CV-10-8637-00CL B E T W E E N : (COMMERCIAL LIST)

Court File No. CV-10-8637-00CL
ONTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
IN THE MATTER OF THE RECEIVERSHIP OF INTERWIND CORP.
BETWEEN:
HSH NORDBANK AG, NEW YORK BRANCH
as administrative and collateral agent
Applicant
- and -
INTERWIND CORP.
Respondent
MOTION RECORD
(Returnable October 15, 2010)
BORDEN LADNER GERVAIS LLP
Barristers and Solicitors
Scotia Plaza
40 King Street West
Toronto, Ontario
M5H 3Y4
Michael MacNaughton (LSUC #25889U)
Tel: (416) 367-6646
Fax: (416) 682-2837
Roger Jaipargas (LSUC #43275C)
Tel: (416) 367-6266
Fax: (416) 361-7067
James Szumski (LSUC #56958S)
Tel: (416) 367-6310
Fax: (416) 682-2811
Lawyers for PricewaterhouseCoopers Inc., in
its capacity as Court-appointed Receiver of
Interwind Corp.
Index
Court File No. CV-10-8637-00CL
ONTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
IN THE MATTER OF THE RECEIVERSHIP OF INTERWIND CORP.
BETWEEN:
HSH NORDBANK AG, NEW YORK BRANCH
as administrative and collateral agent
Applicant
- and -
INTERWIND CORP.
Respondent
INDEX
TAB
DOCUMENT
1.
Notice of Motion
2.
Receiver’s Seventh Report to Court, dated October 5, 2010
A
3.
Statement of Receipts and Disbursements
Draft Order
1
Court File No. CV-10-8637-00CL
ONTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
IN THE MATTER OF THE RECEIVERSHIP OF INTERWIND CORP.
BETWEEN:
HSH NORDBANK AG, NEW YORK BRANCH
as administrative and collateral agent
Applicant
- and -
INTERWIND CORP.
Respondent
NOTICE OF MOTION
(Returnable October 15, 2010)
PRICEWATERHOUSECOOPERS INC. (“PwC”), in its capacity as court-appointed
Receiver of Interwind Corp. (formerly known as SkyPower Corp.) (the “Receiver”) will make a
motion to a judge presiding over the Commercial List on Friday, October 15, 2010, at 2:15 p.m.
or as soon after that time as the motion can be heard at the Courthouse located at 330 University
Avenue, Toronto, Ontario.
PROPOSED METHOD OF HEARING: This Motion is to be heard orally.
THE MOTION IS FOR:
1.
An Order, inter alia:
a. if necessary, abridging the time for service of the Notice of Motion and the Motion
Record and directing that any further service of the Notice of Motion and the Motion
Record be dispensed with such that this motion is properly returnable on October 15,
2010;
b. amending the Receivership Order (as defined below) to provide for a general stay of
proceedings in favour of Interwind Corp.; and
c. such further and other relief as the Receiver may request and this Honourable Court
may deem just.
THE GROUNDS FOR THE MOTION are as follows:
2.
Pursuant to the Order of this Court dated August 12, 2009 (as amended and restated, the
“Initial Order”), Interwind Corp. (“Interwind” or the “Company”) was granted
protection pursuant to the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36,
as amended, (“CCAA”) and an initial stay of proceedings to and including September 11,
2009 in respect of the Company and certain other parties. The stay of proceedings under
the CCAA has been extended from time to time to October 15, 2010;
3.
The Company’s operations have ceased and all of its operating assets have been sold.
Pursuant to an Order of this Court dated March 30, 2010 (the “Receivership Order”)
PwC was appointed as Receiver to administer the sale of any remaining assets, the
distribution of any proceeds and any other residual matters that remained to be addressed;
4.
Pursuant to a further Order of this Court dated March 30, 2010 (the “Substitution
Order”) KPMG Inc. was discharged as court-appointed monitor of the Company in these
proceedings, and PwC was appointed as the new Monitor.
Notwithstanding the
Receivership Order, the CCAA proceedings were continued in order to permit the
Monitor and Receiver to deal with a number of outstanding matters.
5.
Substantial progress has been made towards resolving the outstanding matters for which
the CCAA proceedings were continued.
6.
The Monitor will apply for its discharge and the termination of the CCAA proceedings on
October 15, 2010.
7.
