Form T-3/A SHERRITT INTERNATIONAL
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1
to
FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES
UNDER THE TRUST INDENTURE ACT OF 1939
Sherritt International Corporation*
(Name of applicant)
*See Table of Co-Applicants below.
Bay Adelaide Centre East Tower,
22 Adelaide St. West, Suite 4220,
Toronto, ON M5H 4E3
(Address of principal executive offices)
Securities to be Issued Under the Indenture to be Qualified
| Title of Class | Amount | |
| 9.25% Senior Second Lien Secured Notes due 2031 | Approximately CDN$266 million aggregate principal amount |
Approximate date of proposed transaction:
On the Effective Date under the Plan (as defined herein).
Name and address of agent for service:
CT Corporation System
28 Liberty Street Floor 42, New York, New York, 10005
(telephone: (212) 894-8940)
With copies to:
|
E.A. (Ward) Sellers Senior Vice President, General Counsel and Corporate Secretary Sherritt International Corporation Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 4E3 |
The Applicants (as defined below) hereby amend this application for qualification on such date or dates as may be necessary to delay its effectiveness until: (i) the 20th day after the filing of an amendment that specifically states that it shall supersede this application, or (ii) such date as the Securities and Exchange Commission, acting pursuant to Section 307(c) of the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), may determine upon written request.
EXPLANATORY NOTE
This Amendment No. 1 (this “Amendment”) to the Application for Qualification of Indenture on Form T-3 (File No. 022-29121) of Sherritt International Corporation and the other co-applicants identified herein (collectively, the “Applicants”) originally filed with the Securities and Exchange Commission on March 7, 2025 (the “Application”), is being filed to (i) file Exhibits T3E.2, T3E.3 and 25.1; (ii) amend and restate the cover page of the Application to update the title and maximum amount of securities to be issued under the indenture to be qualified; (iii) amend and restate “Item 1 – General Information;” (iv) amend and restate “Item 2 – Securities Act Exemption Applicable” to amend the terms of the transaction per amendments to the plan of arrangement; (v) amend and restate “Item 8 – Analysis of Indenture Provisions;” (vi) amend and restate the Index to the Exhibits; and (vii) include attestations in respect of the signature for each Applicant as required by Form T-3.
Table of Co-Applicants
672538 Alberta Ltd.
672539 Alberta Ltd.
1683740 Alberta Ltd.
Canada Northwest Oils (Europe) B.V.
Dynatec Technologies Ltd.
OG Finance Inc.
Power Finance Inc.
SBCT Logistics Ltd.
Sherritt International (Bahamas) Inc.
Sherritt International Oil and Gas Limited
Sherritt Power (Bahamas) Inc.
Sherritt Utilities Inc.
SI Finance Ltd.
SI Supply & Services Limited (formerly 672540 Alberta Ltd.)
SIC Marketing Services (UK) Limited
The Cobalt Refinery Holding Company Ltd.
TABLE OF CONTENTS
| PAGE | |
| General | 1 |
| Affiliations | 3 |
| Management and Control | 3 |
| Underwriters | 12 |
| Capital Securities | 12 |
| Indenture Securities | 16 |
| Signature | 25 |
1. General Information
| Name of Applicant | Form of Organization | Jurisdiction of Organization | ||
| Sherritt International Corporation | Corporation | Canada | ||
| 672538 Alberta Ltd. | Corporation | Alberta | ||
| 672539 Alberta Ltd. | Corporation | Alberta | ||
| 1683740 Alberta Ltd. | Corporation | Alberta | ||
| Canada Northwest Oils (Europe) B.V. | Corporation | Netherlands | ||
| Dynatec Technologies Ltd. | Corporation | Ontario | ||
| OG Finance Inc. | Corporation | Alberta | ||
| Power Finance Inc. | Corporation | Alberta | ||
| SBCT Logistics Ltd. | Corporation | Canada | ||
| Sherritt International (Bahamas) Inc. | Corporation | Bahamas | ||
| Sherritt International Oil and Gas Limited | Corporation | Alberta | ||
| Sherritt Power (Bahamas) Inc. | Corporation | Bahamas | ||
| Sherritt Utilities Inc. | Corporation | Barbados | ||
| SI Finance Ltd. | Corporation | Ontario | ||
| SI Supply & Services Limited (formerly 672540 Alberta Ltd.) | Corporation | Alberta | ||
| SIC Marketing Services (UK) Limited | Corporation | United Kingdom | ||
| The Cobalt Refinery Holding Company Ltd. | Corporation | New Brunswick |
Sherritt International Corporation is the issuer of the 9.25% Senior Second Lien Secured Notes due 2031 (the “Amended Senior Secured Notes”) to be qualified herein, and is referred to herein as the “Issuer.” Each of the other applicants named above are guarantors of the Amended Senior Secured Notes and are herein referred to as the “Co-Applicants” (and together with the Issuer, the “Applicants”).
Reference is made to the Issuer’s Management Information Circular (the “Information Circular”), incorporated by reference herein as Exhibit T3E.1, the Issuer’s news release dated March 4, 2025 (the “March 4 News Release”) included in the Material Change Report dated March 6, 2025, filed as Exhibit T3E.2 hereto and the Issuer’s news release dated March 21, 2025 (the “March 21 News Release”) containing amendments to the plan of arrangement (the “Amended Plan”), included in the Material Change Report dated March 21, 2025, filed as Exhibit T3E.3 hereto. Capitalized terms used herein that are not otherwise defined herein shall have the meanings ascribed to such terms in the Information Circular. Unless otherwise stated, all monetary amounts contained herein are expressed in Canadian dollars.
2. Securities Act Exemption Applicable
Existing Notes Exchange – Reliance on Section 3(a)(10) of the Securities Act of 1933, as amended (the “Securities Act”)
As part of certain transactions (collectively, the “Transaction”) to be implemented by way of an arrangement (the “Arrangement”) pursuant to a plan of arrangement (the “Plan”) under Section 192 of the Canada Business Corporations Act, the Issuer intends to, on the implementation date of the Plan (the “Effective Date”), exchange all of the outstanding 8.50% senior second lien secured notes due 2026 (“Senior Secured Notes”), in the aggregate principal amount of approximately $221.3 million, for:
| A. | Amended Senior Secured Notes, in a principal amount equal to 100% of the aggregate of the principal amount of Senior Secured Notes outstanding as at immediately prior to the Effective Time, and |
| B. | a cash payment of all accrued and unpaid interest outstanding in respect of the Senior Secured Notes up to but not including the Effective Date. |
In addition, Early Consenting Senior Secured Noteholders that are not Initial Early Consenting Senior Secured Noteholders will be entitled to receive on the Effective Date an additional cash payment in an amount equal to 3% of the principal amount of Senior Secured Notes voted in favor of the Plan by the Early Consent Deadline and held by such Early Consenting Senior Secured Noteholder as at immediately prior to the Effective Time, and Initial Early Consenting Senior Secured Noteholders will be entitled to receive on the Effective Date an additional cash payment in an amount equal to 4% of the principal amount of Senior Secured Notes voted in favor of the Plan by the Early Consent Deadline and held by such Initial Early Consenting Senior Secured Noteholders as at immediately prior to the Effective Time.
| 1 |
Further, as part of the Transaction, the Issuer intends to on the Effective Date exchange all of the outstanding 10.75% unsecured PIK option notes due 2029 (the “Junior Notes”, and together with the Senior Secured Notes, the “Existing Notes”), in an aggregate principal amount of approximately $70.3 million, together with all accrued and unpaid interest thereon, for:
| A. | Amended Senior Secured Notes in a principal amount equal to 60% of the aggregate of the principal amount of Junior Notes outstanding as at immediately prior to the Effective Time, and |
| B. | in certain circumstances, early consent consideration. |
Early Consenting Junior Noteholders will be entitled to receive on the Effective Date additional Amended Senior Secured Notes in a principal amount equal to 5% of the principal amount of Junior Notes voted in favor of the Plan by the Early Consent Deadline and held by such Early Consenting Junior Noteholder as at immediately prior to the Effective Time as additional consideration for the exchange of its Junior Notes.
