Court File No. CV-15-10953-OOCL ONTARIO OF JUSTICE

Court File No. CV-15-10953-OOCL
ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
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
GREAT WESTERN MINERALS GROUP LTD.
(the "Applicant")
MOTION RECORD
(returnable July 3, 2015)
July 2, 2015
CASSELS BROCK & BLACKWELL LLP
Suite 2100, Scotia Plaza
40 King Street West
Toronto, ON
M5H 3C2
Ryan Jacobs/Joseph Bellissimo/Jane O. Dietrich
LSUC# 59510)/46555R/49302U
Tel:
416.860.6465/416.860.6572/416.860.5223
Fax: 416.640.3189/416.642.7150/416.640.3144
rjacobs casselsbrock.com
[email protected]
idietrich(a~casselsbrock.com
Lawyers for the Ad Hoc Committee of Bondholders
TO:
THE ATTACHED SERVICE LIST
Legal`14520306.1
SERVICE LIST
TO:
FASKEN MARTINEAU DuMOULIN LLP
333 Bay Street, Suite 2400
Bay Adelaide Centre, Box 20
Toronto, ON
M5H 2T6
Attention: Stuart Brotman/ Dylan Chochla
Phone:(416) 865-5419/(416) 868-3425
Email: [email protected]/ [email protected]
Counsel to Great Western Minerals Group Ltd., the Applicant
AND TO:
STIKEMAN ELLIOTT LLP
5300 Commerce Court West
199 Bay Street
Toronto, ON
M5L 1 B9
Attention: Elizabeth Pillon
Phone:(416) 869-5623
Email: [email protected]
Counsel to the Board of Directors of Great Western Minerals Group Ltd.
AND TO:
PRICEWATERHOUSECOOPERS INC.
PwC Tower, 18 York Street
Suite 2600
Toronto, ON
M5J OB2
Attention: Greg Prince/ Paul R. Quill/ Tracey Weaver/ Neil Bunker
Phone:(416) 814-5752/(416)687-8118
Email: [email protected]/ [email protected]/
[email protected]/ [email protected]
Court-Appointed Monitor
AND TO:
DAVIES WARD PHILLIPS & VINEBERG LLP
155 Wellington Street West
Toronto, ON
M5V 3J7
Attention: Robin B. Schwill
Phone:(416) 863-5502
Email: [email protected]
Counsel to PricewaterhouseCoopers Inc., in its capacity as Court-Appointed Monitor
Legal'14520306.1
-3 AND TO:
CASSELS BROCK & BLACKWELL LLP
Suite 2100, Scotia Plaza
40 King Street West
Toronto, ON
M5H 3C2
Attention: Ryan Jacobs/ Joseph Bellissimo/Shane Kukulowicz
Phone:(416) 869-5300
Fax:(416) 360-8877
Email: [email protected]/ [email protected]/
[email protected]
Counsel to the Ad Hoc Committee of Bondholders
AND TO:
WILMINGTON TRUST(LONDON) LIMITED
Third Floor
1 King's Arms Yard
London
United Kingdom EC2R 7AF
Attention: Peter Maynard
Phone: +44 (0) 20 7397 3616
Fax: +44 (0) 20 7397 3601
Email: [email protected]
AND TO:
A.S.K. LAW
210 - 75 - 24th Street East
Saskatoon, Saskatchewan
S7K OK3
Attention: Karen Prisciak
Phone:(306) 933-3933
Fax: (306) 933-9505
Email: [email protected]
Counsel to Vernon Kiss Legal Professional Corporation
AND TO:
DLA CLIFFE DEKKER HOFMEYR
11 Buitengracht Street Cape Town 8001
P.O. Box 695 Cape Town 8000
Dx 5 Cape Town, South Africa
Attention: Grant Ford/ Johan Green
Phone: +27-21-405-6200
Fax: +27-21-481-5210
Email: [email protected]/ [email protected]
Counsel to Steenkampskraal Thorium Limited
Legal`14520306.1
-4 -
AND TO:
OFFICE OF THE SHERIFF(SASKATOON)
101-520 Spading Crescent East
Saskatoon, Saskatchewan
S7K 2H6
Attention: Gordon Laing
Phone:(306) 933-5150
Fax: (306) 933-5723
Email: [email protected]
AND TO:
CANADA REVENUE AGENCY
c/o DEPARTMENT OF JUSTICE
The Exchange Tower
130 King Street West, Suite 3400
Toronto, ON M5X 1 K6
Attention: Diane Winters
Phone:(416) 973-3712
Fax:(416) 973-0810
Email: [email protected]
AND TO:
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO
AS REPRESENTED BY THE MINISTER OF FINANCE
33 King Street West, 6th Floor
Oshawa, ON
L1 H 8E9
Attention: Kevin O'Hara
Email: [email protected]
AND TO:
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF
SASKATCHEWAN AS REPRESENTED BY THE MINISTER OF FINANCE
1717 Saskatchewan Drive
Regina, SK
S4P 2E2
Attention: Nancy Perras
Phone:(306) 787-7785
Fax: (306) 798-4035
E-mail: [email protected]
AND TO:
CANADIAN WESTERN BANK
244 — 2ND Avenue South
Saskatoon, Saskatchewan
S7K 1 K9
AND TO:
MCAP LEASING INC.