The Receiver continues to administer the remaining assets of the Company and to deal
with any residual matters that remain to be addressed, including but not limited to:
a. Providing information in connection with the resolution of two claims submitted in
the CCAA claims process, which are now being carried forward through a Courtordered resolution process;
b. Seeking the return of certain deposits and/or performance related consideration in
connection with transactions that have closed in the CCAA proceedings and these
receivership proceedings;
c. Seeking the recovery of certain claims against Lehman Brothers Holdings Inc.; and
d. Making distributions, as appropriate, to the creditors of the Company;
8.
A stay of proceedings and a stay against the enforcement of rights and remedies as
against the Receiver, the Company and the Property is necessary in order to ensure a fair
and orderly resolution of these outstanding matters;
9.
Due to the CCAA stay of proceedings, no such relief was requested in the Receivership
Order at the time the application was made, however, if the CCAA proceedings are
terminated and the CCAA stay of proceedings lapses, it is necessary and appropriate to
amend the Receivership Order to provide for a stay of proceedings;
10.
Rules 1.04, 2,.01, 2.03, 3.02, 16 and 37 of the Rules of Civil Procedure (Ontario);
11.
Such further and other grounds as counsel may advise and this Honourable Court may
permit.
THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the
motion:
12.
the Monitor’s Seventeenth Report to the Court, dated October 5, 2010, separately filed;
13.
the Receiver’s Seventh Report to the Court, dated October 5, 2010, filed; and
14.
such further and other evidence as counsel may submit and this Honourable Court may
permit.
Date: October 5, 2010
BORDEN LADNER GERVAIS LLP
Barristers and Solicitors
Scotia Plaza, 40 King Street West
Toronto, Ontario
M5H 3Y4
Michael J. MacNaughton
Tel.: (416) 367-6646
Fax: (416) 682-2837
LSUC # 25889U
Roger Jaipargas
Tel: (416) 367-6266
Fax: (416) 361-7067
LSUC # 43275C
James Szumski
Tel: (416) 367-6310
Fax: (416) 682-2811
LSUC #56958S
Lawyers for PricewaterhouseCoopers Inc.,
in its capacity as Court-appointed Receiver
of Interwind Corp.
TO: THE ATTACHED SERVICE LIST
SERVICE LIST – INTERWIND CORP.
TO:
GOODMANS LLP
Bay Adelaide Centre
333 Bay Street, Suite 3400
Toronto, ON M5H 2S7
Robert J. Chadwick
Tel: (416) 597-4285
Fax: (416) 979-1234
E-mail: [email protected]
Fred Myers
Tel: (416) 597-5923
Fax: (416) 979-1234
E-mail: [email protected]
Joseph Cosentino
Tel: (416) 597-4245
Fax: (416) 979-1234
Email: [email protected]
Derek Bulas
Tel: (416) 597-5914
Fax: (416) 979-1234
E-mail: [email protected]
Lawyers for Interwind Corp.
(and the Receiver in respect of a particular transaction)
Service List
Page 2
AND TO:
PRICEWATERHOUSECOOPERS INC.
Royal Trust Tower, TD Centre
Suite 3000
Toronto, ON M5K 1G8
Mica Arlette
Tel: (416) 814-5834
Fax: (416) 814-3210
Email: [email protected]
Tracey Weaver
Tel: (416) 814-5735
Fax: (416) 814-3210
Email: [email protected]
Donna Smith
Tel : (416) 941-8383, x. 14288
Fax: (416) 814-3210
Email: [email protected]
Jamie Cartwright
Tel : (416) 941-8383, x. 13501
Fax: (416) 814-3210
Email: [email protected]
Receiver and Monitor of Interwind Corp.
