Court File No. SJM-98-15 IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF SAINT JOHN 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 April 28, 2016) MCINNES COOPER GOODMANS LLP Barristers & Solicitors Barristers & Solicitors Blue Cross Building, South Tower Bay Adelaide Centre 644 Main Street, Suite 400 333 Bay Street, Suite 3400 Moncton, NB E1C 1E2 Toronto, ON M5H 2S7 Chris Keirstead Robert J. Chadwick Michael Costello Logan Willis Tel: (506) 857-8970 Tel: (416) 979-2211 Fax: (506) 857-4095 Fax: (416) 979-1234 Lawyers for the Applicants Lawyers for the Applicants
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Court File No. SJM-98-15
IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION
JUDICIAL DISTRICT OF SAINT JOHN
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 April 28, 2016)
MCINNES COOPER GOODMANS LLP Barristers & Solicitors Barristers & Solicitors Blue Cross Building, South Tower Bay Adelaide Centre 644 Main Street, Suite 400 333 Bay Street, Suite 3400 Moncton, NB E1C 1E2 Toronto, ON M5H 2S7
Chris Keirstead Robert J. Chadwick Michael Costello Logan Willis
Lawyers for the Applicants Lawyers for the Applicants
INDEX
Court File No. SJM-98-15
IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION
JUDICIAL DISTRICT OF SAINT JOHN
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.
INDEX
Tab
1.
2.
3.
Document
Notice of Motion
Draft Order
Affidavit of Bryan Inglis sworn April 21, 2016
A. Exhibit “A” – Initial Affidavit (without exhibits)
B. Exhibit “B” – Settlement Agreement
TAB 1
Court File No. SJM-98-15
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
JUDICIAL DISTRICT OF SAINT JOHN CIRCONSCRIPTION JUDICIARE DE SAINT JOHN
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)
AVIS DE MOTION (FORMULE 37A)
TO: The Service List attached as Schedule “A” and the Supplementary Notice List attached as Schedule “B”
DESTINAIRE:
The Applicants will apply to the Court at the Saint John Court House, 10 Peel Plaza, Saint John, New Brunswick on the 28th day of April, 2016 at 9:30 a.m. for an Order as set out hereunder.
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;
(a) vous avez le droit d’émettre des documents et de présenter votre preuve en français, en anglais ou dans les deux langues;
(b) the Applicants intend to proceed in the English language; and
(b) le demandeur a l’intention d’utiliser la langue anglais; et
(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.
(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.
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MOTION
1. Co-op Atlantic (“Co-op”), 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 “Distribution Order”), inter alia:
(i) approving and giving effect to the terms of a settlement agreement (the
“Settlement Agreement”) dated April 21, 2016 among the Applicants,
National Bank of Canada (“National Bank”), Concentra Trust in its
capacity as trustee of the secured debentures issued by Co-op
(“Concentra”), Farm Credit Canada (“FCC” and together with National
Bank and Concentra, the “Secured Creditors”), Provincial Holdings
Limited (“PHL”) and Eckler Ltd., in its capacity as administrator (the
“Pension Administrator”) of the Co-op Atlantic Employees’ Pension
Plan (the “Pension Plan”) (collectively, the “Settlement Parties”);
(ii) authorizing the Applicants to make certain distributions to their secured
creditors and the Pension Plan in accordance with the Settlement
Agreement;
(iii) granting the Pension Administrator, PHL, National Bank, FCC and
Concentra releases of claims against them in respect of matters relating to
the Applicants; and
(iv) terminating the Pension Litigation (as defined below); and
(b) such further and other relief as this Court deems just.
1 Capitalized terms that are not defined herein shall have the meaning given to them in the Affidavit of Bryan Inglis sworn April 21, 2016 (the “Inglis Affidavit”), attached at Tab 3 of the within Motion Record.
