Motion Record - Returnable October 1, 2015

Transcription

Court File No. MM73-15
IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK
TRIAL DIVISION
JUDICIAL DISTRICT OF MONCTON
IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT,
R.S.C. 1985, c. C-36, AS AMENDED
AND IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT
OF CO-OP ATLANTIC, CO-OP ENERGY LTD. AND C A REALTY LTD.
Applicants
MOTION RECORD
(Returnable October 1, 2015)
MCINNES COOPER
Barristers & Solicitors
Blue Cross Building, South Tower
644 Main Street, Suite 400
Moncton, NB E1C 1E2
GOODMANS LLP
Bay Adelaide Centre
333 Bay Street, Suite 3400
Toronto, ON M5H 2S7
Chris Keirstead
Michael Costello
Robert J. Chadwick
Logan Willis
Tel: (506) 857-8970
Fax:(506) 857-4095
Tel:
Fax:
Lawyers for the Applicants
(416) 979-2211
(416) 979-1234
INDEX
TRIAL DIVISION
INDEX
Tab
Document
1.
Notice of Motion
2.
Draft CST Approval and Vesting Order
3.
Draft Property Management Transition Order
4.
Draft Claims Procedure Order
5.
Affidavit of Bryan Inglis sworn September 25, 2015
A.
Exhibit “A” – Initial Affidavit (without exhibits)
B.
Exhibit “B” – CST Asset Purchase Agreement
C.
Exhibit “C” – Property Management Transition Term Sheet
TAB 1
1
IN THE COURT OF QUEEN’S BENCH OF
NEW BRUNSWICK
COUR DU BANC DE LA REINE DU
NOUVEAU BRUNSWICK
TRIAL DIVISION
DIVISION DE PREMIERE INSTANCE
CIRCONSCRIPTION
MONCTON
JUDICIARE
DE
IN THE MATTER OF THE COMPANIES’
CREDITORS ARRANGEMENT ACT, R.S.C.
1985, C. C-36, AS AMENDED
AND IN THE MATTER OF A PLAN OF
COMPROMISE OR ARRANGEMENT OF
CO-OP ATLANTIC, CO-OP ENERGY LTD.
AND C A REALTY LTD. (the “Applicants”)
NOTICE OF MOTION
(FORM 37A)
TO:
AVIS DE MOTION
(FORMULE 37A)
The Service List attached as Schedule “A” DESTINAIRE:
and the Supplementary Notice List
attached as Schedule “B”.
The Applicants will apply to the Court at the
Moncton Court House, 145 Assumption Blvd.,
Moncton, New Brunswick for certain Orders as
set out hereunder. The Court has advised that the
motion will be heard at the Moncton Law Courts,
145 Assumption Blvd., Moncton, New Brunswick
on October 1, 2015 at 3:00 p.m.
Le demandeur (ou selon le cas) demandera à la
Cour à ………..(lieu précis) ……….., le ……..
19….., à …… h ……., d’ordonner (indiquer
l’ordonnance demandée, les motifs à discuter et
les renvois aux dispositions léglislatives ou règles
qui seront invoquées);
You are advised that:
Sachez que:
(a) you are entitled to issue documents and
present evidence at the hearing in
English or French or both;
(b) the Applicants intend to proceed in the
English language; and
(c) if you intend to proceed in the other
official language, an interpreter may be
required and you must so advise the clerk
at least 7 days before the hearing.
(a) vous avez le droit d’émettre des
documents et de présenter votre preuve en
français, en anglais ou dans les deux
langues;
(b) le demandeur a l’intention d’utiliser la
langue anglais; et
(c) si vous avez l’intention d’utiliser l’autre
langue officielle, les services d’un
interprète pourront être requis et vous
devrez en aviser le greffier au moins 7
jours avant l’audience.
2
MOTION
1.
Co-op Atlantic, Co-op Energy Ltd. and C A Realty Ltd. (collectively, the “Applicants”)
make a motion, pursuant to the Companies’ Creditors Arrangement Act, R.S.C. 1985,
c. C-36, as amended (the “CCAA”) for: 1
(a)
an Order substantially in the form attached at Tab 2 of the within Motion Record
(the “CST Approval and Vesting Order”), inter alia, approving the sale of the
Applicants’ Energy Business to CST Canada Co. (“CST”, and the sale, the “CST
Transaction”) and vesting in CST Co-op’s right, title and interest in and to
substantially all of the assets and property comprising the Energy Business;
(b)
(the “Property Management Transition / Monitor Approval Order”), inter
alia, (i) authorizing the Applicants to proceed with a transition of their residential
property management agreements, obligations and employees to a new company
to be incorporated by certain existing employees of the Applicants (the “Property
Management Transition”), and (ii) approving the First Report of the Monitor
dated July 16, 2015, the Second Report of the Monitor dated September 11, 2015
and the Third Report of the Monitor, to be filed (the “Monitor’s Third Report”),
and the activities of the Monitor as described in those reports;
(c)
(the “Claims Procedure Order”) establishing a process for the identification and
determination of claims against the Applicants and their present and former
directors and officers; and
(d)
1
such further and other relief as this Court deems just.
Capitalized terms that are not defined herein shall have the meaning given to them in the Affidavit of Bryan Inglis
sworn September 25, 2015, attached at Tab 5 of the within Motion Record.
3
-22.
The grounds for the Motion are:
(a)
on June 25, 2015, the Court granted the Initial Order, inter alia, (i) granting the
Applicants a stay of proceedings under the CCAA until July 24, 2015 (the “Stay
Period”), which Stay Period has been subsequently extended by Orders of this
Court to October 30, 2015, and (ii) appointing KPMG Inc. as CCAA Monitor in
respect of the Applicants (the “Monitor”);
(b)
since the granting of the September Orders, the Applicants have been working
diligently to advance the Sale and Restructuring Process, negotiate prospective
transactions, maintain adequate liquidity, generate funds through the sale of
redundant and surplus assets, manage supplier relationships and maintain the
stability of the remaining Business;
(c)
the Applicants, with the assistance of the Monitor and KPMG CF, have continued
the Sale and Restructuring Process and, after extensive efforts to achieve a sale or
restructuring of the Applicants’ Energy Business, the Applicants have negotiated
and executed the definitive documentation for the CST Transaction;
(d)
the boards of directors of the Applicants have considered and evaluated the CST
Transaction and have determined that the CST Transaction represents the best
alternative available to the Applicants with respect to the Energy Business;
(e)
the Applicants are in advanced negotiations with respect to other potential
transactions in respect of the Agriculture Business and other valuable assets with
a view to bringing the most favourable transactions to the Applicants’ boards of
directors for evaluation relative to other available restructuring alternatives;
(f)
the Applicants have also been considering how to address certain of their noncore activities, including their Property Management Operations;
(g)
after carefully evaluating various alternatives with respect to the Property
Management Operations, the Applicants have determined that a sale of these
operations is not feasible or realistic as these operations have no material
realizable value; accordingly, the Applicants are proposing the Property
4
-3Management Transition as the best and most reasonable solution to preserve the
Property Management Operations for the benefit of the affected clients and
employees;
(h)
it will be necessary in the near future to definitively ascertain creditor claims
against the Applicants and their directors and officers in these CCAA
proceedings; accordingly, the Applicants are seeking the Claims Procedure Order
at this time;
(i)
the Monitor has continued to supervise and provide assistance to the Applicants
with respect to their sale and restructuring efforts and the operation of the
business;
(j)
the conduct and activities of the Monitor are described in the First Report of the
Monitor dated July 16, 2015, the Second Report of the Monitor dated September
11, 2015, and the Third Report of the Monitor, to be filed (collectively, the
“Reports”);
(k)
the conduct and activities of the Monitor as described in the Reports are within
the scope of the Monitor’s mandate and are reasonable and appropriate;
(l)
the circumstances that exist make the CST Approval and Vesting Order, the
Property Management Transition / Monitor Approval Order and the Claims
Procedure Order appropriate;
(m)
the provisions of the CCAA and this Court’s equitable and statutory jurisdiction
thereunder;
(n)
Rules 1.02, 1.02.1, 1.03(2), 3.02, 37, 37.01 and 37.04(1) of the Rules of Court;
and
(o)
such further and other grounds as counsel may advise and this Court may permit.
5
-43.
The following documentary evidence will be used at the hearing of this motion:
(a)
the Affidavit of Bryan Inglis sworn September 25, 2015 and the exhibits attached
thereto;
(b)
the Monitor’s Third Report and the appendices attached thereto; and
(c)
such further and other materials as counsel may advise and this Court may permit.
Dated September 25, 2015
MCINNES COOPER
Moncton, NB E1C 1E2
GOODMANS LLP
Bay Adelaide Centre
Toronto, ON M5H 2S7
Chris Keirstead
Michael Costello
Robert J. Chadwick
Logan Willis
Tel:
Fax:
Tel: (416) 979-2211
Fax: (416) 979-1234
(506) 857-8970
(506) 857-4095
6
SCHEDULE A – SERVICE LIST
TRIAL DIVISION
AND IN THE MATTER OF A PLAN OF COMPROMISE AND ARRANGEMENT
Applicants
SERVICE LIST
(As at September 25, 2015)
TO:
MCINNES COOPER
Moncton, NB E1C 1E2
Fax:
506-857-4095
Remy Boudreau
Tel:
506-877-0849
Email:
remy.boudreau@mcinnescooper.com
Chris Keirstead
Tel:
506-877-0845
Email:
chris.keirstead@mcinnescooper.com
7
-2AND TO:
GOODMANS LLP
Bay Adelaide Centre
Toronto, ON M5H 2S7
Fax:
416-979-1234
Robert J. Chadwick
Tel:
416-597-4285
Email:
rchadwick@goodmans.ca
Logan Willis
Tel:
416-597-6299
Email:
lwillis@goodmans.ca
Bradley Wiffen
Tel:
416-597-4208
Email:
bwiffen@goodmans.ca
AND TO:
KPMG INC.
Bay Adelaide Centre
Toronto, ON M5H 2S5
Fax:
416-777-3883
Randy Benson
Tel:
416-777-8539
Email:
rbenson@kpmg.ca
Anamika Gadia
Tel:
416-777-3842
Email:
agadia@kpmg.ca
The Monitor
8
-3KPMG INC.
KPMG Tower, 600 de Maisonneuve Boulevard West
Suite 1500
Montreal, QC H3A 0A3
Fax:
514-840-2442
Carl Adjami
Tel:
514-840-2323
Email:
cadjami@kpmg.ca
The Monitor
AND TO:
BLAKE, CASSELS & GRAYDON LLP
199 Bay Street
Suite 4000, Commerce Court West
Toronto, ON M5L 1A9
Fax:
416-863-2653
Pamela Huff
Tel:
416-863-2958
Email:
pamela.huff@blakes.com
Bernard Boucher
Tel:
514-982-4006
Email:
bernard.boucher@blakes.com
Chris Burr
Tel:
416-863-3261
Email:
chris.burr@blakes.com
Lawyers for the Monitor
AND TO:
THORNTON GROUT FINNIGAN LLP
100 Wellington Street West, Suite 3200
P.O. Box 329
Toronto-Dominion Centre
Toronto, ON M5K 1K7
Fax:
416-304-1313
Grant B. Moffat
Tel:
416-304-0599
Email:
gmoffat@tgf.ca
Lawyers for National Bank of Canada
9
-4AND TO:
COX & PALMER LLP
Brunswick Square, Suite 1500
1 Germain Street
Saint John, NB E2L 4V1
Fax:
506-632-8809
Josh McElman
Tel:
506-633-2708
Email:
jmcelman@coxandpalmer.com
Lawyers for National Bank of Canada
AND TO:
OFFICE OF THE ATTORNEY GENERAL
Legal Services Branch
P.O. Box 6000
Chancery Place
675 King Street, 2nd Floor
Fredericton, NB E3B 5H1
Fax:
506-453-3275
Alan Rockwell
Tel:
506-444-2453
Email:
alan.rockwell@gnb.ca
Philippe Thériault
Tel:
506-453-2222
Email:
philippe.theriault2@gnb.ca
Lawyers for Provincial Holdings Ltd.