AND TO:
BORDEN LADNER GERVAIS LLP
Scotia Plaza
40 King Street West
Toronto ON M5H 3Y4
Michael MacNaughton
Tel: (416) 367-6646
Fax: (416) 682-2837
E-mail: [email protected]
Roger Jaipargas
Tel: (416) 367-6266
Fax: (416) 361-7067
Email: [email protected]
James Szumski
Tel: (416) 367-6310
Fax: (416) 682-2811
Email: [email protected]
Lawyers for the Monitor
Service List
Page 3
BORDEN LADNER GERVAIS LLP
Scotia Plaza
40 King Street West
Toronto ON M5H 3Y4
Alec Zimmerman
Tel: (416) 367-6003
Fax: (416) 361-2520
Email: [email protected]
Lawyers for CPV
AND TO:
MCCARTHY TETRAULT LLP
66 Wellington Street West
Suite 5300, Box 48
TD Bank Tower
Toronto ON M5K 1E6
Kevin McElcheran
Tel: (416) 601-7730
Fax: (416) 868-0673
E-mail: [email protected]
Lawyers for CIM Group
AND TO:
STIKEMAN ELLIOT LLP
Commerce Court West
199 Bay Street, Suite 5300
Toronto, ON M5L 1B9
Elizabeth Pillon
Tel: (416) 869-5623
Fax: (416) 947-0866
E-mail: [email protected]
Lawyers for Lehman Brothers Holdings Inc.
Service List
Page 4
AND TO:
OSLER, HOSKIN & HARCOURT LLP
100 King Street West
1 First Canadian Place
Suite 6100, P.O. Box 50
Toronto, ON M5X I B8
John MacDonald
Tel: (416) 862-5672
Fax: (416) 862-6666
mail: [email protected]
Rupert Chartrand
Tel: (416) 862-6575
Fax: (416) 862-6666
E-mail: [email protected]
Tracy Sandler
Tel: (416) 862-5890
Fax: (416) 862-6666
E-mail: [email protected]
Marc S. Wasserman
Tel: (416) 862-4908
Fax: (416) 862-6666
E-mail: [email protected]
Artem Miakichev
Tel: (416) 862-5673
Fax: (416) 862-6666
E-mail: [email protected]
Counsel for the HSH Bank Syndicate
Service List
Page 5
AND TO:
DAVIES WARD PHILLIPS & V1NEBERG LLP
1 First Canadian Place
44th Floor
Toronto, ON M5X 1B1
Natasha MacParland
Tel: (416) 863-5567
Fax: (416) 863-0871
E-mail: [email protected]
James D. Bunting
Tel: (416) 367-7433
Fax: (416) 863-0871
E-mail: [email protected]
Derek Vesey
Tel: (416) 367-6921
Fax: (416) 863-0871
E-mail: [email protected]
Lawyers for Nordeutsche Landesbank Girozentrale, New York Branch
AND TO:
BLAKE, CASSELS & GRAYDON LLP
Box 25, Commerce Court West
Toronto, ON M5L 1A9
Pamela Huff
Tel: (416) 863-2958
Fax: (416) 863-2653
E-mail: [email protected]
Katherine McEachern
Tel: (416) 863-2566
Fax: (416) 863-2653
E-mail: [email protected]
Lawyers for WestLB, AG, Toronto Branch
AND TO:
AIRD & BERLIS LLP
Brookfield Place, 181 Bay Street
Suite 1800, Box 754
Toronto, ON M5J 2T9
Harry Fogul
Tel: (416) 865-7773
Fax: (416) 863-1515
E-mail: [email protected]
Lawyers for Ontario Power Authority
Service List
Page 6
AND TO :
LAX O’SULLIVAN SCOTT LLP
Suite 1920, 145 King Street West
Toronto, ON M5H 1J8
Clifford Lax
Tel: (416) 598-0988
Fax: (416) 598-3730
E-mail: [email protected]
Shaun F. Laubman
Tel: (416) 598-1744
Fax: (416) 598-3730
E-mail: [email protected]
Lawyers for SunEdison LLC
AND TO :
FASKEN MARTINEAU DUMOULIN LLP
Toronto Dominion Bank Tower
P.O. Box 20, Suite 4200
66 Wellington Street West
Toronto, ON M5K 1N6
Edmond F.B. Lamek
Tel.: (416) 865-4506
Fax: (416) 364-7813
E-mail: [email protected]
Lawyers for General Electric Company and General Electric Canada
AND TO :
OGILVY RENAULT LLP
Suite 3800
Royal Bank Plaza, South Tower
200 Bay Street
Toronto, On M5J 2Z4
Virginie Gauthier
Tel: (416) 216-4853
Fax: (416) 216-3930
E-mail: [email protected]
Evan Cobb
Tel: (416) 216-1929
Fax: (416) 216-3930
E-mail: [email protected]
Azim Hussain
Tel: (514) 847-4827
Fax: (514) 286-5474
E-mail: [email protected]
Lawyers for ABB Inc.
