(Formerly known as Skypower Corp.) 21 RECEIVER'S SIXTH REPORT TO COURT Interwind Corp.

21
Court File No. CV-I0-8637-00CL
Interwind Corp.
(Formerly known as Skypower Corp.)
RECEIVER'S SIXTH REPORT TO COURT
July 29, 2010
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Court File No. CV-IO-8637-00CL
ONTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
WIND CORP.
IN THE MATTER OF THE RECEIVERSilP OF INTER
BETWEEN:
HSH NORDBANK AG, NEW YORK BRANCH
as administrative and collateral agent ("HSH Nordbank")
Applicant
- and-
INTERWIND CORP.
Respondent
SIXTH REPORT TO THE COURT
SUBMITTED BY PRICEWATERHOUSECOOPERS INC.
IN ITS CAPACITY AS RECEIVER
INTRODUCTION
I) By Order of this Honourable Court granted August 12, 2009 (the "Initial Order"),
Interwind Corp. (formerly known as SkyPower Corp.) ("Interwind" or the
"Company") obtained relief under the Companies' Creditors Arrangement Act, R.S.C.
1985, c.C-36, as amended (the "CCAA Proceedings") which, among other things,
provided for the appointment of KPMG Inc. as Monitor of Interwind (the "Initial
Monitor").
2) On February 19, 2010, this Honourable Court issued an Order (the "Claims Process
Order") authorizing the Initial Monitor to conduct a claims process in the CCAA
Proceedings (the "Claims Process"), which contemplated a call for cenain claims
against the directors and officers of the Company, certain post-filing claims against the
Company and certain construction lien claims.
-23) On March 30, 2010, pursuant to an order of the Honourable Justice Morawetz (the
"Receivership Order"), PricewaterhouseCoopers Inc. was appointed as receiver (in
such capacity, the "Receiver"), without security, of all of the cun'ent and future assets,
undertakings and properties of the Company, not including certain equipment (the
"Equipment") listed in Exhibit 1 to Schedule L.1(nn) to the Share Purchase Agreement
dated December 15,2009 between Interwind and enXco Service Corporation, pursuant
to section 243(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as
amended (the "BlAH) and section 101 of the Courts of Justice Act, R.S.O.1990, C.
C.43, as amended (the "Receivership Proceedings"). Further orders of this
Honourable Court also substituted PricewaterhouseCoopers Inc. as Monitor of
Interwind (in such capacity, the "Monitor") in the CCAA Proceedings and approved
the issuance of the Fresh as Amended Initial Order, which facilitated this substitution
and provided for certain other amendments.
4) This report is being submitted in support of the motion being brought by the Receiver
seeking advice and directions from this Honourable Court in respect of the
determination of the Construction Lien Claims filed in the Company's Claims Process
by Golder Associates Ltd. (the "Golder Claim") and Jacques Whitford Stantec Ltd. by
its successor in interest, Stantec Consulting Ltd. (the "Stantec Claim" and together
wIth the Golder Claim, the "Disputed Construction Lien Claims") pursuant to a
resolution process (the "Resolution Process") that was approved by Order of this
Honourable Court dated May 21, 2010 (the "Resolution Process Order"), which is
described further below.
5) Unless otherwise stated, all monetary amounts contained herein are expressed in
Canadian Dollars. Capitalized terms not otherwise defined are as defined in the
Claims Process Order, the Fresh as Amended Initial Order and the Receiver's previous
reports.
6) Certain of the information contained in this Report has been obtained from the books
and records, and other financial information of Interwind in the Receiver's possession.
The accuracy and completeness of the financial information contained herein have not
23
-3been audited or otherwise verified by the Receiver, and the Receiver does not express
an opinion or provide any other form of assurance on the information presented herein.
The Receiver reserves the right to refine or amend its comments and findings as
further information is obtained or brought to its attention subsequent to the date of this
Report.
THE RESOLUTON PROCESS
7) A Resolution Process has been set for the Disputed Construction Lien Claims pursuant
to the Resolution Process Order, which provided that:
a) The Receiver would deliver certain documents, identified in Schedule "A" of the
Resolution Process Order to holders of the Disputed Construction Lien Claims,
which the Receiver completed on May 21,2010;
b) The holders of the Golder Claim and the Stantec Claim would submit affidavits in
support of their Construction Lien Claims by June 23, 2010 and June 28, 2010
respectively, which were fied on or before those dates; and,
c) The Receiver would bring a motion seeking advice and directions to be heard on
July 16, 2010, in respect of the determination of the Disputed Construction Lien
Claims unless otherwise resolved by the applicable parties. The Court
subsequently advised the Receiver's counsel that it was no longer available to
hear the motion on July 16, 2010 as previously scheduled and the motion was
rescheduled to August 9, 2010. with the approval of counsel for Golder, Stantec
and HSH Nordbank.
8) In view of the current status of these proceedings, it is apparent that the ultimate issue
before the Court is whether either or both of Golder Associates Ltd. ("Golder") or
Jacques Whitford Stantec Ltd. by its successor in interest, Stantec Consulting Ltd.
("Stantec") have a claim that is a secured claim that would entitle one or both of them
to receive proceeds in priority to the proven secured claim of HSH Nordbank. The
Receiver does not perceive its role to be to enter into a priority dispute among
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-4competing creditors. Rather, it understands its role at this stage is to provide the Court
and the parties with facts in the Receiver's possession and to set out the issues for the
purposes of allowing the parties in interest to advance their respective positions on the
merits.
9) Therefore, as part of bringing its motion in the Resolution Process, the Receiver has
set out below its comments on the affidavits fied by holders of Disputed Construction
Lien Claims, in respect of how the points raised in those affidavits compare to the
financial records and related information in the Receiver's possession. The Receiver
will also set out the legal issues that it understands are at issue and which require
determination in respect of the Golder Claim and the Stantec Claim. The Receiver has
been informed that these issues wil be addressed in submissions to be made by
counsel for HSH Nordbank. The form and timing of these submissions wil be further
clarified as part of the within motion.
THE GOLDER CLAIM
10) The affidavit submitted by Golder, the holder of the Golder Claim (the "Golder
Affidavit"), asserts that:
a) The Company retained Golder to prepare certain reports in connection with the
potential development of several wind energy farm projects (the "Projects") in the
provinces of Ontario, Manitoba and Quebec pursuant to certain environmental
legislation and regulations;
b) Initial contracts (the "Golder Contracts") were executed, which set out the scope of
work for the Projects. Subsequently, work on the basis of the Golder Contracts
was undertaken by Golder;
c) During the course of execution of the work, Interwind made several changes to the
scope of the work in the Golder Contracts, in accordance with purchase orders,
work orders, change orders and instructions from the Company. Moreover, due to
the nature of the Company's requests, ongoingJday-to-day directions and
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instructions were provided by email, telephone and in-person meetings to review
and direct various aspects of the work;
d) As Golder's personnel carried out their work, they recorded the amount of time
and date(s) on which the work was performed into timesheets. The timesheets were
then used to generate the invoices relating to the Projects; and
e) As a result of the total amounts invoiced by and paid to Golder an amount of
approximately $919,000 with respect to the Projects remains unpaid.
RECEIVER'S REVIEW OF CONTRACT ACCOUNTING FOR GOLDER CLAIM
I l) Based on a review of the Golder Contracts, subsequent scope change documentation
provided in the Golder Affidavit, and
the Company's documents in the Receiver's
possession (the "Golder Materials"), the Receiver notes the following (a summary
table of this analysis is contained in Appendix A):
a) The Golder Contracts outlined the scope of services to be performed by Golder for
the Projects. Golder agreed to provide these services oil a fixed price per Project
basis (the "Fixed Price"), comprising an Interim Spend approval and a Final Spend
approval, subject to necessary scope changes agreed upon as work progressed. The
Receiver was able to confirm all of the Interim Spend amounts by reviewing the
Golder Contracts except an amount of $85,000 in respect of the Rolling River
project in Manitoba for which a contract could not be located;
b) According to the Golder Contracts, the Final Spend (or the "Bonus") was only
earned by and payable to Golder upon successful acceptance of the Environmental
Screening Report and upon receipt of Certificates of Approval for the work in
question. The Receiver has not identified any information in its possession
indicating that either of these events occurred for any of the Projects in question.
Based on its discussions with former Management of the Company, the Receiver
understands that neither of these events occurred for any of the Projects in
question. It appears that factual issues exist as to whether Golder has earned the
Bonus amounts of $874,000;
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c) With respect to services provided by Golder in the provinces of Ontario and
Manitoba, it appears that the Company has paid Golder approximately $889,000
and $357,000 to date, respectively. In reviewing the Company's books and
records, the Receiver was able to confirm that the bulk of t11ese expenditures by
Golder appear to have been authorized by the Company. However, the Receiver
has been unable to locate any evidence that the Company authorized expenditures
by Golder of $164,000 and $53,000 in those provinces, respectively,
notwithstanding that the Company paid such amounts in excess of the authorized
amounts to Golder. There appears to be a factual issue as to whether these
amounts were authorized;
d) With respect to services provided by Golder in the province of Quebec, the
Company has paid Golder $615,000 to date, which is less than the authorized
expenditures of $761,000. There appears to be an issue as to whether the Company
owes Golder approximately $146,000 in respect of services performed in the
province of Quebec; and
e) On a net basis, based on the Receiver's review of the documentary evidence of
work and expenditures that the Company authorized in the Golder Materials, there
appears to be an amount owing from Golder to the Company in the range of
approximately $70,000 (the "Golder Overpayment"), on account of payments
made by the Company in excess of the amounts that it had authorized. This
compares to Golder asserting that it has a claim of approximately $919,000 (the
"Golder Claim Amount") against the Company.
12) The difference of $989,000 between the Golder Claim Amount and the Golder
Overpayment may relate, among other things, to the following:
a) Whether Bonus amounts being claimed by Golder were earned and therefore
authorized as set out above; and
b) Whether a contract for the Rolling River project in Manitoba was executed.
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LEGAL ISSUES IN GOLDER CLAIM
13) Based on its review of the Golder Affidavit, the issues raised by the Golder Claim, and
from discussions with its legal counsel, the Receiver understands that the following
legal issues require determination as part of the Resolution Process:
A. Ontario
a) Did the Company have a lienable interest in the Projects pursuant to the provisions
of the Construction Lien Act, R.S.O. 1990, c. C.30, as amended (the "Act")? Do
the option agreements granted by various freehold owners to the Company
(collectively defined as and forming part of the "Documents" referenced in the
Resolution Process Order) give rise to a lienable interest? In particular, does an
option to lease, a license, and/or a revenue sharing arrangement give rise to a
lienable interest?
b) Did the Company ever have a leasehold interest in the Projects that was capable of
being liened?
c) Was the Company an "owner" within the meaning of the Act?
d) Did the freehold owners constitute "owners" within the meaning of the Act? Did
Golder give written notice to the freehold owners pursuant to section 19(1) of the
Act?
e) Were the services and materials supplied by Golder supplied to an "improvement"
within the meaning of the Act? In particular, was there a suffcient nexus between
the services provided by Golder and an improvement to the land?
t) What specific services, and what value of services, were supplied to each parcel of
land liened by Golder?
g) Were all the services provided by Golder lienable pursuant to the Act? Were the
services provided by Golder and any of its sub-consultants subject to holdback
under the Act?
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h) Was Golder's lien timely pursuant to the Act?
i) Can Golder recover any amount as a secured creditor in priority to HSH
Nordbank?
j) Is Golder contractually entitled to payment of the full amount claimed? In
particular, can Golder claim amounts that were conditional upon the acceptance of
its Environmental Screening Rep011s (ESR' s) and receipt of the Certificates of
Approval? In addition, can Golder claim amounts relating to services not
authorized by the Company?
k) Has Golder included in its claim any amount for interest, contrary to section 14(2)
of the Act?