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2. 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 May 31, 2016, and (ii) appointing KPMG Inc. as CCAA Monitor in
respect of the Applicants (the “Monitor”);
(b) the Applicants, with the assistance of their financial advisor, KPMG Corporate
Finance, and, since its appointment, the Monitor, have carried out an extensive
Sale and Restructuring Process since the fall of 2014 to achieve transactions that
are in the best interests of the Applicants and their stakeholders;
(c) the Applicants have successfully completed a number of going-concern
transactions; they have now sold all of their core assets and businesses and have
no remaining business operations;
(d) as of April 20, 2016, the Applicants hold $32.3 million in proceeds;
(e) the Applicants have been engaged in extensive negotiations with their principal
stakeholders in an effort to achieve a global resolution that is fair, reasonable and
in the best interests of their stakeholders;
(f) on January 26, 2016, the Applicants sought from the Court, and the Court
provided, a process and timeline for the adjudication of certain matters relating to
the validity, priority and quantum of the claims (the “Pension Claims”) submitted
on behalf of the Pension Plan (the “Pension Litigation”); these matters needed to
be resolved in order to allow the Applicants to move forward with a global
resolution;
(g) simultaneously with the Pension Litigation, the Applicants continued to engage
with the Pension Administrator, the Secured Creditors and PHL in an effort to
achieve a global resolution that would, among other things, resolve significant
claims against the Applicants, reduce litigation and interest expenses, settle the
Pension Litigation, preserve value for unsecured creditors and allow the
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Applicants to make distributions to their creditors and complete the CCAA
proceedings as soon as possible;
(h) these negotiations have culminated in a settlement among the Applicants, the
Secured Creditors, the Pension Administrator and PHL;
(i) the Applicants believe the settlement represents the best outcome available in the
circumstances and is in the best interests of the Applicants and their stakeholders;
(j) the terms of the settlement are set out in the Settlement Agreement, which
provides for, among other things:
(i) comprehensive releases among the Settlement Parties;
(ii) the payment by the Applicants of certain distributions to their secured
creditors at a discount to the total amounts owed, certain distributions to
the Pension Plan and a payment by PHL to National Bank in reduction of
the amounts owing by the Applicants to National Bank (collectively, the
“Fixed Distributions”), all in accordance with the Distribution Order;
(iii) the full, final and irrevocable satisfaction, settlement and discharge of the
applicable secured claims, a corresponding amount of the Pension Claims
and the PHL guarantee; and
(iv) the termination of the Pension Litigation in accordance with the
Distribution Order;
(k) the Fixed Distributions consist of the following:
(i) National Bank will receive a fixed cash distribution of $13,443,000, plus
the amount of all reasonable professional costs and interest accruing on
the amounts owed by Co-op to National Bank from April 1, 2016 until the
date on which National Bank receives its Fixed Distribution;
(ii) FCC will receive a fixed cash distribution of $6,989,899, plus the amount
of all reasonable professional costs and interest accruing on the amounts
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owed by Co-op to FCC from April 1, 2016 until the date on which FCC
receives its Fixed Distribution;
(iii) Concentra will receive a fixed cash distribution of $2,500,000 for and on
behalf of the Debentureholders;
(iv) Interprovincial Cooperative Limited (“IPCO”) will receive the lesser of
(i) $218,457 and (ii) the proven amount of IPCO’s secured claim against
Co-op, if any, upon such claim becoming a proven Claim in accordance
with the Claims Procedure Order;
(v) PHL will pay National Bank $600,000 in satisfaction of the PHL
guarantee, and National Bank will fully, finally and irrevocably release
PHL from any further obligation under such guarantee;
(vi) the Pension Plan will receive a fixed cash distribution of $200,000 on
account of the professional fees and disbursements of the Pension
Administrator and the Pension Administrator’s counsel incurred from and
after the commencement of the CCAA proceedings in satisfaction of the
Court-ordered Pension Administration Charge (as defined in the Stay
Extension and Priority Order dated July 20, 2015); and
(vii) the Pension Plan will receive a fixed cash distribution of $5,350,000 on