Service List
Page 7
AND TO :
GARDINER ROBERTS LLP
Scotia Plaza, 40 King Street West
Toronto, ON M5H 3Y2
Jeffrey B. Rosekat
Tel: (416) 865-6662
Fax: (416) 865-6636
E-mail: [email protected]
Lawyers for Stantec Consulting Ltd.
AND TO :
CASSELS BROCK & BLACKWELL LLP
2100Scotia Plaza,
40 King Street West
Toronto, ON M5H 3C2
Mike Weinczok
Tel: (416) 642-7475
Fax: (416) 640-3046
E-mail: [email protected]
Lawyers for Golder Associates Ltd..
AND TO :
FRASER MILNER CASGRAIN LLP
1 First Canadian Place
100 King Street West
Toronto, ON M5X 1B2
R. Shayne Kukulowicz
Tel: (416) 863-4740
Fax: (416) 863-4592
E-mail: [email protected]
Jarvis H. Hetu
Tel: (416) 862-3460
Fax: (416) 863-4592
E-mail: [email protected]
Lawyers for Citizens Energy Corporation
AND TO:
DEPARTMENT OF JUSTICE
The Exchange Tower
130 King Street West
Suite 3400
Post Office Box 36
Toronto, ON M5X 1K6
Diane Winters / Peter Zevenhuizen
Tel: (416) 973-3172
Fax: (416) 973-0810
E-mail: [email protected] / peter/[email protected]
Service List
Page 8
AND TO:
WORKPLACE SAFETY & INSURANCE BOARD (WSIB)
Legal Services Branch
200 Front Street West
P.O. Box 4115, Station "A"
Toronto, ON M5W 2V3
Eric Kupka
Tel: (416) 344-3148
Fax: (416) 344-3160
E-mail: [email protected]
AND TO:
ONTARIO MINISTRY OF LABOUR
Employment Standards Program
Central Region Insolvencies and Collections
1201 Wilson Ave, 2nd Floor – Bldg. E
Toronto, ON M3M 1J8
Nancy Walters
E-mail: [email protected]
AND TO:
MINISTRY OF FINANCE (ONTARIO)
Office of Legal Services
33 King Street West, 6th Floor
Oshawa, ON L1H 8H5
Kevin J. O'Hara
Tel: (905) 433-6934
Fax: (905) 436-4510
E-mail: [email protected]
AND TO:
MINISTRY OF FINANCE
Legal Services Branch
Ministry of Attorney General
2nd Floor, 1001 Douglas Street
P.O. Box 9280 Stn. Prov Govt
Victoria, BC V8W 9J7
Fax: (250) 356-0065
E-mail: [email protected]
AND TO:
ALBERTA FINANCE AND ENTERPRISE
Tax and Revenue
9811 – 108 Street
Edmonton, Alberta T5K 2L5
Tel: (780) 427-2200
Fax: (780) 427-0348
E-mail: [email protected]
Service List
Page 9
AND TO:
SAKATCHEWAN FINANCE
2350 Albert Street
Regina, SK S4P 4A5
Tel: (306) 787-6768
Fax: (306) 787-0241
Heather A. Sinclair
Saskatchewan Ministry of Justice and Attorney General
Tel: (306) 787-8919
Fax: (306) 787-0581
E-mail: [email protected]
AND TO:
DEPARTMENT OF FINANCE – TAXATION
401 York Avenue, Room 415
Winnipeg, Man R3C 0P8
Barry Draward
Tel: (204) 945-3758
Fax: (204) 945-0896
E-mail: [email protected]
AND TO:
MINISTERE DU REVENU
3800, rue de Marly, secteur 6-2-5
Quebec, (Quebec) G1X 4A5
Legal Department
Tel: (418) 652-6835
Fax: (418) 643-7379
E-mail: [email protected]
AND TO:
DEPARTMENT OF FINANCE
Centennial Building
Room: 371, Floor: 3
P.O. Box 6000
Fredericton, NB E3B 5H1
Greg Byrne
Te: (506) 453-2451
Fax: (506) 45704989
E-mail: [email protected]
Service List
Page 10
AND TO:
NOVA SCOTIA DEPARTMENT OF FINANCE
P.O. Box 187