The Issuer, with the consent of the Majority Initial Consenting Noteholders, will be entitled to amend the Plan to remove the Junior Notes Exchange from the Plan.
The Amended Senior Secured Notes will be issued under an amended and restated indenture (the “Amended Notes Indenture”) to be qualified by this application for qualification (this “Application”). A form of the Amended Notes Indenture will be filed by amendment to this Application.
The final principal amount of Amended Senior Secured Notes to be issued pursuant to the Transaction will depend on the aggregate principal amount of Senior Secured Notes outstanding as at immediately prior to the Effective Time and exchanged pursuant to the Transaction, the aggregate principal amount of Junior Notes outstanding as at immediately prior to the Effective Time (including any deferred PIK interest added to the principal amount thereof, including in respect of any Interest Payment Date occurring prior to the Effective Date (if any)) and exchanged pursuant to the Transaction, and the aggregate amount of Junior Noteholder Early Consent Consideration to be issued. On the basis that both the Senior Secured Notes Exchange and the Junior Notes Exchange are completed pursuant to the Transaction, no Senior Secured Notes or Junior Notes are repurchased prior to the Effective Date, no additional PIK interest is added to the principal amount of Junior Notes prior to the Effective Time, and based on the results of the votes cast in favor of the Plan by Junior Noteholders as at the Early Consent Deadline, the aggregate principal amount of Amended Senior Secured Notes to be issued would be approximately $266 million.
The Transaction in connection with the Amended Senior Secured Notes will be conducted in reliance on Section 3(a)(10) of the Securities Act. Registration of the distribution of the Amended Senior Secured Notes under the Securities Act is not required by reason of the exemption from registration provided by Section 3(a)(10) of the Securities Act.
Section 3(a)(10) of the Securities Act exempts from the general requirement of registration under the Securities Act securities issued in exchange for one or more bona fide outstanding securities, claims or property interests, or partly in such exchange and partly for cash, where the terms and conditions of the issuance and exchange are approved by a court or other governmental authority that is expressly authorized by law to grant such approval, after a hearing upon the fairness of such terms and conditions of such issuance and exchange at which all persons to whom the securities will be issued in such exchange have the right to appear.
The three main elements of the Section 3(a)(10) exemption are (a) an exchange of outstanding securities, claims or property interests, (b) a fairness hearing and (c) court approval of the issuances of securities in exchange for securities, claims or property interests. As described below and in the Information Circular incorporated by reference herein as Exhibit T3E.1, each of these elements will be satisfied in connection with the issuance of the Amended Senior Secured Notes.
(a) Exchange
Pursuant to the Arrangement, the Amended Senior Secured Notes will be issued in exchange for the Existing Notes as more fully described in the Information Circular, the March 4 News Release, the March 21 News Release and the Amended Plan.
| 2 |
(b) Fairness Hearing
On March 4, 2025 the Ontario Superior Court of Justice (Commercial List) (the “Court”) granted the Interim Order (the “Interim Order”), which, among other things, authorized: (a) the Issuer to send the Information Circular to, among others, the holders of the Existing Notes and (b) the calling and holding of the Noteholders’ Meetings to consider and vote upon the Arrangement to implement the Transaction. The Noteholders’ Meetings are scheduled to take place on April 4, 2025. A hearing to seek the Court’s approval of the Arrangement, including that the terms and conditions of the Arrangement are fair to those to whom securities will be issued, is scheduled to be held by the Court, which is expressly authorized by law to hold the hearing, on April 9, 2025 at 10:00 a.m. (Toronto time), or such other time and/or date as may be approved by the Court. The hearing will be open to all persons holding the Existing Notes. Such persons have the right to appear at the hearing and to present evidence or testimony with respect to the fairness of the Arrangement. Measures will be taken pursuant to the Interim Order to provide relevant information and adequate and timely notice of the right to appear to the holders of the Existing Notes, including circulation of the Information Circular, the March 4 News Release, the March 21 News Release, the Amended Plan and additional information by way of press releases, and there will be no improper impediments to appearance by those persons at the hearing.
(c) Court Approval
The Issuer anticipates that on April 9, 2025 at 10:00 a.m. (Toronto time), or such other time and/or date as may be approved by the Court, it will seek Court approval of the Arrangement and the issuance of a Final Order by the Court, among other things, approving the Arrangement as fair and reasonable. The Court has been advised in connection with seeking the Interim Order and will be advised in connection with seeking the Final Order that its ruling will be the basis for claiming an exemption from registration under the Securities Act by reason of the exemption afforded by Section 3(a)(10) thereof.
3. Affiliates
(a) For purposes of this Application only, certain directors and executive officers of the Applicants may be deemed to be “affiliates” of the Applicants by virtue of their positions with the Applicants. See Item 4, “Directors and Executive Officers.”
(b) The diagram previously filed under Exhibit T3G indicates the relationship of the Applicants to each of their affiliates after the Effective Date. All of the entities appearing therein are expected to exist as of the implementation of the Plan in the ownership structure shown therein. Connecting lines indicate 100% ownership of voting securities, unless otherwise stated.
(c) Certain persons may be deemed to be “affiliates” of the Applicants by virtue of their holdings of the voting securities of the Applicants. See Item 5, “Principal Owners of Voting Securities.”
4. Directors and Executive Officers
The following table lists the name of, and offices held by, each director and executive officer of the Applicants as of the date hereof.
Sherritt International Corporation
| Name | Address | Office | ||
| Leon Binedell |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 4E3 |
President, Chief Executive Officer and Director | ||
| Louise Blais |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 4E3 |
Director | ||
| Sir Richard Lapthorne |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 4E3 |
Director and Chairman |
| 3 |
| Name | Address | Office | ||
| Peter Hancock |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 4E3 |
Director | ||
| Chih-Ting Lo |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 4E3 |
Director | ||
| Shelley Brown |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 4E3 |
Director | ||
| Steven Goldman |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 4E3 |
Director | ||
| Elvin Saruk |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 4E3 |
Chief Operating Officer | ||
| Greg Honig |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 4E3 |
Chief Commercial Officer | ||
| E.A. (Ward) Sellers |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 4E3 |
Senior Vice President, General Counsel and Corporate Secretary | ||
| Yasmin Gabriel |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 4E3 |
Chief Financial Officer | ||
| Chad Ross |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 4E3 |
Chief Human Resources Officer |
672538 Alberta Ltd.
| Name | Address | Office | ||
| Yasmin Gabriel |
4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
President, Chief Financial Officer and Director | ||
| E.A. (Ward) Sellers |
4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
Secretary and Director |
672539 Alberta Ltd.
| Name | Address | Office | ||
| Yasmin Gabriel |
4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
President, Chief Financial Officer and Director | ||
| E.A. (Ward) Sellers |
4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
Secretary and Director |
| 4 |
1683740 Alberta Ltd.
| Name | Address | Office | ||
| Yasmin Gabriel |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 4E3 |
President, Chief Financial Officer and Director | ||
| E.A. (Ward) Sellers |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 4E3 |
Secretary and Director |
Canada Northwest Oils (Europe) B.V.
| Name | Address | Office | ||
| Intertrust (Netherlands) B.V. |
c/o Prins Bernhardplein 200, 1097 JB, Amsterdam, the Netherlands |
Secretary and Director | ||
| Elvin Saruk |
c/o Prins Bernhardplein 200, 1097 JB, Amsterdam, the Netherlands |
Director |
Dynatec Technologies Ltd.