account of a corresponding amount of the Pension Claims;
(l) the Settlement Agreement is conditional upon the issuance by the Court of the
Distribution Order and the receipt by the Monitor of opinions satisfactory to it
confirming the validity and enforceability of the security interests held by the
Secured Creditors;
(m) the proposed Distribution Order, if approved, would, among other things:
(i) approve the Settlement Agreement;
(ii) authorize the payment of the Fixed Distributions;
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(iii) confirm that certain of the Pension Claims are accepted in the aggregate
amount of $82,383,600 for voting and distribution purposes;
(iv) confirm the treatment of the Residual Pension Claims (as defined in the
Distribution Order) as allowed unsecured claims against Co-op, with no
secured, priority or deemed trust status;
(v) confirm the releases in the Settlement Agreement; and
(vi) release the parties to the Settlement Agreement (other than the Applicants)
from claims relating to the Applicants;
(n) if the Distribution Order is granted, the Applicants intend to make the Fixed
Distributions as soon as possible to stop the accrual of interest and fees in respect
of the claims that will be settled by those distributions, and to then bring forward
a CCAA plan of compromise or arrangement (a “CCAA Plan”) that would
provide for the distribution of the Applicants’ remaining proceeds to unsecured
creditors, following the payment of post-CCAA payables and other restructuring
costs;
(o) the settlement is fair, reasonable and in the best interests of all stakeholders
because it will, inter alia:
(i) settle and result in the discharge of a number of significant secured claims
against the Applicants at a discount to the actual amounts owed;
(ii) settle and result in the discharge of certain Pension Claims;
(iii) result in the distributions that will stop the further accrual of interest and
fees;
(iv) result in a full resolution of the Pension Litigation and avoid any further
costs associated with that litigation;
(v) preserve value for the Applicants’ unsecured creditors (which value may
not be available in the absence of the settlement); and
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(vi) allow the Applicants to continue their efforts to bring forward a CCAA
Plan and advance toward the completion of the CCAA proceedings;
(p) based on the current estimated range of proceeds ultimately available for
distribution, the settlement allows for an estimated range of approximately $1
million to 3 million to remain available for distribution to the Applicants’
unsecured creditors following the distributions made in connection with the
settlement;
(q) the Applicants, with the assistance of their advisors, have considered the proposed
settlement carefully and have determined that the relief requested represents the
optimal outcome available to the Applicants and their stakeholders in the
circumstances;
(r) the Applicants have been acting in good faith and with due diligence throughout
these proceedings;
(s) the Monitor has continued to supervise and provide assistance to the Applicants
with respect to their sale and restructuring efforts, and the Monitor supports the
proposed settlement;
(t) the circumstances that exist make it appropriate for the Court to grant the
proposed Distribution Order and provide the requested advice and directions;
(u) the provisions of the CCAA and this Court’s equitable and statutory jurisdiction
thereunder;
(v) Rules 1.02, 1.02.1, 1.03(2), 3.02, 37, 37.01 and 37.04(1) of the Rules of Court;
and
(w) such further and other grounds as counsel may advise and this Court may permit.
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3. The following documentary evidence will be used at the hearing of this motion:
(a) the Inglis Affidavit and the exhibits attached thereto;
(b) the Eighth Report of the Monitor, to be filed, and any appendices attached thereto;
and
(c) such further and other materials as counsel may advise and this Court may permit.
Dated April 21, 2016
MCINNES COOPER Barristers & Solicitors Blue Cross Building, South Tower 644 Main Street, Suite 400 Moncton, NB E1C 1E2
Chris Keirstead Michael Costello
Tel: (506) 857-8970 Fax: (506) 857-4095
Lawyers for the Applicants
GOODMANS LLP Barristers & Solicitors Bay Adelaide Centre 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7
Robert J. Chadwick Logan Willis
Tel: (416) 979-2211 Fax: (416) 979-1234
Lawyers for the Applicants
8
SCHEDULE A – SERVICE LIST
Court File No. SJM-98-15
IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION
JUDICIAL DISTRICT OF SAINT JOHN
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 AND ARRANGEMENT OF CO-OP ATLANTIC, CO-OP ENERGY LTD. AND C A REALTY LTD.