ß. Quebec
a) Counsel for HSH Nordbank is currently seeking the opinion of Quebec based
counsel with respect to the legal issues relating to the Golder Claim in the province
of
Quebec.
b) Such opinion will be provided to the Receiver and will subsequently be shared
with counsel for Golder.
c) Furthermore, the Receiver notes that in its First Report dated April 16, 2010, at
paragraphs 15 (ii)(subparagraphs vii -ix) and 15(v), legal issues related to Golder's
lien in Quebec were set out and will be expanded upon by counsel for HSH
Nordbank.
C. Manitoba
a) Was Golder's contract with the Company "abandoned" under the provisions of The
Builders Líen Act, R.S.M. 1987, c. B.91 the ("BLA").
b) Was Golder's lien preserved in accordance with the BLA? Was Golder's lien
timely pursuant to the BLA?
-9-
c) Was Golder's contract with the Company "for construction" or "for improving
land" as those terms are used in the BLA?
d) Is the Company an "owner" within the meaning of the BLA?
e) Does Golder have a lienable claim for the unpaid portion of its invoices relating to
First Nation Land? Is the Rolling River Project situated on First Nation land?
f) Were all the services provided by Golder lienable pursuant to the BLA? In
particular, was Golder "an engineer retained by the owner" pursuant to the BLA
and therefore precluded from advancing a lien claim in respect of its unpaid
invoices? What portion of the Golder claim relates to engineering services and
what is the breakdown of same?
g) Is Golder contractually entitled to the full amount claimed? What specific services
and what value of services, were supplied to each parcel of land Iiened by Golder?
Ii) Can Golder claim amounts related to services not authorized by the Company?
THE ST ANTEC CLAIM
14) The affidavit submitted by Stantec, the holder of the Stantec Claim (the "Stantec
Affidavit"), asserts that:
a) A contract (the "Stantec Contract") was entered into between Stantec and the
Company to prepare an Environmental Screening and Review Report (the
"Environmental Report") for the Company's Byran Wind Energy Project (the
"B yran Project"). The Environmental Report was required in connection with the
potential development of the Byran Project pursuant to certain environmental
legislation and regulations;
b) The Stantec Contract outlined the scope of services that Stantec would provide and
the total approved budget within which it would provide these services. Several
scope changes and corresponding budget increases occurred subsequent to the
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execution of the Stantec Contract in accordance with purchase orders and
instnictions from the Company;
c) Pursuant to the Stantec Contract and subsequent scope changes, the Company
authorized Stantec to incur expenditures of approximately $635,000 related to the
B yran Project; and
d) As a result of the total amounts invoiced by and paid to Stantec, an amount of
approximately $254,000 with respect to the Byran Project remains unpaid.
RECEIVER'S REVIEW OF CONTRACT ACCOUNTING FOR STANTEC CLAIM
l 5) Based on a review of the Stantec Contract, subsequent scope change documentation
provided in the Stantec Affidavit and the Company's documents in the Receiver's
possession (the "Stantec Materials"), the Receiver notes the following (a summary
table of this analysis is contained in Appendix B):
a) The Stantec Contract outlined the scope and cost of services to be performed by
Stantec for the Byran Project subject to necessary scope changes agreed upon as
work progressed. The Receiver was unable to locate evidence of authorization by
the Company for approximately $13,000 of the amounts claimed by Stantec under
the Stantec Contract. There appears to be a factual issue as to whether these
amounts were authorized;
b) Several scope changes and corresponding budget increases occurred subsequent to
the execution of these contracts. The Receiver was unable to locate evidence of
authorization by the Company for a particular change in scope involving
expenditures of approximately $270,000 of the amounts claimed by Stantec under
the Stantec Contract. There appears to bea factual issue as to whether these
amounts were authorized; and,
16) On a net basis, the amount of approximately $254,000 being claimed by Stantec (the
"Stantec Claim Amount") may be approximately $220,000 greater than the
approximate $34,000 that may be supported by the Company's records based on
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documentary authorization evidence (the "Stantec Authorization") in the Stantec
Materials.
NOMINAL PROCEEDS RECEIVED FROM THE SALE OF THE ßVRAN LAND INTEREST
17) In its Ninth Report (attached without appendices as Appendix C), the Initial Monitor
of the Company in its CCAA Proceedings outlined the terms of the sale of the
Company's wind development business assets (the "Wind Assets") to CPY Canada
Development ULC ("CPV"). Certain terms of the purchase agreement and the
amendments thereto (collectively, the "Purchase Agreement") for the sale of the Wind
Assets to CPV have been sealed by this Honourable Court. An unredacted version of
the Purchase Agreement, as amended, has been provided to Stantec on a confidential
basis in accordance with the terms of the Resolution Process Order.
18) The sale of the Wind Assets was completed prior to the appointment of the Receiver.
As such, the following comments are based on the Receiver's review of the
Company's documentation in its possession and discussions with the various parties
involved in the Sales Process.
19) The Initial Monitor has previously reported to this Court on the Sales Process
undertaken by the Company with respect to the Company's Wind Assets. In its Ninth
Report the Initial Monitor concluded that the process undertaken by the Company and
Marathon to sell the Wind Assets was in accordance with the process set by this
Honourable Court and that this was a fair and effective process conducted in good
faith with a view to maximizing realizations for the stakeholders of the Company.
20) The sale of the Company's Wind Assets to CPV was approved in an Approval and
Vesting Order issued by this Honourable Coiit dated J auuary 19th, 2010 (attached as
Appendix D).
21) The Byran Project, including the option agreements (the "Option Agreements"), were
included in the Wind Assets on which CPY made its offer. However, in its Tenth
Report (attached without appendices as Appendix E), the Initial Monitor noted that the
Purchase Agreement was amended to bifurcate the closing of the Wind Asset
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transaction so that all but one wind project (namely the Byran Project) and certain
other assets would be conveyed on the first closing.,
22) This bifurcation of the Purchase Agreement was approved by the Order of this
Honourable Court dated February 12th, 2010 (attached as Appendix F) which amended
the Approval and Vesting Order dated January 191\ 2010.
23) The Receiver understands that the conditional sale of the Byran Project was removed
from the transaction completed on the first closing to provide additional time for the
parties to seek resolution of various issues relating to the Byran Project and allow CPV
to conduct further due diligence in respect of the B yran Project.
24) Notwithstanding this additional time, the Receiver understands that the Company and
CPV could not resolve the issues relating to the Byran Project and, thereafter, CPV
advised the Company that it no longer wished to take the Byran Project forward.
25) The Receiver is not aware of any offers for or interest by the other bidders in the Sales
Process for the Wind Assets in acquiring the Byran Project on a standalone basis,
regardless of the resolution of the issues relating to that project.
26) The Receiver understands that, given the issues relating to the Byran Project could not
be resolved (which restricted the Company's ability to sell the Byran Project as a
whole for value), it was determined that a fair and reasonable solution in the
circumstances was to sell the assets pertaining to the Byran Project to CPV for
nominal consideration to which CPV agreed. These amendments to the purchase price
regarding the Byran Project were approved by Order of this Honourable Court dated
March 251\ 2010 being the Second Order amending the Approval and Vesting Order
dated January 191h, 2010 (attached as Appendix G).
27) In summary, the Receiver notes that the Wind Assets were sold pursuant to a fair and
effective Sales Process, which ultimately resulted in nominal value being received
from CPV for the Byran Project and for the Option Agreements. Therefore, in the
event that the legal issues noted below are resolved such that the Stantec Claim is
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considered a valid Construction Lien Claim then the amount of the claim that would
be considered a secured claim pursuant to the Construction Lien Act may be limited to
the nominal proceeds received.
28) In order to try and reach a consensual resolution to the Stantec Claim, the Receiver on
behalf of the Company has previously offered to pay Stantec a settement amount
comprising the nominal proceeds received for the assets pertaining to the B yran
Project plus reimbursement to Stantec for pursuing its claim against the Company up
to a maximum amount. This offer was rejected by Stantec.
LEGAL ISSUES
29) Based on its review of the Stantec Affidavit, the issues raised by the Stantec Claim,
and from discussions with its legal counsel, the Receiver understands that the
following legal issues require determination as part of the Resolution Process:
a) Did the Company have a lienable interest in the Byran Project pursuant to the
provisions of the Act? Do the option agreements granted by various freehold
owners to the Company (collectively defined and forming part of the "Documents"
referenced in the Resolution Process Order) give rise to a lienable interest? In
paricular, does an option to lease, a license and/or a revenue sharing arrangement
give rise to a lienable interest?
b) Did the Company ever have a leasehold interest in the Byran Project that was
capable of being liened?
c) Was the Company an "owner" within the meaning of the Act?
d) Did the freehold owners constitute "owners" within the meaning of the Act? Did
Stantec give written notice to the freehold owners pursuant to Section i 9(1) of the
Act?
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e) Were the services and materials supplied by Stantec supplied to an "improvement"
within the meaning of the Act? In particular, was there a sufficient nexus between
the services provided by Stantec and an improvement to the land?
t) What specific services, and what value of services, were supplied to each parcel of
land liened by Stantec?
g) Were all the services provided by Stantec lienable pursuant to the Act? Were the
services provided by Stantec and any of its sub-consultants subject to holdback
under the Act?
h) Was Stantec's lien preserved in accordance with the Act?
i) Was Stantec's lien perfected in accordance with the Act'?
j) Did the vacating of Stantec's lien affect the underlying rights of the paries? Did
vacating the lien in any way affect the potential recovery of in the lien
proceedings?
k) Can Stantec recover as a secured creditor in priority to HSH Nordbank anything
over and above the nominal proceeds that were received by the Company from the
sale of the B yran Project?
I) As an unsecured creditor, can Stantec recover any more than $34,000, being the
Stantec Authorizatiún?
m) Can Stantec claim amounts related to services not authorized by the Company?
RECOMMENDATION AND CONCLUSION
30) The Receiver is of the view that the legal issues set out above in respect of each of the
Disputed Construction Lien Claims need to be addressed in priority. Accordingly, the
Receiver requests that this Honourable Court render a decision on the legal issues
based on the submissions of counsel for HSH Nordbank, Golder and Stantec.
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31) The Receiver is further of the view that given the competing nature of the priority
claims and given the complexity of the legal issues related to the Golder Claim and the
Stantec Claim, it has become necessary to seek the advice and direction of this
Honourable Court with respect to the further process to be followed by the partiës
interested in the outcome of the Disputed Construction Lien Claims. This may include
a trial of the issues set out above.
32) The Receiver is of the view that the Company's documentation supports different
amounts for the Golder Claim and the Stantec Claim compared to the affidavits filed
by Golder and Stantec as set out above. Subject to the determination of this Court on
the legal issues outlined herein, these amounts may need to be approved as part of this
process.
All of which is respectfully submitted this 29th day of July, 2010.
PricewaterhouseCoopers Inc.
In its capacity as Receiver of Interwind Corp.
/~~/./ I III
"0/ / ,¿1~/ff
~ica AI' ette
Vice President
37
Appendix A
Summary of the Golder Claim
I:
195,000
. SH,()O
0
0
888.862 614,891 357,263 1;891,91.9
72.027 761,186 304,500 l,~çm4
S$,O()
959,000
874,000 I
E F E-F
c
0
0
Difference
Total
S5,000
550,685 133,822 (163,835) 146,295 (52,763) . (70,303)989,575
6 i 4,891 357,263
1,165,576 491,084
1,049,936 598,5002,,727?M
Per Interwind
Quebec Manitoba Total
710.500 170,000 ),44ti,500
14.440 120,000
258,942
724,940 290,000 1,7a:i:42
690,502 724,940 290,000 1,705,442
0
566,000
124,502
690,502
Ontario
4
4
3
2
1
Notes
These amounts appear to be authorized by the Company based on thc affdavit material submitted by counsel to Golder and thc Company's documents in the Receiver's possession with
234.766
258,942
375,000 t;7~,:4~
i 20,000
255.000 J,531,~j)0
Total
999,940 570,000 2,664,442
710,500
14,440
724,940
275,000
Per Golder Affdavit
Quebec Manitoba
Note 4: Amounts noted are per Company's reconis in the Re.:eiver's possession. Only nel tigures by iivoice are listed in the Golder affdavit.
payable to Golder.