1723 Hollis Street
Halifax, NS B3J 2N3
Tel: (902) 424-5554
Fax: (902) 424-0635
E-mail: [email protected]
Doug Moodie
Legal Counsel at Justice
Tel: (902) 424-4295
Fax: (902) 424-4556
E-mail: [email protected]
If service is made by e-mail cc:
Paul B. Davies – [email protected]
Edward Gores – [email protected]
Francis Moore – [email protected]
AND TO:
DEPARTMENT OF FINANCE
P.O. box 8700
2nd Floor, East Block Confederation Building
St. John's, Nfld A1B 4J6
Manager of Collections
Tel: (709) 729-2944
Fax: (709) 729-2070
E-mail: [email protected]
Robert Constantine
E-mail: [email protected]
AND TO:
MINISTRE DU REVENU DU QUEBEC
1600 Boulevard Rene-Levesque Ouest,
3e Etage, Secteur R23CPF
Montrael, QC H3H 2V2
Tel: (514) 415-5261
Fax: (514) 285-3833
Jacques Jammes
E-mail: [email protected]
Amelie Eloundou
E-mail: [email protected]
Normand Berube
E-mail: [email protected]
Service List
Page 11
AND TO:
MARATHON CAPITAL LLC
2801 Lakeside Drive, Suite 210
Banockburn, Illinois 60015
Chief Compliance Officer
Tel: (847) 574-2570
Fax: (847) 615-9017
Ted Brandt
Tel: (847) 574-2677
Fax: (847) 615-9017
E-mail: [email protected]
AND TO:
Kevin P. Downie
Barrister & Solicitor
Suite 402, 5121 Sackvile Street
P.O. Box 580 Station M,
Halifax, Nova Scotia B3J 2R7
Tel: (902) 425-7233
Fax: (902) 425-2252
E-mail: [email protected]
Lawyer for Terrain Group Inc.
AND TO:
SUSSEX STRATEGY GROUP INC.
55 University Avenue, Suite 600
Toronto, ON M5J 2H7
Paul Pellegeini
Tel: (416) 961-6611
Fax: (416) 961-9935
E-mail: [email protected]
AND TO:
NORRIS BUSHELL
1097 Highway 6
River John, NS B0K 1N0
E-mail: [email protected]
AND TO:
BENNETT JONES
Suite 3400, 1 First Canadian Place
P.O. Box 130
Toronto, ON M5X 1A4
Gary Solway
Tel: (416) 777-6555
Fax: (416) 863-1716
E-mail: [email protected]
Lawyers for SWEF Terrawinds Resources Corp.
Service List
Page 12
AND TO :
MORENCY, SOCIETE D’AVOCATS SENCRL
500, Place d’Armes, Suite 2420
Montreal, QC H2Y 2W2
Ali T. Argun
Tel: (514) 845-3533
Fax: (514) 845-9522
Email: [email protected]
AND TO :
LENCZNER SLAGHT ROYCE SMITH GRIFFIN LLP
130 Adelaide Street West
Suite 2600
Toronto, ON M5H 3P5
Gary Solway
Tel: (416) 777-6555
Fax: (416) 863-1716
Email: [email protected]
Lawyers for SWEF Terrawinds Resources Corp.
AND TO :
POMERLEAU
521, 6E Avenue
Saint-Georges, QC G5Y 0H1
Guillaume Jacques
Email : [email protected]
Danny Voyer
Email : [email protected]
Tel : (418) 228-6688
Fax : (418) 228-3524
AND TO :
TREMBLAY & TREMBLAY AVOCATS INC.
274, Rue St-Pierre
Matane, QC G4W 2B5
Denis Tremblay
Tel: (418) 562-1130
Fax: (418) 562-7567
Email: [email protected]
AND TO :
NOVA SCOTIA POWER INC.
P.O. Box 910
Halifax, NS
B3J 2W5
Peter Doig
Tel.: (902) 428-6934
E-mail: [email protected]
Court File No. CV-10-8637-00CL
IN THE MATTER OF THE RECEIVERSHIP OF INTERWIND CORP.
BETWEEN:
HSH NORDBANK AG, NEW YORK BRANCH
Applicant
- and -
INTERWIND CORP.