5575 North Service Road, Suite 300
Burlington, ON
L7L 6M1
Legal`14520306.1
Court File No. CV-15-10953-OOCL
ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
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
GREAT WESTERN MINERALS GROUP LTD.
(the "Applicant")
~~
TAB
DOCUMENT
Notice of Motion (returnable July 3, 2015)
A
Non-Applicant Subsidiaries
B
Draft Form of Order
Legal"14520306.1
Court File No. CV-15-10953-OOCL
ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
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 GREAT WESTERN MINERALS GROUP LTD.
(the "Applicant")
NOTICE OF MOTION
The Ad Hoc Committee of Convertible Bondholders (the "Ad Hoc Committee")
will make a Motion to a Judge presiding over the Commercial List on Friday, July 3, 2015
at 10:00 a.m., or as soon after that time as the Motion can be heard at the court house,
330 University Avenue, 8th Floor, Toronto, Ontario, M5G 1 R7.
PROPOSED METHOD OF HEARING: The Motion is to be heard orally.
THE MOTION IS FOR:
(a)
An order, substantially in the form of the draft order attached hereto at
Schedule B, inter alias
(i)
abridging the time for service and validating the service of this Notice
of Motion and Motion Record, such that this motion is properly
returnable;
Legal"14459665.6
-2(ii)
expanding the powers of PricewaterhouseCoopers Inc. ("PwC"), in
its capacity as court-appointed monitor (the "Monitor") in the
Applicant's proceedings pursuant to the Companies' Creditors
Arrangement Act(the "CCAA");
(iii)
extending the Stay Period (as defined in paragraph 16 of the Initial
Order of the Honourable Madam Justice Conway dated April 30,
2015 (the "Initial Order")) to and including July 13, 2015; and
(b)
Such further and other relief as this Honourable Court may deem just.
THE GROUNDS FOR THE MOTION ARE:
Background
(a)
On April 30, 2015, this Court made the Initial Order which declared that
Great Western Minerals Group Ltd.("GWMG")was a company to which the
CCAA applied, granted an initial stay of proceedings in favour of GWMG
and its direct and indirect subsidiaries identified on Schedule "A" hereto,
and appointed PwC as Monitor;
(b)
Pursuant to the Initial Order, the Court also approved a Sales and Investor
Solicitation Process (the "SISP") and authorized the Applicant and the
Monitor to carry out the SISP;
(c)
As described in the Third Report to Court of the Monitor dated July 2, 2015
(the "Third Report"), the Applicant and Monitor conducted the SISP and
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-3received bids for some or all of the Applicant's assets or business.
Negotiations in respect of such bids is ongoing;
Recent Developments
(d)
The Monitor has been advised by the Applicant that the Applicant's CEO,
Marc Levier, has indicated that he will be resigning his position with the
Company effective July 3, 2015. The three remaining employees of
GWMG, will also cease to be employed under existing employment
arrangements with GWMG on or before July 6, 2015. The Board of
Directors of GWMG has indicated that, as a result of a number of factors,
including the absence of engaged management, the members of the board
will not continue in that capacity beyond the week ended July 3, 2015;
(e)
In light of the ongoing negotiations with parties who submitted bids in the
SISP and the Applicant's inability to finalize a transaction without a Board of
Directors or management, expansion of the Monitor's powers is necessary
to maximize returns for creditors;
(f)
The powers described in the proposed order are intended to allow the
Monitor to finalize negotiations of a transaction;
(g)
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The Monitor has consented to act in this expanded capacity;
Extension of the Stay Period
(h)
The Stay Period created by the Initial Order has previously been extended
by Orders of this Court until July 6, 2015;
(i)
Provided the relief requested is granted and the Monitor's powers
expanded, GWMG will continue to act in good faith and with due diligence
toward closing the transactions resulting from the SISP;
(j)
As set out in the Third Report, no further financing is expected to be
required prior to the expiry of the requested stay extension; and
Miscellaneous
(k)
The provisions of the CCAA; and
(I)
Such further and other grounds as the lawyers may advise.
THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the
Ili• •~
(a)
The Third Report, to be filed; and
(b)
Such further and other evidence as the lawyers may advise and this
Honourable Court may permit.
Legal'14459665.6
d•'~
July 2, 2015
CASSELS BROCK & BLACKWELL LLP
2100 Scotia Plaza
40 King Street West
Toronto, ON M5H 3C2
Ryan Jacobs LSUC#: 59510)
Tel: 416.860.6465
Fax: 416.640.3189
rjacobs(cr~casselsbrock.com
Joseph Bellissimo LSUC #: 46555R
Tel: 416.860.6572
Fax: 416.642.7150
jbellissimoCa~casselsbrock.com
Jane O. Dietrich LSUC# 49302U
Tel: 416.860.5223
Fax: 416.640.3144
jd ietrich(a~casselsbrock.com
Lawyers for the Ad Hoc Committee of
Bondholders
TO:
SERVICE LIST
Legal`14459665.6
Schedule A.
NON-APPLICANT SUBSIDIARIES
1.
2.
3.
4.
5.
LCMG Limited (U.K.)
Less Common Metals Limited (U.K.)
Rare Earth Extraction Co. Limited (South Africa)
Great Western GQD Rare Earth Materials Proprietary Limited (South Africa)
Steenkampskraal Monazite Mine (Pty) Ltd. (South Africa)
Legal"14459665.6
. ~
~
~
~
Schedule B
DRAFT FORM OF ORDER
Legal`14459665.6
Court File No. CV-15-10953-OOCL
ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
THE HONOURABLE MADAM
)
FRIDAY, THE 3rd
JUSTICE CONWAY
)
DAY OF JULY, 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
GREAT WESTERN MINERALS GROUP LTD.
(the "Applicant")
ORDER
THIS MOTION, made by the Ad Hoc Committee for an Order, substantially in the form
attached at Schedule "B" to the Notice of Motion dated July 2, 2015, among other things, (i)
expanding the powers of PricewaterhouseCoopers Inc. ("PwC"), in its capacity as courtappointed monitor (the "Monitor") in the Applicant's proceedings pursuant to the Companies'
Creditors Arrangement Act (the "CCAA"); and (ii) extending the Stay Period (as defined in
paragraph 16 of the Initial Order of the Honourable Madam Justice Conway dated April 30, 2015
(the "Initial Order")) to and including July 13, 2015 was heard this day at the court house, 330
University Avenue, Toronto, Ontario, M5G 1 R7.
ON READING the Notice of Motion and the Third Report to Court of the Monitor (the
"Third Report"), each filed,
AND UPON HEARING the submissions of counsel for the Monitor, the Ad Hoc
Committee and those other parties present, no one appearing for any other person on the
service list, although properly served as appears from the affidavit of Margaret Wong sworn July
2, 2015, filed:
1.
THIS COURT ORDERS that the time for the service of the Notice of Motion and the
Third Report is hereby abridged so that this Motion is properly returnable today and hereby
dispenses with further service thereof.
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-2-
2.
THIS COURT ORDERS that capitalized terms used herein and not otherwise defined
shall have the meaning given to them in the Initial Order granted by this Court on April 30, 2015
(as the same may be amended or amended and restated from time to time, the "Initial Order")
or the schedules thereto.
3.