Note 3: The Golder Contracts indicate that Bonus amounts are payable only upon the successü,1 acceptance of the Environmental Screening Report and upon reeipt of certificates of approval,
which per the Receiver's understanding did not occur for any of the Projects. The attdavit submitted by Golder does not specifically suggest that these Bonus amounts were earned and theretúre
the exception of one contract for $85,000 relating to a Manitoba Project for which no documentation evidencing its approval was submittcd.
Note 2: The Receiver located Purchase Orders authorizing certin amounts in the Company's records in its possession. Amounts noted in these Purchase Orders arc not includcd in thc Golder
affidavit and therefore have not been included in the analysis above.
Note
A-B
1,123,628
888,862
Aniount invoiced by Golder to date after tax
Amount paid by Inteiwind to date after tax
ADlount potentially owing to (due from) Golder after tax
1,149,227
Total authorized spend after 5% GST
A
B
1,094,502
566,000
124,502
690,502
404.000
Ontario
Total authoried spend
Authorized tina! spend (Bonus)
Subtotal
Authorized spend per Golder Contracts (Interiin spend)
Authorized spend (Intcrim Scope change)
Ontario, Quebec and Manitoba
Summary of the Golder Claim
Appendix A
(.
(X
39
Appendix B
Summary of the Stantec Claim
B
A-B
Amount paid by Interwind
Amount potentially owing
254,411
571,600
317,189
56,390
270,000
130,000
634,666
178,276
Affdavit
Per Stantec's
C-D
0
C
34,020
Per Interwinds
records
220,391
4
4
3
2
1
Notes
their affdavit.
Stantec affdavit.
Note 4: Amounts noted are per Company's records in the Receiver's possession. Only net figures by invoice are listed in the
The Receiver was able to locate this purchase order in the Company's records.
Note 3: Stantec has mentioned a purchase order for this amount in their affdavit but did not submit it as part of
Note 2: Stantec's aftidavit notes that Stantec provided this estimate to Interwind during a meeting with the Company. Stantec
asserts that this meeting was held to detennine work that remained to be completed pursuant to Stantec's mandate on the Byran
project. Stantec has not provided any documentary evidence which would show that the Company authorized this expenditure,
nor was the Receiver able to locate any documents supporting this amount in the Company's records in its possession.
Note i: In its affdavit, Stantec has provided authorization evidence equalling $164,819 only.
A
Amount invoiced by Stantec
Original project Proposal March 12,2008
Additional bird breeding study
Additional cost to complete
Additional cost to complete
Total authorÌLed spend
Authorued spend
The Byran Project
Summary of the Stantec Claim
Appendix B
..C,
4 1
Appendix C
The Initial Monitor's Ninth Report to Court
42
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Court File No. 09-8321-00CL
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 ARRNGEMENT OF
INTERWIND CORP.
NINTH REPORT OF THE MONITOR
Dated January 18,2010
43
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 ARRNGEMENT OF
INTERWIND CORP.
TABLE OF CONTENTS
INTRODUCTION ........................................................................... ................ .............. ................ 1
PURPOSE OF REPORT ..............................................................................................................4
TERMS OF REFERENCE........................................................................................................... 5
ACTIITIES OF THE MONITOR................... ........................................................... ...... ......... 5
DIP FINANCING ..........................................................................................................................7
CASH
FLOW FORECAST AND VARIANCE ANALYSIS ..................................................... 7
CASH FLOW .FORECAST ..............................................................,......................................... 10
SALE PROCESS ......................................................................................................................... II
CPV PURCHASE TRANSACTION.......................................................................................... 14
MONITOR'S ANALYSIS OF CPV PURCHASE TRNSACTION ..................................... 14
EXTENSION OF THE STAY PERIOD.................................................................................... 16
MONITOR'S RECOMMENDATIONS....................................................................................16
APPENDICES
Appendix A - Weekly Cash Flow Activity Report for the seven week from period November
23,2009 to Januar 1O,20lO
Appendix B - Cash Flow Forecast for the period from Januar I i, 20 i 0 to February 26, 20 I 0
Appendix C - Recognition Order (XLE Turbines) of
12,2010
the Quebec Superior Court dated Januar
44
INTRODUCTION
this Honourable Court granted August 12,2009 (the "Initial Order"), Interwind
Corp. (formerly known as SkyPower Corp.) ("Interwind" or the "Company") obtained relief
under the Companies' Credilors Arrangement Act, R.S.C. 1985, c.C-36, as amended (the
"CCAA") which, among other things, provided for the appointment of KPMG Inc. as
Monitor ofInterwind (the "Monitor").
I. By Order of
2. The Initial Order provides for an initial stay of proceedings against Interwind until and
including September I i, 2009, or such later date as ordered by this Honourable Court (the
"Stay"). The Initial Order also provides that the Stay shall extend to proceedings in respect
of Fermeuse Wind Power Corp. ("Fermeuse"), SunE Sky First Light LP ("SunE Sky") and
which are subsidiaries and/or related companies to Interwind.
SkyPower Lite Corp. all of
the Initial Order, the Company was to apply to the Court on or before
August 20, 2009 for approval of an expedited sales process. On August 20, 2009, The
Honourable Madam Justice Pepall made an endorsement amending the Initial Order and
an expedited sales process to August 25, 2009.
extending the date for approval of
3. Pursuant to the terms of
4. On August 25, 2009, Interwind sought and obtained approval of
the following:
(a) a key employee retention plan ("K ERP") designed to provide incentives to senior
management and selected other key employees ofInterwind to continue to serve
Interwind during its restructuring under the CCAA;
(b) security for the KERP by way of a fourth charge on all Propert, after the Administration
Charge, the Director's Charge and the DIP Lender's Charge;
(c) a sealing order in connection with the KERP arrngements; and
(d) an amendment of paragraph 13 of the Initial Order to provide for a stay against Fermeuse,
SunE Sky and SkyPower Lite Corp. These entities were included in paragraphs 14, 15,
i 6 and 17 of the In itial Order that provided that parties could not exercise rights or
remedies against them but were inadvertently excluded from the paragraph providing for
proceedings.
a stay of
the concerns raised by the Project Lenders, the stay of
proceedings with respect to
the Project Lenders was limited only so as to stay them from exercising their remedies that
arise as a direct result of Interwind's insolvency, Interwind's proceedings under the CCAA,
and the creation ofthe DIP Lender's Charge. In addition, the DIP Lender's Charge was made
subordinate to the share pledges in favour ofthe Project Lenders with the consent of
the DIP
Lender.
5. In light of
6. On August 25,2009, this Honourable Court also made an endorsement recognizing the
the rights of
the Project Lenders and SunEdison LLC to oppose any transfer of
reservation of
the equity interests held by Interwind in Fermeuse, SunESky and SunE Sky GP First Light
Ltd.
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7. On August 25,2009, Inteiwind sought and obtained approval to commence a marketing and
sales process ("Sales Process") and an Order ("Sales Process Order") which provided for,
inter alia, approval of
the following:
(a) a Sales Process Protocol for the purpose of offering the opportnity for potential
interested parties to purchase the Company's Development Business and its XLE
Turbines;
(b) the engagement of Marathon Capital, LLC ("Marathon") to assist in the Sales Process;
and
(c) a charge in favour of Marathon to secure Marathon's transaction fees with such charge
ranking fifth, after the Administration Charge, the Directors' Charge, the DIP Lender's
Charge and the KERP Charge.
8. On September 3,2009, Interwind sought and obtained approval of
(a) an extension of
the stay of
the following:
proceedings against Interwínd, Fermeuse, SunE Sky and
SkyPower Lite Corp. until and including October 3 j, 2009; and
CAD $~ 1.4 million under its DIP Financing.
(b) authorization to draw up to a maximum of
9. On September 25, 2009, Inteiwind moved to prevent the registration of liens by Golder
Associates Ltd. ("Golder"). Inteiwind's motion was disposed of on consent. The Court
ordered that Golder was deemed to have preserved and perfected claims for lien under any
applicable construction lien statutes. This deemed preservation and perfection was without
prejudice to any arguments that any part may advance regarding the validity, invalidity or
enforceability of such liens, save and except for any arguments relating to their deemed
preservation and perfection.
10. On October 27, 2009, Inteiwind sought and obtained approval of
(a) an extension of
the following:
the stay of proceedings to November 30, 2009; and
(b) the Solar Purchase Agreement with 1495359 Alberta ULC ("1495359") dated as of
October 14,2009 for
the sale oflnteiwind's solar business to 1495359, a company
related to the DIP Lender.
i i. On November 5, 2009, Jacques Whitford Stantec Limited ("JW Stantec") sought and
obtained an order to lift the stay of proceedings for the sole and limited purpose of permitting
the construction liens that were preserved by JW Stantec on September 25,
the perfection of
2009.
12. On November i 8, 2009, Interw ind sought approval of the following:
(a) the sale to 3240384 Nova Scotia Limited, a subsidiary of Emera Incorprated ("Emera")
ofInterwind's interest in the capital stock of Scotian Windfield Partners Corp. and certain
of its wind project assets (the "Emera Transaction") as subsequently amended; and
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46
(b) the sale to Elemental Energy Inc. of all ofthc issued and outstanding shares in the capital
of Fermeuse and all of fnterwinds rights, title and interest under the administrative
services agreement between Interwind and Fermeuse dated June 30, 2009 (the "Elemental
Transaction").
the Emera Transaction was obtained on November 18,2009. The portion
of the Company's motion seeking approval of the Elemental Transaction was adjourned to
November 20, 2009.
13. Court approval of
the Elemental Transaction.
14. On November 20, 2009, the Company obtained approval of
15. On November 27,2009, the Company sought an order pursuant to the Construction Lien Act,
R.S.O. 1990, c. C.30 to, among other things, vacate the registrations of
Claim for Lien and
Certificate of Action against certain lands and premises by JW Stantec. An order was issued
and entered on November 30, 2009 granting the relief requested.
16. On November 30, 2009, Interwind sought and obtained approval of the following:
(a) An extension of
the stay of
proceedings in respect of Interwínd and Fenneuse to and
including January 29, 20 i 0;
(b) Certain amendments to the Company's debtor~in-possession fàcility with ClM Group;
amendments to a sales process in respect of lnterwind s wind development
business;
(c) Certain
(d) Amended terms in respect of
the engagement of Marathon; and
(e) An amendment to the KERP.
17. On December 21, 2009, Interwind sought and obtained approval of
(a) the sale to a newly incorporated, wholly-owned subsidiary of
the following:
the Company
("Acquisition Co.") of: (i) certin non-turbine equipment; (ii) a lease agreement
between Terrawinds Resources Corp. (currently Interwind) and Ferme 1aooel S.E. N.C.
dated October 13, 2006, relating to the land on which Interwinds Main Power
Transformer 230 kV-34.5 kV is situated and (iii) certain warehouse arangements
relating to the non-turbine equipment;
(b) the subsequent sale to enXco Service Corporation ("enXco") of
the shares of
Acquisition Co.;
(c) an amendment to the Approval and Vesting Order dated November 18,2009 in rcspect
of
the Emera Transaction; and
(d) an amendment to the Approval and Vesting Ordcr datcd November 20,2009 in respect
of the Elemental Transaction.
18. On December 23,2009, KPMG Inc., as the foreign representative ofinterwind, fied the
First, Second, Third, Fourth, Fifth and Sixth Reports of
the Monitor with the United States
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47
Bankruptcy Court for the District of Delaware (the "U.S. Bankruptcy Court") to make them
available in the Chapter 15 proceedings in place with respect to Interwind.
19. On December 23, 2009, Interwind entered into a purchase agreement with CPY Canada
the Company's Wind Development Business (the
Development ULC ("CPY") in respect of
"CPY Purchase Agreement").