Respondent
ONTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
PROCEEDINGS COMMENCED AT TORONTO
NOTICE OF MOTION
(Returnable October 15, 2010)
BORDEN LADNER GERVAIS LLP
Barristers and Solicitors
Scotia Plaza, 40 King Street West
Toronto, Ontario
M5H 3Y4
Michael J. MacNaughton
Tel.: (416) 367-6646
Fax: (416) 682-2837
(LSUC #25889U)
Roger Jaipargas
Tel: (416) 367-6266
Fax: (416) 361-7067
(LSUC #43275C)
James Szumski
Tel: (416) 367-6310
Fax: (416) 682-2811
(LSUC #56958S)
Lawyers for PricewaterhouseCoopers Inc., in its
capacity as Court-appointed Receiver of Interwind
Corp.
2
A
Court File No. CV-10-8637-00CL
IN THE MATTER OF THE RECEIVERSHIP OF INTERWIND CORP.
BETWEEN:
HSH NORDBANK AG, NEW YORK BRANCH
Applicant
- and -
INTERWIND CORP.
Respondent
ONTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
PROCEEDINGS COMMENCED AT TORONTO
RECEIVER’S SEVENTH REPORT TO COURT
(October 15, 2010)
BORDEN LADNER GERVAIS LLP
Barristers and Solicitors
Scotia Plaza, 40 King Street West
Toronto, Ontario
M5H 3Y4
Michael J. MacNaughton
Tel.: (416) 367-6646
Fax: (416) 682-2837
(LSUC #25889U)
Roger Jaipargas
Tel: (416) 367-6266
Fax: (416) 361-7067
(LSUC #43275C)
James Szumski
Tel: (416) 367-6310
Fax: (416) 682-2811
(LSUC #56958S)
Lawyers for PricewaterhouseCoopers Inc., in its
capacity as Court-appointed Receiver of Interwind
Corp.
3
Court File No. CV-10-8637-00CL
ONTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
THE HONOURABLE MR.
)
)
)
JUSTICE MORAWETZ
FRIDAY, THE 15th DAY
OF OCTOBER, 2010
IN THE MATTER OF THE RECEIVERSHIP OF INTERWIND CORP.
BETWEEN:
HSH NORDBANK AG, NEW YORK BRANCH
as administrative and collateral agent
Applicant
- and INTERWIND CORP.
Respondent
ORDER
THIS MOTION, made by PricewaterhouseCoopers Inc., in its capacity as the courtappointed receiver of Interwind Corp. (in such capacity, the “Receiver”), was heard this day at
330 University Avenue, Toronto, Ontario.
ON READING the Notice of Motion of the Receiver returnable October 15, 2010; the
Seventeenth Report of PricewaterhouseCoopers Inc., in its capacity as court-appointed monitor
of Interwind Corp. (the “Monitor”), dated October 5, 2010; the Seventh Report of the Receiver
dated October 5, 2010; and on hearing the submissions of counsel for the Monitor and Receiver,
HSH Nordbank AG, New York Branch as administrative agent and collateral agent on behalf of
itself, Bayerische Landesbank, New York Branch and Union Bank of California, Canada Branch
(n/k/a Union Bank, Canada Branch) (“HSH”) and Lehman Brothers Holdings Inc., no one
appearing for any other person on the Service List,
SERVICE
1.
THIS COURT ORDERS that the time for service and filing of the Notice of Motion and
the Motion Record herein shall be and hereby is abridged so that the motion is properly
returnable today, and that any further service thereof is hereby dispensed with.
STAY OF PROCEEDINGS
2.
THIS COURT ORDERS that the Order of The Honourable Mr. Justice Morawetz, dated
March 30, 2010, appointing PwC as Receiver, be and is hereby amended by replacing paragraphs
9 and 10 in their entirety with the following:
NO PROCEEDINGS AGAINST THE DEBTOR, THE RECEIVER OR THE
PROPERTY
9. THIS COURT ORDERS that no proceeding or enforcement process in any
court or tribunal (each, a “Proceeding”) against or in respect of the Debtor, the
Receiver or the Property shall be commenced or continued except with the written
consent of the Receiver or with leave of this Court and any and all Proceedings
currently under way against or in respect of the Debtor, the Receiver or the
Property are hereby stayed and suspended pending further Order of this Court.