AND TO:
SUPERINTENDENT OF PENSIONS, FINANCIAL AND CONSUMER
SERVICES COMMISSION
Andal Building
225 King Street
Fredericton, NB E3B 1E1
Fax:
506-457-7266
Angela Mazerolle
Email:
angela.mazerolle@fcnb.ca
Jennifer Sutherland Green
Email:
jennifer.sutherlandgreen@fcnb.ca
10
-5AND TO:
BUSINESS DEVELOPMENT BANK OF CANADA
766 Main Street
Moncton, NB E1C 1E6
Sophie Gauthier
Tel:
506-851-3638
Email:
sophie.gauthier@bdc.ca
BUSINESS DEVELOPMENT BANK OF CANADA
70 York Street, Suite 1202
Toronto, ON M5J 1S9
Russell French
Tel:
416-954-5004
Email:
russellw.french@bdc.ca
AND TO:
AIRD & BERLIS LLP
Brookfield Place, Suite 1800
181 Bay Street
Toronto, ON M5J 2T9
Fax:
416-863-1515
Steven L. Graff
Tel:
416-865-7726
Email:
sgraff@airdberlis.com
Lawyers for Business Development Bank of Canada
AND TO:
UNIFOR
National Office
205 Placer Court
Toronto, ON M2H 3H9
Barry E. Wadsworth
Email:
barry.wadsworth@unifor.org
11
-6AND TO:
PINK LARKIN
1133 Regent Street, Suite 210
Fredericton, NB E3B 3Z2
Fax:
506-458-1127
Joël Michaud
Tel:
506-458-1989
Email:
jmichaud@pinklarkin.com
Dominic Caron
Tel:
506-458-1989
Email:
dcaron@pinklarkin.com
Lawyers for Unifor
AND TO:
UNITED FOOD AND COMMERCIAL WORKERS UNION (UFCW)
Suite 300, Sun Tower
1550 Bedford Highway
Bedford, NS B4A 1E6
Mark Dobson
Atlantic Assistant to the Canadian Director
Email:
ufcw@eastlink.ca
AND TO:
PINK LARKIN
1463 South Park Street, Suite 201
P.O. Box 36036
Halifax, NS B3J 3S9
Fax:
902-423-9588
Ronald A. Pink, Q.C.
Tel:
902-423-7777
Email:
rpink@pinklarkin.com
Bettina Quistgaard
Tel:
902-423-7777
Email:
bquistgaard@pinklarkin.com
Lawyers for United Food and Commercial Workers Canada and United
Food and Commercial Workers Canada Locals 1288P and 864
12
-7AND TO:
ECKLER LTD.
1969 Upper Water Street, Suite 503
Halifax, NS B3J 3R7
Derek M. Gerard
Tel:
902-490-3315
Email:
dgerard@eckler.ca
Administrator of the Co-Op Atlantic Employees’ Pension Plan
AND TO:
STIKEMAN ELLIOTT LLP
5300 Commerce Court West
199 Bay Street
Toronto, ON M5L 1B9
Fax:
416-947-0866
Maria Konyukhova
Tel:
416-869-5230
Email:
mkonyukhova@stikeman.com
Andrea Boctor
Tel:
416-869-5230
Email:
aboctor@stikeman.com
Lawyers for Eckler Ltd.,
Administrator of the Co-Op Atlantic Employees’ Pension Plan
AND TO:
HARRISON PENSA LLP
450 Talbot Street
London, ON N6A 5J6
Fax:
519-667-3362
Tom Robson
Tel:
519-661-6766
Email:
trobson@harrisonpensa.com
Michael Cassone
Tel:
519-661-6765
Email:
mcassone@harrisonpensa.com
Lawyers for Farm Credit Canada
13
-8AND TO:
NOVA SCOTIA DEPARTMENT OF JUSTICE
Legal Services Division
Joseph Howe Building
1690 Hollis Street
Halifax, NS B3J 3J9
Fax:
902-424-7120
Sean Foreman
Tel:
902-424-6969
Email:
sean.foreman@novascotia.ca
Glenna Campbell
Tel:
902-424-5073
Email:
glenna.campbell@novascotia.ca
Lawyers for Nova Scotia Business Incorporated
(Successor of Nova Scotia Business Development Corporation)
AND TO:
JOHN DEERE FINANCIAL INC.
1001 Champlain Avenue, Suite 401
Burlington, ON L7L 5Z4
Fax:
905-319-5866
Steve A. Watson
Tel:
905-319-4958
Email:
watsonstevea@johndeere.com
AND TO:
KELLOGG CANADA INC.
5350 Creekbank Road
Mississauga, ON L4W 5S1
Blake Moran
Tel:
905-290-5227
Email:
blake.moran@kellogg.com
14
-9AND TO:
BENNETT JONES LLP
100 King Street West, Suite 3400
Toronto, ON M5X 1A4
Fax:
416-863-1716
Raj Sahni
Tel:
416-777-4804
Email:
sahnir@bennettjones.com
Mark Laugesen
Tel:
416-777-4802
Email:
laugesenm@bennettjones.com
Lawyers for Irving Oil
AND TO:
BENNETT JONES LLP
Toronto, ON M5X 1A4
Fax:
416-863-1716
Ranjan Agarwal
Tel:
416-777-6503
Email:
agarwalr@bennettjones.com
Mark Laugesen
Tel:
416-777-4802
Email:
laugesenm@bennettjones.com
Lawyers for Nestle Canada Inc.
AND TO:
WITTEN LLP, Barristers & Solicitors
Suite 2500, Canadian Western Bank Place
10303 Jasper Avenue
Edmonton, AB T5J 3N6
Fax:
780-429-2559
Howard J. Sniderman, Q.C.
Tel:
780-441-3203
Email:
hsniderman@wittenlaw.com
Lawyers for Medicine Shoppe Atlantic Corporation
and Medicine Shoppe Canada Corporation
15
- 10 AND TO:
GORMAN NASON
121 Germain Street
P.O. Box 7286, Station A
Saint John, NB E2L 4S6
Fax:
506-634-8685
Peter H. MacPhail
Tel:
506-636-7324
Email:
peter.macphail@gormannason.com
James L. Mockler
Tel:
506-636-7320
Email:
james.mockler@gormannason.com
Lawyers for the Superintendent of Pensions for New Brunswick
AND TO:
DE LAGE LANDEN FINANCIAL SERVICES CANADA INC.
3450 Superior Court, Unit 1
Oakville, ON L6L 0C4
Fax:
866-318-3447
Faseeh Ahmad
Tel:
855-732-2818
Email:
fahmad@leasedirect.com
AND TO:
COMINAR REAL ESTATE INVESTMENT TRUST
Complexe Jules-Dallaire
2820 Laurier Boulevard – T3
Québec, QC G1V 0C1
Fax:
418-681-2946
Manon Deslauriers
Email:
manon.deslauriers@cominar.com
Philippe Côté
Email:
philippe.cote@cominar.com
16
- 11 AND TO:
STEWART McKELVEY
Purdy’s Wharf Tower One
900 – 1959 Upper Water Street
P.O. Box 997
Halifax, NS B3J 2X2
Fax:
902-420-1417
Maurice P. Chiasson, Q.C.
Tel:
902-420-3200
Email:
mchiasson@stewartmckelvey.com
Lawyers for Cominar Real Estate Investment Trust
AND TO:
GOWLING LAFLEUR HENDERSON LLP
3700 – 1 Place Ville Marie
Montréal, QC H3B 3P4
Fax:
514-876-9048
François Viau
Tel:
514-392-9530
Email:
francois.viau@gowlings.com
Geneviève Cloutier
Tel:
514-392-9448
Email:
genevieve.cloutier@gowlings.com
Lawyers for Imperial Oil
AND TO:
WICKWIRE HOLM
1801 Hollis Street, Suite 1800
Halifax, NS B3J 2X6
Fax:
902-429-8215
Carl Holm
Tel:
902-429-7001
Email:
cholm@wickwireholm.com
Lawyers for HSBC
17
- 12 AND TO:
McCARTHY TÉTRAULT LLP
1000 De La Gauchetière Street West, Suite 2500
Montreal, QC H3B 0A2
Fax:
514-875-6246
Alain N. Tardif
Tel:
514-397-4274
Email:
atardif@mccarthy.ca
Lawyers for La Coop Fédérée
AND TO:
TEVA CANADA LTD.
30 Novopharm Court
Toronto, ON M1B 2K9
Terry Reid
Legal Counsel
Tel:
416-940-6798
Email:
terry.reid@tevacanada.com
AND TO:
FORBES ROTH BASQUE
P.O. Box 480
Moncton, NB E1C 8L9
Robert Basque
Tel:
506-857-4880
Email:
grbasque@forbesrothbasque.nb.ca
Lawyers for Certain Residential Property Corporations
AND TO:
COX & PALMER LLP
Brunswick Square, Suite 1500
1 Germain Street
St. John, NB E2L 4V1
Fax:
506-632-8809
Peter R. Forestell, QC
Tel:
506-633-2715
Email:
pforestell@coxandpalmer.com
Jane E. MacEachern
Tel:
506-633-2777
Email:
jmaceachern@coxandpalmer.com
Lawyers for CST Canada Co.
18
- 13 AND TO:
CONCENTRA FINANCIAL
333 3rd Ave N
Saskatoon, SK S7K 2M2
Fax:
306-956-3003
Val Lucyshyn
Tel:
306-956-1914
Email:
val.lucyshyn@concentrafinancial.ca
Debenture Trustee
AND TO:
TRIPP BUSINESS LAW
Place de l’Assomption
770 Main Street, 10th Floor
Box 6011
Moncton, NB E1C 1E7
Fax:
888-316-4697
Kevin Moreau
Student-at-Law
Tel:
506-830-8747, ext. 203
Email:
km@tripplaw.ca
Lawyers for Peak Foods LLC
AND TO:
LAWSON CREAMER
133 Prince William Street, Suite 801
Saint John, NB E2L 2B5
Fax:
506-633-0465
Kelly VanBuskirk
Tel:
506-633-3535
Email:
kvanbuskirk@lawsoncreamer.com
Lawyers for Co-op General and Co-op Life
19
- 14 SCHEDULE B – SUPPLEMENTARY NOTICE LIST
TRIAL DIVISION
AND IN THE MATTER OF A PLAN OF COMPROMISE AND ARRANGEMENT
Applicants
SUPPLEMENTARY NOTICE LIST
(As at September 25, 2015)
PARTIES WITH SECURITY REGISTRATIONS
TO:
DELL FINANCIAL SERVICES CANADA LIMITED
155 Gordon Baker Road, Bureau/Suite 501
North York, ON M2H 3N5
AND TO:
LIFTCAPITAL CORPORATION
300 The East Mall, Suite 401
Toronto, ON M9B 6B7
AND TO:
HERITAGE CREDIT UNION LTD.
155 Ochtertoney Street
Dartmouth, NS B2Y 1C9
AND TO:
CONCENTRA FINANCIAL SERVICES ASSOCIATION
c/o Comm Leasing
Box 3030, 2055 Albert Street
Regina, SK S49 3G8
AND TO:
OMISTA CREDIT UNION
1192 Mountain Road, Unit 1
Moncton, NB E1C 2T6
20
- 15 AND TO:
IMPERIAL OIL LIMITED
90 Wynford Drive
Toronto, ON M3C 1K5
AND TO:
MCCOLL-FRONTENAC PETROLEUM INC.
237 Fourth Avenue S.W.
Calgary, AB T2P 3M9
AND TO:
CANADIAN IMPERIAL BANK OF COMMERCE
Box 219
Souris, PE C0A 2B0
AND TO:
ROYNAT INC.
4710 Kingsway, Suite 1500
Metro Tower 1
Burnaby, BC V5H 4M2
AND TO:
ELEMENT FLEET MANAGEMENT INC.
4 Robert Speck Parkway, Suite 900
Mississauga, ON L4Z 1S1
AND TO:
IBM CANADA LIMITED - PPSA ADMINISTRATOR
3600 Steeles Avenue East, F4
Markham, ON L3R 9Z7
AND TO:
NATIONAL LEASING GROUP INC.