20. 011 December 28, 2009, KPMG Inc., as the foreign representative of lnterwind, fied its
Seventh Report with the U.S. Bankruptcy Court. The Monitor has also fied a motion with
the U.S. Bankruptcy Court to modify the case caption to reflect the debtor's new name of
Interwind Corp. That motion is scheduled to be heard on January 19,2010.
the following:
2 I. On January 8, 20 i 0, Interwind sought and obtained approval of
(a) the sale to Invenergy Turbine L.P. ("lnvenergy") of Interwinds i 34 units of GE 1.5 XLE
wind turbine generating units together with towers on which such wind turbine
generating units (collectively, the "XLE Turbines") are mounted and all components
thereof and, if and to the extent elected by Invenergy (ì) the turbine supply agreement and
operations and maintenance agreement between Interwind and General Electric Company
Canada, Inc. and (ii) all arrangements by which Interwind obtains
and General Electric of
the XLE Turbines (the "Turbine Transaction"); and
storage, maintenance and security of
the Turbine
turbine supply loans made in favour otJnvenergy.
(b) an interim distribution to the HSH Bank Syndicate on the closing of
Transaction on account of
22. On Januar 12,20 I 0, the Monitor sought and obtained a recognition order from the Quebec
the Turbine Transaction Approval and
Superior Court (Commercial Division) in respect of
Vesting Order made by this Honourable Court on Januar 8, 20 i 0 (the "Turbine Approval
Order").
23. On January 19,2010, the Monitor will also be seeking a recognition order from the U.S.
the Turbine Approval Order and an order to seal the
Bankruptcy Court in respect of
the purchase agreement with Invenergy and the amount of
confidential portions of
the interim
distribution to the HSH Bank Syndicate.
24. Other relevant information and documentation related to the Company's CCAA proceedings
and its Chapter i 5 Proceedings has been posted on the Monitor's website at
ww.kpmg.caJinterwind (the "Monitor's Website").
PUROSE OF REPORT
25. The purpse of
this Ninth Report of
the Monitor is to provide this Honourable Court with the
following information:
(a) A summary of
the activities of
the Monitor since its Fifth Report;
(b) A status update on the Company's DIP Financing;
(c) The Company's request for the tennination, discharge and release of
Charge;
4
the DIP Lender's
48
(d) An overview oflnterwinds cash flow forecast for the seven week period from November
23,2009 to January 10,2010 and an analysis of
the variances from forecast for this
period;
(e) An overview of Interwind s revised cash flow forecast for the seven week period from
January 11, 20 i 0 to February 26, 20 i 0;
(t) A status update on the Sales Process;
(g) The Company's request for approval of
the CPY Purchase Transaction (as subsequently
defined);
the stay of
(h) The Company's request for an extension of
proceedings to February 26, 2010
in respect of Interwind;
(i) The Monitor's request for approval of its Fifth Report, Letter Addendum to the Fifth
Report, Sixth, Seventh and Seventh Supplementary Report; and
Q) The Monitor's recommendations to this Honourable Court.
TERMS OF REFERENCE
26. The information contained in this Ninth Report has been obtained from the books and records
and other financial information made available by the Company and is based upon
discussions with, and representations made by, Interwinds management ("Management")
and its legal counseL. The accuracy and completeness of
the financial information contained
herein has not been audited or otherwise verified by the Monitor or KPMG LLP nor has it
necessarily been prepared in accordance with generally accepted accounting principles and
the reader is cautioned that this report may not disclose all significant matters about the
Company. Accordingly, the Monitor does not express an opinion or any other form of
assurance on the information presented herein. The Monitor reserves the right to refine or
amend its comments and/or findings as further information is obtained or is brought to its
attention subsequent to the date of its Ninth Report.
27. CapitaJízed terms not defined in this Ninth Report are as defined in the Seventh Report of
the
Monitor and/or as defined in the Initial Order.
28. Unless otherwise noted, all dollar amounts referred to herein are expressed in Canadian dollars.
ACTIVITIES OF THE MONITOR
29. Since the date
of its Fifth Report, the Monitor's activities have included the following:
. preparation of a Letter Addendum to its Fifth Report regarding the Amended Marathon
Engagement Letter;
· attendance at a court hearing on November 30, 2009 regarding stay extension, extension
of
DIP loan maturity date, amendment to KERP and amendment to Marathon's
engagement letter;
. attendanceon conference calls with Marathon, Secured Lenders and Interwind regarding
activities related to the sale of
the wind development business, non-turbine assets and
XLE turbines;
5
49
. review of materials provided by Marathon regarding prospective purchasers and sales
process matters;
. discussions with lnterwind and Marathon regarding amendments required to the escrow
agreement for Marathon's fees and discussions with Monitor's legal counsel regarding
same;
payments to Marathon from escrow funds in accordance with the
amended escrow agreement;
. administration of
. review of draft purchase and sale agreement regarding sale of non-turbine equipment and
draft motion materials;
. review of amendments to the purchase agreements with Emera and Elemental,
discussions with lnterwind and lnterwinds legal counsel regarding same and changes to
approval and vesting orders obtained;
. preparation of Sixth Report regarding the sale of non-turbine equipment and the
Company's request for amendments to approval and vesting orders related to the
Elemental Transaction and the Emera Transaction and review of related supplementary
motion materials;
. review of drafts of purchase and sale agreement and approval and vesting orders
regarding XLE turbines;
. preparation of Seventh Repoit and Supplemental Report to Seventh Report regarding
XLE Turbine sale and review ofInterwinds motion materials with respect to same;
. attendance at court hearing on December 2 i, 2009 regarding approval of transaction for
non-turbine equipment and amendments to approval and vesting orders for the Emera
Transaction and the Elemental Transaction and review of related motion materials;
. attendance on conference call on December 22,2009 with West LB and its legal counsel.
legal counsel to Elemental and Goodmans regarding matters related to closing of
Elemental Transaction;
. discussions with Management regarding Interwinds DIP loan facility, including
extension of tenn and repayment matters;
. review of draft purchase and sale agreement with CPY regarding lnterwinds Wind
Development Business and related motion materials for approval of executed purchase
and sale agreement ("PSA") with CPV;
· attended to completion of Monitor's certificates on closing of
the Elemental Transaction
and the Emera Transaction on December 22, 2009 and December 23, 2009, respectively;
. review of correspondence from legal counsel to enXco and discussions with Interwind,
Interwind's legal counsel, Marathon and the Monitor's legal counsel regarding matters
related thereto;
. attendance at court hearing on January 8, 20 i 0 regarding approval of the XLE
Transaction and review of
related motion materials;
. attendance at court hearing on January 10, 20 i 0 regarding propective purchaser motion
for standing at approval
heaing regarding approval of the PSA with CPV, review of
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50
materials from prospective purchaser and preparation of Monitor's Eighth Report related
thereto;
· discussions with Quebec legal counsel regarding recognition order relating to XLE
Transaction, review of
motion materials and attendance at court hearing in Montreal,
Quebec on January 12,2010 regarding same;
· posting of available court and other relevant materials to the Monitor's website and
attending to amendments on the Monitor's web-site for corporate name change;
· providing assistance as requested by Management, from time to tíme, regarding creditor
queries and other matters;
· discussions with Management, Interwinds legal counsel and the Monitor's legal counsel
regarding critical supplier payments and matters related thereto;
· discussions with the financial and legal advisors to the HSH Bank Syndicate and
Lehman's regarding matters in the CCAA proceedings;
· attending to infonnation requests from the HSH Bank Syndicate's financial advisor and
ongoing communications regarding matters related thereto;
· responding to enquiries from interested parties including creditors and prospective
purchasers;
· discussions and communication with the Monitor's U.S. legal counsel regarding XLE
Transaction and the corporate name change and requirements under Chapter 15
proceedings related thereto;
· ongoing discussions with the Monitor's Canadian legal counsel in respect of matters
related to the Company's business and financial affairs, including the Sales Process; and
the Company's business and financial affairs, including numerous
discussions with Management.
· ongoing monitoring of
DIP FINANCING
30. As.discussed in the Monitor's Seventh Report, Interwind did not seek a further extension to
the maturity date of
its DIP Financing. On December 23,2009, Interwind paid the
outstading amount of approximately USD $1 1.1 millon (includes interest and fees) on its
DIP Financing in light of
the sale proceeds available from the closing of
the various sales
transactions to date.
31. As the DIP Financing has been paid in its entirety, Interwind is seeking to tenninate,
discharge and release the DIP Lender's Charge against the Propert of Interwind.
CASH FLOW FORECAST AND VARIANCE ANALYSIS
32. Interwind initially prepared a cash flow forecast for the sixteen week period ending
Kerr Adler sworn August 12,
November 29,2009, which was appended to the affdavit of
flow forecast for the six week period October
2009. Interwind also prepared a revised cash
19,2009 to November 29, 2009 which was appended to the affdavit of
Kerr Adler sworn
October 22,2009. Interwind then prepared a further revised cash flow forecast for the ten
week period
November 23,2009 to
January 29; 201 o
which was appended to the affdavit of
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David Bacon sworn November 26, 2009. Actual results for the ten week period ended
October 18, 2009 and for the five week period October 19, 2009 to November 22, 2009 were
previously discussed in the Monitor's Third and Fifth Reports, respectively.
33. A variance analysis ofInterwind's actual cash receipts and disbursements for the seven week
period from November 23, 2009 to January 10, 20 i 0 (the "Reporting Period") is summarized
in the table below. The Weekly Cash Activity Report for the period is attached as Appendix
A, hereto.
Revised
BUDGET TO ACTUAL ANALYSIS
Notes
(seven weeks ended January 10,2010)
(Paragraph JJ)
Receipts
Reporting
Period
Cash Flow
Variance
Favourablel
Forecast
(Unfavourable)
$1,066,200
$1,090,473
Salaries, wages and benefits
Corporate Expenses (G&A, Rent, Travel) (a)
GE_XLE Turbine Storage & Maintenance Costs
(746,499)
(142,773)
(465,048)
KERP (e)
Contingency
(t)
(1178,874)
( 1,708,(68)
(789,997)
(245.180)
(465.681)
(2,278,829)
(435,000)
(813,734)
( 1,902,486)
($24,273)
Disbursements
Professional Fees (b)
DIP Financing Interest & Fees (e)
Development Expenses (d)
43,498
102,407
633
1,99,955
(l,273,068)
( 150,000)
1,088,752
150,000
(368,688)
(625,383)
256,695
Total Disbursements
(198,168)
(5,321,852)
(6,892,556)
(198,168)
1,570,704
Net Cash Flow
(4,255,652)
(5,802,083)
1,546,431
12,957,661*
12,957,66 1 *
(4,255,652)
22,409
18,402,747
(5,802,083)
(10,631,457)
$16,495,710
( 1 ,456,000)
Pre-Filing Expenses (g)
Rollforward of Cash Position
Opening Balance. (h)
Total net cah t10w
Foreign exchange gains (losses)
Procees from sale of assets (i)
DIP Funding/repayment) (j
Closing Balance (rounded)
DIP Facility
Opening balance - DIP Facility
DIP Fundingdrawn to date/(repayment)
Closing Balance - DIP Facilty"
1,546,43 i
22,409
18,402,747
$5,699,578
10,631,457
10,631,457
(10,631,457)
$NIL
(1,456.000)
$9,175,457
(9,175,457)
$10,796,130
($9,175,457)
$(9,175,457)
*exc/udes a portion a/the net proceeds arising/rom the closing a/the Solar Purchase Agreement on November 20, 2009. As
discussed in the Fifh Report, these proceeds were excluded in light a/paragraph J 2 of
the Approval and Vesting Order
dated October 27, 2009, which provides that the plrchase price in the Solar Purchase Agreement is sealed pending further
order 0/ the Court.
approximately $16.5 millon compared
to a forecast cash balance of approximately $5,7 million. The positive variance in the cash
balance is largely due to the closing of sale transactions related to the Company's assets.
Lnterwind's net disbursements were approximately $4.2 millon compared to forecast net
34. On Januar 10,2010, Interwind had a cash balance of
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52
approximately $5.8 millon. The net difference ofapproxiinately $1.6
million is attibutable to timing differences, deferral of expenses and an ongoing effort by
Management to streamline costs. The significant variances are discussed below:
disbursements of
(a) The Company disbursed approximately $ I 02,000 less than forecast on corporate
expenses largely due to efforts to control and minimize its expenses and timing
differences;
(b) Interwind paid approximately $879,000 for professional fees during the Reporting Period.