THIS COURT ORDERS that, in addition to the powers and duties set out in the Initial
Order (or any other Order of this Court in these proceedings) but without altering in any way the
powers, abilities, limitations and obligations of the Applicant within or as a result of these
proceedings, the Monitor be and is hereby authorized and empowered, but not required, to:
(a)
take any and all actions and steps and execute any and all documents and
writings on behalf of and in the name of the Applicant in order to exercise the
Applicant's rights or perform the Applicant's obligations under the Initial Order or
any other Order of this Court made in these proceedings;
(b)
operate on behalf of the Applicant any of the Applicant's existing accounts at any
financial institution (the "Company Accounts") in such manner as the Monitor, in
its sole discretion, deems necessary or appropriate to assist with the exercise of
the Monitor's powers and duties set out herein, including the ability to add or
remove persons having signing authority with respect to any of the Company
Accounts;
(c)
cause the Applicant to take, or take on behalf of the Applicant, any steps or
actions as contemplated by the SISP, including without limitation providing any
consents or approvals required of the Applicant under the SISP;
(d)
cause the Applicant to, or on behalf of the Applicant, enter into any contracts or
agreements permitted by the terms of the Initial Order or further order of this
Court, including without limitation with respect to any Successful Bids) under the
SISP;
(e)
apply or cause the Applicant to apply to the Court for any orders deemed
advisable by the Monitor, including seeking further extensions of the Stay Period
or in connection with the approval and/or implementation of any Successful
Bids) under the SISP;
(f)
cause the Applicant to, or on behalf of the Applicant, perform such other
functions or duties as the Monitor considers necessary or desirable in order to
Legal"14460042.9
-3facilitate or assist the Applicant in dealing with the Property or its operations,
restructuring, wind-down, liquidation or other activities;
(g)
cause the Applicant to, or on behalf of the Applicant, administer the Property and
operations of the Applicant as the Monitor considers necessary or desirable for
the purposes of completing any transaction for the sale of the business or any
part of it or for purposes of facilitating a Plan or Plans for all or part of the
business;
(h)
propose on behalf of the Applicant, or cause the Applicant to propose, one or
more Plans in respect of the Applicant;
(i)
subject to the terms of the Initial Order, engage assistants or advisors or cause
the Applicant to engage assistants or advisors as the Monitor deems necessary
or desirable to carry out the terms of the Initial Order or any other Order made in
these proceedings or for the purposes of the Plan and such persons shall be
deemed to be "Assistants" under the Initial Order;
(j)
apply to this Court for any orders necessary or advisable to carry out its powers
and obligations under this Order or any other Order granted by this Court
including for advice and directions with respect to any matter; and
(k)
meet with and direct employees of the Applicant with respect to any of the
foregoing including, without limitation, operational and restructuring matters;
provided, however, that the Monitor shall not cause the Applicant to, or on behalf of the
Applicant, take any action in contravention of the sections 4(g); (h); (p)(without prejudice to the
right of the Monitor to conduct a security review); (q); (s) or (x) of the Support Agreement.
4.
THIS COURT ORDERS that in exercising any of the powers contained in this Order, the
Monitor shall be entitled to execute any agreements or other documents for and on behalf of the
Applicant and any such agreements or other documents executed by the Monitor shall be
deemed to be duly authorized and executed agreements or documents of the Applicant.
5.
THIS COURT ORDERS that, without limiting paragraph 3(i) of this Order, the term "SISP
Team" as used in the SISP shall be amended to remove Fasken (as defined in the SISP), and
Fasken shall have no further obligations as a member of the SISP Team from and after the date
of this Order.
Legal'14460042.9
THIS COURT ORDERS that, without limiting the provisions of the Initial Order, the
Applicant shall remain in possession and control of the Property and the Business and that the
6.
Monitor shall not take possession of the Property and/or the Business or any part thereof.
THIS COURT ORDERS that the term "Outside Date" as used in the SISP shall be
amended to be July 13, 2015 or such other date as this Court may order; provided that the
7.
extension of the Outside Date herein shall not affect the KERPs and the timing of payments
thereunder, and the amounts paid in respect of the KERPs to date be and are hereby ratified
and approved and following payment of the KERPs in full, the KERP Charge be and hereby is
discharged.
8.
THIS COURT ORDERS that nothing in this Order shall, in and of itself, cause the
Monitor to be liable for any employee-related liabilities or duties, including, without limitation,
wages, severance pay, termination pay, vacation pay and pension or benefit amounts.
9.
THIS COURT ORDERS that the enhancement of the Monitor's powers as set forth
herein, the exercise by the Monitor of any of its powers, the performance by the Monitor of any
of its duties, or the use or employment by the Monitor of any person in connection with its
appointment and the performance of its powers and duties shall not constitute the Monitor the
employer, successor employer or related employer of the employees of the Applicant within the
meaning of any provincial, federal, or municipal legislation or common law governing
employment, pension or labour standards or any other statute, regulation or rule of law or equity
for any purpose whatsoever or expose the Monitor to liability to any individuals arising from or
relating to their previous employment by the Applicant.
10.
THIS COURT ORDERS that the Monitor is not, and shall not be or be deemed to be, a
director, officer or employee of the Applicant.