1558 Willson Place
Winnipeg, MB R3T 0Y4
AND TO:
CIT FINANCIAL LTD.
5035 South Service Road
Burlington, ON L7R 4C8
AND TO:
NATIONAL CITY COMMERCIAL CAPITAL, A DIVISION OF
NATIONAL CITY BANK, CANADA BRANCH
Toronto, ON M5X 1E4
AND TO:
HEWLETT-PACKARD FINANCIAL SERVICES CANADA COMPANY /
COMPAGNIE DE SERVICES FINANCIERS HEWLETT-PACKARD
CANADA
5150 Spectrum Way
Mississauga, ON L4W 5G1
AND TO:
NATIONAL LEASING GROUP INC.
1525 Buffalo Place
Winnipeg, MB R3T 1L9
21
- 16 AND TO:
CANADIAN EQUIPMENT FINANCE & LEASING INC.
250-4 Woolwich Street
Breslau, ON N0B 1M0
Brent Kennan
AND TO:
MACQUARIE EQUIPMENT FINANCE LTD.
P.O. Box 830
Toronto, ON M5J 2T3
AND TO:
GE VEHICLE AND EQUIPMENT LEASING
2300 Meadowvale Boulevard, 2nd Floor
Mississauga, ON L5N 5P9
AND TO:
G. N. JOHNSTON EQUIPMENT CO. LTD.
5990 Avebury Road
Mississauga, ON L5R 3R2
AND TO:
CAPITAL UNDERWRITERS INC.
2020 Winston Park Drive, Suite 301
Oakville, ON L6H 6X7
AND TO:
BLUE CHIP LEASING CORPORATION
156 Duncan Mill Road, Unit 16
Toronto, ON M3B 3N2
AND TO:
DLL FINANCIAL SOLUTIONS PARTNER
3450 Superior Court, Unit 1
Oakville, ON L6L 0C4
AND TO:
EAST COAST CREDIT UNION
1 – 714 Reeves Street
Port Hawkesbury, NS B9A 2S1
AND TO:
FOSS NATIONAL LEASING LTD.
125 Commerce Valley Drive West, Suite 801
Markham, ON L3T 7W4
AND TO:
FOSS NATIONAL LEASING LTD.
7200 Yonge Street
Thornhill, ON L4J 1V8
AND TO:
ELEMENT FINANCIAL CORPORATION
Toronto, ON M5J 2S1
22
- 17 AND TO:
RCAP LEASING INC.
5575 North Service Road, Suite 300
Burlington, ON L7L 6M1
AND TO:
ARBN ARMO LEASING
Aetna Tower, 79 Wellington Street West, 15th Floor
Toronto, ON M5K 1G8
AND TO:
BAYVIEW CREDIT UNION
582 Main Street
Sussex, NB E4E 7H8
AND TO:
AVIS E. CHAPMAN
19 Lawrence Street
Amherst, NS B4H 3G4
AND TO:
CO-OPERATORS LIFE INSURANCE COMPANY
1920 College Avenue
Regina, SK S4P 1C4
AND TO:
VALLEY CREDIT UNION LIMITED
5682 Highway 1
P.O. Box 70
Waterville, NS B0P 1V0
AND TO:
ATLANTIC COOPERATIVE DEVELOPMENT FUND
123 Halifax Street
Moncton, NB E1C 8N5
AND TO:
CO-OPERATORS GENERAL INSURANCE COMPANY
130 Macdonell Street
Guelph, ON N1H 6P8
AND TO:
CREDIT UNION CENTRAL OF NOVA SCOTIA
6074 Lady Hammond Road
Halifax, NS B3K 2R7
AND TO:
METRO CREDIT UNION LIMITED
281 University Avenue
Charlottetown, PE
C1A 4M3
AND TO:
JOHN DEERE CREDIT INC.
1001 Champlain Avenue, Suite 401
Burlington, ON L5L 5Z4
23
- 18 AND TO:
HER MAJESTY THE QUEEN IN THE RIGHT OF THE PROVINCE OF
NOVA SCOTIA
(c/o Minister of the Office of Economic Development)
P.O. Box 750
1800 Argyle Street, 6th Floor
Halifax, NS B3J 2R7
AND TO:
NOVA SCOTIA BUSINESS INCORPORATED
(Successor of Nova Scotia Business Development Corporation)
World Trade and Convention Centre
1880 Argyle Street, 6th Floor
Halifax, NS B3J 3N8
Diana Saxby
AND TO:
FARM CREDIT CANADA
c/o Customer Service Centre
1133 St. George Boulevard
Moncton, NB E1E 4E1
AND TO:
NATIONAL BANK OF CANADA
71 King Street
St. John, NB E2L 1G5
David Henry
GOVERNMENT ENTITIES
TO:
DEPARTMENT OF JUSTICE (CANADA)
The Exchange Tower
P.O. Box 36
Toronto, ON M5X 1K6
Fax:
416-973-0810
Diane Winters
Tel:
416-973-3172
Email: diane.winters@justice.gc.ca
AND TO:
DEPARTMENT OF FINANCE (NEW BRUNSWICK)
Chancery Place
675 King Street
Fredericton, NB E3B 1E9
AND TO:
ENVIRONMENT AND LOCAL GOVERNMENT (NEW BRUNSWICK)
20 McGloin Street
Fredericton, NB E3A 5T8
24
- 19 AND TO:
NOVA SCOTIA DEPARTMENT OF FINANCE
P.O. Box 187
1723 Hollis Street
Halifax, NS B3J 2N3
Doug Moodie
AND TO:
MINISTRY OF THE ENVIRONMENT (NOVA SCOTIA)
Compliance Division, Colchester County
36 Inglis Place
Truro, NS B2N 4B4
Brad Skinner
AND TO:
DEPARTMENT OF FINANCE (NEWFOUNDLAND AND LABRADOR)
Taxation and Fiscal Policy Branch
P.O. Box 8700
East Block Confederation Building, Main Floor
St. John’s, NL A1B 4J6
AND TO:
ATTORNEY GENERAL OF NEWFOUNDLAND AND LABRADOR
4th Floor, East Block, Confederation Building
P.O. Box 8700
St. John’s, NL A1M 4J6
AND TO:
DEPARTMENT OF FINANCE AND ENERGY (PRINCE EDWARD
ISLAND)
Tax Administration and Compliance Services Section
Shaw Building, 1st Floor
95 Rochford Street
P.O. Box 2000
Charlottetown, PE C1A 7N8
AND TO:
MINISTRY OF THE ENVIRONMENT (PRINCE EDWARD ISLAND)
Jones Building, 4th Floor
11 Kent Street
P.O. Box 2000
Charlottetown, PE C1A 7N8
25
Court File No: MM73-15
AND IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF
CO-OP ATLANTIC, CO-OP ENERGY LTD. AND C A REALTY LTD.
Applicants
COURT OF QUEEN’S BENCH OF
NEW BRUNSWICK
Proceeding commenced at Moncton
NOTICE OF MOTION
MCINNES COOPER
Moncton, NB E1C 1E2
Chris Keirstead / Michael Costello
Tel:
(506) 857-8970
Fax: (506) 857-4095
GOODMANS LLP
Bay Adelaide Centre
Toronto, ON M5H 2S7
Robert J. Chadwick / Logan Willis
Tel:
(416) 979-2211
Fax: (416) 979-1234
TAB 2
26
TRIAL DIVISION
THE HONOURABLE
JUSTICE STEPHENSON
)
)
)
THURSDAY, THE 1ST
DAY OF OCTOBER, 2015
IN THE MATTER OF THE COMPANIES' CREDITORS
ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED
AND IN THE MATTER OF A PLAN OF COMPROMISE OR
ARRANGEMENT OF CO-OP ATLANTIC, CO-OP ENERGY LTD.
AND C A REALTY LTD.
Applicants
APPROVAL AND VESTING ORDER
THIS MOTION, made by Co-op Atlantic, Co-op Energy Ltd. (“Co-op Energy”) and
C A Realty Ltd. (collectively, the “Applicants”) pursuant to the Companies’ Creditors
Arrangement Act, R.S.C. 1985, c. C-36, as amended (the “CCAA”) for an order approving the
sale transaction (the “Transaction”) contemplated by an asset purchase agreement dated
September 16, 2015 (the “APA”) between Co-op Atlantic and Co-op Energy Ltd. (the
“Vendors”) and CST Canada Co. and appended to the affidavit of Bryan Inglis sworn September
25, 2015 (the “Inglis Affidavit”) and vesting in CST Canada Co. or such other person as CST
Canada Co. may designate with the consent of the Vendors (the “Purchaser”) all of the
Vendors’ right, title and interest in and to the Purchased Assets was heard this day at 145
Assumption Boulevard, Moncton, New Brunswick.
ON READING the Inglis Affidavit and the Third Report of KPMG Inc. in its capacity as
the Court-appointed CCAA monitor of the Applicants (the “Monitor”) and on hearing the
27
-2submissions of counsel for the Applicants, the Monitor and such other counsel who were present
and wished to be heard, and on reading the affidavit of service of  sworn , 2015,
1.
THIS COURT ORDERS that the time for service of the Notice of Motion and the
Motion Record is hereby abridged and validated so that this Motion is properly returnable today
and hereby dispenses with further service thereof.
2.
THIS COURT ORDERS that, unless otherwise indicated or defined herein, capitalized
terms used in this Order shall have the meanings given to them in the APA.
3.
THIS COURT ORDERS AND DECLARES that the Transaction is hereby approved,
and the execution and delivery of the APA by the Vendors is hereby authorized and approved,
with such minor amendments as the Vendors and the Purchaser may agree to with the consent of
the Monitor. The Vendors are hereby authorized and directed to take such additional steps and
execute such additional documents as may be necessary or desirable for the completion of the
Transaction and for the conveyance of the Purchased Assets to the Purchaser.
4.
THIS COURT ORDERS AND DECLARES that upon the delivery of a Monitor’s
certificate to the Vendors and the Purchaser substantially in the form attached as Schedule A
hereto (the “Monitor’s Certificate”), all of the Vendors’ right, title and interest in and to the
Purchased Assets shall vest absolutely in the Purchaser, free and clear of and from any and all
security interests (whether contractual, statutory, or otherwise), hypothecs, mortgages, trusts, or
deemed trusts (whether contractual, statutory, or otherwise), liens, executions, levies, charges, or
other financial or monetary claims, real property licences, encumbrances, whether or not they
have attached or been perfected, registered or filed and whether secured, unsecured or otherwise
(collectively, the “Claims”) including, without limiting the generality of the foregoing: (i) any
encumbrances or charges created by the Order of the Court of Queen’s Bench of New Brunswick
(the “Court”) dated June 25, 2015 or any other Order of the Court in the Applicants’ CCAA
proceedings; and (ii) all charges, security interests or claims evidenced by registrations pursuant
to the Personal Property Security Act (Nova Scotia), the Personal Property Security Act (New
Brunswick), the Personal Property Security Act (Prince Edward Island) or any other personal
property registry system (all of which are collectively referred to as the “Encumbrances”),
provided that the “Claims” and the “Encumbrances” referred to herein shall not include the
permitted encumbrances and restrictive covenants listed on Schedule B hereto and shall not
28
-3include any obligations or liabilities assumed by the Purchaser pursuant to the APA. For greater
certainty, this Court orders that all of the Claims and Encumbrances affecting or relating to the
Purchased Assets are hereby expunged and discharged as against the Purchased Assets effective
upon delivery of the Monitor’s Certificate.
5.
THIS COURT ORDERS that notwithstanding anything in paragraph 4 hereof, any of
the Purchased Assets that constitute (i) Owned Real Property or (ii) Bulk Plants at the Neguac
Location (collectively, the “Option Assets”) shall not become property of the Purchaser and
shall not vest in the Purchaser until such time as any such Option Assets have been acquired by
the Purchaser in accordance with section 6.3(c) of the APA. If any Option Assets are acquired
by the Purchaser in accordance with section 6.3(c) of the APA, then the Purchaser shall file a
certificate substantially in the form of Schedule C hereto with the Court executed by the
Purchaser and the Vendors, or in lieu of the Vendors, the Monitor, certifying that the applicable
Option Assets have been so acquired, and upon the filing of such certificate with the Court, all of
the Vendors’ right, title and interest in and to the applicable Option Assets shall vest absolutely
in the Purchaser, free and clear of all Claims and Encumbrances, other than the permitted
encumbrances and restrictive covenants listed on Schedule B hereto and any obligations or
liabilities assumed by the Purchaser pursuant to the APA.