| Name | Address | Office | ||
| Yasmin Gabriel |
Bay Adelaide Centre, East Tower 22 Adelaide St. W., Ste. 4220 Toronto, ON M5H 4E3 Canada |
President, Chief Financial Officer and Director | ||
| Greg Honig |
Bay Adelaide Centre, East Tower 22 Adelaide St. W., Ste. 4220 Toronto, ON M5H 4E3 Canada |
Treasurer and Director | ||
| E.A. (Ward) Sellers |
Bay Adelaide Centre, East Tower 22 Adelaide St. W., Ste. 4220 Toronto, ON M5H 4E3 Canada |
Secretary |
OG Finance Inc.
| Name | Address | Office | ||
| Yasmin Gabriel |
4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
President and Director | ||
| Elvin Saruk |
425 – 1st Street SW, Ste. 2000 Fifth Avenue Place Calgary, AB T2P 3L8 |
Senior Vice President, Oil, Gas & Power and Director | ||
| Rita Villanueva |
4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
Secretary | ||
| Crystal Schreiber |
425 – 1st Street SW, Ste. 2000 Fifth Avenue Place Calgary, AB T2P 3L8 |
Treasurer |
| 5 |
Power Finance Inc.
| Name | Address | Office | ||
| Yasmin Gabriel |
4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
President and Director | ||
| Elvin Saruk |
425 – 1st Street SW, Ste. 2000 Fifth Avenue Place Calgary, AB T2P 3L8 |
Senior Vice President, Oil, Gas & Power and Director | ||
| Rita Villanueva |
4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
Secretary | ||
| Crystal Schreiber |
425 – 1st Street SW, Ste. 2000 Fifth Avenue Place Calgary, AB T2P 3L8 |
Treasurer |
SBCT Logistics Ltd.
| Name | Address | Office | ||
| Yasmin Gabriel |
Bay Adelaide Centre, East Tower 22 Adelaide St. W., Ste. 4220 Toronto, ON M5H 4E3 Canada |
President, Chief Financial Officer and Director | ||
| E.A. (Ward) Sellers |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 4E3 |
Secretary and Director |
Sherritt International (Bahamas) Inc.
| Name | Address | Office | ||
| Yasmin Gabriel |
c/o H&J Corporate Services Ltd. Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, Bahamas |
President and Director | ||
| Margo Moree |
c/o H&J Corporate Services Ltd. Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, Bahamas |
Chief Financial Officer and Director | ||
| Rita Villanueva |
c/o H&J Corporate Services Ltd. Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, Bahamas |
Secretary | ||
| Paul D. Knowles |
c/o H&J Corporate Services Ltd. Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, Bahamas |
Assistant Secretary and Director |
| 6 |
Sherritt International Oil and Gas Limited
| Name | Address | Office | ||
| Yasmin Gabriel |
4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
President and Director | ||
| E.A. (Ward) Sellers |
4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
Secretary and Director | ||
| Elvin Saruk |
425 – 1st Street SW, Ste. 2000 Fifth Avenue Place Calgary, AB T2P 3L8 |
Senior Vice President, Oil & Gas |
Sherritt Power (Bahamas) Inc.
| Name | Address | Office | ||
| Elvin Saruk |
c/o H&J Corporate Services Ltd. Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, Bahamas |
SVP, Power and Director | ||
| Paul D. Knowles |
c/o H&J Corporate Services Ltd. Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, Bahamas |
Secretary and Director | ||
| Crystal Schreiber |
c/o H&J Corporate Services Ltd. Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, Bahamas |
Controller | ||
| Fitzroy Richardson |
c/o H&J Corporate Services Ltd. Ocean Centre, Montagu Foreshore, East Bay Street, Nassau, Bahamas |
President and Director |
Sherritt Utilities Inc.
| Name | Address | Office | ||
| Elvin Saruk |
c/o Amicorp (Barbados) Ltd. Carleton Court, High Street Bridgetown, St. Michael, Barbados BB11128 |
Senior Vice President, Oil & Gas and Director | ||
| Amicorp Corporate Services (Barbados) Ltd. |
c/o Amicorp (Barbados) Ltd. Carleton Court, High Street Bridgetown, St. Michael, Barbados BB11128 |
Secretary | ||
| Crystal Schreiber |
c/o Amicorp (Barbados) Ltd. Carleton Court, High Street Bridgetown, St. Michael, Barbados BB11128 |
Treasurer | ||
| Arlene A. Daniel |
c/o Amicorp (Barbados) Ltd. Carleton Court, High Street Bridgetown, St. Michael, Barbados BB11128 |
Director | ||
| Careen Byfield Leyshon |
c/o Amicorp (Barbados) Ltd. Carleton Court, High Street Bridgetown, St. Michael, Barbados BB11128 |
Director |
| 7 |
SI Finance Ltd.
| Name | Address | Office | ||
| Yasmin Gabriel |
Bay Adelaide Centre, East Tower 22 Adelaide St. W., Ste. 4220 Toronto, ON M5H 4E3 Canada |
President, Chief Financial Officer and Director | ||
| Greg Honig |
Bay Adelaide Centre, East Tower 22 Adelaide St. W., Ste. 4220 Toronto, ON M5H 4E3 Canada |
Secretary and Director |
SI Supply & Services Limited (formerly 672540 Alberta Ltd.)
| Name | Address | Office | ||
| Yasmin Gabriel |
4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
President, Chief Financial Officer and Director | ||
| E.A. (Ward) Sellers |
4220-22 Adelaide St. W Toronto, ON M5H 4E3 |
Secretary and Director |
SIC Marketing Services (UK) Limited
| Name | Address | Office | ||
| Intertrust (UK) Limited |
1 Bartholomew Lane London, United Kingdom EC2N 2AX |
Secretary and Director | ||
| Yasmin Gabriel |
Bay Adelaide Centre, East Tower 22 Adelaide St. W., Ste. 4220 Toronto, ON M5H 4E3 Canada |
Director | ||
| Wenda Adriaanse |
1 Bartholomew Lane London, United Kingdom EC2N 2AX |
Director |
The Cobalt Refinery Holding Company Ltd.
| Name | Address | Office | ||
| Yasmin Gabriel |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 4E3 |
President, Chief Financial Officer and Director | ||
| E.A. (Ward) Sellers |
Bay Adelaide Centre East Tower, 22 Adelaide St. West, Suite 4220, Toronto, ON M5H 4E3 |
Secretary and Director |
| 8 |
5. Principal Owners of Voting Securities
The following sets forth information as to each person owning 10% or more of the voting securities of the Applicants as of the date of this Application. The Plan will not impact the holdings of voting securities of the Applicants.
Sherritt International Corporation
| Name and Mailing Address of Shareholder | Title of Class Owned | Amount Owned | Percentage of Voting Securities Owned | |||||||
| SC2 Inc. | ||||||||||
| Ritchie Mill Building | ||||||||||
| #209, 10171 Saskatchewan Dr. | ||||||||||
| Edmonton, AB T6E 4R5 | Common Shares | 59,047,570 | 14.86 | %(1) | ||||||
(1) Pursuant to a filing on the Issuer’s SEDAR+ profile made by SC2 Inc. (“SC2”) on December 10, 2024, as at December 10, 2024, SC2 and its joint actors and affiliates directly or indirectly had beneficial ownership of, or control and/or direction over, an aggregate of 59,047,570 Common Shares representing approximately 14.86% of the issued and outstanding Common Shares.