The difference of approximately $ 1.4 million is due to timing, as invoices due from
professionals and advisors to the Company have not yet been received;
(c) An amount of$435,000 was forecast for expenses related to lnterwinds DIP loan
facility. As advised earlier, the DIP loan facility was fully retired on December 23, 2009
before its maturity date. The difference of approximately $1,273,000 is primarily due to
which
the earlier than expected payment offees and accrued interest, the majority of
would otherwise have been payable upon maturity. Ln addition, an amount of
US$120,000 was paid to the DIP Lender to extend the date by which Interwind would
have to deliver written notice to the DIP Lender to extend the maturity date. The DIP
Financing Amendment Letter provided that such notice was to be delivered to the DIP
Lender on or before December 18, 2009. Interwind, with the concurrence of the Secured
Lenders, paid US$120,000 to extend the notice date to December 21, 2009;
(d) The positive variance of approximately $1. milion in development expenses is due
primarily to the deferrl of expenses as a result of a more in depth review of planned
expenditures by Management;
its Wind Development Business which
the
the KERP. As the closing of
Wind Development Business has not yet occurred, no amount was paid;
(e) lnterwind anticipated the completion of
the sale of
would have resulted in the payment of a portion of
(f) The Company paid into Court approximately $369,000 to vacate construction liens.
these claims, the disbursements into Court have been reflected as
Pending resolution of
"contingency" payments rather than as "pre-fiing" payments at this time;
the Monitor
the Initial Order penn
its lnterwind with the consent of
and the DIP Lender to pay pre~filing amounts owed to suppliers, if, in the opinion of
Interwind, such payments are critical to the development of a project or its continued
(g) Subparagraph 5(c) of
operations. The aggregate of all such payments must not exceed $ I milion. Critical
supplier payments totaling approximately $198,000 were paid during the Reporting
Period. As of the date of this Ninth Report, a total of approximately $2 I 4,000 has been
paid to critical suppliers;
David Bacon sworn November 26, 2009, the opening cash
position shown in the cash flow forecast for the first week commencing November 23,
2009 included a portion of
the net proceeds realized to date by the Company in respect of
its sale process necessary to demonstrate that the Company can meet its cash needs
during the proposed Stay extension period. This was done to ensure that the proceeds
generated from the sale ofthc Solar Purchase Agreement, which was the only transaction
that had closed at that time, was not
revealed in the cash flow forecast given the sealing
order in place with respect to the purchase price therein. To ensure that the proceeds
(h) As indìcated in the affdavit of
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53
from the Solar Purchase Agreement remain confidential, the actual opening cash position
on November 23,2009 remains identical to the forecast;
(i) The aggregate net proceeds from sales transactions that closed during the Reporting
Period are reflected in this number together with the portion otthe net sale proceeds
arising from the Solar Purchase Transaction that were not previously shown in the
opening cash balance to maintain purchase price confidentiality. The aggregate net sale
proceeds are shown net of success fees paid either directly to Marathon pursuant to the
Amended Marathon Engagement or to the Monitor, as escrow agent; and
(j) Interwind had forecast a parial repayment of the principal outstanding under its DIP
Financing. The negative variance relates to the difference in the principal amount
actually paid and foreign exchange.
CASH FLOW FORECAST
35. Interwind has prepared a cash tlow forecast for the seven week period from January i i, 20 I 0
to Febrary 26, 20 10 (the "Cash Flow Forecast"). A copy of the Cash Flow Forecast is
attached hereto as Appendix B.
36. The table below summarizes the Cash Flow Forecast:
Cash Flow ¡"orecasl
(seven weeks)
,January i I, 201010
CASH FLOW FORECAST
February 26, 2010
8650.00
Receipts
Disbursements
Salarcs, wages and benetilS
(532,051 )
Corporate Expenses (G&A, Rent. Travel)
(311,546)
GE_XLE Turbine Storage & Maintenance Costs
(351,028)
Profussionnl Fees
(1.102,004)
(582,087)
Development Expenses
KERP
(1,872,000)
GST (/ayable)/Receivable
(588,277
(416995)
Prc-Filing EXPenses
Total Disbursmenls
(5.755,988)
Net Cash Flow
(5,105,'188)
Roiironviird or Cash Position
16,495,710
Opening Balance
Total net cæin Ilow
(5,105,988)
Closing Cash Balance
11,389,722
37. lnte.rind currently anticipates that it wil receive approximately $650,000 in receipts and
disburse approximately $5.8 milion during the forecast period, resulting in an expected net
cash outflow of approximately $5.1 milion.
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54
38. Other significant observations with respect to the Cash Flow Forecast are as follows:
(a) Net sale proceeds related to the future closing of sale transactions are not included in the
Cash Flow Forecast;
(b) A favourable working capital actjustment of approximately $650,000 related to the prior
the Elemental Transaction is expected to be received during the forecast
closing of
period;
personnel in light of
(c) Management has anticipated changes in the level of
the impending
completion of sale transactions and, therefore, a reduction in payroll-related costs;
the transaction with Invenergy for the XLE
Turbines will occur by the end of January, 20 10, after which storage and maintenance
costs will no longer be incurred;
(d) lnterwind anticipates that the closing of
(e) Development expenses include amounts related to certin wind projects that the
Company is continuing to develop in key markets pending completion of
the sale of its
Wind Development Business;
approximately $1.9 million is
(f) An aggregate total incentive compensation pol of
forecast to be paid pursuant to the Company's KERP and following the closing of
the
sale ofInterwind's Wind Development Business; and
(g) The Company and the purchaser of substantially all oflnterwind's solar power assets
agreed to a trnsition services agreement whereby Interwind and certain employees
would be pennitted to continue to access and utilze Interwinds former offce premises
to no later than January 29, 2009. The Cash Flow Forecast reflects a cost sharing
agreement between the parties for the transition period in respect of shared occupancy
of the offce premises as well as certain shared management and administrative
employees. The Cash Flow Forecast also includes an estimate of rent payable for new
premises in February.
SALE PROCESS
Sale Process Protocol
39. As indicated in the Monitor's Second Report, the Sale Process and Sale Process Protocol
by this Honourable Court, effective August 25,2009, involved a dual sale
estalished
adopted by the Company for the sale of
the Development Business and the
strategy to be
XLE Turbines. Binding offers to purchase either class of assets were to be submitted by
the sales of
the XLE Turbines and the Development
October 5, 2009 with completion of
Business by
October 30,2009 and November 16,2009, respectively.
transactions have been approved by the Court and three of
these transactions
have since closed. The transactions entered into by Interwind and referenced in prior Monitor
reports are summarized as follows:
40. To date, five
1i
55
Purchaser
Interwind Asset
Solar Development
Date of Court Order
1495359 Alberta ULC October 27.2009
Monitor Report Reference
Monitor's Third Report October
25,2009
and Operating Assets
Digby Wind Project
Assets
3240384 Nova Scotia
Limited
Fenneuse Assets
Elemental Energy Inc. November 20, 2009
(amended December
November 18, 2009
Monitor's Fourt Report
(amended December
November i 6.2009
21,2009)
Monitor's Fourth Rcport
November i 6. 2009
21,2009)
Non- Turbine Assets
enXcD Service
December 2 i, 2009
Monitor's Sixth Report December
18,2009
January 8, 20 i 0
Monitor's Seventh Report
Corporation
XLE Turbines
Invenergy Turbine
L.P.
December 23, 2009
41. The transaction involving the Solar Development and Operating Assets closed on November
20, 2009. The Elemental Transaction involving thc Fermeuse Assets closed on December 22,
2009 and the Emera Transaction involving the Digby Wind Project Assets closed on
December 23,2009.
42. The transactions involving the Non-Turbine Assets and the XLE Turbines have not yet closed
as of the date of
this Ninth Report. The Company and the respective purchasers are in the
process offinalizing certain particulars and/or removing certain closing conditions in respect
of these transactions. It is anticipated that both trnsactions will be completed prior to
Januar 29,2010.
the Turbine Purchase Agreement was
43. lnterwind's motion to seek the Court's approval of
heard on Januar 8, 20 I O. Approval of the transaction was granted by this Honourable Court
on January 8, 2010.
the Turbine Purchase Agreement, the Company or the Monitor, as
required, shall bring a Motion in the Quebec Superior Court and in the Chapter 15
Proceedings to obtain recognition of
the Approval and Vesting Order issued by this
44. Pursuant to the terms of
Honourable Court.
45. On January 12,2010, the Monitor sought and obtained approval from the Quebec Superior
Court for the recognition of the Approval and Vesting Order issued by this Honourable Court
on January 8, 2010 in respect of
the sale of
the XLE Turbines. A copy of
the order is
attached hereto as Appendix C.
46. A hearing has been scheduled on Januar 19,2010 in the U.S, Bankruptcy Court for the
Delaware where the Monitor, in its capacity as foreign representative ofInterwind,
District of
will seek an Order recognizing and enforcing the Approval and Vesting Order as well as an
interim distribution to the HSH Bank Syndicate. The Monitor has been advised by its U.S.
legal counseL, Ashby & Geddes, that no objections to the Motion have been received as of
January 12,2010 and they have filed a Certificate of
No Objection in respect of
12
same.
56
Amended Wind Development Sales Process
47. Pursuant to the terms ofthe Sales Proccss Order, this Honourable Cour ordered that the
Company be authon7..d and directed to engage Marathon to assist in the Sale Process in
accordance with the Sale Process Protocol. Mamthon's engagement and thc Sale Process
commenced August 27,2009 and was amended pursuant to Court Order dated November 30,
2009 to allow for an amended and expedited sales process which involved additional work
required to market for sale the remaining Wind Development Business ofInterwind (the
"Amended Wind Development Sale Process"). The particulars of
the Amended Wind
Development Sale Process are summarized in the Monitor's Sixth Report.
48. The initial SaÌe Process undertken by the Company and Marathon did not lead to a binding
offer for the purchase and sale of the Wind Development Business of Interwind and as a
result, an Order from the Court was sought and obtained
on November 30, 2009 by Interwind
for an amended, expedited sales process for the Wind Development Business.
49. In accordance with the Amended Wind Development Sales Process, the Company and/or
Marathon identified and approached a select number of prospective purchasers ("Select
Bidders") a number of whom had previously expressed interest in the Wind Development
Business though enquiry and in some cases, due diligence undertaken during the initial Sale
Process. A total of 14 Select Bidders were approached by Marathon from which 5 offers or
the 5 offers or
expressions of interest by qualified Select Bidders were received. One of
expressions of interest was withdrawn by the particular Select Bidder prior to December 23,
2009.
SO. Negotiations, meetings and due dilgence involving Select Bidders, the Company and
Marathon and in some cases, the Secure Lenders, were conducted thoughout the period
December 1, 2009 through to December 23, 2009 (two days aftr the indicated date for
receipt of an executed definitive agreement under the Amended Wind Development Sale
Process). 11ie Amended Wind Development Sales Process was concluded on December 23,
2009 with the acceptce by the Company of
the CPV Purchase Agreement (the "CPV
Purchase Trasaion").
5 i. A letter dated Januar 4,2010 from legal counsel to enXco Service Corpomtion advised
Interwinds counsel that enXco intends to contest the Company's application for an approval
of
the CPV Purchas Agreement and that enXco intends to submit an offer for the purchae
of the Wind Development Business and present same to this Honoumble Court. EnXco
subsequently distrbuted to Marathon and the Monitor an executed Purchase Agreement by an
affliate of enXco, EDF EN Canada Inc., to purchase the Wind Development Business dated
as of Januar 8, 2010 (the "enXco Offet'). The enXco Offer
was attached to corrspondence
dated Januar 8,2010 from counsel for enXco indicating that .....the offer does represent our
best andfina/ offer for In/erwind's Wind Development Business...".
52. The Company moved for an order that enXco did not have standing at the Wind Development
Business sale approval motion scheduled for Januar 19,2010 and for related relief, That
motion was heard on January 15, 2010.
