.

33 . By subsequent correspondence filed with the Court, the Director confirmed that it does not need or intend to appear on the fairness hearing of this Application, on the understanding that the Applicants would raise with the Court the differential treatment of noteholders within the same class at the hearing of the Application (and the Applicants did so). The Director took no position on the issue in this Application (reserving its rights to do so in future arrangement applications as appropriate).

34 . The proposed Arrangement is an “arrangement” within the meaning of section 192 of the CBCA .

35 . The essential characteristic of an arrangement is a “fundamental change, which could not be otherwise achieved under the CBCA ”. It includes a number of possible transactions, and the definition of “arrangement” is not limited to the transactions enumerated in section 192(1): Concordia , at Sched. “B” quoting with approval from BCE Inc. v. 1976 Debentureholders , 2008 SCC 69 at paras. 124-125 .

36 . Section 192(3) of the CBCA provides that, where it is not practicable for a corporation that is not insolvent to effect a fundamental change in the nature of an arrangement under any other provision of the CBCA, the corporation may apply for an order approving an arrangement.

37 . The Corporations Canada Policy on Arrangements - Canada Business Corporations Act , dated July 30, 2024 (the “ CBCA Policy Statement”) at section 1.02 “endorses the position that the arrangement provisions of the [ CBCA ] are intended to be facilitative and should not be construed narrowly”.

38 . Section 192 of the CBCA aims, in the context of debt restructuring, to “provide a broad procedure aimed at facilitating the restructuring of corporations”: Re 45133541 Canada Inc. , 2009 QCCS 6444 (“Abitibi”) at paras. 61 and 120 ; and Re Sherritt International Corporation , 2020 ONSC 5822 [Comm. List] (“ Sherritt ”) at para. 28 .

39 . The CBCA Policy Statement recognizes that section 192 contemplates arrangements in which the primary purpose is the compromise of debt. See: CBCA Policy Statement at section 2.05: “The use of the term “security holder” rather than “shareholder” in section 192 of the Act clearly allows courts to entertain proposed arrangement transactions which alter debtholders’ rights.”

40 . Canadian courts have granted orders under section 192 where the primary purpose of the proposed arrangement was the compromise of debt, including where such arrangements affected obligations under notes or other debt instruments. See, for example: Concordia , supra at paras. 28-32 and Sched. “B” citing, inter alia , North American Palladium, et al. , Court File No. CV-15-11020-00CL (August 5, 2015); 45133541 Canada Inc. ( Arrangement relatif à ), 2009 QCCS 6444 (“ Abitibi ”), Re 8440522 Canada Inc. , 2013 ONSC 2509 (“ Mobilicity ”), supra; Re Essar Steel Canada Inc. , 2014 ONSC 4285 ; Postmedia Network Inc., et al. , Court File No. CV-16-11476-00CL (September 12, 2016); and Xplore Inc. (Re) , 2024 ONSC 5250 , at para. 24 (a).

41 . Creditors are typically grouped for voting purposes according to their commonality of interest. Generally, creditors should vote as a common class so long as their rights “are not so dissimilar as to make it impossible for them to consult together with a view to their common interest: Re Canadian Airlines Corp. at paras. 17 and 18 ; leave to appeal refused, 2000 ABCA 149 .

42 . The principles applicable to the commonality of interest assessment in the context of proceedings under the Companies’ Creditors Arrangement Act (the “ CCAA ”) are relevant for purposes of assessing voting classifications under the CBCA . In the Canadian Airlines CCAA proceedings, the court summarized the factors to be considered in determining whether creditors share a commonality of interest:

a. Commonality of interest should be viewed on the basis of the non-fragmentation test, not on an identity of interest test.

b. The interests to be considered are the legal interests the creditor holds qua creditor in relationship to the debtor company, prior to and under the plan as well as on liquidation.

c. The commonality of these interests are to be viewed purposively, bearing in mind the object of the CCAA, namely, to facilitate reorganizations if at all possible.

d. In placing a broad and purposive interpretation on the CCAA, the court should be careful to resist classification approaches which would potentially jeopardize potentially viable plans.

e. Absent bad faith, the motivations of the creditors to approve or disapprove are irrelevant.

f. The requirement of creditors being able to consult together means being able to assess their legal entitlement as creditors before or after the plan in a similar manner.

See Canadian Airlines at paras. 17 and 31, and Re Sherritt International Corporation , 2020 ONSC 5822 [Comm. List] at paras. 35-41 .

43 . The classification exercise is an interests-based analysis to which the identity of the creditor is irrelevant. What is key is the commonality of interest, which considers only creditors’ legal entitlements in relation to the company being arranged, and not their broader commercial interests: Canadian Airlines at paras. 19 and 27.

44 . The Interim Order provided for the Senior Secured Noteholders to vote together, and also for the Junior Noteholders to vote together, provided that, notwithstanding these two separate meetings, the Applicants would have the right to seek, as part of the Final Order Application or otherwise, that they be treated as a single class for voting purposes.