672538 Alberta Ltd.
| Name and Mailing Address of Shareholder | Title of Class Owned | Amount Owned | Percentage of Voting Securities Owned | |||||||
| Sherritt International Corporation | ||||||||||
| Bay Adelaide Centre East Tower, | ||||||||||
| 22 Adelaide St. West, Suite 4220, | ||||||||||
| Toronto, ON M5H 4E3 | Common Shares | 500 | 100 | % | ||||||
| 9 |
672539 Alberta Ltd
| Name and Mailing Address of Shareholder | Title of Class Owned | Amount Owned | Percentage of Voting Securities Owned | |||||||
| 672538 Alberta Ltd. | ||||||||||
| 10101 – 114 Street | ||||||||||
| Fort Saskatchewan, AB T8L 2T3 | Common Shares | 100 | 100 | % | ||||||
1683740 Alberta Ltd.
| Name and Mailing Address of Shareholder | Title of Class Owned | Amount Owned | Percentage of Voting Securities Owned | |||||||
| Sherritt International Corporation | ||||||||||
| Bay Adelaide Centre East Tower, | ||||||||||
| 22 Adelaide St. West, Suite 4220, | ||||||||||
| Toronto, ON M5H 4E3 | Common Shares | 1,000,000 | 100 | % | ||||||
Canada Northwest Oils (Europe) B.V.
| Name and Mailing Address of Shareholder | Title of Class Owned | Amount Owned | Percentage of Voting Securities Owned | |||||||
| Sherritt International Oil and Gas Limited | ||||||||||
| 425 – 1st Street SW, Ste. 2000 | ||||||||||
| Fifth Avenue Place | ||||||||||
| Calgary, AB T2P 3L8 | Shares | 130,608 | 100 | % | ||||||
Dynatec Technologies Ltd.
| Name and Mailing Address of Shareholder | Title of Class Owned | Amount Owned | Percentage of Voting Securities Owned | |||||||
| Sherritt International Corporation | ||||||||||
| Bay Adelaide Centre East Tower, | ||||||||||
| 22 Adelaide St. West, Suite 4220, | ||||||||||
| Toronto, ON M5H 4E3 | Common Shares | 10 | 100 | % | ||||||
OG Finance Inc.
| Name and Mailing Address of Shareholder | Title of Class Owned | Amount Owned | Percentage of Voting Securities Owned | |||||||
| Sherritt International Corporation | ||||||||||
| Bay Adelaide Centre East Tower, | ||||||||||
| 22 Adelaide St. West, Suite 4220, | ||||||||||
| Toronto, ON M5H 4E3 | Common Shares | 100 | 100 | % | ||||||
Power Finance Inc.
| Name and Mailing Address of Shareholder | Title of Class Owned | Amount Owned | Percentage of Voting Securities Owned | |||||||
| Sherritt International Corporation | ||||||||||
| Bay Adelaide Centre East Tower, | ||||||||||
| 22 Adelaide St. West, Suite 4220, | ||||||||||
| Toronto, ON M5H 4E3 | Common Shares | 100 | 100 | % | ||||||
| 10 |
SBCT Logistics Ltd.
| Name and Mailing Address of Shareholder | Title of Class Owned | Amount Owned | Percentage of Voting Securities Owned | |||||||
| Sherritt International Corporation | ||||||||||
| Bay Adelaide Centre East Tower, | ||||||||||
| 22 Adelaide St. West, Suite 4220, | ||||||||||
| Toronto, ON M5H 4E3 | Common Shares | 100 | 100 | % | ||||||
Sherritt International (Bahamas) Inc.
| Name and Mailing Address of Shareholder | Title of Class Owned | Amount Owned | Percentage of Voting Securities Owned | |||||||
| Sherritt International Corporation | ||||||||||
| Bay Adelaide Centre East Tower, | ||||||||||
| 22 Adelaide St. West, Suite 4220, | ||||||||||
| Toronto, ON M5H 4E3 | Common Shares | 301,062,147 | 100 | % | ||||||
Sherritt International Oil and Gas Limited
| Name and Mailing Address of Shareholder | Title of Class Owned | Amount Owned | Percentage of Voting Securities Owned | |||||||
| Sherritt International Corporation | ||||||||||
| Bay Adelaide Centre East Tower, | ||||||||||
| 22 Adelaide St. West, Suite 4220, | ||||||||||
| Toronto, ON M5H 4E3 | Common Shares | 88,218,298 | 100 | % | ||||||
Sherritt Power (Bahamas) Inc.
| Name and Mailing Address of Shareholder | Title of Class Owned | Amount Owned | Percentage of Voting Securities Owned | |||||||
| Sherritt International Corporation | ||||||||||
| Bay Adelaide Centre East Tower, | ||||||||||
| 22 Adelaide St. West, Suite 4220, | ||||||||||
| Toronto, ON M5H 4E3 | Shares | 323,831,460 | 100 | % | ||||||
Sherritt Utilities Inc.
| Name and Mailing Address of Shareholder | Title of Class Owned | Amount Owned | Percentage of Voting Securities Owned | |||||||
| Sherritt Power (Bahamas) Inc. | ||||||||||
| c/o H&J Corporate Services Ltd. | ||||||||||
| Ocean Centre, Montagu | ||||||||||
| Foreshore, East Bay Street, | ||||||||||
| Nassau, Bahamas | Shares | 37,329,132 | 100 | % | ||||||
SI Finance Ltd.
| Name and Mailing Address of Shareholder | Title of Class Owned | Amount Owned | Percentage of Voting Securities Owned | |||||||
| Sherritt International Corporation | ||||||||||
| Bay Adelaide Centre East Tower, | ||||||||||
| 22 Adelaide St. West, Suite 4220, | ||||||||||
| Toronto, ON M5H 4E3 | Common Shares | 10 | 100 | % | ||||||
| 11 |
SI Supply & Services Limited (formerly 672540 Alberta Ltd.)
| Name and Mailing Address of Shareholder | Title of Class Owned | Amount Owned | Percentage of Voting Securities Owned | |||||||
| 672538 Alberta Ltd. | ||||||||||
| 10101 – 114 Street | ||||||||||
| Fort Saskatchewan, AB T8L 2T3 | Common Shares | 100 | 100 | % | ||||||
SIC Marketing Services (UK) Limited
| Name and Mailing Address of Shareholder | Title of Class Owned | Amount Owned | Percentage of Voting Securities Owned | |||||||
| Sherritt International Corporation | ||||||||||
| Bay Adelaide Centre East Tower, | ||||||||||
| 22 Adelaide St. West, Suite 4220, | ||||||||||
| Toronto, ON M5H 4E3 | Ordinary Shares | 100 | 100 | % | ||||||
The Cobalt Refinery Holding Company Ltd.
| Name and Mailing Address of Shareholder | Title of Class Owned | Amount Owned | Percentage of Voting Securities Owned | |||||||
| Sherritt International Corporation | ||||||||||
| Bay Adelaide Centre East Tower, | ||||||||||
| 22 Adelaide St. West, Suite 4220, | ||||||||||
| Toronto, ON M5H 4E3 | Common Shares | 100,100 | 100 | % | ||||||
6. Underwriters
(a) No person has acted as an underwriter of the Applicants’ securities within three years prior to the date of filing this Application.
(b) There is no proposed underwriter for the Amended Senior Secured Notes that are proposed to be offered under the Amended Notes Indenture that is qualified under this Application.