Applicants
SERVICE LIST (As at April 21, 2016)
TO: MCINNES COOPER Blue Cross Building, South Tower 644 Main Street, Suite 400 Moncton, NB E1C 1E2
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
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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
Deputy Minister
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: THE MINISTER OF FOREST RESOURCES AND AGRIFOODS (NEWFOUNDLAND AND LABRADOR) Natural Resources Building 50 Elizabeth Avenue P.O. Box 8700 St. John’s, NL A1B 4J6
Deputy Minister
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
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AND TO: MINISTRY OF THE ENVIRONMENT (PRINCE EDWARD ISLAND) Jones Building, 4th Floor 11 Kent Street P.O. Box 2000 Charlottetown, PE C1A 7N8
FORMER SALARIED EMPLOYEES
AND TO: THE FORMER SALARIED EMPLOYEES ON RECORD OF THE APPLICANTS (PENSION AND NON-PENSION)
28
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
Court File No: SJM-98-15
COURT OF QUEEN’S BENCH OF NEW BRUNSWICK
Proceeding filed in Saint John
NOTICE OF MOTION (Returnable April 28, 2016)
MCINNES COOPER Barristers & Solicitors Blue Cross Building, South Tower 644 Main Street, Suite 400 Moncton, NB E1C 1E2
Chris Keirstead / Michael Costello Tel: (506) 857-8970 Fax: (506) 857-4095
GOODMANS LLP Barristers & Solicitors Bay Adelaide Centre 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7
Robert J. Chadwick / Logan Willis Tel: (416) 979-2211 Fax: (416) 979-1234
Lawyers for the Applicants
29
TAB 2
Court File No. SJM-98-15
IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION
JUDICIAL DISTRICT OF SAINT JOHN
THE HONOURABLE
JUSTICE STEPHENSON
) ) )
, THE
DAY OF APRIL, 2016
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.
SETTLEMENT AND DISTRIBUTION 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 10 Peel Plaza, Saint John, New
Brunswick.
ON READING the affidavit of Bryan Inglis sworn April , 2016 and the exhibits thereto
(the “Inglis Affidavit”) and the Eighth Report of KPMG Inc. in its capacity as CCAA monitor of
the Applicants (the “Monitor”), and on hearing the submissions of counsel for the Applicants,
the Monitor and such other counsel as were present and wished to be heard, and on reading the
affidavit of service of sworn April , 2016,
SERVICE AND DEFINITIONS
1. THIS COURT ORDERS that the service and notice of this Motion are hereby abridged
and validated and this Motion is properly returnable today without further service or notice
thereof.
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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 Schedule A hereto.
SETTLEMENT AGREEMENT
3. THIS COURT ORDERS that the Settlement Agreement dated April 21, 2016 among
the Applicants, National Bank of Canada (“National Bank”), Farm Credit Canada (“FCC”),
Concentra Trust (“Concentra”), Provincial Holdings Ltd. (“PHL”) and Eckler Ltd., in its
capacity as administrator (the “Pension Administrator”) of the Co-op Employees’ Pension Plan
(the “Pension Plan”), attached as Exhibit “B” to the Inglis Affidavit (the “Settlement
Agreement”) is hereby approved. The Applicants and Monitor are hereby authorized to take
such additional steps and execute such additional documents as may be necessary or desirable for
the implementation of the Settlement Agreement.
4. THIS COURT ORDERS that the obligations of the Applicants in the Settlement
Agreement shall be treated as unaffected in any plan of compromise or arrangement filed by the
Applicants under the CCAA.
DISTRIBUTIONS TO SECURED CREDITORS
5. THIS COURT ORDERS that the Applicants are hereby authorized to irrevocably pay
the following distributions to the secured creditors of the Applicants:
(a) a distribution to National Bank equal to $13,443,000 plus the amount of all
reasonable professional costs and interest accruing on the amounts owed by the
Applicants to National Bank from April 1, 2016 until the date on which National
Bank receives its distribution;
(b) a distribution to FCC equal to $6,989,899 plus the amount of all reasonable
professional costs and interest accruing on the amounts owed by the Applicants to
FCC from April 1, 2016 until the date on which FCC receives its distribution;
(c) a distribution of $2,500,000 to Concentra, in its capacity as trustee of the secured
debentures issued by the Applicants (the “Debentures”); and
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(d) a distribution equal to the lesser of (i) $218,457 and (ii) the allowed amount of the
secured claim of Interprovincial Co-operative Limited (“IPCO”), if any, as
determined upon the agreement of the Applicants, the Monitor and IPCO or
further Order of this Court.