53. On Januar 15,2010, The Honourable Mr. Justice Morawetz granted the Company's motion
and declared that enXco does not have stading at the sale approval motion without prejudice
to enXco fiing revised materials and seekig to establish standing on proper grounds. The
13
57
Monitor confirmed to the Court on Januar IS, 20 I 0 that it would include comments on the
enXco otTer in its Supplementary Report to this Ninth Report, which is being prepared on a
confidential basis and is the subject of a request for a scaling order.
CPV PURCHASE TRANSACTION
54. The key terms of
the Proposed CPV Purchase Transaction include, inter alia:
(a) the purchased assets as defined include all assets relating to Interwinds wind projects
located throughout Canada (which projects are at varying stages of development),
including power purchase agreements and other project-related agreements, reports,
studies, assessments, approvals, land rights and meteorological towers;
(b) The subject transaction is an "as is where is" basis transaction with limited
representations and warranties;
(c) The transaction is conditional upon, inter alia:
(i) An Approval and Vesting Order being granted by this Honourable Court and
such Order becoming final, and
(ii) All instruments of conveyance in respect of the Purchased Assets (as defined in
the CPV Purchase Agreement) being in a form satisfactory to the Purchaser; and
(d) The Purchaser wil assume all liabilities and obligations of any kind relating to the
Purchased Assets on or after Closing (as defined in the CPV Purchase Agreement) but
exclude liabilities relating to employees or certain environmental related liabilities
incurred prior to Closing.
55. In accordance with the terms of the CPV Purchase Agreement, the Purchaser has paid a
the Purchase Price (as defined in the CPV Purchase Agreement) which
deposit on account of
has been placed with Goodmans LLP, the solicitors to lnterwind. The balance of
the
Purchase Price is held by the CPV's solicitors, subject to an Escrow Agreement. The Monitor
has confinned that the deposit amount is held by Goodmans LLP and that CPV's solicitors
the Purchase Price pursuant to the terms of an Escrow Agent Agreement.
hold the balance of
MONITOR'S ANALYSIS OF CPV PURCHASE TRANSACTION
56. Based on the purchase offers or expressions of interest received by the Company and the
Monitor in respect ofthe Wind Development Business, the Monitor undertook an
independent review of all offers received under the Amcnded Wind Development Sale
Process. The Monitor's comparative analysis of
the competing bids or offers in respect of the
subject transaction included an assessment of
the following:
(a) the degree to which the bids or offers conformed to the bid instructions circulated to
prospective purchasers under the Amended Wind Development Sale Process;
(b) the degree to which bids or offers were non-binding in nature;
14
58
(c) the total purchase price, form of consideration (e.g. cash on closing and any earn out
provisions) and the estimated net proceeds realized for the benefit of lnterwinds
stakeholders;
Cd) the extent and nature of additional due dilgence required to have interested parties
deliver a non-binding sales purchase agreement;
(e) the overall execution risk associated with closing as it relates to ability to obtain certin
required consents, conditions or financing;
(f) the time required to complete the transaction; and
(g) the reputation and financial wherewithal of the respective purchaser.
57. The Monitor is of a view that:
(a) Intcrwind and Marathon have complied with the terms otthe initial Sale Process Order
the
and as amended on November 30,2009 and consistent with the objectives of
Amended Wind Development Sale Process and the Sale Process Protocol, have
undertaken a fair and effective process in good faith with a view to maximizing
realizations for the stakeholders of Interwind;
(b) the Company and Marathon have adequately marketed the Wind Development Business
the CPY Purchase Agreement;
that is included in and subject to the terms of
(c) the Company and Marathon have adequately consulted with the Secured Lenders, in
respect of the proposed sale of the Wind Development Business and the Sale Process
generally;
(d) the terms of the CPV Purchase Agreement including the purchase price consideration and
the purchase price are fair and commercially reasonable in the
the structure of
circumstances, are superior to all other offers received up to and including December 23,
2009 in terms of
the Monitor's assessment criteria and represent net realizations that
the Wind
would be more beneficial to creditors ofInterwind than iftbe sale of
Development Business was undertken in a bankruptcy scenario; and
the Sales Process has been maintained and the Company has negotiated
the cry Purchase Agreement in good faith and with regard to the interests of all
(e) the integrity of
stakeholders ofInterwind and in accordance with the directions of
this Honourable Court.
the proposed CPY Purchase
Transaction on the basis that the purchase price for the Wind Development Business as well
as certain other information deemed to be commercially sensitive not be disclosed. The
Monitor supports this request and, as such, has also not disclosed in this Report its analysis of
the terms of competing bids, offers to purchase or expressions of interest for the Wind
Development Business as well as certain other commercially sensitive information.
Competitive bid information wil be provided to this Honourable Court separately in advance
of the motion being heard on January 19, 20 10 with a request that the information be the
58. At the request of CPY, lnterwind has sought approval of
subject of a sealing order.
15
59
59. Given that the purchase price has not been disclosed herein, the Monitor has not included an
estimate of
the net sales proceeds relating to this transaction.
EXTENSION OF THE STAY PERIOD
60. The court order dated November 30,2009 provides for a stay of
proceedings in respect of
the
Interwind and Fermeuse to January 29, 20 I O. It further provides that, upon the closing of
Elemental Transaction with respect to Fermeuse, the stay of proceedings in respect of
Fenneuse shall automatically tenninate.
6 I. As advised earlier, the Elemental Transaclionclosed on December 22,2009. Accordingly, the
stay currently in place applies only to Interwind.
the Stay to February 26, 2010 will allow lnterwind to complete the Turbine
Transaction, the transaction with respect to Non-Turbine Assets and the Wind Development
Business Transaction.
62. An extension of
63. The Monitor is of
the view that the Company has acted, and is acting, in good faith and with
due dilgence. The Monitor is also of
the view that the extension of
the Stay is appropriate
the Non-Turbine Assets, the
the Wind Development Business.
and necessar in the circumstances to complete the sale of
Turbine Transaction and the sale of
MONITOR'S RECOMMENDATIONS
64. The Monitor recommends approval of the following:
(a) the Company's request for the tennination, discharge and release ofthe DIP Lender's
Charge;
(b) the CPV Purchase Transaction; and
(c) lnterwind's request for an extension of
the Stay for Interwind to, and including,
Februar 26, 2010.
65. The Monitor respectfully requests that this Honourable Court approve its activities in its Fifth
Report Letter Addendum to the Fifth Report, Sixth, Seventh and Seventh Supplementary
Report and its activities as set out therein.
******** ************
16
60
All of
which is respectfully submitted to this Honourable Court at Toronto, Ontario this 18th day
ofJanuary,2010.
KPMG INC., in its capacity as
Monitor ofInterwind Corp.
Cf~
Jenny Poulos
Vice-President
17
61
Appendix D
The Approval and Vesting Order dated January 19th, 2010
62
Court File No. 09-8321.00CL
ONTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
THE HONOURABLE MR.
)
TUESDAY, THE 19TH
)
JUSTICE MORA WETZ
)
DAY OF JANUARY, 2010
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
ARRNGEMENT OF INTERWIND CORP.
Applicant
APPROVAL AND VESTING ORDER
THIS MOTION, made by Interwind Corp. (formerly SkyPower Corp.) (the "Debtor") for
an order approving the sale transaction (the "Transaction") contemplated by a purchase
agreement between the Debtor and CPV Canada Development ULC (the "Purchaser") made as
of December 23, 2009, a copy of which is exhibited to the Affidavit of David Bacon sworn
January 5, 2010 (thè "Bacon Affdavit"), as amended by amending agreement dated January 15,
2010 (collectively, the "Purchase Agreement"), a copy of which is exhibited to the
Supplementary Affdavit of Caterina Costa sworn January 18, 2010 (the "Costa Affdavit"),
vesting in the Purchaser the assets described in the Purchase Agreement (the "Purchased
Assets"), was heard this day at 330 University Avenue, Toronto, Ontario. For purposes of this
Approval and Vesting Order, "Purchaser" shall mean either CPV Canada Development ULC or
an affliate of CPV Canada Development ULe to whom CPV Canada Development ULC has
directed in writing, prior to the closing of the Transaction, that title to the Purchased Assets be
transferred on such closing.
ON READING the Bacon Affdavit, the Costa Affdavit, and the Ninth Report and
Supplementary Report to the Ninth Report of KPMG Inc. as monitor (the"Monitor") each dated
63
- 2January 18,2010, and on hearing the submissions of counsel for the Debtor, the Purchaser, the
Monitor, HSH Nordban AG, New York Branch, as administrative agent and collateral agent on
behalf of itself, Bayerische Landesbank, New York Branch and Union Ban of California,
Canada Branch (n/a Union Bank, Canada Branch) and Lehman Brothers Holdings Inc., no one
appearing for any other person on the Service List,
1. THIS COURT ORDERS AND DECLARES that service of this motion and supporting
materials is hereby declared to be good and sufficient and no other person is required to have
been served with notice of
this motion.
2. THIS COURT ORDERS AND DECLARES that the Transaction is hereby approved.
The execution of the Purchase Agreement by the Debtor is hereby authorized and approved, and
the Debtor is 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.
3. THIS COURT ORDERS AND DECLARES that upon the delivery of a Monitor's
certificate to the Purchaser substantially in the form attached as Schedule A hereto (the
"Monitor's Certificate"), the Purchased Assets described in the Purchase Agreement and listed
on Schedule B hereto shall vest in and, in the Province of Quebec, be transferred to the Purchaser
absolutely, free and clear of and from any and all rights, titles, interests, security interests
(whether contractual, statutory or otherwise), liens, hypothecs, hypothecations, rights of
accession, mortgages, charges, pledges, assignments, estates, trusts or deemed trusts (whether
contractual, statutory or otherwise), judgments, agreements, executions, writs of seizure and sale,
options, disputes, debts, liabilties (whether direct, indirect, absolute or contingent), taxes,
executions, levies or other encumbrances or claims of any kind or nature, whether or not they
have attached or been perfected, registered or fied and whether secured, unsecured or otherwise,
and whether liquidated or contingent (collectively, the "Claims"), and in the case' of each of the
subsidiaries or parnerships owned, directly or indirectly, by the Debtor the shares or partnership
units of which are being acquired by the Purchaser as par of the Purchased Assets (the
"Acquired Entities"), free and clear of and from any and all Claims against any of the assets of
any Acquired Entity, whether any such Claims came into existence prior to, subsequent to or as a
result of any Order of the Ontario Superior Court of Justice in these proceedings, including
64
-3-
without limiting the generality of the foregoing, (i) any encumbrances or charges created by any
Order or Orders of the Ontario Superior Court of Justice in these proceedings, (ii) all charges,
security interests or claims evidenced by registrations pursuant to the Personal Property Security
Act (Ontario) or any other personal property registry system, registered, recorded or fied against
the Debtor or against any Acquired Entity, (iii) the Claims, if any, of any governmental
authority, whether federal, provincial, regional or municipal, for any remittance or payment on
account of any tax (including without limitation any income, sales, goods and services and
property tax), assessment, levy or other statutory remittance payable by the Debtor, or in respect
of any amounts withheld by the Debtor from its employees, and (iv) those Claims listed on
Schedule C hereto (all of which are collectively referred to as the "Encumbrances") and, for
greater certainty, this Court orders that all of the Encumbrances affecting or relating to the
Purchased Assets are hereby expunged and discharged as against the Purchased Assets, provided
that the term "Claims" and the term "Encumbrances" as used herein shall not include any
"Permitted Encumbrances" as such term is defined in the Purchase Agreement.
4. THIS COURT ORDERS that for the purposes of determining the nature and priority of
the Claims, the net proceeds from the sale of the Purchased Assets to the Purchaser shall stand in
the place and stead of
the Purchased Assets, and that from and after the delivery of
the Monitor's
Certificate to the Purchaser 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.
the
5. THIS COURT ORDERS AND DIRECTS the Monitor to file with the Court a copy of
Monitor's Certificate, forthwith after the delivery thereof
to the Purchaser.