7. Capitalization
The following sets forth information with respect to each authorized class of securities of the Applicants as of the date of this Application:
Sherritt International Corporation
| Title of Class | Amount Authorized | Amount Outstanding | ||||||
| Common Shares | Unlimited | 397,288,680 | ||||||
| 8.50% Senior Second Lien Secured Notes due 2026 (1) | $ | 357,486,000 | $ | 221,329,000 | ||||
| 10.75% Unsecured PIK Option Notes due 2029(1) | $ | 75,000,000 | $ | 70,303,025.36 | ||||
| (1) | Aggregate principal amount outstanding. |
Each common share issued by the Issuer entitles the holder to one vote on all matters to be voted upon by shareholders.
| 12 |
672538 Alberta Ltd.
| Title of Class | Amount Authorized | Amount Outstanding | ||||||
| Common Shares | Unlimited | 500 | ||||||
Each common share issued by 672538 Alberta Ltd. entitles the holder to one vote on all matters to be voted upon by shareholders.
672539 Alberta Ltd.
| Title of Class | Amount Authorized | Amount Outstanding | ||||||
| Common Shares | Unlimited | 100 | ||||||
Each common share issued by 672539 Alberta Ltd. entitles the holder to one vote on all matters to be voted upon by shareholders.
1683740 Alberta Ltd.
| Title of Class | Amount Authorized | Amount Outstanding | ||||||
| Common Shares | Unlimited | 1,000,000 | ||||||
| Class A Preferred Shares | Unlimited | 408,221,220 | ||||||
| Class B Preferred Shares | Unlimited | 21,000,000 | ||||||
| Class C Preferred Shares | Unlimited | 1 | ||||||
| Class D Preferred Shares | Unlimited | 377,093,995 | ||||||
Each common share issued by 1683740 Alberta Ltd. entitles the holder to one vote on all matters to be voted upon by shareholders.
| 13 |
Each preferred share issued by 1683740 Alberta Ltd. does not entitle the holder to vote on any matters to be voted upon by shareholders, except as required by the Business Corporations Act (Alberta).
Canada Northwest Oils (Europe) B.V.
| Title of Class | Amount Authorized | Amount Outstanding | ||||||
| Shares | 400,000 | 130,608 | ||||||
Each share issued by Canada Northwest Oils (Europe) B.V. entitles the holder to one vote on all matters to be voted upon by shareholders.
Dynatec Technologies Ltd.
| Title of Class | Amount Authorized | Amount Outstanding | ||||||
| Common Shares | Unlimited | 10 | ||||||
Each common share issued by Dynatec Technologies Ltd. entitles the holder to one vote on all matters to be voted upon by shareholders.
OG Finance Inc.
| Title of Class | Amount Authorized | Amount Outstanding | ||||||
| Common Shares | Unlimited | 100 | ||||||
Each common share issued by OG Finance Inc. entitles the holder to one vote on all matters to be voted upon by shareholders.
Power Finance Inc.
| Title of Class | Amount Authorized | Amount Outstanding | ||||||
| Common Shares | Unlimited | 100 | ||||||
Each common share issued by Power Finance Inc. entitles the holder to one vote on all matters to be voted upon by shareholders.
SBCT Logistics Ltd.
| Title of Class | Amount Authorized | Amount Outstanding | ||||||
| Common Shares | Unlimited | 100 | ||||||
Each common share issued by SBCT Logistics Ltd. entitles the holder to one vote on all matters to be voted upon by shareholders.
| 14 |
Sherritt International (Bahamas) Inc.
| Title of Class | Amount Authorized | Amount Outstanding | ||||||
| Common Shares | 500,000,000 | 301,062,147 | ||||||
Each common share issued by Sherritt International (Bahamas) Inc. entitles the holder to one vote on all matters to be voted upon by shareholders.
Sherritt International Oil and Gas Limited
| Title of Class | Amount Authorized | Amount Outstanding | ||||||
| Common Shares | Unlimited | 88,218,298 | ||||||
| Preferred Shares | Unlimited | 0 | ||||||
Each common share issued by Sherritt International Oil and Gas Limited entitles the holder to one vote on all matters to be voted upon by shareholders.
Each preferred share issued by Sherritt International Oil and Gas Limited does not entitle the holder to vote on any matters to be voted upon by shareholders, except in the event such matter to be voted upon involves altering the rights of the holders of the preferred shares.
Sherritt Power (Bahamas) Inc.
| Title of Class | Amount Authorized | Amount Outstanding | ||||||
| Shares | 500,000,000 | 323,831,460 | ||||||
Each share issued by Sherritt Power (Bahamas) Inc. entitles the holder to one vote on all matters to be voted upon by shareholders.
Sherritt Utilities Inc.
| Title of Class | Amount Authorized | Amount Outstanding | ||||||
| Shares | 150,000,000 | 37,329,132 | ||||||
Each share issued by Sherritt Utilities Inc. entitles the holder to one vote on all matters to be voted upon by shareholders.
SI Finance Ltd.
| Title of Class | Amount Authorized | Amount Outstanding | ||||||
| Common Shares | Unlimited | 10 | ||||||
Each common share issued by SI Finance Ltd. entitles the holder to one vote on all matters to be voted upon by shareholders.
SI Supply & Services Limited (formerly 672540 Alberta Ltd.)
| Title of Class | Amount Authorized | Amount Outstanding | ||||||
| Common Shares | Unlimited | 100 | ||||||
Each common share issued by SI Supply & Services Limited entitles the holder to one vote on all matters to be voted upon by shareholders.
| 15 |
SIC Marketing Services (UK) Limited
| Title of Class | Amount Authorized | Amount Outstanding | ||||||
| Ordinary Shares | Unlimited | 100 | ||||||
Each ordinary share issued by SIC Marketing Services (UK) Limited entitles the holder to one vote on all matters to be voted upon by shareholders.
The Cobalt Refinery Holding Company Ltd.
| Title of Class | Amount Authorized | Amount Outstanding | ||||||
| Common Shares | Unlimited | 100,100 | ||||||
Each common share issued by The Cobalt Refinery Holding Company Ltd. entitles the holder to one vote on all matters to be voted upon by shareholders.
8. Analysis of Indenture Provisions.
The Amended Senior Secured Notes will be issued under the Amended Notes Indenture. The following is a general analysis of certain provisions of the Amended Notes Indenture and is qualified in its entirety by reference to the Amended Notes Indenture, which will be provided in an amendment to this Form T-3. The Issuer has not entered into the Amended Notes Indenture as of the date of this filing, and the terms of the Amended Notes Indenture are subject to change prior to its execution. Capitalized terms used herein in this Section 8 that are not otherwise defined herein shall have the meanings ascribed to such terms in the Amended Notes Indenture.