6.
THIS COURT ORDERS that, with respect to any Owned Real Property located in the
Province of Nova Scotia (the “Nova Scotia Real Property”) that is acquired by the Purchaser
pursuant to section 6.3(c) of the APA and in respect of which a certificate has been filed with the
Court confirming such acquisition in accordance with paragraph 5 hereof: (i) the interests of the
Applicants and all persons claiming through the Applicants shall be foreclosed and forever
barred as against the Nova Scotia Real Property, subject to any applicable permitted
encumbrances or restrictive covenants listed on Schedule B hereto and any obligations or
liabilities assumed by the Purchaser pursuant to the APA; and (ii) upon the registration of a Form
24 attaching a certified copy of this Order and a Form 24 attaching a Deed duly executed by the
person holding title to the real property described in the Deed, in each case with an applicable
certificate of legal effect from the recording solicitor, in the Land Registration Office for the
registration district described in the Deed, the Registrar for that Registration District shall revise
the applicable parcel register as follows: (i) the Purchaser be added as sole registered owner of
29
-4the subject Nova Scotia Real Property identified in the Deed in fee simple, and (ii) all of the
Claims shall be deleted and expunged from title to the Nova Scotia Real Property.
7.
THIS COURT ORDERS that for the purposes of determining the nature and priority of
the Claims and Encumbrances, from and after the delivery of the Monitor’s Certificate (or with
respect to any Owned Real Property, from and after the filing of the applicable certificate of the
Purchaser in accordance with paragraph 5 hereof), the net proceeds from the sale of the
Purchased Assets shall stand in the place and stead of the Purchased Assets and all Claims and
Encumbrances shall attach to the net proceeds from the sale of the Purchased Assets with the
same priority as they had with respect to the Purchased Assets immediately prior to the sale, as if
the Purchased Assets had not been sold and remained in the possession or control of the person
having that possession or control immediately prior to the sale.
8.
THIS COURT ORDERS AND DIRECTS the Monitor to file with the Court a copy of
the Monitor’s Certificate, forthwith after delivery thereof to the Vendors and the Purchaser.
9.
THIS COURT ORDERS that the Monitor may rely on written notice from the Vendors
and the Purchaser regarding the satisfaction of the Purchase Price and the fulfillment of
conditions to closing under the APA and shall incur no liability with respect to the delivery of
the Monitor’s Certificate.
10.
THIS COURT ORDERS that, pursuant to clause 7(3)(c) of the Canada Personal
Information Protection and Electronic Documents Act, the Vendors are authorized and permitted
to disclose and transfer to the Purchaser customer information and human resources and payroll
information in the Vendors’ records held in connection with the Business to the extent necessary
or desirable in relation to the continued servicing of customers and the employment or potential
employment of such employees by the Purchaser as set forth in the APA. The Purchaser shall
maintain and protect the privacy of such information and shall be entitled to use the personal
information provided to it in a manner that is consistent with the prior use of such information by
the Vendors.
30
-511.
THIS COURT ORDERS that, notwithstanding:
(a)
the pendency of these proceedings;
(b)
any applications for a bankruptcy order now or hereafter issued pursuant to the
Bankruptcy and Insolvency Act (Canada) (the “BIA”) in respect of the Vendors
and any bankruptcy order issued pursuant to any such applications; and
(c)
any assignment in bankruptcy made in respect of the Vendors,
the entering into of the APA and the vesting of the Purchased Assets in the Purchaser pursuant to
this Order shall be binding on any trustee in bankruptcy that may be appointed in respect of the
Vendors and shall not be void or voidable by creditors of the Vendors, nor shall it constitute nor
be deemed to be a fraudulent preference, assignment, fraudulent conveyance, transfer at
undervalue, or other reviewable transaction under the BIA or any other applicable federal or
provincial legislation, nor shall it constitute oppressive or unfairly prejudicial conduct pursuant
to any applicable federal or provincial legislation.
12.
THIS COURT HEREBY REQUESTS the aid and recognition of any court, tribunal,
regulatory or administrative body having jurisdiction in Canada or outside Canada, and all
courts, tribunals, regulatory and administrative bodies are hereby respectfully requested to make
such orders and to provide such assistance as may be necessary or desirable, to recognize and
give effect to this Order and to assist: (i) the Monitor and its agents in carrying out the terms of
this Order; and (ii) the Purchaser in giving effect to the transfer of title pursuant to the APA, as
approved herein, and the vesting provided for herein.
____________________________________
31
SCHEDULE A
FORM OF MONITOR’S CERTIFICATE
TRIAL DIVISION
AND C A REALTY LTD.
Applicants
MONITOR’S CERTIFICATE
RECITALS
A.
Pursuant to an Order of the Honourable Justice Stephenson of the Court of Queen’s
Bench of New Brunswick (the “Court”) dated June 25, 2015, KPMG Inc. was appointed as the
monitor (the “Monitor”) of the Applicants in proceedings pursuant to the Companies’ Creditors
Arrangement Act (Canada).
B.
Pursuant to an Order of the Court dated , 2015 (the “Approval and Vesting Order”),
the Court approved the asset purchase agreement made as of September 16, 2015 (the “APA”)
between Co-op Atlantic and Co-op Energy Ltd. (the “Vendors”) and CST Canada Co. and
provided for the vesting in CST Canada Co. or such other person as CST Canada Co.may
designate with the consent of the Vendors (the “Purchaser”) all of the Vendors’ right, title and
interest in and to the Purchased Assets as defined in the APA, which vesting is to be effective
with respect to the Purchased Assets upon the delivery by the Monitor to the Vendors and the
Purchaser of a certificate confirming (i) the satisfaction of the Purchase Price for the Purchased
Assets by the Purchaser in accordance with the APA; (ii) that the conditions to closing as set out
32
-2in the APA have been satisfied or waived by the Vendors and the Purchaser; and (iii) the
Transaction has been completed to the satisfaction of the Monitor.
C.
Unless otherwise indicated herein, terms with initial capitals have the meanings set out in
the APA.
THE MONITOR HEREBY CERTIFIES the following:
1.
The Purchaser has satisfied the Purchase Price for the Purchased Assets in accordance
with the APA;
2.
The conditions to closing as set out in the APA have been satisfied or waived by the
Vendors and the Purchaser;
3.
The Transaction has been completed to the satisfaction of the Monitor; and
4.
This Certificate was delivered by the Monitor at ________  [p.m.] on _______ ,
2015.
KPMG Inc., in its capacity as Monitor of the
Applicants, and not in its personal capacity
Per:
Name:
Title:
33
SCHEDULE B
PERMITTED ENCUMBRANCES AND RESTRICTIVE COVENANTS
1. Encumbrances 1 or privileges reserved to, vested in or in favour of any Person by (a) any
Applicable Law or (b) the terms of any Authorization, that affects any lands or premises,
to amend or terminate any such Authorization or to require annual or other periodic
payments or other requirements as a condition to the continuance or effect thereof;
2. Encumbrances for Taxes, assessments or governmental charges, and Encumbrances in
favour of a Governmental Authority arising by (a) Applicable Law or (b) operation of
Applicable Law and which relate to or secure obligations, in each case not at the time due
and delinquent;
3. covenants, conditions, restrictions, easements and other similar matters affecting title to
the Leased Locations or Owned Real Property which do not materially impair the
occupancy or use of the Leased Locations and the Owned Real Property for the purposes
for which they are currently used in connection with the Business;
4. any subsisting reservations, limitations, provisions and conditions contained in any
original grants from the Crown of any land or interests therein, reservations of
undersurface rights to mines and minerals of any kind including rights to coal, petroleum
and minerals of any kind, including rights to enter, prospect and remove the same, and
statutory exceptions, qualifications or limitations to the title;
5. Encumbrances associated with, and financing statements evidencing, the rights of
equipment or other capital lessors under equipment contracts or other capital lease
arrangements forming part of the Purchased Assets in and to the equipment or other
capital assets which are subject to such Assumed Contracts provided the terms of such
Assumed Contracts have been complied with in all material respects up to and on the
Closing Date;
6. permits, licenses, zoning, entitlement and other land use regulations, agreements,
arrangements, easements, restrictions, reservations, restrictive covenants, conditions,
rights-of-way, public ways, rights in the nature of an easement and other similar rights in
land of, granted to or reserved by other Persons (including, without in any way limiting
the generality of the foregoing, permits, licenses, agreements, easements, subdivisions,
development, site plan, zoning, rights-of-way, sidewalks, public ways, as well as rights in
the nature of easements or servitudes for sewers, drains, gas and water mains or electric
light and power or telephone and telegraph conduits, poles, wires and cables), which
would not reasonably be expected to have a Material Adverse Effect for the purposes for
which the Leased Locations and the Owned Real Property are held or used;
7. any privilege in favour of any lessor, licensor or permitter for rent or payment to become
due or for other obligations or acts, the performance of which is required under contracts
1
Capitalized terms that are not defined in this Schedule B shall have the meanings given to them in the APA.
34
(including the Personal Property Leases and the Assumed Real Property Leases) forming
part of the Purchased Assets so long as the payment of or the performance of such other
obligation or act is not delinquent and provided that such Encumbrances or privileges do
not materially adversely affect the use or the operation of the assets affected thereby; and
8. any amendment, supplement, replacement, extension or renewal of any of the foregoing
from time to time.
35
SCHEDULE C
FORM OF OPTION CERTIFICATE
TRIAL DIVISION
AND C A REALTY LTD.
Applicants
OPTION CERTIFICATE
RECITALS
A.
Pursuant to an Order of the Court dated , 2015 (the “Approval and Vesting Order”),
the Court approved the asset purchase agreement made as of September 16, 2015 (the “APA”)
between Co-op Atlantic and Co-op Energy Ltd. (the “Vendors”) and CST Canada Co. and
provided for the vesting in CST Canada Co. or such other person as CST Canada Co. may
designate with the consent of the Vendors (the “Purchaser”) all of the Vendors’ right, title and
interest in and to the Option Assets, as that term is defined in the Approval and Vesting Order,
on the terms set out in the Approval and Vesting Order and effective upon the filing by the
Purchaser of a certificate with the Court confirming that the applicable Option Assets have been
so acquired.
B.
Unless otherwise indicated herein, terms with initial capitals have the meanings set out in
the APA.
36
THE PURCHASER AND THE VENDORS HEREBY CERTIFY the following:
1. The Purchaser has acquired the Option Assets specified below in accordance with the
APA;
[Insert Description of Option Assets acquired by Purchaser]
2. The Option Assets were acquired as of the ____ day of ________________, 2015.
[The remainder of this page has been left intentionally blank.]
37
VENDORS
CO-OP ATLANTIC
Per:
Name:
Title:
Per:
Name:
Title:
CO-OP ENERGY LTD.
Per:
Name:
Title:
Per:
Name:
Title:
PURCHASER
CST CANADA CO.
Per:
Name:
Title:
Per:
Name:
Title:
6496341
[Signature Page to Option Certificate]
38
IN THE MATTER OF THE COMPANIES’ CREDITORS
COURT OF QUEEN’S BENCH OF NEW
BRUNSWICK
APPROVAL AND VESTING ORDER
MCINNES COOPER
Moncton, NB E1C 1E2
Tel: (506) 857-8970
Fax: (506) 857-4095
GOODMANS LLP
Bay Adelaide Centre
Toronto, ON M5H 2S7
Tel: (416) 979-2211
Fax: (416) 979-1234
TAB 3
39
TRIAL DIVISION
THE HONOURABLE
JUSTICE STEPHENSON
)
)
)
THURSDAY, THE 1ST
AND C A REALTY LTD.