6. THIS COURT ORDERS that, notwithstanding:
(a) the pendency of
these proceedings;
(b) any applications for a bankptcy order now or hereafter issued pursuant to the
Bankruptcy and Insolvency Act (Canada) in respect of the Debtor and any
banptcy order issued pursuant to any such applications; and
65
- 4(c) any assignment in bankptcy made in respect of
the Debtor;
the vesting of the Purchased Assets in the Purchaser pursuant to this Order shall be binding on
any trustee in banptcy that may be appointed in respect of the Debtor and shall not be void or
voidable by creditors of the Debtor, nor shall they constitute nor be deemed to be a settlement,
fraudulent preference, assignment, fraudulent conveyance, transfer at undervalue or other
reviewable transaction under the Bankruptcy and Insolvency Act (Canada) or any other
applicable federal or provincial legislation, nor shall they constitute oppressive or unfairly
prejudicial conduct pursuant to any applicable federal or provincial legislation.
7. THIS COURT ORDERS AND DECLARES that the Transaction is exempt from the
application of the Bulk Sales Act (Ontario) and any other legislation in any other jurisdiction
pertaining to sales in bulk.
8. THIS COURT ORDERS AND DECLARES that the following provisions of the
Purchase Agreement be and they are hereby sealed pending further Order of this Court:
(a) the percentage shown in Section l.(w);
(b) the amount shown in Section 3, l(c);
(c) the provisions of
Section 3.2 other than Section 3.2(a);
(d) the amount shown in Section 3.2(a);
(e) the provisions of
Section 4.6; and
Cf) the provisions of Section 6.2( d).
9. THIS COURT ORDERS AND DECLARES that the Supplementary Report to the Ninth
Report of the Monitor dated January 18, 2010, be and is hereby sealed pending further Order of
this Court.
i O. 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 to give
effect to this Order, including without limitation, the United States Banptcy Court for the
66
-5-
District of Delaware, and to assist the Monitor 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 Monitor, as an officer of this
Court, as may be necessary or desirable to give effect to this Order or to assist the Monitor and
its agents in carring out the terms of
this Order.
¿p~~-i(
ENTERED AT /IN9CRIT A TORONTO
ON / BOOK NO:
LE / DANS LE REGISTRE NO.:
JAN 1 9 1010
PER/PAR: J)~
Joanne Nicoara
RegIstrar, Supariiir Court 01 JuSlicø
67
Appendix E
The Initial Monitor's Tenth Report to Court
68
~
Court File No. 09-832 i -OOCL
ONTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
IN THE MATTER OF mE 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
INTERWIND CORP.
TENTH REPORT OF THE MONITOR
Dated February 17,2010
69
IN THE MATTER OF TIE COMPANIES' CREDITORS ARRANGEMENT ACT,
R.S.c. 1985, c. C-36, AS AMENDED
AND IN THE MATTER OF A PLAN OF COMPROMISE OR ARRNGEMENT OF
INTERWIND CORP.
T ABLE OF CONTENTS
INTRODUCTION ......................................................................................................................... 1
PURPOSE OF REPORT .............................................................................................................. 5
TERMS OF REFERENCE........................................................................................................... 5
SALE PROCESS ........................................................................................................................... 6
REMAINING ASSETS ................................................................................................................. 7
CASH FLOW FORECAST ....................................... ................................................................... 8
THE HSH SECURITY AND THE LEHMAN SECURITY ......................................................9
INTERIM DISTRIBUTION TO HSH BANK SyNDICATE.................................................. i 2
CLAIMS PROCESS.................................................................................................................... 12
EXTENSION OF TH STAY PERIOD....................................................................................13
MONITOR'S RECOMMENDATIONS .................................................................................... 13
APPENDICES
Appendix A - Cash Flow Forecast for the period from February 8, 2010 to March 31,2010
Appendix B - Second Amended and Restated Subordination Agreement, dated April 15, 2009
Appendix C - Excerp from the Monitor's Seventh Report to Court, dated December 23,2009
70
INTRODUCTION
this Honourable Court granted August 12,2009 (the "Initial Order"), Interwind
Corp. (formerly known as SkyPower Corp.) ("Interwind" or the "Company") obtained relief
under the Companies' Creditors Arrangement Act. R.S.C. 1985, c.C-36, as amended (the
"CCAA") which, among other things, provided for the appointment of KPMG Inc. as
Monitor of lnterwind (the "Monitor").
1. By Order of
2. The Initial Order provides for an initial stay of proceedings against Interwind unti i and
including September i I, 2009, or such later date as ordered by this Honourable Court (the
"Stay"). The Initial Order also provides that the Stay shall extend to proceedings in respect
of Fenneuse Wind Power Corp. ("Fenneuse"), SunE Sky First Light LP ("SunE Sky") and
which were subsidiaries and/or related companies to Interwind.
SkyPower Lite Corp. all of
3. Pursuant to the terms ofthe Initial Order, the Company was to apply to the Court on or before
August 20, 2009 for approval of an expedited sales process. On August 20, 2009, The
Honourable Madam Justice Pepall made an endorsement amending the Initial Order and
extending the date for approval of an expedited sales process to August 25, 2009.
4. On August 25, 2009, Interwind sought and obtained approval of
the following:
(a) a key employee retention plan ("KERP") designed to provide incentives to senior
management and selected other key employees of Interwind to continue to serve
Interwind during its restructunng under the CCAA;
(b) security for the KERF by way of a fourth charge on all Propert, after the Administration
Charge, the Director's Charge and the DIP Lender's Charge;
(c) a sealing order in connection with the KERP arrangements; and
(d) an amendment of plUagraph i 3 of the Initial Order to provide for a stay against Fenneuse,
SunE Sky and SkyPower Lite Corp. These entities were included in paragraphs 14, i 5,
i 6 and 17 of the Initial Order that provided that paries could not exercise rights or
remedies against them but were inadvertently excluded from the pargraph providing for
a stay of proceedings.
proceedings with respect to
the concerns raised by the Project Lenders, the stay of
the Project Lenders was limited only so as to stay them from exercising their remedies that
arise as adirect result ofInterwinds insolvency, Interwinds proceedings under the CCAA,
and the creation ofthe DIP Lender's Charge. In addition, the DIP Lender's Charge was made
subordinate to the share pledges in favour of the Project Lenders with the consent of the DIP
Lender.
5. In light of
6. On August 25, 2009, this Honourable Court also made an endorsement recognizing the
the rights of
the Project Lenders and SunEdison LLC to oppose any transfer of
the equity interests held by Interwind in Fenneuse, SunESky and SunE Sky GP First Light
reservation of
Ltd.
71
7. On August 25,2009, Interwind sought and obtained approval to commence a marketing and
sales process ("Sales Process") and an Order ("Sales Process Order") which provided for,
the following:
inter alia, approval of
(a) a Sales Process Protocol for the purpose of offering the opportunity for potential
interested parties to purchase the Company's Development Business and its XLE
Turbines;
(b) the engagement of Marathon Capital, LLC ("Marathon") to assist in the Sales Process;
and
(c) a charge in favour of Marathon to secure Marathon's transaction fees with such charge
ranking fifth, after the Administration Charge, the Directors' Charge, the DIP Lender's
Charge and the KERP Charge.
8. On September 3, 2009, Interwind sought and obtained approval of
the following:
proceedings against lnterwind, Fermeuse, SunE Sky and
the stay of
SkyPower Lite Corp. until and including October 3 i, 2009; and
(a) an extension of
(b) authorization to draw up to a maximum of CAD $1 i.4 millon under its DIP Financing.
9. On September 25,2009, lnterwind moved to prevent the registration of liens by Golder
Associates Ltd. ("Golder"). Interwind's motion was disposed of on consent. The Court
ordered that Golder was deemed to have preserved and perfected claims for lien under any
applicable construction lien statutes on September 25,2009. This deemed preservation and
perfection was without prejudice to any arguments that any party may advance regarding the
validity, invalidity or enforceability of such liens, save and except for any arguments relating
to their deemed preservation and perfection.
10. On October 27, 2009, Interwind sought and obtained approval of
(a) an extension of
the stay of
the following:
proceedings to November 30,2009; and
(b) the Solar Purchase Agreement with 1495359 Albert ULC ("1495359") dated as of
October 14,2009 for the sale ofInterwind's solar business to 1495359, a company
related to the DIP Lender (the "Solar Transaction").
1 i. On November 5, 2009, Jacques Whitford Stantec Limited ("JW Stantec") sought and
obtained an order to lift the stay of proceedings for the sole and limited purpse of permitting
the construction liens that were preserved by JW Stantec on September 25,
the perfection of
2009.
i 2. On November 18, 2009, Interwind sought approval ofthe following:
(a) the sale to 3240384 Nova Scotia Limited, a subsidiary of Emera Incorporated ("Emera")
of Interwind's interest in the capital stock of Scotian Windfield Parners Corp. and certin
of its wind project assets (the "Emera Transaction") as subsequently amended; and
2
72
(b) the sale to Elemental Energy Inc. of all of the issued and outstanding shares in the capital
of Fermeuse and all of lnterwind's rights, title and interest under the administrative
services agreement between lnterwind and Fermeuse dated June 30, 2009 (the "Elemental
Transaction").
13. Court approval of
of
the Emera Transaction was obtained on November 18,2009. The portion
the Elemental Transaction was adjourned to
the Company's motion seeking approval of
November 20,2009.
14. On November 20, 2009, the Company obtained approval of the Elemental Transaction.
15. On November 27, 2009, the Company sought an order pursuant to the Construction LimAet,
Claim for Lien and
R.S.O. 1990, c. C.30 to, among other things, vacate the registrations of
Certificate of Action against certain lands and premises by JW Stantec. An order was issued
requested.
and entered on November 30, 2009 granting the relief
i 6. On November 30,2009, Interwind sought and obtained approval of
the following:
the stay of proceedings in respect of Interwind and Fenneuse to and
including Januar 29, 2010;
(a) An extension of
(b) Certain amendments to the Company's debtor-in-possession facility with elM Group;
(c) Certain amendments to a sales process in respect oflnterwind's wind development
business;
(d) Amended terms in respect of the engagement of Marathon; and
(c) An amendment to the KERP.
i 7. On December 21,2009, lnterwind sought and obtained approval of
the following:
(a) the sale to a newly incorporated, wholly-owned subsidiary ofthc Company
("Acquisition Co.") of: (i) certin non-turbine equipment; (ii) a lease agreement
between Terrawinds Resources Corp. (currently Interwind) and Fenne Janoel S.E. N.C.
dated October i 3,2006, relating to the land on which lnterwind's Main Power
Transfonner 230 kV-34.5 kV is situated and (iii) certain warehouse arrangements
relating to the non-turbine equipment;
(b) the subsequent sale to enXco Service Corporation ("enXco") of
the shares of
Acquisition Co.;
( c) an amendment to the Approval and Vesting Order dated November 18, 2009 in respect
of the Emera Transaction; and
(d) an amendment to the Approval and Vesting Order dated November 20, 2009 in respect
of the Elemental Transaction.
18. On December 23, 2009, KPMG Inc., as the Foreign Representative of Interwind, tiled the
First, Second, Third, Fourh, Fift and Sixth Reports otthe Monitor with the United States
3
73
Bankruptcy Court for the District of Delaware (the "U.S. Bankruptcy Court") to make them
available in the Chapter 15 proceedings with respect to Interwind.
19. On December 28,2009, KPMG Inc., as the Foreign Representative of Interwind, tìled its
Seventh Report with the U.S. Bankruptcy Court.
20. On January 8,20 i 0, Interwind sought and obtained this Honourable Court's approval of the
following:
(a) the sale to Invenergy Turbine L.P. ("Invenergy") of Interwind's 134 units ofGE 1. XLE
wind turbine generating units together with towers on which such wind turbine
generating units (collectively, the "XLE Turbines") are mounted and all components
thereof and, if and to the extent elected by Invenergy (i) the turbine supply agreement and
operations and maintenance agreement between Interwind and General Electric Company
Canada, Inc. and (ii) all arrangements by which Interwind obtains
and General Electric of
the XLE Turbines (the ;'Turbine Transaction"); and
storage, maintenance and security of
the Turbine
turbine supply loans made by the HSH Bank Syndicate in
(b) an interim distribution to the HSH Bank Syndicate on the closing of
Transaction on account of
fàvour of
Invenergy.