(A) The Definition of Events of Default; Withholding of Notice
An “Event of Default” means any one of the following events in relation to the Amended Senior Secured Notes:
(1) default in any payment of interest on any Amended Senior Secured Note when due, continued for thirty (30) days;
(2) default in the payment of principal of or premium, if any, on any Amended Senior Secured Note when due at its Stated Maturity, upon optional redemption, upon required repurchase, upon declaration or otherwise;
(3) failure by the Issuer or any Guarantor to comply with its obligations under Section 5.01 of the Amended Notes Indenture;
(4) failure by the Issuer or any Guarantor to comply for sixty (60) days after written notice from the Trustee (acting at the direction of the Holders of at least 25% in aggregate principal amount of the then outstanding Amended Senior Secured Notes) to comply with any agreement or covenant in the Amended Notes Indenture, the Amended Senior Secured Notes or the Collateral Documents (other than a failure that is the subject of clauses (1), (2) or (3) of Section 6.01(a) of the Amended Notes Indenture);
(5) default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness for money borrowed by the Issuer or any of its Restricted Subsidiaries (or the payment of which is Guaranteed by the Issuer or any of its Restricted Subsidiaries), other than Non Recourse Debt and other than Indebtedness owed to the Issuer or its Restricted Subsidiary, whether such Indebtedness or Guarantee now exists, or is created after the Issue Date, which default:
(A) is caused by a failure to pay the principal of such Indebtedness at its Stated Maturity (after giving effect to any applicable grace period provided in such Indebtedness) (“payment default”); or
(B) results in the acceleration of such Indebtedness prior to its Stated Maturity;
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a payment default or the maturity of which has been so accelerated and remains unpaid, aggregates $25.0 million or more (or its foreign currency equivalent);
(6) failure by the Issuer or any Significant Subsidiary or any group of Restricted Subsidiaries of the Issuer that, taken together, would constitute a Significant Subsidiary to pay final judgments aggregating in excess of $20.0 million (or its foreign currency equivalent) (net of any amounts for which an insurance company is liable), which judgments are not paid, discharged or stayed for a period of sixty (60) days or more after such judgment becomes final and non-appealable;
(7) the Issuer or any Significant Subsidiary or any group of Restricted Subsidiaries of the Issuer that, taken together, would constitute a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:
(A) commences proceedings to be adjudicated bankrupt or insolvent;
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(B) consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking an arrangement of debt, reorganization, dissolution, winding up or relief under applicable Bankruptcy Law;
(C) consents to the appointment of a custodian, receiver, interim receiver, receiver and manager, liquidator, assignee, trustees, sequestrator or other similar official of it or for all or substantially all of its property;
(D) makes a general assignment for the benefit of its creditors; or
(E) admits in writing its inability to pay its debts as they become due;
(8) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is for relief against the Issuer or any Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, in a proceeding in which the Issuer or any such Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, is to be adjudicated bankrupt or insolvent;
(B) appoints a custodian, receiver, interim receiver, receiver and manager, liquidator, assignee, trustees, sequestrator or other similar official of the Issuer or any Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, or for all or substantially all of the property of the Issuer or any Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary; or
(C) orders the liquidation, dissolution, readjustment of debt, reorganization or winding up of the Issuer, or any Significant Subsidiary or any group of Subsidiaries that, taken together, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for sixty (60) consecutive days;
(9) any Note Guarantee of a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary, ceases to be in full force and effect (except as contemplated by the terms of this Indenture) or is declared null and void in a final and non-appealable judicial proceeding or any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary, denies or disaffirms its obligations under this Indenture or its Note Guarantee; or
(10) with respect to any Collateral having a fair market value in excess of $5 million, individually or in the aggregate, (i) the failure of the security interest with respect to such Collateral under the Collateral Documents, at any time, to be in full force and effect for any reason other than in accordance with the terms of the Collateral Documents and the terms of this Indenture (it being understood that in no event shall any security or filings be required if such security or filings are not being granted or made in favour of the Senior Agent), or the Intercreditor Agreement, as applicable, and other than the satisfaction in full of all obligations under this Indenture and discharge of this Indenture if such failure continues for 60 days or more or (ii) the assertion by the Issuer or any Guarantor, in any pleading in any court of competent jurisdiction, that any such security interest is invalid or unenforceable, except in each case for the failure or loss of perfection resulting from the failure of the Collateral Agent to make filings, renewals and continuations (or other equivalent filings) which are required to be made.
(b) In the event of a declaration of acceleration of the Amended Senior Secured Notes because an Event of Default described in clause (5) above has occurred and is continuing, and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in Article 6 of the Amended Notes Indenture, the declaration of acceleration of the Amended Senior Secured Notes shall be automatically annulled if:
(1) the default triggering such Event of Default pursuant to clause (5) above shall be remedied or cured by the Issuer or any of its Restricted Subsidiaries or waived by the holders of the relevant Indebtedness within twenty (20) days after the declaration of acceleration with respect thereto; and
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| (2) | (A) the annulment of the acceleration of the Amended Senior Secured Notes would not conflict with any judgment or decree of a court of competent jurisdiction and (B) all existing Events of Default, except nonpayment of principal, premium, if any, or interest on the Notes that became due solely because of the acceleration of the Notes, have been cured or waived. |
If an Event of Default (other than an Event of Default specified in clause (7) or (8) above with respect to the Issuer) occurs and is continuing, the Trustee (acting at the direction of Holders of at least 25% in principal amount of the then outstanding Amended Senior Secured Notes) by written notice to the Issuer, specifying the Event of Default, or the Holders of at least 25% in principal amount of the then outstanding Amended Senior Secured Notes may by notice to the Issuer and the Trustee, and the Trustee at the request of such Holders shall, declare the principal of, premium, if any, and accrued and unpaid interest, if any, on all the affected Amended Senior Secured Notes to be due and payable. If an Event of Default specified in clause (7) or (8) above with respect to the Issuer occurs and is continuing, the principal of, premium, if any, and accrued and unpaid interest, if any, on all the Amended Senior Secured Notes then outstanding shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.
If a Default or Event of Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall send to each Holder a notice of such Default or Event of Default within ninety (90) days after it occurs. Except in the case of a Default or Event of Default specified in clauses (1) or (2) above, the Trustee may withhold from the Holders notice of any continuing Default or Event of Default if the Trustee determines in good faith that withholding the notice is in the interests of the Holders.
Except for an Event of Default specified in clauses (1) or (2) above, the Trustee shall not be deemed to have notice or be charged with knowledge of any Default or Event of Default unless a Responsible Officer of the Trustee shall have received from the Issuer or the Holders of not less than 25% in aggregate principal amount of the Amended Senior Secured Notes then outstanding written notice thereof at the Corporate Trust Office of the Trustee, and such notice references such Amended Senior Secured Notes and the Amended Notes Indenture. In the absence of any such notice, and except for a default under clauses (1) or (2) above, the Trustee may conclusively assume that no Default or Event of Default exists.
(B) Authentication and Delivery of the Notes; Use of Proceeds
The Amended Senior Secured Notes to be issued under the Amended Notes Indenture may be executed by manual or electronic signature by at least one of the following officers of the Issuer: the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, any Senior Vice President, the Treasurer or the Corporate Secretary or Assistant Corporate Secretary on behalf of the Issuer. The Amended Senior Secured Notes shall not be entitled to any benefit under the Amended Notes Indenture or be valid or obligatory for any purpose until it is authenticated by the manual or electronic signature of an authorized signatory of the Trustee. The signature shall be conclusive evidence that the Amended Senior Secured Note has been duly authenticated and delivered under the Amended Notes Indenture. The Issuer shall execute and the Trustee shall authenticate and deliver the Amended Senior Secured Notes upon receipt of a written order of the Issuer signed by an Officer of the Issuer.
The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate the Amended Senior Secured Notes. Unless limited by the terms of such appointment, any such authenticating agent may authenticate the Amended Senior Secured Notes whenever the Trustee may do so.
There will be no proceeds to the Issuer from the issuance of the Amended Senior Secured Notes.
(C) Release of Note Guarantees of the Amended Notes Indenture; Release and Substitution of Property Subject to Lien of the Amended Notes Indenture
The Collateral Documents and the Amended Notes Indenture provide that a Note Guarantee by a Guarantor shall be automatically and unconditionally released and discharged upon:
(1) any sale, assignment, transfer, conveyance, exchange or other disposition (by merger, amalgamation, arrangement, consolidation, winding up or otherwise) of (i) all or substantially all of the assets of such Guarantor or (ii) the Capital Stock of such Guarantor after which the applicable Guarantor is no longer a Restricted Subsidiary of the Issuer, which sale, assignment, transfer, conveyance, exchange or other disposition in each case does not violate the provisions described in Section 4.10 and Article 5 of the Amended Notes Indenture (it being understood that only such portion of the Net Available Cash as is required to be applied on or before the date of such release in accordance with the terms of the Amended Notes Indenture needs to be applied in accordance therewith at such time);
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(A) the designation of any Guarantor as an Unrestricted Subsidiary in accordance with the Amended Notes Indenture; or
(B) the Issuer’s exercise of its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8 of the Amended Notes Indenture or the Issuer’s obligations under the Amended Notes Indenture in accordance with the terms of Article 12 of the Amended Notes Indenture.