6. THIS COURT ORDERS that PHL shall promptly upon the granting of this Order
irrevocably pay to National Bank $600,000 on account of the Agreement Regarding PHL
Guarantees dated March 20, 2015 among Co-op Atlantic, National Bank and PHL (the “PHL
Guarantee”), and upon the Effective Date, PHL shall be fully, finally and irrevocably released
from any further obligation under the PHL Guarantee and the Applicants shall have no further
liabilities or obligations whatsoever in respect of the payment by PHL set forth in this paragraph
or the PHL Guarantee.
7. THIS COURT ORDERS that upon the Effective Date, any and all Claims of National
Bank (but excluding the Continuing NBC Claims), FCC, Concentra, the Debentureholders (in
their capacity as such) and IPCO, as applicable, shall be fully, finally and irrevocably satisfied,
settled and discharged, and thereafter the Applicants shall have no further liabilities or
obligations whatsoever to any of National Bank (other than with respect to the Continuing NBC
Claims), Concentra, the Debentureholders (in their capacity as such) or IPCO. Notwithstanding
the foregoing, this paragraph 7 shall not apply to IPCO until IPCO has received the distribution
to which it is entitled, if any, in accordance with paragraph 5(d) hereof.
8. THIS COURT ORDERS that upon the Effective Date, all Encumbrances and
registrations relating to the secured Claims of National Bank (other than the Continuing NBC
Claims), FCC, Concentra and IPCO, as applicable, shall be irrevocably expunged and
discharged. Notwithstanding the foregoing, this paragraph 8 shall not apply to IPCO until IPCO
has received the distribution to which it is entitled, if any, in accordance with paragraph 5(d)
hereof. After the Effective Date, the Applicants are hereby authorized to register this Order in
such public registries as they deem necessary to document the discharge of the secured claims of
National Bank (other than the Continuing NBC Claims), FCC and Concentra as provided in this
paragraph 8. In the case of any registrations related to the secured claims of IPCO, the
Applicants are hereby authorized to make any such registrations of this Order after IPCO has
received the distribution to which it is entitled, if any, in accordance with paragraph 5(d) hereof.
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DISTRIBUTIONS TO THE PENSION PLAN
9. THIS COURT ORDERS that the Claims of the Pension Administrator shall be allowed,
for the purposes of paragraph 19(a) of the Claims Procedure Order of this Court granted October
1, 2015 (the “Claims Procedure Order”), for voting and distribution purposes, in the aggregate
amount of $82,383,600 (the “Allowed Pension Claims”). The Claim filed by the Pension
Administrator for a constructive trust in the amount of $250,000 shall be deemed to be
irrevocably withdrawn.
10. THIS COURT ORDERS that the Applicants are hereby authorized to irrevocably pay
the following distributions to the Pension Plan:
(a) $200,000 on account of the professional fees and disbursements of the Pension
Administrator and the Pension Administrator’s counsel incurred from and after
the commencement of the CCAA proceedings; and
(b) $5,350,000 to the Pension Plan on account of a corresponding amount of the
Allowed Pension Claims.
11. THIS COURT ORDERS that the receipt by the Pension Plan of the amounts described
in paragraph 10(a) hereof shall result in:
(a) the full, final and irrevocable satisfaction, settlement and discharge of any and all
claims against the Applicants for professional fees and disbursements of the
Pension Administrator and the Pension Administrator’s counsel; and
(b) the full, final and irrevocable discharge and termination of the Pension
Administrator’s Charge (as defined in the Stay Extension and Priority Order dated
July 20, 2015).