11.
THIS COURT ORDERS that the Monitor shall continue to have the benefit of all of the
protection and priorities as set out in the Initial Order and any such protections and priorities
shall apply to the Monitor in fulfilling its duties and exercising any of its powers under this Order
or any other Order of this Court in these proceedings.
12.
THIS COURT ORDERS AND DECLARES that nothing in this Order shall constitute or
be deemed to constitute the Monitor as a receiver, assignee, liquidator, administrator, receivermanager, agent of the creditors or legal representative of the Applicant within the meaning of
Legal"14460042.9
-5 any relevant legislation and that any distribution ultimately made to creditors of the Applicant by
the Monitor will be deemed to have been made by the Applicant.
13.
THIS COURT ORDERS that, except as provided for in paragraph 3 of this Order,
nothing herein requires the Monitor to comply with or otherwise cause the Applicant to comply
with the Support Agreement dated April 29, 2015 between the Applicant and certain holders
and/or investment managers for one or more holders of the Bonds.
14.
THIS COURT ORDERS that the Stay Period (as defined in paragraph 16 of the Initial
Order) be and is hereby extended until and including July 13, 2015.
15.
THIS COURT HEREBY REQUESTS the aid and recognition of any court, tribunal,
regulatory or administrative body having jurisdiction in Canada, the United States, the United
Kingdom or South Africa to give effect to this Order and to assist the Applicant, 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 Applicant 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 Applicant and the Monitor and their respective agents
in carrying out the terms of this Order.
16.
THIS COURT ORDERS that each of the Applicant and the Monitor be at liberty and is
hereby authorized and empowered to apply to any court, tribunal, regulatory or administrative
body, wherever located, for the recognition of this Order and for assistance in carrying out the
terms of this Order, and that the Monitor is authorized and empowered to act as a
representative in respect of the within proceedings for the purpose of having these proceedings
recognized in a jurisdiction outside Canada.
Legat'14460042.9
Legal'14460042.9
Lawyers for the Ad Hoc Committee of Bondholders
riacobs(a~casselsbrock.com
1bellissimo(c~casselsbrock.com
jdietrich~casselsbrock.com
Ryan Jacobs/Joseph Bellissimo/Jane O. Dietrich
LSUC# 59510J/46555R/49302U
TeI: 416.860.6465/416.860.6572/416.860.5223
Fax: 416.640.3189/416.642.7150/416.640.3144
2100 Scotia Plaza
40 King Street West
Toronto, ON M5H 3C2
Cassels Brock &Blackwell LLP
.~
PROCEEDING COMMENCED AT
TORONTO
ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
Court File No. CV-15-10953-OOCL
AND IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF GREAT WESTERN MINERALS GROUP LTD.
IN THE MATTER OF THE COMPANIES'CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED
Legal'14459665 6
Lawyers for the
Ad Hoc Committee of Bondholders
rjacobs ,casselsbrock.com
jbellissimo(a~casselsbrock.com
jdietrich(a~casselsbrock.com
Ryan Jacobs/Joseph Bellissimo/Jane O. Dietrich
LSUC# 59510J/46555R/49302U
Tel: 416.860.6465/416.860.6572/416.860.5223
Fax: 416.640.3189/416.642.7150/416.640.3144
Cassels Brock &Blackwell LLP
2100 Scotia Plaza
40 King Street West
Toronto, ON M5H 3C2
NOTICE OF MOTION
PROCEEDING COMMENCED AT
TORONTO
ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
Court File No. CV-15-10953-OOCL
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 GREAT WESTERN MINERALS GROUP LTD.
Legal'14520306.1
Lawyers for the Ad Hoc Committee of Bondholders
rjacobs(a~casselsbrock.com
jbellissimo(a~casselsbrock.com
jdietrich(~casselsbrock.com
Ryan Jacobs/Joseph Bellissimo/Jane O. Dietrich
LSUC# 59510)/46555R/49302U
Tel: 416.860.6465/416.860.6572/416.860.5223
Fax: 416.640.3189/416.642.7150/416.640.3144
Cassels Brock &Blackwell LLP
2100 Scotia Plaza
40 King Street West
Toronto, ON M5H 3C2
MOTION RECORD
(RETURNABLE JULY 3, 2015)
PROCEEDING COMMENCED AT
TORONTO
ONTARIO
SUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
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 GREAT WESTERN MINERALS GROUP LTD.
Court File No. CV-15-10953-OOCL