45 . However, the Applicants did not seek an order that they be treated as a single class for voting purposes, and they are not so treated. To be clear, the Senior Secured Noteholders voted as a single class in the meeting of those Noteholders, and Junior Noteholders voted in a separate single class in the meeting of those Noteholders.

46 . The CBCA does not require a shareholder vote in respect of an arrangement proposed pursuant to section 192, and the CBCA Policy Statement provides at section 3.10 that the appropriate level and type of stakeholder approval is a matter of judicial discretion. In the present case, the Common Shares of Sherritt are not affected, with the result that the shareholders are not being asked to vote on or approve the CBCA Plan. That is consistent with the view expressed in the Policy Statement to the effect that the Director is of the view that, as a minimum, all security holders whose legal rights are affected are entitled to vote.

47 . At the risk of repetition, I observe again that the Subsequent Exchange Transaction contemplated to be undertaken (subject to requirements of the TSX) following the Arrangement is not before the Court on this application.

48 . In addition, this Court has previously held that payment of early consent consideration is fair and reasonable in appropriate circumstances, including, as here, where early consent consideration is made available to debtholders wishing to become a consenting debtholder prior to a determined date, where there is no prejudice to debtholders in being put to an early election, or where there is a rational purpose for such early consent consideration.

49 . It is submitted that the proposed early consent consideration is appropriate here given that: (i) all Noteholders had the opportunity to be eligible to receive the applicable early consent consideration on a reasonable timeline; and (ii) it was offered for the valid and rational purpose of increasing confidence and early voting in respect of the CBCA Plan. See: Sino-Forest Corp., Re , 2012 ONSC 7050 at paras. 66-68 ; Concordia International Corp. (Re) , 2018 ONSC 4165 at paras. 17 and 55; and Xplore Inc. Re, 2024 ONSC 5250 at paras. 40 (b) and 76.

50 . Morawetz J. (as he then was) similarly held in Sino-Forest that, “[p]lans do not need to provide the same recovery to all creditors to be considered fair and reasonable and there are several plans which have been sanctioned by the courts featuring differential treatment for one creditor or one class of creditors.” Court have found that such consideration is reasonable provided there is a “sufficient rational explanation.” The key consideration is whether such recovery is fair and reasonable in the circumstances which, for the reasons noted above, is the case here.

51 . Canadian courts have granted orders in a number of cases approving early consent consideration in respect of CBCA arrangements under section 192. The early consent consideration to be paid to the Noteholders that support the CBCA Plan by the applicable Early Consent Date on the terms set forth in the Plan is consistent with similar early consent consideration previously approved by this Court in the context of CBCA arrangements. See: Bellatrix Exploration Ltd., et al , Court File No. CV-19-618131-00CL, Interim Order at paras. 28-29; Concordia Interim Order at paras. 29-30; Sherritt International Corporation et al , Court File No. CV-20-636938-00CL, 2020 Interim Order at para. 26; Millar Western Forest Products Ltd., et al , Court File No. CV-17-11720- 00 CL Interim Order at para. 22; and Xplore Inc. (Re) , 2024 ONSC 5250 at para. 40 (b).

52 . I am satisfied that the Arrangement is an “arrangement” within the meaning of section 192 of the CBCA (i.e., subsection (f): an exchange of securities of a corporation for property, money or other securities of the corporation or property, money or other securities of another body corporate).

53 . Further, I am satisfied that it would be impractical to proceed otherwise than pursuant to the Arrangement. The CBCA Director, in Policy Statement 15.1 (Policy of the Director concerning Arrangements under Section 192 of the CBCA , January 4, 2010, s.2(b) para. 2.06), endorsed the view that the impracticability requirement means something less than “impossible”, and generally, that the test would be satisfied by demonstrating that it would be inconvenient or less advantageous to the corporation to proceed under other provisions of the Act . The Director cautioned that the arrangement provisions of the Act not be utilized to subvert the procedural or substantive safeguards applicable to other sorts of transactions possible under the Act .

54 . The impracticality requirement has been interpreted as a relatively low threshold. The stated request for exemption under the United States Securities Act of 1933 has been held to be sufficient: Re Aastra Technologies Ltd. , 2014 ONSC 246 at para. 12-13 ; as has the circumstance where the proposed arrangement is “difficult” to put in practice under other provisions of the CBCA , and where section 192 provides the only “convenient” method for coordinating and executing the transaction in the requisite sequence and timing: Essar , at paras. 36-39.

55 . The statutory procedures and any court-ordered requirements have been met. In particular here, the terms of the Interim Order have been complied with.

56 . The Noteholder Meetings were called, held and conducted in accordance with the requirements of the Interim Order.

57 . I am also satisfied that the Arrangement is fair and reasonable.

58 . The factors identified by the Supreme Court of Canada that may be relevant to the test for the assessment of the fairness and reasonableness of a proposed arrangement include:

a. the vote by security holders on the arrangement;

b. the impact on the rights of those security holders;

c. the approval of the arrangement by the corporation’s directors and the presence of a fairness opinion; and

d. the access of shareholders to dissent and appraisal remedies.