PROPERTY MANAGEMENT TRANSITION / MONITOR APPROVAL ORDER
THIS MOTION, made by Co-op Atlantic, Co-op Energy Ltd. and C A Realty Ltd.
(collectively, the “Applicants”), pursuant to the Companies’ Creditors Arrangement Act, R.S.C.
1985, c. C-36, as amended (the “CCAA”) was heard this day at 145 Assumption Boulevard,
Moncton, New Brunswick.
ON READING the affidavit of Bryan Inglis sworn September 25, 2015 and the exhibits
thereto (the “Inglis Affidavit”) and the Third Report of KPMG Inc. in its capacity as Courtappointed CCAA monitor of the Applicants (the “Monitor”) dated , 2015 (the “Monitor’s
Third Report”), and on hearing the submissions of counsel for the Applicants, the Monitor,
National Bank of Canada and such other counsel as were present and wished to be heard, and on
reading the affidavit of service of  sworn , 2015,
SERVICE AND DEFINITIONS
1.
THIS COURT ORDERS that the time for service and notice of this Motion is hereby
abridged and validated and this Motion is properly returnable today without further service or
notice thereof.
40
-22.
THIS COURT ORDERS that, unless otherwise indicated or defined herein, capitalized
terms used in this Order shall have the meanings given to them in the Inglis Affidavit.
APPROVAL OF PROPERTY MANAGEMENT TRANSITION
3.
THIS COURT ORDERS that the Property Management Transition is hereby approved,
and, subject to the further consent of the Monitor, the Applicants are hereby authorized to
proceed with the transactions described in the non-binding term sheet appended as Exhibit “C” to
the Inglis Affidavit, subject to such minor amendments as agreed by the Applicants and Newco
with the consent of the Monitor (the “Term Sheet”). The Applicants are hereby authorized to
take such additional steps and execute such additional documents as may be necessary or
desirable for the completion of the Property Management Transition in accordance with the
Term Sheet.
MONITOR’S REPORTS AND ACTIVITIES
4.
THIS COURT ORDERS that the First Report of the Monitor dated July 16, 2015, the
Second Report of the Monitor dated September 11, 2015 and the Monitor’s Third Report
(collectively, the “Reports”), and the activities of the Monitor as set out in the Reports, are
hereby approved.
GENERAL
5.
regulatory or administrative body having jurisdiction in Canada or outside Canada to give effect
to this Order and to assist the Applicants, the Monitor and their respective agents in carrying out
the terms of this Order. All courts, tribunals, regulatory and administrative bodies are hereby
respectfully requested to make such orders and to provide such assistance to the Applicants and
to the Monitor, as an officer of this Court, as may be necessary or desirable to give effect to this
Order, to grant representative status to the Monitor in any foreign proceeding, or to assist the
Applicants and the Monitor and their respective agents in carrying out the terms of this Order.
41
-36.
THIS COURT ORDERS that this Order and all of its provisions are effective as of
12:01 a.m. Atlantic Standard/Daylight Time on the date of this Order.
Dated at Moncton, New Brunswick this 1st
day of October, 2015.
____________________________________
42
BRUNSWICK
PROPERTY MANAGEMENT TRANSITION /
MONITOR APPROVAL ORDER
MCINNES COOPER
Moncton, NB E1C 1E2
Tel:
(506) 857-8970
Fax: (506) 857-4095
GOODMANS LLP
Bay Adelaide Centre
Toronto, ON M5H 2S7
Tel:
(416) 979-2211
Fax: (416) 979-1234
TAB 4
43
TRIAL DIVISION
THE HONOURABLE
)
)
)
JUSTICE STEPHENSON
THURSDAY, THE 1ST
AND C A REALTY LTD.
CLAIMS PROCEDURE ORDER
THIS MOTION, made by Co-op Atlantic, Co-op Energy Ltd. and C A Realty Ltd.
(collectively, the “Applicants”), pursuant to the Companies’ Creditors Arrangement Act, R.S.C.
1985, c. C-36, as amended (the “CCAA”) was heard this day at 145 Assumption Boulevard,
Moncton, New Brunswick.
ON READING the affidavit of Bryan Inglis sworn September 25, 2015 and the exhibits
thereto (the “Inglis Affidavit”) and the Third Report of KPMG Inc. (the “Monitor’s Third
Report”) in its capacity as the Court-appointed CCAA monitor of the Applicants (the
“Monitor”), and on hearing the submissions of counsel for the Applicants, the Monitor, National
Bank of Canada and such other counsel as were present and wished to be heard, and on reading
the affidavit of service of  sworn , 2015.
SERVICE AND DEFINITIONS
1.
THIS COURT ORDERS that the time for service and notice of this Motion is hereby
abridged and validated and this Motion is properly returnable today without further service or
notice thereof.
44
-22.
THIS COURT ORDERS that, for the purposes of this Order (the “Claims Procedure
Order”), in addition to terms defined elsewhere herein, the following terms shall have the
following meanings:
(a)
“Assessments” means Claims of Her Majesty the Queen in Right of Canada or of
any Province or Territory or Municipality or any other taxation authority in any
Canadian or foreign jurisdiction, including, without limitation, amounts which
may arise or have arisen under any notice of assessment, notice of reassessment,
notice of objection, notice of appeal, audit, investigation, demand or similar
request from any taxation authority;
(b)
“Business Day” means a day, other than a Saturday or a Sunday, on which banks
are generally open for business in Moncton, New Brunswick;
(c)
“CCAA Proceedings” means these proceedings of the Applicants pursuant to the
Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, as amended;
(d)
“Claim” means:
(i)
any right or claim of any Person against any one or more of the
Applicants, whether or not asserted, in connection with any indebtedness,
liability or obligation of any kind of any one or more of the Applicants in
existence on the Filing Date, and any interest accrued thereon or costs
payable in respect thereof, whether or not such right or claim is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, unsecured, perfected,
unperfected, present, future, known, unknown, by guarantee, by surety or
otherwise, and whether or not such right is executory or anticipatory in
nature, including any Assessment and any right or ability of any Person to
advance a claim for contribution or indemnity or otherwise with respect to
any matter, action, cause or chose in action, whether existing at present or
commenced in the future, which indebtedness, liability or obligation is
based in whole or in part on facts that existed prior to the Filing Date and
any other claims that would have been claims provable in bankruptcy had
such Applicant become bankrupt on the Filing Date, including for greater
certainty any Equity Claim and any claim against any of the Applicants for
indemnification by any Director or Officer in respect of a Director/Officer
Claim (but excluding any such claim for indemnification that is covered
by the Directors’ Charge (as defined in the Initial CCAA Order)) (each, a
“Prefiling Claim”, and collectively, the “Prefiling Claims”);
45
(ii)
(iii)
-3any right or claim of any Person against any one or more of the Applicants
in connection with any indebtedness, liability or obligation of any kind
whatsoever owed by any such Applicant to such Person arising out of (A)
the restructuring, disclaimer, resiliation, termination or breach by such
Applicant on or after the Filing Date of any contract, lease or other
agreement whether written or oral, or (B) any other action taken by one or
more of the Applicants on or after the Filing Date (each, a “Restructuring
Period Claim”, and collectively, the “Restructuring Period Claims”);
and
any right or claim of any Person against one or more of the Directors
and/or Officers howsoever arising, whether or not such right or claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, unsecured,
perfected, unperfected, present, future, known, or unknown, by guarantee,
surety or otherwise, and whether or not such right is executory or
anticipatory in nature, including any Assessment and any right or ability of
any Person to advance a claim for contribution or indemnity or otherwise
with respect to any matter, action, cause or chose in action, whether
existing at present or commenced in the future, for which any Director or
Officer is alleged to be, by statute or otherwise by law or equity, liable to
pay in his or her capacity as a Director or Officer (each a
“Director/Officer Claim”, and collectively, the “Director/Officer
Claims”),
provided that “Claim” shall not include any right or claim in respect of an amount
owing to a Person by one or more of the Applicants that is secured by a Charge
(as defined in the Initial CCAA Order);
(e)
“Claims Bar Date” means 5:00 p.m. (Atlantic Time) on November 15, 2015, or
such later date as may be ordered by the Court;
(f)
“Court” means the Court of Queen’s Bench of New Brunswick (Trial Division);
(g)
“Creditor” means any Person having or asserting a Claim;
(h)
“Directors” means all current and former directors (or their estates) of the
Applicants, in such capacity, and “Director” means any one of them;
(i)
“Disputed Claim” means a Claim or such portion thereof which is not barred by
any provision of this Claims Procedure Order, which has not been allowed as a
Claim, which is disputed for voting and/or distribution purposes in accordance
with this Claims Procedure Order, and which remains subject to adjudication for
46
-4voting and/or distribution purposes in accordance with this Claims Procedure
Order;
(j)
“Dispute Notice” means the dispute notice substantially in the form attached
hereto as Schedule “E”;
(k)
“Equity Claim” has the meaning set forth in Section 2(1) of the CCAA;
(l)
“Filing Date” means the date of the Initial CCAA Order;
(m)
“Initial CCAA Order” means the Initial Order under the CCAA dated June 25,
2015, as amended, restated or varied from time to time;
(n)
“Instruction Letter” means the instruction letter to Creditors, in substantially the
form attached as Schedule “A” hereto, regarding completion by Creditors of the
Proof of Claim;
(o)
“Known Creditors” means with respect to each of the Applicants or any of them,
or the Directors or Officers or any of them:
(p)
(i)
those Creditors that the books and records of the Applicants disclose were
owed monies by the Applicants as of the Filing Date, where such monies
remain unpaid in full or in part as of the date hereof;
(ii)
any Person who commenced a legal proceeding against an Applicant or
one or more Directors or Officers in respect of a Claim, which legal
proceeding was commenced and served prior to the Filing Date; and
(iii)
any other Creditor of whom the Applicants have knowledge as at the date
of this Claims Procedure Order and for whom the Applicants have a
current address or other contact information;
“Meeting” means a meeting of the Creditors of the Applicants called for the
purpose of considering and voting in respect of a Plan;
(q)
“Notice of Revision or Disallowance” means a notice, substantially in the form
attached as Schedule “D” hereto, advising a Person that the Applicants have
revised or disallowed all or part of its Proof of Claim for the proposes of voting
and/or distribution, and providing the reasons for the revision or disallowance;
47
-5(r)
“Notice to Creditors” means the notice to Creditors for publication in
substantially the form attached as Schedule “B” hereto;
(s)
“Officers” means all current and former officers (or their estates) of the
Applicants, in such capacity, and “Officer” means any one of them;
(t)
“Person” means any individual, partnership, limited partnership, joint venture,
trust, corporation, unincorporated organization, government or agency or
instrumentality thereof, or any other corporate, executive, legislative, judicial,
regulatory or administrative entity howsoever designated or constituted,
including, without limitation, any present or former shareholder, supplier,
customer, employee, agent, client, contractor, lender, lessor, landlord, sublandlord, tenant, sub-tenant, licensor, licensee, partner or advisor;
(u)
“Plan” means a plan of compromise or arrangement filed by one or more of the
Applicants within the CCAA Proceedings;
(v)
“Proof of Claim” means a Proof of Claim form in substantially the form attached
hereto as Schedule “C”;
(w)
“Proof of Claim Document Package” means a document package that includes a
copy of the Instruction Letter, the Proof of Claim, the Notice to Creditors and
such other materials as the Monitor and the Applicants may consider appropriate
or desirable; and
(x)
“Restructuring Period Claims Bar Date” means, in respect of a Restructuring
Period Claim, 5:00 p.m. (Atlantic Time) on the day that is the later of (i)
November 15, 2015 and (ii) seven (7) Business Days after the effective date of the
termination, repudiation or resiliation of the applicable agreement or other event
giving rise to the applicable Restructuring Period Claim.
48
-6GENERAL PROVISIONS
3.
THIS COURT ORDERS that all references as to time herein shall mean Atlantic Time
and any reference to an event occurring on a Business Day shall mean prior to 5:00 p.m. on such
Business Day unless otherwise indicated herein.
4.
THIS COURT ORDERS that all references to the word “including” shall mean
“including without limitation”.