(2) The Issuer shall be required to deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in the Amended Notes Indenture relating to such transaction and/or release have been satisfied. At the written request of the Issuer, the Trustee shall execute and deliver any documents reasonably required in order to evidence such release, discharge and termination in respect of the applicable Note Guarantee.
Notwithstanding anything in the Amended Notes Indenture to the contrary, a Note Guarantee by a Guarantor may, at the option of the Issuer, be unconditionally released and discharged upon (i) such Guarantor becoming an Immaterial Subsidiary or (ii) such Guarantor being released from its obligations under the Credit Facility, except where such release results from the repayment and termination of the Credit Facility.
The Liens on the Collateral under the Collateral Documents shall automatically and without the need for any further action by any Person be released with respect to the Amended Senior Secured Notes:
(1) in whole or in part, as applicable, as to all or any portion of property subject to such Liens which has been taken by eminent domain, condemnation or other similar circumstances;
(2) in whole, upon:
(A) satisfaction and discharge of the Amended Notes Indenture as set forth under Section 12.01 thereof; or
(B) a Legal Defeasance or Covenant Defeasance of the Amended Notes Indenture as described under Article 8 thereof;
(3) in part, as to any property constituting Collateral that (a) is sold, transferred or otherwise disposed of by the Issuer or any Guarantor (other than to the Issuer or another Guarantor) in a transaction not prohibited by the Amended Notes Indenture or the Collateral Documents at the time of such sale, transfer or disposition or (b) is owned or at any time acquired by a Guarantor that has been released from its Guarantee in accordance with the Amended Notes Indenture, concurrently with the release of such Guarantee (including in connection with the designation of a Guarantor as an Unrestricted Subsidiary);
(4) in whole or in part, as applicable, with the consent of the Majority Holders (including without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Amended Senior Secured Notes);
(5) upon the release by the Senior Agent of the Liens granted in its favor by the Issuer or any Guarantor, other than in connection with a repayment and termination of the Credit Facility;
(6) upon the sale or disposition of any Collateral pursuant to the exercise of any rights and remedies by the Senior Agent, on behalf of the Senior Lenders, with respect to any Collateral securing the Credit Facility or the commencement or prosecution of enforcement by the holders of first lien Indebtedness of any of the rights and remedies under any security document securing first lien Indebtedness or applicable law, including, without limitation, the exercise of any rights of set-off or recoupment; and
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(7) upon the sale or disposition of Collateral pursuant to the exercise of any rights and remedies by the Collateral Agent with respect to the Collateral securing the Amended Senior Secured Notes in accordance with the terms of the Intercreditor Agreement,
provided, that, in the case of any release in whole pursuant to the foregoing, all amounts owing to the Trustee and the Collateral Agent under the Amended Notes Indenture, the Amended Senior Secured Notes, the Note Guarantees and the Collateral Documents shall have been paid.
The Issuer and each Guarantor shall furnish to the Trustee, prior to each proposed release of Collateral pursuant to the Collateral Documents and the Amended Notes Indenture, (1) an Officers’ Certificate requesting such release; (2) an Officers’ Certificate and an Opinion of Counsel to the effect that all conditions precedent provided for in the Amended Notes Indenture and the Collateral Documents to such release have been complied with; (3) a form of such release (which release shall be in form reasonably satisfactory to the Trustee and shall provide that the requested release is without recourse or warranty to the Trustee); and (4) a certificate or opinion of an engineer, appraiser or other expert as to the fair value of the Collateral to be released, in accordance with Section 314(d) of the Trust Indenture Act; provided that any such certificate or opinion may be made by an officer or legal counsel, as applicable, of the Issuer except in cases where Section 314(d) of the Trust Indenture Act requires that such certificate or opinion be made by an independent Person, which Person shall be an independent engineer, appraiser or other expert selected by the Issuer; and provided, further, that any such certificate or opinion shall not be required under this subclause (4) if the Issuer reasonably determines that under the terms of Section 314(d) of the Trust Indenture Act or any interpretation or guidance as to the meaning thereof of the Securities and Exchange Commission and its staff, including “no action” letters or exemptive orders, all or any portion of Section 314(d) of the Trust Indenture Act is inapplicable to any release or series of releases of Collateral.
Upon compliance by the Issuer or the Guarantors, as the case may be, with the conditions precedent set forth above, and upon delivery by the Issuer or such Guarantor to the Collateral Agent of an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Collateral Agent shall promptly cause to be released and reconveyed to the Issuer, or the Guarantors, as the case may be, the released Collateral, and the Collateral Agent shall execute and deliver such documents and instruments prepared by the Issuer as the Issuer and the Guarantors may reasonably request to evidence such release without the consent of the Holders of the Amended Senior Secured Notes.
(D) Satisfaction and Discharge
The Amended Notes Indenture shall be discharged and will cease to be of further effect, except as to surviving rights of registration of transfer or exchange of Amended Senior Secured Notes, when either:
(1) all Amended Senior Secured Notes that have been authenticated, except lost, stolen or destroyed Amended Senior Secured Notes that have been replaced or paid, and such Amended Senior Secured Notes for which payment has been deposited in trust or segregated and held in trust by the Trustee and is thereafter repaid to the Issuer or discharged from the trust, have been delivered to the Trustee for cancellation; or
(2)
(A) all Amended Senior Secured Notes not previously delivered to the Trustee for cancellation have become due and payable by reason of the giving of a notice of redemption or otherwise, will become due and payable within one (1) year or may be called for redemption within one (1) year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer, and the Issuer or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee, as trust funds in trust solely for the benefit of the Holders, cash in Canadian dollars or Canadian dollar denominated Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of an Independent Financial Advisor, without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on such Amended Senior Secured Notes not theretofore delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;
(B) no Default or Event of Default has occurred and is continuing on the date of the deposit or will occur as a result of the deposit (other than a Default or an Event of Default resulting from borrowing of funds to be applied to such deposit and the grant of any Lien securing such borrowing) and the deposit will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than the Amended Notes Indenture) to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound;
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(C) the Issuer has paid or caused to be paid all sums payable by it under the Amended Notes Indenture; and
(D) the Issuer has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be.
In addition, the Issuer must deliver an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions) to the Trustee, in each case stating that all conditions precedent to satisfaction and discharge have been satisfied. Notwithstanding the satisfaction and discharge of the Amended Notes Indenture, if money shall have been deposited with the Trustee pursuant to subclause (A) of clause (2) of Section 12.01(a) of the Amended Notes Indenture, the provisions of Section 12.02 and Section 8.06 of the Amended Notes Indenture shall survive.
(E) Evidence required to be Furnished by the Issuer to the Trustee in Compliance with the Conditions and Covenants Provided for in the Amended Notes Indenture
So long as the Amended Senior Secured Notes are Outstanding, the Issuer will furnish the following:
(1) The Issuer shall deliver to the Trustee, within ninety (90) days after the end of each fiscal year, an Officer’s Certificate stating that a review of the activities of the Issuer and its Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Issuer and each Guarantor have kept, observed, performed and fulfilled their obligations under the Amended Notes Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge, based on such review, the Issuer and each Guarantor have kept, observed, performed and fulfilled its obligations under the Amended Notes Indenture and if a Default or Event of Default shall have occurred during the preceding fiscal year, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Issuer and each Guarantor are taking or propose to take with respect thereto.
(2) When any Default or Event of Default has occurred and is continuing under the Amended Notes Indenture, the Issuer shall promptly (which shall be no more than thirty (30) Business Days following the date on which the Issuer becomes aware of such Default) send to the Trustee an Officer’s Certificate specifying such event, its status and what action the Issuer is taking or proposes to take with respect thereto.