NO EXERCISE OF RIGHTS OR REMEDIES
9.1 THIS COURT ORDERS that all rights and remedies against the Debtor, the
Receiver, or affecting the Property, are hereby stayed and suspended except with
the written consent of the Receiver or leave of this Court, provided however that
this stay and suspension does not apply in respect of any "eligible financial
contract" as defined in the BIA, and further provided that nothing in this
paragraph shall (i) empower the Receiver or the Debtor to carry on any business
which the Debtor is not lawfully entitled to carry on, or (ii) exempt the Receiver
or the Debtor from compliance with statutory or regulatory provisions relating to
health, safety or the environment.”
NO INTERFERENCE WITH THE RECEIVER
10. THIS COURT ORDERS that no Person shall discontinue, fail to honour,
alter, interfere with, repudiate, terminate or cease to perform any right, renewal
right, contract, agreement, licence or permit in favour of or held by the Debtor,
without written consent of the Receiver or leave of this Court.
CONTINUATION OF SERVICES
10.1 THIS COURT ORDERS that all Persons having oral or written agreements
with the Debtor or statutory or regulatory mandates for the supply of goods and/or
services, including without limitation, all computer software, communication and
other data services, centralized banking services, payroll services, insurance,
transportation services, utility or other services to the Debtor are hereby restrained
until further Order of this Court from discontinuing, altering, interfering with or
terminating the supply of such goods or services as may be required by the
Receiver, and that the Receiver shall be entitled to the continued use of the
Debtor's current telephone numbers, facsimile numbers, internet addresses and
domain names, provided in each case that the normal prices or charges for all
such goods or services received after the date of this Order are paid by the
Receiver in accordance with normal payment practices of the Debtor or such other
practices as may be agreed upon by the supplier or service provider and the
Receiver, or as may be ordered by this Court.
GENERAL
3.
THIS COURT HEREBY REQUESTS the aid and recognition of any court, tribunal,
regulatory or administrative body having jurisdiction in Canada or in the United States,
including, without limitation, the United States Bankruptcy Court for the District of Delaware, to
give effect to this Order and assist the Receiver and its 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 Receiver, as an officer of this
Court, as may be necessary or desirable to give effect to this Order or to assist the Receiver and
its agents in carrying out the terms of this Order.
4.
THIS COURT ORDERS that the Receiver be at liberty and is hereby authorized and
empowered to apply to any court, tribunal, regulatory or administrative body, wherever located,
including, without limitation, the United States Bankruptcy Court for the District of Delaware,
for the recognition of this Order and for assistance in carrying out the terms of this Order.
__________________________________
Court File No. CV-10-8637-00CL
IN THE MATTER OF THE RECEIVERSHIP OF INTERWIND CORP.
BETWEEN:
HSH NORDBANK AG, NEW YORK BRANCH
Applicant
- and -
INTERWIND CORP.
Respondent
ONTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
PROCEEDINGS COMMENCED AT TORONTO
ORDER
BORDEN LADNER GERVAIS LLP
Barristers and Solicitors
Scotia Plaza, 40 King Street West
Toronto, Ontario
M5H 3Y4
Michael J. MacNaughton
Tel.: (416) 367-6646
Fax: (416) 682-2837
(LSUC #25889U)
Roger Jaipargas
Tel: (416) 367-6266
Fax: (416) 361-7067
(LSUC #43275C)
James Szumski
Tel: (416) 367-6310
Fax: (416) 682-2811
(LSUC# 56958S)
Lawyers for PricewaterhouseCoopers Inc., in its
capacity as Court-appointed Receiver of Interwind
Corp.
Court File No. CV-10-8637-00CL
IN THE MATTER OF THE RECEIVERSHIP OF INTERWIND CORP.
BETWEEN:
HSH NORDBANK AG, NEW YORK BRANCH
Applicant
- and -
INTERWIND CORP.
Respondent
ONTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
PROCEEDINGS COMMENCED AT TORONTO
MOTION RECORD
(Returnable October 15, 2010)
BORDEN LADNER GERVAIS LLP
Barristers and Solicitors
Scotia Plaza, 40 King Street West
Toronto, Ontario
M5H 3Y4
Michael J. MacNaughton
Tel.: (416) 367-6646
Fax: (416) 682-2837
(LSUC #25889U)
Roger Jaipargas
Tel: (416) 367-6266
Fax: (416) 361-7067
(LSUC #43275C)
James Szumski
Tel: (416) 367-6310
Fax: (416) 682-2811
(LSUC #56958S)
Lawyers for PricewaterhouseCoopers Inc., in its
capacity as Court-appointed Receiver of Interwind
Corp.