5.
THIS COURT ORDERS that all references to the singular herein include the plural, the
plural include the singular, and any gender includes the other gender.
6.
THIS COURT ORDERS that the Applicants and the Monitor are hereby authorized to
use reasonable discretion as to the adequacy of compliance with respect to the manner in which
forms delivered hereunder are completed and executed, and may, where they are satisfied that a
Claim has been adequately proven, waive strict compliance with the requirements of this Claims
Procedure Order as to completion, execution and time of delivery of such forms and to request
any further documentation from a Creditor that the Applicants or the Monitor may require in
order to enable them to determine the validity of a Claim.
7.
THIS COURT ORDERS that all Claims shall be denominated in Canadian dollars. Any
Claims denominated in a foreign currency shall be converted to Canadian dollars at the Bank of
Canada noon exchange rate in effect on the Filing Date. For greater certainty, U.S. dollar
denominated claims shall be converted at the Bank of Canada Canadian/U.S. dollar noon
exchange rate in effect on the Filing Date.
8.
THIS COURT ORDERS that copies of all forms delivered hereunder, as applicable, and
determinations of Claims by the Court shall be maintained by the Monitor.
9.
THIS COURT ORDERS that, notwithstanding anything to the contrary herein, the
Applicants may, with the consent of the Monitor, refer any Claim for resolution to the Court,
where in the Applicants’ view such a referral is preferable or necessary for the resolution or
determination of the Claim.
49
-710.
THIS COURT ORDERS that the Applicants may, with the consent of the Monitor,
apply to this Court for an Order appointing a claims officer to resolve one or more Disputed
Claims on such terms and in accordance with such process as may be ordered by this Court.
ROLE OF THE MONITOR
11.
THIS COURT ORDERS that the Monitor, in addition to its prescribed rights, duties,
responsibilities and obligations under the CCAA and under the Initial CCAA Order, shall assist
the Applicants in the administration of the claims procedure provided for herein, including the
assessment of Claims of Creditors, and is hereby directed and empowered to take such other
actions and fulfill such other roles as are contemplated by this Claims Procedure Order.
12.
THIS COURT ORDERS that the Monitor shall (i) have all protections afforded to it by
the CCAA, this Claims Procedure Order, the Initial CCAA Order, any Orders of the Court in
these proceedings and other applicable law in connection with its activities in respect of this
Claims Procedure Order, including the stay of proceedings in its favour provided pursuant to the
Initial CCAA Order; and (ii) incur no liability or obligation as a result of carrying out the
provisions of this Claims Procedure Order, other than in respect of gross negligence or wilful
misconduct.
NOTICE TO CREDITORS
13.
THIS COURT ORDERS that:
(a)
the Monitor shall, not later than five (5) Business Days following the granting of
the Claims Procedure Order, dispatch by ordinary mail on behalf of each of the
Applicants to each of the Known Creditors a copy of the Proof of Claim
Document Package;
(b)
the Monitor shall cause to be published on or before October 8, 2015, the Notice
to Creditors in the following newspapers: (i) The Globe and Mail (National
Edition); (ii) The Telegraph-Journal; and (iii) L’Étoile;
(c)
the Monitor shall dispatch by ordinary mail as soon as reasonably possible
following receipt of a request therefor, a copy of the Proof of Claim Document
50
-8Package to any Person claiming to be a Creditor and requesting such material in
writing; and
(d)
the Monitor shall post a copy of this Claims Procedure Order, the Applicants’
Motion Record in respect of this Claims Procedure Order and the Proof of Claim
Document Package on its website at http://www.kpmg.com/ca/coopatlantic.
14.
THIS COURT ORDERS that the Monitor shall be entitled to rely on the accuracy and
completeness of the information obtained from the books and records of the Applicants
regarding the Known Creditors. For greater certainty, the Monitor shall have no liability in
respect of the information provided to it or otherwise obtained by it regarding the Known
Creditors and shall not be required to conduct any independent inquiry and/or investigation with
respect to that information.
PROOFS OF CLAIM
15.
THIS COURT ORDERS that all Proofs of Claim, including all supporting
documentation in respect of the Claims set out therein, must be served upon and received by the
Monitor on or before the Claims Bar Date in order to be effective, and any Person that does not
deliver a Proof of Claim in respect of a Claim in the manner required by this Claims Procedure
Order on or before the Claims Bar Date:
(a)
shall not be entitled to attend or vote at a Meeting in respect of such Claim;
(b)
shall not be entitled to receive any distribution in respect of such Claim pursuant
to a Plan;
(c)
shall not be entitled to any further notice in the CCAA Proceedings (unless it has
otherwise sought to be included on the service list); and
(d)
shall be and is hereby forever barred from making or enforcing such Claim (other
than a Restructuring Period Claim, as applicable) against the Applicants or any of
them, or the Directors or Officers or any of them, and such Claim shall be and is
hereby extinguished without any further act or notification.
51
-916.
THIS COURT ORDERS that, notwithstanding anything to the contrary in paragraph 15
hereof, the following shall apply with respect to any Restructuring Period Claims:
(a)
any notices of disclaimer or resiliation delivered to Creditors by the Applicants or
the Monitor after the Filing Date shall be accompanied by a Proof of Claim
Document Package;
(b)
the Monitor shall send a Proof of Claim Document Package to any Person
claiming to be a Creditor and who makes a request therefor in respect of a
Restructuring Period Claim prior to the applicable Restructuring Period Claims
Bar Date;
(c)
any Person that wishes to assert a Restructuring Period Claim must deliver a
completed Proof of Claim to the Monitor such that it is received by the Monitor
on or before the applicable Restructuring Period Claims Bar Date; and
(d)
any Person that does not deliver a Proof of Claim in respect of a Restructuring
Period Claim to the Monitor in the manner required by this Claims Procedure
Order on or before the applicable Restructuring Period Claims Bar Date:
(i)
shall not be entitled to attend or vote at a Meeting in respect of such
Restructuring Period Claim;
(ii)
shall not be entitled to receive any distribution in respect of such
Restructuring Period Claim pursuant to a Plan;
(iii)
shall not be entitled to any further notice in the CCAA Proceedings (unless
it has otherwise sought to be included on the service list); and
(iv)
shall be and is hereby forever barred from making or enforcing such
Restructuring Period Claim against the Applicants or any of them, and
such Restructuring Period Claim shall be and is hereby extinguished
without any further act or notification.
SET-OFF
17.
THIS COURT ORDERS that the Applicants may set-off (whether by way of legal,
equitable or contractual set-off) against payments, obligations or other distributions to be made
to any Creditor, any claims of any nature whatsoever that the Applicants may have against such
Creditor; however, neither the failure to do so nor the allowance of any Claim hereunder shall
52
- 10 constitute a waiver or release by the Applicants of any such claim that the Applicants may have
against such Creditor.
TRANSFER OF CLAIMS
18.
THIS COURT ORDERS that if, after the Filing Date, the holder of a Claim transfers or
assigns the whole of such Claim to another Person, neither the Monitor nor the Applicants shall
be obligated to give notice or otherwise deal with the transferee or assignee of such Claim in
respect thereof unless and until written notice of such transfer or assignment, together with
satisfactory evidence of such transfer or assignment, shall have been received and acknowledged
by the Applicants and the Monitor in writing, and thereafter such transferee or assignee shall for
the purposes hereof constitute the “Creditor” in respect of such Claim. Any such transferee or
assignee of a Claim shall be bound by any notices given or steps taken in respect of such Claim
in accordance with this Claims Procedure Order prior to receipt and acknowledgement by the
Applicants and the Monitor of satisfactory evidence of such transfer or assignment. After the
acknowledgement by the Applicants and the Monitor of satisfactory evidence of the transfer or
assignment of a Claim, the Applicants and the Monitor shall thereafter be required only to deal
with the transferee or assignee and not the original holder of the Claim. A transferee or assignee
of a Claim takes the Claim subject to any rights of set-off to which the Applicants may be
entitled with respect to such Claim. For greater certainty, a transferee or assignee of a Claim is
not entitled to set-off, apply, merge, consolidate or combine any Claims assigned or transferred
to it against or on account or in reduction of any amounts owing by such Person to the
Applicants.
Reference to transfer in this Claims Procedure Order includes a transfer or
assignment whether absolute or intended as security.
CLAIMS RESOLUTION PROCESS
19.
THIS COURT ORDERS that following delivery of one or more Proofs of Claim to the
Monitor on or before the Claims Bar Date or Restructuring Period Claims Bar Date, as
applicable, the following provisions shall apply to each Proof of Claim, which, for greater
certainty, includes Proofs of Claim in respect of a Director/Officer Claim:
(a)
The Applicants, with the assistance of the Monitor, shall review each Proof of
Claim received by the Claims Bar Date or the Restructuring Period Claims Bar
53
- 11 Date, as applicable, and shall either allow, partially allow or disallow a Proof of
Claim for voting and/or distribution purposes. Where a Proof of Claim is allowed
in its entirety, the Applicants and the Monitor need do nothing further and the
Claim set out in the applicable Proof of Claim is deemed to be admitted unless a
Notice of Revision or Disallowance is delivered to the applicable Person (or its
counsel, if applicable) in respect of such Claim. Where a Proof of Claim is
partially disallowed or disallowed in its entirety, the Monitor shall send a Notice
of Revision or Disallowance to the applicable Person (or its counsel, if
applicable), which Notice of Revision or Disallowance shall state whether such
Proof of Claim has been partially disallowed or disallowed in its entirety for
voting and/or distribution purposes and the reasons therefor. The Applicants may
allow a Claim for voting purposes and may revise or disallow the Claim for
distribution purposes provided they do so in the Notice of Revision or
Disallowance.
(b)
A Person that wishes to dispute a decision of the Applicants made pursuant to
subparagraph (a) above may dispute such decision by delivering a Dispute Notice
to the Monitor within ten (10) Business Days of the delivery to the Person of the
Notice of Revision or Disallowance. Such Person shall specify therein the details
of the dispute with respect to its Claim and shall specify whether it disputes the
determination of the Claim for voting and/or distribution purposes, as applicable.
A Person may accept a determination of a Claim for voting purposes as set out in
the Notice of Revision or Disallowance and may dispute the determination of the
Claim for distribution purposes, provided that it does so in its Dispute Notice and
such Dispute Notice is received by the Monitor in accordance with this
subparagraph (b). A determination of a Claim for voting purposes does not in any
way affect and is without prejudice to the process to determine such Claim for
distribution purposes.
(c)
At the discretion of the Applicants, and with the consent of the Monitor, a dispute
made pursuant to subparagraph (b) above may be heard: (i) by this Court,
returnable on such date as this Court may permit; or (ii) by a claims officer, to be
appointed by further order of this Court upon application of the Applicants, with
54
- 12 the consent of the Monitor. Any dispute heard by this Court shall be heard as a
hearing de novo with such further rights of appeal as may be provided for under
the laws of New Brunswick.
(d)
The ability of the Person holding the Disputed Claim to vote its Disputed Claim at
a Meeting and the effect of casting any such vote will be governed by further
Order of this Court in respect of voting at the Meetings.
(e)
If a Person having received a Notice of Revision or Disallowance does not dispute
same in accordance with and by the deadline set forth in subparagraph (b) above,
the Person’s Claim shall be deemed to be as determined in the Notice of Revision
or Disallowance, and any and all rights to dispute the Claim as determined in the
Notice of Revision or Disallowance or to otherwise assert or pursue such Claim
other than as determined in the Notice of Revision or Disallowance, shall be
forever extinguished and barred without further act or notification, and if such
Claim is thereby disallowed in full, such Person:
(i)
shall not be entitled to attend or vote at a Meeting in respect of such
Claim;
(ii)
shall not be entitled to receive any distribution in respect of such Claim
pursuant to a Plan;
(iii)
shall not be entitled to any further notice in the CCAA Proceedings (unless
it has otherwise sought to be included on the service list); and
(iv)
shall be and is hereby forever barred from making or enforcing such Claim
against the Applicants or any of them, or the Directors or Officers or any
of them, and such Claim shall be and is hereby extinguished without any
further act or notification.