12. THIS COURT ORDERS that the receipt by the Pension Plan of the amounts described
in paragraph 10(b) hereof shall result in the full, final and irrevocable satisfaction, settlement and
discharge of a corresponding amount of the Allowed Pension Claims (the “Satisfied Pension
Claims”), and thereafter the Applicants shall have no further liabilities or obligations whatsoever
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to the Pension Administrator, the Pension Plan or any beneficiary of the Pension Plan in respect
of the Satisfied Pension Claims.
13. THIS COURT ORDERS that all Residual Pension Claims shall be treated as allowed
unsecured Claims against Co-op Atlantic, with no secured, priority or deemed trust status.
RELEASES
14. THIS COURT ORDERS that the terms, conditions and releases in Sections 3.1, 3.2 and
3.3 of the Settlement Agreement are hereby confirmed and deemed to be binding and effective.
15. THIS COURT ORDERS that subject to and effective upon the occurrence of the
Effective Date, any and all Released Claims of any Person that received notice of the within
motion against any of National Bank, FCC, Concentra (for itself and on behalf of the
Debentureholders), PHL or the Pension Administrator (for itself and on behalf of the Pension
Plan) (the “Settlement Parties”) are hereby irrevocably and forever released and discharged (the
“Settlement Party Released Claims”). Subject to and effective upon the occurrence of the
Effective Date, all Settlement Party Released Claims are hereby fully, finally, irrevocably and
forever waived, discharged, released, cancelled and barred as against the Settlement Parties, all
to the fullest extent permitted by applicable law; provided that nothing herein shall waive,
discharge, release, cancel or bar (i) the rights of the Settlement Parties and the Applicants to
enforce the Settlement Parties’ obligations under the Settlement Agreement, or (ii) the rights of
the Debentureholders to receive the applicable amounts distributable by Concentra in accordance
with the deed of trust governing the secured debentures issued by Co-op Atlantic, and nothing in
this paragraph shall affect the terms of the releases of the Settlement Parties as amongst each
other as set forth in the Settlement Agreement and paragraph 14 of this Order.
16. THIS COURT ORDERS that the litigation in these proceedings concerning the validity,
priority and quantum of certain claims filed on behalf of the Pension Plan (the “Pension
Litigation”) is hereby terminated, and the Applicants’ motion for advice and direction in respect
thereof is hereby deemed to be withdrawn. No action or other litigation or proceeding shall be
commenced in respect of the validity, priority or quantum of the claims filed on behalf of the
Pension Plan, except with the consent of the Applicants and the Monitor or prior leave of this
Court.
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GENERAL
17. THIS COURT ORDERS that, notwithstanding:
(a) the pendency of the CCAA proceedings or the termination of the CCAA
proceedings;
(b) any application for a bankruptcy order or bankruptcy Order now or hereafter
issued pursuant to the Bankruptcy and Insolvency Act (the "BIA") in respect of
the Applicants; or
(c) any assignment in bankruptcy made in respect of the Applicants,
the obligations of the parties to the Settlement Agreement and the distributions and payments
made or to be made pursuant to the terms of this Order are final and irreversible and shall be
binding upon any trustee in bankruptcy that may be appointed in respect of the Applicants and
shall not be void or voidable by creditors of the Applicants, nor shall any such obligations,
payments or distributions constitute or be deemed to be fraudulent preferences, assignments,
fraudulent conveyances, or other reviewable transactions under the BIA or any other applicable
federal or provincial law, nor shall they constitute conduct which is oppressive, unfairly
prejudicial to or which unfairly disregards the interests of any person.
18. THIS COURT HEREBY REQUESTS the aid and recognition of any court, tribunal,
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.
35
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19. 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 Saint John, New Brunswick this
_____ day of_________, 2016.
____________________________________
36
SCHEDULE A
“Claims” shall have the meaning given to such term in the Claims Procedure Order.