See BCE at paras. 138-143 and 150-152.

59 . Each of these factors is satisfied here by the Applicants. (see BCE at para. 126).

60 . The Arrangement was approved not just by the requisite majorities of Noteholders present in person or by proxy at each of the two Noteholders meetings (66 2/3%) but overwhelmingly.

61 . As observed by Blair, J. in Re St. Lawrence & Hudson Railway Co. , 1998 O.J. 3934 at para. 27 , what better litmus test then, for assessing whether a securityholder might reasonably approve of the plan, than the votes of those whose interests are actually at stake. Such votes are not conclusive but are an important indicator of fairness, as are the lack of dissent or objection.

62 . The Supreme Court of Canada has recognized that although no single factor is conclusive, the outcome of the shareholder vote is an "important indicator of whether a plan is fair reasonable", which can be given "considerable weight", particularly if the margin is large. See BCE at paras. 141 and 150. The two Noteholder votes in this case are strong indications of the fairness and reasonableness of the Arrangement.

63 . In making the above determinations as I have, I have carefully considered the submissions made in Court today by each of NorthStream Capital Inc. and SC2 Inc. and the affidavit filed late yesterday on behalf of NorthStream.

64 . SC2 states that it opposes the Subsequent Exchange Transaction. Again, that is not before the Court, is not part of the Arrangement, and I am advised that SC2 has raised and continues to raise its concerns with the TSX. Accordingly, I need not deal with those for the purposes of determining this Application.

65 . NorthStream seeks an order setting aside and disregarding the votes held at the Noteholder Meetings and an order directing that the meetings be held afresh, with Noteholders being given a new opportunity to vote with Initial Consenting Noteholders excluded. It seeks this in large part on the basis of its submission that Events of Default occurred under the Junior Notes (and, as a result of the cross-default clauses with the Senior Notes, under those Notes also) such that all of the Notes were accelerated and are due and owing in full today. NorthStream also makes submissions with respect to inadequate disclosure of executive compensation, the issuance of Restricted Share Units, and retention bonuses.

66 . I am unable to conclude that any of the NorthStream objections raised should succeed.

67 . First, as the Applicants demonstrated today, the requisite threshold for approval at each of the Senior Noteholders Meeting and the Junior Noteholders Meeting was met and met comfortably even with the votes of the Initial Consenting Noteholders excluded. Accordingly, part of what NorthStream seeks was already done and makes no difference in outcome.

68 . Second, the Applicants vigourously dispute the assertion that Events of Default occurred. Sherritt formally issued a press release to this effect on February 13, 2025. The Trustee determined, for its own reasons, not to take any action on behalf of the Noteholders.

69 . Third, NorthStream did not appear at or oppose the motion for the Interim Order. It did not bring a motion or seek to bring a motion on an urgent basis in this Application subsequent to the granting of the Interim Order but prior to the hearing of this Application on the merits, for any advice or directions with respect to the Noteholder Meetings, the votes, disclosure or any other matters. It filed its affidavit late yesterday.

70 . Fourth, Sherritt is a public company with regular reporting, as required by law, with respect to compensation and related matters.

71 . Finally, and most fundamentally, NorthStream confirmed, as the Applicants submitted, that they voted in respect of their Notes in favour of the Arrangement Resolutions. They did so to attain the benefits that flow therefrom, and for their own reasons. NorthStream together with White Crane Capital Corp. would have had a sufficient block to defeat the vote in favour of the Arrangement Resolution. Yet they elected not to do so.

72 . There is nothing improper about any of these parties opposing the Arrangement, but a vote in favour of the Arrangement Resolution is incongruent with the subsequent submission to the Court that it ought not to be approved, or was unfair or unreasonable.

73 . I am also satisfied that the proposed Releases in favour of the Released Parties (the Sherritt Entities, the Indenture Trustees, the Early Consenting Noteholders and their respective directors, officers, employees and advisors) are appropriate. The scope of the Releases is limited to claims in connection with the Support Agreement, the Existing Notes, the CBCA Transaction, the CBCA Plan and this Application. They do not apply for claims attributable to fraud, gross negligence or wilful misconduct, do not apply to the Revolving Bank Facility Lenders, and do not release the Released Parties from obligations under the CBCA Plan, the Definitive Documents, the Subsequent Exchange Agreements, or any Order of the Court.

74 . The proposed releases are consistent with those granted by this Court pursuant to the discretion given in section 192(4) of the CBCA in the context of the approval of plans of arrangement, and the factors considered in those earlier cases have been met here: see, for example, Concordia , Xplore and Bellatrix .

75 . In the aggregate, all of these factors suggest that the rights of interested parties have been fairly and reasonably balanced.

76 . Having considered all of the foregoing factors, the Court is satisfied that the Arrangement is fair and reasonable and is in the best interests of the stakeholders of the Applicants.

Approval Granted

77 . The Final Approval Order is granted. Order to go as signed by me today, which is effective from today’s date and is enforceable without the necessity of issuing and entering.

Osborne J.