SERVICE AND NOTICE
20.
THIS COURT ORDERS that the Applicants and the Monitor may, unless otherwise
specified by this Claims Procedure Order, serve and deliver or cause to be served and delivered
the Proof of Claim Document Package, any letters, notices or other documents to Creditors or
any other interested Person by forwarding true copies thereof by prepaid ordinary mail, courier,
personal delivery, facsimile transmission or email to such Persons or their counsel at the physical
or electronic address, as applicable, last shown on the books and records of the Applicants or set
55
- 13 out in such Creditor’s Proof of Claim, if one has been filed. Any such service and delivery shall
be deemed to have been received: (i) if sent by ordinary mail, on the third Business Day after
mailing within Canada, and the fifth Business Day after mailing internationally; (ii) if sent by
courier or personal delivery, on the next Business Day following dispatch; and (iii) if delivered
by facsimile transmission or email by 5:00 p.m. on a Business Day, on such Business Day and if
delivered after 5:00 p.m. or other than on a Business Day, on the following Business Day.
21.
THIS COURT ORDERS that any notice or communication required to be provided or
delivered by a Creditor to the Monitor or the Applicants under this Claims Procedure Order shall
be in writing in substantially the form, if any, provided for in this Claims Procedure Order and
will be sufficiently given only if delivered by prepaid registered mail, courier, personal delivery
or email addressed to:
If to the Applicants:
Co-op Atlantic
P.O. Box 750
123 Halifax Street
Moncton, NB E1C 8N5
Attention:
Fax:
Email:
Judy Cairns
506-858-6475
judy.cairns@coopatlantic.ca
c/o Goodmans LLP
Bay Adelaide Centre
Toronto, ON M5H 2S7
Attention:
Fax:
Email:
Robert Chadwick / Logan Willis
416-979-1234
rchadwick@goodmans.ca / lwillis@goodmans.ca
If to the Monitor:
KPMG Inc., in its capacity as Court-appointed Monitor of Co-op Atlantic, Co-op
Energy Ltd. and C A Realty Ltd.
Claims Procedure
Bay Adelaide Centre
Toronto, ON M5H 2S5
Attention:
Anamika Gadia / George Bourikas
56
- 14 Fax:
Email:
416-777-3883
agadia@kpmg.ca / gbourikas@kpmg.ca
With a copy to:
Blake, Cassels & Graydon LLP
Commerce Court West
Toronto, ON M5L 1A9
Attention:
Fax:
Email:
Pamela Huff / Chris Burr
416-863-2653
pamela.huff@blakes.com / chris.burr@blakes.com
Any such notice or communication delivered by a Creditor shall be deemed to be received upon
actual receipt thereof during normal business hours on a Business Day or if delivered outside of
normal business hours, the next Business Day.
22.
THIS COURT ORDERS that the publication of the Notice to Creditors and the mailing
of the Proof of Claim Document Packages as set out in this Claims Procedure Order shall
constitute good and sufficient notice to Creditors of the Claims Bar Date, the Restructuring
Period Claims Bar Date and the other deadlines and procedures set forth herein, and that no other
form of notice or service need be given or made on any Person, and no other document or
material need be served on any Person in respect of the claims procedure described herein.
23.
THIS COURT ORDERS that in the event that this Claims Procedure Order is
subsequently amended by further Order of the Court, the Applicants shall serve notice of such
amendment on the service list in these proceedings and the Monitor shall post such further Order
on the Monitor’s website and such posting shall constitute adequate notice to all Persons of such
amended Claims Procedure Order.
GENERAL
24.
THIS COURT ORDERS that notwithstanding any other provisions of this Claims
Procedure Order, the solicitation by the Monitor or the Applicants of Proofs of Claim, the
delivery of Proof of Claim Document Packages to Known Creditors, and the filing by any Person
of any Proof of Claim shall not, for that reason only, grant any Person any standing in the CCAA
Proceedings or rights under a Plan.
57
- 15 25.
THIS COURT ORDERS that nothing in this Claims Procedure Order shall constitute or
be deemed to constitute an allocation or assignment of Claims into particular classes for the
purpose of the Plan and, for greater certainty, the treatment of Claims, or any other claims and
the classification of Creditors for voting and distribution purposes shall be subject to the terms of
a Plan or further Order of this Court.
26.
THIS COURT ORDERS that, except as expressly provided herein, the determination of
Claims pursuant to this Claims Procedure Order shall apply for all purposes in these proceedings
and any proceedings under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, unless
otherwise further ordered by the Court.
27.
THIS COURT ORDERS that the Applicants or the Monitor may from time to time
apply to this Court to amend, vary, supplement or replace this Claims Procedure Order or for
advice and directions concerning the discharge of their respective powers and duties under this
Claims Procedure Order or the interpretation or application of this Claims Procedure Order.
28.
regulatory or administrative body having jurisdiction in Canada or outside Canada to give effect
to this Claims Procedure Order and to assist the Applicants, the Monitor and their respective
agents in carrying out the terms of this Claims Procedure Order. All courts, tribunals, regulatory
and administrative bodies are hereby respectfully requested to make such orders and to provide
such assistance to the Applicants and to the Monitor, as an officer of this Court, as may be
necessary or desirable to give effect to this Claims Procedure Order, to grant representative
status to the Monitor in any foreign proceeding, or to assist the Applicants and the Monitor and
their respective agents in carrying out the terms of this Claims Procedure Order.
29.
THIS COURT ORDERS that this Claims Procedure Order and all of its provisions are
effective as of 12:01 a.m. Atlantic Time on the date of this Claims Procedure Order.
Dated at Moncton, New Brunswick this 1st
____________________________________
58
- 16 SCHEDULE “A”
INSTRUCTION LETTER FOR THE CLAIMS PROCEDURE OF:
Co-op Atlantic, Co-op Energy Ltd. and C A Realty Ltd.
(collectively, the “Applicants”) and/or their Directors or Officers
A.
CLAIMS PROCEDURE
By Order of the Court of Queen’s Bench of New Brunswick (Trial Division) made October 1,
2015 (the “Claims Procedure Order”), the Court-appointed Monitor of the Applicants, KPMG
Inc. (the “Monitor”), has been authorized to assist the Applicants in conducting a claims
procedure (the “Claims Procedure”) with respect to certain claims against the Applicants and
their present or former Directors and Officers (“Directors/Officers”) in accordance with the
terms of the Claims Procedure Order.
Unless otherwise defined, all capitalized terms used herein shall have the meaning given to those
terms in the Claims Procedure Order.
This letter provides instructions for responding to or completing the Proof of Claim. Reference
should be made to the Claims Procedure Order for a complete description of the Claims
Procedure. The Claims Procedure Order, the Proof of Claim Document Package, additional
Proofs of Claim and related materials may be accessed from the Monitor’s website at
http://www.kpmg.com/ca/coopatlantic.
The Claims Procedure is intended for any Person with any Claims of any kind or nature
whatsoever against any or all of the Applicants or the Directors/Officers of the Applicants,
whether liquidated, unliquidated, contingent or otherwise. Please review the enclosed material
for the complete definitions of “Claim”, “Prefiling Claim”, “Restructuring Period Claim” and
“Director/Officer Claim” to which the Claims Procedure applies.
A separate Proof of Claim form should be completed for each Applicant against which you are
asserting a Claim, and a separate Proof of Claim form should be completed for the
Directors/Officers if you are asserting a Director/Officer Claim.
All notices and enquiries with respect to the Claims Procedure should be addressed to:
Bay Adelaide Centre
Toronto, ON M5H 2S5
Attention:
Telephone:
George Bourikas
1-855-393-3546
59
- 17 Facsimile:
E-mail:
B.
416-777-3883
gbourikas@kpmg.ca
FOR CREDITORS SUBMITTING A PROOF OF CLAIM
If you believe that you have a Claim against one or more of the Applicants or the Directors of
Officers of the Applicants, you must file a Proof of Claim with the Monitor.
All Proofs of Claim for Prefiling Claims (i.e. Claims against the Applicants arising prior to the
Filing Date) and all Director/Officer Claims must be received by the Monitor before 5:00 p.m.
(Atlantic Time) on November 15, 2015 (the “Claims Bar Date”).
All Proofs of Claim for Restructuring Period Claims (i.e. Claims against the Applicants
arising on or after the Filing Date) must be received by the Monitor before 5:00 p.m. on the
date that is seven (7) Business Days after the effective date of the termination, repudiation
or resiliation of the agreement or other event giving rise to the Restructuring Period Claim
(the “Restructuring Period Claims Bar Date”).
PROOFS OF CLAIM MUST BE RECEIVED BY THE CLAIMS BAR DATE OR
RESTRUCTURING PERIOD CLAIMS BAR DATE, AS APPLICABLE, OR THE
APPLICABLE CLAIM WILL BE FOREVER BARRED AND EXTINGUISHED. If you
do not file a Proof of Claim in respect of a Claim by the Claims Bar Date or the Restructuring
Period Claims Bar Date, as applicable, you shall not be entitled to vote at any Meeting regarding
a Plan or participate in any distribution under a Plan in respect of such Claims.
All Claims denominated in foreign currency shall be converted to Canadian dollars at the Bank
of Canada noon spot rate of exchange for the applicable currency in effect as of the date of the
Initial CCAA Order.
Additional Proof of Claim forms can be obtained by contacting the Monitor at the telephone
numbers and address indicated above and providing particulars as to your name, address and
facsimile number.
DATED at
KPMG Inc.
this
60
SCHEDULE “B”`
NOTICE TO CREDITORS AND OTHERS OF FILING OF CLAIMS AS AGAINST:
RE: NOTICE OF CLAIMS PROCEDURE AND CLAIMS BAR DATE
This notice is being published pursuant to an Order of the Court of Queen’s Bench of New
Brunswick (Trial Division) made October 1, 2015 (the “Claims Procedure Order”). The Court
has ordered that the Court-appointed Monitor of the Applicants, KPMG Inc. (the “Monitor”),
assist the Applicants with conducting a claims procedure (the “Claims Procedure”) with respect
to certain claims against the Applicants and their present and former Directors and Officers
(“Directors/Officers”). The Monitor is required to send Proof of Claim Document Packages to
the Applicants’ Known Creditors. All capitalized terms herein shall have the meaning given to
those terms in the Claims Procedure Order.
The Claims Procedure Order, the Proof of Claim Document Package, additional Proofs of Claim
and related materials may be accessed from the Monitor’s web site at
http://www.kpmg.com/ca/coopatlantic.
THE CLAIMS BAR DATE is 5:00 p.m. (Atlantic Time) on November 15, 2015. Proofs of
Claim in respect of Prefiling Claims and Director/Officer Claims must be completed and filed
with the Monitor on or before the Claims Bar Date.
THE RESTRUCTURING PERIOD CLAIMS BAR DATE is 5:00 p.m. (Atlantic Time) on
the date that is seven (7) Business Days after the effective date of the termination,
repudiation or resiliation of the agreement or other event giving rise to the Restructuring
Period Claim. Proofs of Claim in respect of Restructuring Period Claims must be completed
and filed with the Monitor on or before the Restructuring Period Claims Bar Date.
PROOFS OF CLAIM MUST BE RECEIVED BY THE MONITOR BY THE CLAIMS
BAR DATE OR RESTRUCTURING PERIOD CLAIMS BAR DATE, AS APPLICABLE,
OR THE CLAIM WILL BE FOREVER BARRED AND EXTINGUISHED. If you do not
file a Proof of Claim in respect of a Claim by the Claims Bar Date or the Restructuring Period
Claims Bar Date, as applicable, you shall not be entitled to vote at any Meeting regarding a Plan
or participate in any distribution under a Plan in respect of such Claims.
Reference should be made to the enclosed material for the complete definitions of “Claim”,
“Prefiling Claim”, “Restructuring Period Claim” and “Director/Officer Claim” to which the
Claims Procedure applies.
The Monitor can be contacted at the following address to request a Proof of Claim Document
Package or for any other notices or enquiries with respect to the Claims Procedure:
61
-2KPMG Inc., in its capacity as Court-appointed Monitor of Co-op Atlantic, Co-op
Bay Adelaide Centre
Toronto, ON M5H 2S5
Attention:
Telephone:
Facsimile:
E-mail:
DATED at
KPMG Inc.