“Continuing NBC Claims” means: (i) the obligations of the Applicants pursuant to the operation of account and similar agreements in respect of the accounts maintained by each the Applicants with National Bank (collectively, the “Accounts”); and (ii) any losses or liabilities which National Bank may incur at any time as a result of any deposits, cheques or similar instruments for the payment of money which have been credited to any of the Accounts both before and after the date of this Order which are returned to National Bank as dishonoured, discredited, reversed or returned, together with all reasonable legal fees and disbursements incurred by National Bank in connection with the foregoing.
“Debentureholders” means the holders of the Debentures.
“Effective Date” means the date upon which all of the following events have occurred: (i) each of the Pension Plan, National Bank, FCC and Concentra has received the Fixed Distributions; (ii) all applicable appeal periods related to this Order have expired, been waived or been otherwise dealt with to the satisfaction of the Parties, and any appeal or motion for leave to appeal in respect of this Order has finally been disposed of with no further right of appeal or leave to appeal existing; and (iii) the conditions in section 4.1 of the Settlement Agreement have been satisfied or waived in accordance with that provision.
“Encumbrance” means any charge, mortgage, lien, pledge, claim, restriction, hypothec, adverse interest, security interest or other encumbrance whether created or arising by agreement, statute or otherwise at law, attaching to property, interests or rights and shall be construed in the widest possible terms and principles known under the law applicable to such property, interests or rights and whether or not they constitute specific or floating charges as those terms are understood under the laws of the Province of New Brunswick.
“Fixed Distributions” means the distributions described in paragraphs 2(a), (b) and (c), 3 and 7(a) and (b) of the Restructuring Outline attached as Schedule B to the Settlement Agreement (the “Restructuring Outline”).
“Person” shall have the meaning given to such term in the Claims Procedure Order.
“Released Claims” means any and all demands, claims, actions, causes of action, counterclaims, suits, debts, sums of money, accounts, covenants, damages, judgments, orders, including for injunctive relief or specific performance and compliance orders, expenses, executions, Encumbrances and other recoveries on account of any liability, obligation, demand or cause of action of whatever nature, including claims for contribution or indemnity, whether known or unknown, matured or unmatured, direct, indirect or derivative, foreseen or unforeseen, existing or hereafter arising, based in whole or in part on any act, omission, transaction, duty, responsibility, indebtedness, liability, obligation, dealing or other occurrence existing or taking place on or prior to the Effective Date arising in connection with the Applicants, the Applicants’ restructuring, the Applicants’ pension plans, the claims asserted by the Pension Administrator and the Pension Litigation.
37
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“Residual Pension Claims” means all Pension Claims against the Applicants that remain following the settlement, satisfaction and/or discharge of the Pension Claims referred to in paragraph 7 of the Restructuring Outline.
38
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.
Court File No. SJM-98-15
COURT OF QUEEN’S BENCH OF NEW BRUNSWICK
Proceeding filed in Saint John
ORDER
MCINNES COOPER Barristers & Solicitors Blue Cross Building, South Tower 644 Main Street, Suite 400 Moncton, NB E1C 1E2
Chris Keirstead / Michael Costello Tel: (506) 857-8970 Fax: (506) 857-4095
GOODMANS LLP Barristers & Solicitors Bay Adelaide Centre 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7
Robert J. Chadwick / Logan Willis Tel: (416) 979-2211 Fax: (416) 979-1234
Lawyers for the Applicants
39
TAB 3
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
TAB A
60
61
62
63
64
65
66
67
68
69
70
71
72
73
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
100
101
102
103
104
105
106
107
108
109
110
TAB B
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
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
Court File No: SJM-98-15
COURT OF QUEEN’S BENCH OF NEW BRUNSWICK
Trial Division
Proceeding filed in Saint John
MOTION RECORD (Returnable April 28, 2016)
MCINNES COOPER Barristers & Solicitors Blue Cross Building, South Tower 644 Main Street, Suite 400 Moncton, NB E1C 1E2
Chris Keirstead / Michael Costello Tel: (506) 857-8970 Fax: (506) 857-4095
GOODMANS LLP Barristers & Solicitors Bay Adelaide Centre 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7
Robert J. Chadwick / Logan Willis Tel: (416) 979-2211 Fax: (416) 979-1234