(3) The Trustee shall transmit all such reports required pursuant to Section 313(a) and (b) of the Trust Indenture Act to all Persons required to receive such reports pursuant to Section 313(c) of the Trust Indenture Act Section.
Upon any request or application by the Issuer or any Guarantor to the Trustee or Collateral Agent to take any action under the Amended Notes Indenture or the Collateral Documents, the Issuer or such Guarantor, shall furnish to the Trustee or the Collateral Agent, an Officer’s Certificate and an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee or the Collateral Agent, as applicable (which shall include the statements set forth in Section 13.04 of the Amended Notes Indenture) stating that, in the opinion of the signer(s) or in the opinion of such counsel, all conditions precedent and covenants, if any, provided for in the Amended Notes Indenture relating to the proposed action have been complied with.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in the Amended Notes Indenture (other than a certificate provided pursuant to Section 4.04 of the Amended Notes Indenture) shall include:
(1) a statement that the Person making such certificate or opinion has read such covenant or condition and the related definitions;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
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(3) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with (and, in the case of an Opinion of Counsel, may be limited to reliance on an Officer’s Certificate, certificates of public officials or reports or opinions of experts as to matters of fact); and
(4) a statement as to whether or not, in the opinion of such Person, such covenant or condition has been complied with.
9. Other Obligors
No person, other than the Applicants, will be an obligor of the Amended Senior Secured Notes.
10. Contents of Application for Qualification.
This Application comprises —
| (a) | Pages numbered 1 to 22 consecutively |
| (b) | The statement of eligibility and qualification of the trustee under the Amended Notes Indenture |
| (c) | The following exhibits in addition to those filed as part of the statement of eligibility and qualification of the trustee: |
22
23
(1) Filed as an exhibit to Form T-3 on March 10, 2020, and incorporated herein by reference.
(2) Filed as an exhibit to Form T-3/A on April 1, 2020, and incorporated herein by reference.
(3) Filed as an exhibit to Form T-3/A on June 30, 2020, and incorporated herein by reference.
(4) Previously filed with the Form T-3 on March 7, 2025.
(5) To be filed by amendment.
24
Pursuant to the requirements of the Trust Indenture Act of 1939, each of the Applicants, corporations organized and existing under the laws of the jurisdictions set forth in Item 1 herein, has duly caused this Application to be signed on its behalf by the undersigned, thereunto duly authorized, and its seal to be hereunto affixed and attested, all in the city of Toronto, Ontario, on the 2nd day of April, 2025.
| SHERRITT INTERNATIONAL CORPORATION | ||||
| Attest: | /s/ Anabela Moreira | By: | /s/ E.A. (Ward) Sellers | |
| Name: Anabela Moreira | Name: E.A. (Ward) Sellers | |||
| Title: Law Clerk | Title: Senior Vice President, General Counsel and Corporate Secretary | |||
| 672538 ALBERTA LTD. | ||||
| Attest: | /s/ Anabela Moreira | By: | /s/ E.A. (Ward) Sellers | |
| Name: Anabela Moreira | Name: E.A. (Ward) Sellers | |||
| Title: Law Clerk | Title: Secretary | |||
| 672539 ALBERTA LTD. | ||||
| Attest: | /s/ Anabela Moreira | By: | /s/ E.A. (Ward) Sellers | |
| Name: Anabela Moreira | Name: E.A. (Ward) Sellers | |||
| Title: Law Clerk | Title: Secretary | |||
| 1683740 ALBERTA LTD. | ||||
| Attest: | /s/ Anabela Moreira | By: | /s/ E.A. (Ward) Sellers | |
| Name: Anabela Moreira | Name: E.A. (Ward) Sellers | |||
| Title: Law Clerk | Title: Secretary | |||
| CANADA NORTHWEST OILS (EUROPE) B.V. | ||||
| Attest: | /s/ Anabela Moreira | By: | /s/ Elvin Saruk | |
| Name: Anabela Moreira | Name: Elvin Saruk | |||
| Title: Law Clerk | Title: Director | |||
| DYNATEC TECHNOLOGIES LTD. | ||||
| Attest: | /s/ Anabela Moreira | By: | /s/ E.A. (Ward) Sellers | |
| Name: Anabela Moreira | Name: E.A. (Ward) Sellers | |||
| Title: Law Clerk | Title: Secretary | |||
| OG FINANCE INC | ||||
| Attest: | /s/ Anabela Moreira | By: | /s/ Yasmin Gabriel | |
| Name: Anabela Moreira | Name: Yasmin Gabriel | |||
| Title: Law Clerk | Title: President | |||
| POWER FINANCE INC. | ||||
| Attest: | /s/ Anabela Moreira | By: | /s/ E.A. (Ward) Sellers | |
| Name: Anabela Moreira | Name: E.A. (Ward) Sellers | |||
| Title: Law Clerk | Title: Secretary | |||
| SBCT LOGISTICS LTD. | ||||
| Attest: | /s/ Anabela Moreira | By: | /s/ E.A. (Ward) Sellers | |
| Name: Anabela Moreira | Name: E.A. (Ward) Sellers | |||
| Title: Law Clerk | Title: Secretary | |||
| SHERRITT INTERNATIONAL (BAHAMAS) INC. | ||||
| Attest: | /s/ Anabela Moreira | By: | /s/ Yasmin Gabriel | |
| Name: Anabela Moreira | Name: Yasmin Gabriel | |||
| Title: Law Clerk | Title: President | |||
| SHERRITT INTERNATIONAL OIL AND GAS LIMITED | ||||
| Attest: | /s/ Anabela Moreira | By: | /s/ E.A. (Ward) Sellers | |
| Name: Anabela Moreira | Name: E.A. (Ward) Sellers | |||
| Title: Law Clerk | Title: Secretary | |||
| SHERRITT POWER (BAHAMAS) INC. | ||||
| Attest: | /s/ Anabela Moreira | By: | /s/ Fitzroy Richardson | |
| Name: Anabela Moreira | Name: Fitzroy Richardson | |||
| Title: Law Clerk | Title: Director | |||
| SHERRITT UTILITIES INC. | ||||
| Attest: | /s/ Anabela Moreira | By: | /s/ Elvin Saruk | |
| Name: Anabela Moreira | Name: Elvin Saruk | |||
| Title: Law Clerk | Title: SVP, Oil & Gas | |||
| SI FINANCE LTD. | ||||
| Attest: | /s/ Anabela Moreira | By: | /s/ Yasmin Gabriel | |
| Name: Anabela Moreira | Name: Yasmin Gabriel | |||
| Title: Law Clerk | Title: President and Chief Financial Officer | |||
| SI SUPPLY & SERVICES LIMITED | ||||
| Attest: | /s/ Anabela Moreira | By: | /s/ E.A. (Ward) Sellers | |
| Name: Anabela Moreira | Name: E.A. (Ward) Sellers | |||
| Title: Law Clerk | Title: Secretary | |||
| SIC MARKETING SERVICES (UK) LIMITED | ||||
| Attest: | /s/ Anabela Moreira | By: | /s/ Yasmin Gabriel | |
| Name: Anabela Moreira | Name: Yasmin Gabriel | |||
| Title: Law Clerk | Title: Director | |||
| THE COBALT REFINERY HOLDING COMPANY LTD. | ||||
| Attest: | /s/ Anabela Moreira | By: | /s/ E.A. (Ward) Sellers | |
| Name: Anabela Moreira | Name: E.A. (Ward) Sellers | |||
| Title: Law Clerk | Title: Secretary | |||
ATTACHMENTS / EXHIBITS
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