George Bourikas
1-855-393-3546
416-777-3883
gbourikas@kpmg.ca
this
62
SCHEDULE “C”
TRIAL DIVISION
AND C A REALTY LTD.
PROOF OF CLAIM
(each, a “Debtor” and collectively, the “Debtors”) and/or their Directors or Officers
Please read carefully the enclosed Instruction Letter for completing this Proof of Claim.
I.
1.
PARTICULARS OF CREDITOR:
Full Legal Name of Creditor:
________________________________________________________ (the “Creditor”).
2.
Full Mailing Address of the Creditor:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
3.
Telephone Number: _________________________
63
4.
E-Mail Address:
-2_________________________
5.
Facsimile Number:
_________________________
6.
Attention (Contact Person):
7.
Have you acquired this Claim by assignment?
Yes:
□
No:
_______________________________
□
(if yes, attach documents evidencing assignment)
If Yes, Full Legal Name of Original Creditor(s):
II.
_________________________
PROOF OF CLAIM:
1.
I, ______________________________________________________________
(name of Creditor or Representative of the Creditor), of
______________________________________________ do hereby certify:
(city and province)
(a)
that I [check (√) one]
□ am the Creditor; OR
□ am _______________________________________ (state position or title) of
_________________________________________________________________;
(name of Creditor)
(b)
that I have knowledge of all the circumstances connected with the Claim referred
to below;
64
(c)
-3that the Applicants and/or the Directors/Officers of the Applicants were and still
are indebted to the Creditor as follows:
(Claims in a foreign currency are to be converted to Canadian Dollars at
the Bank of Canada noon spot rate as at June 25, 2015. The Canadian
Dollar/U.S. Dollar rate of exchange on that date was CDN$1.2347 /
USD$1.00.)
(i)
PRE-FILING CLAIMS AGAINST THE APPLICANTS:
$__________________(insert $ value of claim) CAD.
(ii)
RESTRUCTURING PERIOD CLAIMS AGAINST THE APPLICANTS:
(iii)
DIRECTOR/OFFICER CLAIMS AGAINST THE
DIRECTORS/OFFICERS OF THE APPLICANTS:
(iv)
TOTAL CLAIM:
$__________________(insert total of (i), (ii) and (iii) above) CAD.
III.
NATURE OF CLAIM
(check (√) one and complete appropriate category)
(a)
□ UNSECURED CLAIM OF $_____________________. In respect of this
debt, I do not hold any security and: (check (√) appropriate description)
(i)
□ Regarding the amount of $ _________________, I do not claim a right
to a priority.
(ii)
□ Regarding the amount of $ _________________, I claim a right to a
priority under section 136 of the Bankruptcy and Insolvency Act (Canada)
(the “BIA”) or would claim such a priority if this Proof of Claim were
65
-4being filed in accordance with the BIA. (Set out on an attached sheet
details to support any priority claim.)
(b)
□ SECURED CLAIM OF $ _____________
. In respect of this debt, I
hold security valued at $ _____________, particulars of which are attached to this
Proof of Claim form. (Give full particulars of the security, including the date on
which the security was given and the value at which you assess the security, and
attach a copy of the security documents.)
IV.
PARTICULARS OF CLAIM
The particulars of the undersigned's total Claim (including Prefiling Claims,
Restructuring Period Claims and Director/Officer Claims) are attached.
(Provide full particulars of the Claim and supporting documentation, including amount,
description of transaction(s) or agreement(s) giving rise to the Claim, name of any
guarantor(s) which has guaranteed the Claim, particulars and copies of any security and
amount of Claim allocated thereto, date and number of all invoices, particulars of all
credits, discounts, etc. claimed. If a claim is made against any Directors or Officers,
specify the applicable Directors or Officers and the legal basis for the Claim against
them.)
V.
FILING OF CLAIM
For Prefiling Claims and all Director/Officer Claims, this Proof of Claim must be
received by the Monitor before 5:00 p.m. (Atlantic Time) on November 15, 2015 (the
“Claims Bar Date”).
For Restructuring Period Claims, this Proof of Claim must be received by the Monitor
before 5:00 p.m. (Atlantic Time) on the date that is seven (7) Business Days after
termination, repudiation or resiliation of the agreement or other event giving rise to
the Restructuring Period Claim (the “Restructuring Period Claims Bar Date”).
In both cases, completed forms must be delivered by prepaid ordinary mail, courier,
personal delivery or electronic or digital transmission at the following address:
Bay Adelaide Centre
66
-5333 Bay Street, Suite 4600
Toronto, ON M5H 2S5
Attention:
Telephone:
Facsimile:
E-mail:
George Bourikas
1-855-393-3546
416-777-3883
gbourikas@kpmg.ca
(Failure to file your Proof of Claim as directed by the Claims Bar Date or
Restructuring Period Claims Bar Date, as applicable, will result in your
Claim being extinguished and barred and in you being prevented from
making or enforcing a Claim against the applicable Debtor or
Director/Officer, as applicable.)
Dated at________________ this ________day of _____________, 2015.
Signature of Creditor
67
SCHEDULE “D”
NOTICE OF REVISION OR DISALLOWANCE REGARDING CLAIMS AGAINST:
Co-op Atlantic, Co-op Energy Ltd. and C A Realty Ltd. (the “Applicants”) and/or their
Directors or Officers
TO:
[insert name and address of creditor]
FROM:
KPMG Inc., in its capacity as Court-appointed Monitor of the Applicants
(the “Monitor”).
Terms not otherwise defined in this Notice have the meaning ascribed to them in the Order of the
Court of Queen’s Bench of New Brunswick (Trial Division) (the “Court”) dated October 1,
2015 (the “Claims Procedure Order”). You can obtain a copy of the Claims Procedure Order
on the Monitor’s website at http://www.kpmg.com/ca/coopatlantic, or by contacting the Monitor
as set out below.
This Notice of Revision or Disallowance is issued pursuant to the Claims Procedure Order.
The Monitor has disallowed in full or in part your Claim, as set out in your Proof of Claim, for
voting and/or distribution purposes, as set out below:
Type of Claim (Prefiling Claim, Restructuring Period Claim and/or Director/Officer
Claim):
Claim Disallowed:
for voting purposes
for distribution purposes
for both voting and distribution purposes
68
-2-
Claim Against:
Amount Per
Proof Of Claim
Disallowed
Amount
Allowed
Amount
Co-op Atlantic
$
$
$
Co-op Energy Ltd.
$
$
$
C A Realty Ltd.
$
$
$
Directors/Officers
TOTAL
$
$
$
Allowed
as
Allowed as
Secured Unsecured
REASONS FOR DISALLOWANCE:
If you intend to dispute this Notice of Revision or Disallowance, you must deliver a Dispute
Notice, in the manner described in the Claims Procedure Order and in the form attached as
Schedule “E” to the Claims Procedure Order, to the Monitor at the address listed below. Any
such Dispute Notice must be delivered to the Monitor and the Applicants within ten (10)
Business Days of receiving this Notice of Revision or Disallowance, in which case such Claim
shall be treated as if the Claim had been entirely disallowed by the Monitor and will be
reassessed, at the discretion of the Applicants, by the Court or by a claims officer appointed by
Order of the Court. If you do not appeal this Notice of Revision or Disallowance in the
prescribed manner and within the aforesaid time period, your Claim shall be deemed to be as set
out in this Notice of Revision or Disallowance.
If you agree with the Notice of Revision or Disallowance, there is no need to file anything
further with the Monitor.
The address of the Monitor is set out below:
Bay Adelaide Centre
Toronto, ON M5H 2S5
69
-3-
Attention:
Telephone:
Facsimile:
E-mail:
George Bourikas
1-855-393-3546
416-777-3883
gbourikas@kpmg.ca
IF YOU FAIL TO TAKE ACTION WITHIN THE PRESCRIBED TIME PERIOD, THIS
NOTICE OF REVISION OR DISALLOWANCE WILL BE BINDING UPON YOU.
Dated at________________ this ________day of _____________, 2015.
KPMG Inc.
70
-4-
SCHEDULE “E”
TRIAL DIVISION
AND C A REALTY LTD.
DISPUTE NOTICE REGARDING A CLAIM AGAINST:
Pursuant to the Order of the Court of Queen’s Bench of New Brunswick (Trial Division) dated
October 1, 2015 (the “Claims Procedure Order”), we hereby give you notice of our intention to
dispute the Notice of Revision or Disallowance issued by the Monitor in respect of our Claim, as
detailed below.
Claim No.:
______________________________________
Name of Claimant:
Complete Mailing Address of Claimant:
Telephone Number:
Facsimile Number:
Email Address:
Attention (Contact Person):
Amount as per Notice of Revision or
Disallowance:
Date of Notice of Revision or Disallowance:
$
71
-5-
Reasons for Dispute (please continue on additional pages if required - note also that you are
required to attach to this Dispute Notice all relevant supporting documents on which you rely in
support of your Claim(s))
Date:_______________________________
(Print name of Claimant or, if the Claimant is
a corporation, the name of the Claimant and
the name of the authorized signing officer of
the corporation that is executing this Dispute
Notice)
(Signature of Claimant or, if the Claimant is
a corporation, the signature of the authorized
signing officer of the corporation that is
executing this Dispute Notice)
THIS NOTICE OF DISPUTE MUST BE RETURNED BY COURIER, PERSONAL
DELIVERY, EMAIL OR FACSIMILE TO THE MONITOR WITHIN 10 BUSINESS
72
-6-
DAYS OF THE DATE OF THE NOTICE OF REVISION OR DISALLOWANCE AT
THE FOLLOWING ADDRESS:
The Monitor
KPMG Inc., in its capacity as Court-appointed Monitor of Co-op Atlantic, Co-op Energy
Ltd. and C A Realty Ltd.
Bay Adelaide Centre
Toronto, ON M5H 2S5
Attention:
Telephone:
Facsimile:
E-mail:
George Bourikas
1-855-393-3546
416-777-3883
gbourikas@kpmg.ca
IF YOU DO NOT DELIVER A DISPUTE NOTICE IN ACCORDANCE WITH
THE FOREGOING AND THE CLAIMS PROCEDURE ORDER, THE VALIDITY
AND QUANTUM OF YOUR CLAIM FOR VOTING AND DISTRIBUTION
PURPOSES SHALL BE DEEMED TO BE AS SET OUT IN THE NOTICE OF
REVISION OR DISALLOWANCE, AND SUCH DETERMINATION SHALL BE
FINAL AND BINDING IN ALL RESPECTS.
73
BRUNSWICK
CLAIMS PROCEDURE ORDER
MCINNES COOPER
Moncton, NB E1C 1E2
Tel:
(506) 857-8970
Fax: (506) 857-4095
GOODMANS LLP
Bay Adelaide Centre
Toronto, ON M5H 2S7
Tel:
(416) 979-2211
Fax: (416) 979-1234
TAB 5
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
TAB A
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
TAB B
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
183
184
185
186
187
188
189
190
191
192
193
194
195
196
197
198
199
200
201
202
203
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
233
234
235
236
237
238
239
240
241
242
243
244
245
246
247
248
249
250
251
252
253
254
255
256
257
258
259
260
261
262
263
264
265
266
267
268
269
270
271
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
288
289
290
291
292
293
294
295
296
297
298
299
300
301
302
303
304
305
306
307
308
309
310
311
312
313
314
315
316
317
318
319
TAB C
320
321
322
323
324
325
326
327
328
329
330
331
332
333
334
Court File No: MM73-15
Applicants
COURT OF QUEEN’S BENCH OF
NEW BRUNSWICK
Trial Division
MOTION RECORD
MCINNES COOPER
Moncton, NB E1C 1E2
Tel:
(506) 857-8970
Fax: (506) 857-4095
GOODMANS LLP
Bay Adelaide Centre
Toronto, ON M5H 2S7
Tel:
(416) 979-2211
Fax: (416) 979-1234

Motion Record - Returnable October 1, 2015

Transcription

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