2 i. On January 12, 20 I 0, the Mon itor sought and obtained a recognition order from the Quebec
the Turbine Transaction Approval and
Superior Court (Commercial Division) in respect of
Vesting Order made by this Honourable Court on Januar 8, 2010 (the "Turbine Approval
Order").
the following:
22. On Januar 15,2010, the Company sought and obtainix approval of
(a) a declaration that enXco has no standing in the within proceedings and is not to be a
the sale to CPY
part thereto, including in respect ofInterwind's motion for approval of
the Company's wind development business;
Canada Development ULC ("CPV") of
(b) an order than any affdavit or other material served or fied by enXco be struck; and
(c) an order that the materials tiled by enXco and any materials fied by lnterwind in
the Court.
response to the enXco materials be sealed pending further order of
23. On January 19,2010, the Monitor sought and obtained the following from the U.S.
Bankruptcy Court:
(a) a recognition order in respect of
the Turbine Approval Order;
(b) an order to seal the confidential portions ofthe purchase agreement with Invenergy and
the interim distribution to the HSH Bank Syndicate; and
the amount of
(c) an order changing the name and caption under Chapter 15 proceedings to reflect
Interwind's name change from SkyPower Corp.
the following:
24. On Januar 19,2010, Interwind sought and obtained approval of
(a) the sale to CPV oflnterwind's Wind Development Business;
4
74
the DIP Lender's Charge created pursuant to
(b) the termination, discharge and release of
paragraph 34 of
(c) an extension of
the Initial Order; and
the stay of
proceedings in respect otlnterwind to and including February
26,2010.
25. On February 12,20 I 0, Interwind sought and obtained from this Honourable Court an Order
Amending the Approval and Vesting Order that approved:
(a) a Second Amendment to the Purchase Agreement (the "Second Amendment") to the
the transaction
CPY Purchase Agreement which allowed for a bifurcated closing of
between Interwind and CPY; and
(b) an amendment to the Approval and Vesting Order previously approved by this
Honourable Court on January 19,20 I O.
The first part of the amended Wind Development Business transaction closed on February \2,
2010.
26. Other relevant information and documentation related to the Company's CCAA proceedings
and its Chapter 15 Proceedings has been posted on the Monitor's website at
www.kpmg.calinterwind (the "Monitor's Website").
PURPOSE OF REPORT
27. The purpose of
this Tenth Report of
the Monitor is to provide this Honourable Court with the
following information:
(a) A status update on the Sales Process;
(b) An update on the remaining assets;
(c) The Company's request for an interim distribution in the amount of USD$8.1 million and
$4.0 millon (in aggregate, approximately $12.6 million) to the HSH Bank Syndicate in
respect of its indebtedness to the HSH Bank Syndicate;
(d) The Company's request for approval ofa claims process regarding potential claims
against the directors and officers of lnterwind, post-fiing claims and certain construction
lien claims;
(e) The Company's request for an extension of the stay of proceedings to March 31, 2010;
(f) The Monitor's request for approval of its Eighth, Ninth and Ninth Supplementary Reports
and its activities therein; and
(g) The Monitor's recommendations to this Honourable Court.
TERMS OF REFERENCE
28. The information contained in this Tenth Report has been obtained from the books and records
and other financial information made available by the Company and is based upon
discussions with, and representations made by, Interwind's management ("Management")
the financial information contained
and its legal counsel. The accuracy and completeness of
5
75
herein has not been audited or otherwise verified by the Monitor or KPMG LLP nor has it
necessarily been prepared in accordance with generally accepted accounting principles and
the reader is cautioned that this report may not disclose all significant matters about the
Company. Accordingly, the Monitor does not express an opinion or any other form of
assurance on the information presented herein. The Monitor reserves the right to refine or
amend its comments and/or findings as further information is obtained or is brought to its
attention subsequent to the date of its Tenth Report.
the
29. Capitalized terms not defined in this Tenth Report are as defined in the Ninth Report of
Monitor and/or as defined in the Initial Order.
30. Unless otherwise noted, all dollar amounts referred to herein are expressed in Canadian dollars.
SALE PROCESS
3 i. As indicated in the Monitor's Second Report the Sale Process and Sale Process Protocol
established by this Honourable Court, effective August 25, 2009 (and as amended by Order
granted November 30 2009), involved a dual sale strategy to be undertaken by the Company
for the sale of its Development Business and the XLE Turbines. To date, six transactions
these transactions have been completed (or
have been approved by the Court and five of
partially completed). The transactions entered into by Interwind and referenced in prior
Monitor reports are summarized as follows:
Date of Court
Interwlnd Asset
Order
Purchaser
Approving Sale
Date Sale
Completed
Nov. 20,2009
Monitor
Report
Reference
1495359 Alberta ULC
Oct. 27, 2009
Digby Wind Project
Assets
3240384 Nova Scotia
Limited
Nov. 18,2009 (*) Dec. 23, 2009
Fourth Report
Fermeuse Assets
Elemental Energy Inc.
Nov. 20, 2009 (*) Dec. 22, 2009
Fourth Report
XLE Turines
Invenergy Turbine L.P.
Jan. 8,2010
Solar Development
Third Report
and Oprating Asse
Wind Development CPV Canada
Jan. 29,2010
Seventh Report
Jan. 19,2010 (n) Feb. 12,2010 Ninth Report
Business. Development ULC
(First closing)
(*) As amended December ZI, 200
(U) As ameodedFebruiiry IZ, 2010.
the Company's Wind Development
Business to CPV closed February 12,2010. Pursuant to the Second Amendment. the CPV
32. As indicated in the table above, the firs part ofihe sale of
Purchase Agreement was amended to, in effect, bifurcate the closing of
the transaction by
conveying all assets to CPV except for a certain wind development project and related assets
currently subject to conditions involving regulatory approval for the assignment/transfer
thereof. The Second Amendment contemplates a subsequent closing (the "Second Closing")
relating to the wind development projects not conveyed as at February 12, 20 I O. It is
expected that the Second Closing wil occur on or before March 3 i. 2010. The overall
6
76
economics or commercial terms of
the CPY Purchase Agreement have not materially
changed as a result ofthe Second Amendment.
33. On February 12,2010, the Company sought and obtained an order that approved the Second
Amendment and amendments to the Approval and Vesting Order obtained on January i 9,
2010 in respect of the CPY Purchase Transaction.
34. The Company continues to work with enXco to resolve certain closing conditions in respect
otthe sale oflnterwind's Non-Turbine Equipment which was approved by this Honourable
Court on December 2 1,2009. A Second Amendment to the Share Purchase Agreement
between enXco and Interwind was entered into on February 14,2010. This amendment,
among other things, extended the "Sunset Date" under the CPY Purchase Agreement to
March 15, 20 10. The Company expects that this transaction wìl be completed by March 15,
2010.
REMAINING ASSETS
35. As the sales process is substantially complete, Interwind is focusing its efforts 011 monetizing
the remaining assets, where possible, that consist primarily of
the following:
(a) 14,284,714 warrants for the purchase of common shares of AAER Inc., a Canadian-
based wind turbine manufacturer (TSX: AAE). The warrants have a strike price of
$0.45, expire on October 4,2012, and are currently valued at less than the strike price;
the CPY transaction;
(b) Recoveries related to the earn-out component of
(c) an estimated USD$ i 7 million in claims against a former Lehman Brothers foreign
exchange/derivatives subsidiary related to certain foreign exchange contracts that
Interwind used to hedge certain US dollar exposures. Interwind has advised that these
claims are trading in the marketplace;
(d) a claim against Lehman Brothers Holdings, Inc. ("Lehman") relating to an Amended
and Restated Equity Contribution Agreement dated as of Februar 22,2009 (the
"Contribution Agreement") among Interwind, Lehman and HSH Nordbank AG, New
the HSH Bank Syndicate. Under the
York Branch, as collateral agent on behalf of
Contribution Agreement, Lehman is required to make cash equity contributions to
rnterwínd under certain conditions and in certain amounts set forth in the Contribution
Agreement. Interwind fied a proof of claim with the United States Bankruptcy
New York on September 21, 2009. The amount of the claim
CourtSouthern District of
has not yet been determined;
(e) a 33% interest in a 72.4 MW hydro project located in Gatu River, Yeraguas, Panama
three hydroelectric generation facilities that remain in development.
Hydrology studies have been completed and environmental approvals are underway;
that consists of
and
(f) shares in a number of subsidiaries that are inactive.
36. Management, in conjunction with the Secured Lenders, are assessing the merits of certain
the Company including
corporate structuring opportunities relating to cerin tax attributes of
non.capital tax losses estimated to be in excess of $100 million which may reflect the net
the sales transactions completed by Interwind to date.
impact of
7
77
CASH FLOW FORECAST
week period from
37. Interwind has prepared a cash flow forecast for the seven and a half
February 8, 20 10 to March 3 I, 2010 (thc "Cash Flow Forecast"). A copy of the Cash Flow
Forecast is attached hereto as Appendix A.
38. The table below summarizes the Cash Flow Forecast:
Cash Flow Forecast
(7 112 weeks)
February 8. 201010
March JI, 2010
CASH FLOW FORECAST
Receipts
SO
Ðisbunements
Salares, wages and benenlS
(289,266)
Corporate Expenses (G&A, Rent. Travel)
(150.456)
GE__XLE Turbine Storage & Maintenance Costs
(37,291)
Protessional Fees
(i ,059,031)
(137,025)
Development Expenses
KERP
(1,757,421)
Pre-Filing Expenses
(95944)
Total Disbursemenls
5(3,526,434)
Nel Cash Flow
$(3,526,434)
Roiirorward or Cash Posilon
Opening Balance
$23,275,020
Total net cash flow
(3,526,434 )
Distrbution to HSH Bank Syndicale
( 12,577,900)
S7,170,6lU
C1Olh12 Cash Balance
39. Significant observations with respect to the Cash Flow Forecast are as follows:
(a) Net sale proceeds related to future closings of sale transactions and recoveries, if any,
related to the remaining assets are not included in the Cash Flow Forecast;
(b) An interim distribution to the HSHBank Syndicate in the amount of USD$8.1 million
and $4miUion is reflected during the week ended February 2 i, 2010, subject to this
Honourable Court's approval. For purposes of
component of the interim
the forecast presentation, the $US
distribution has been reflected in Canadian dollars at an
exchage rate of $1.059;
(c) Payments
related to GEXLE Turbine storage
and
maintenance costs are related to
in the month of Februäry 20 i 0 for the storage and
maintenance of the non-turbine equipment before closing of the sale transaction;
estimated obligations to be incurred
(d) Corprate expenses reflect a reduction in personnel trom prior levels as a result of
c1osingof sale transactions and reduced administrative costs associated with the
relocâtion to smaller premises and the winding-down of activities; and
the
78
(c) The Company has provided for aggregate KERP payments of approximately $1.8
mill ion during the week ended February 14,20 i 0, consistent with the timing of the
the Wind Development Business to CPY. These payments are in
closing of sale of
addition to aggregate KERP payments of $~ i 4,000 made during the week ended January
JI,2010.
THE HSH SECURITY AND THE LEHMAN SECURITY
the
40. In the Monitor's Seventh Report concerning the proposed distribution of a portion of
the Turbine Transaction to the HSH Bank Syndicate, the Monitor reported on the
advice provided to it by Borden Ladner Gervais LLP ("BLG") concerning the security held
by the HSH Bank Syndicate upon the propert of lnterwind (the "HSH Security"). Based on
the advice provided by BLG and information provided to the Monitor by the Company, the
the Turbine
Monitor was advised and concluded that the assets that were the subject of
Transaction (which were located in Ontario, Quebec and Minnesota) were subject to the HSH
those three jurisdictions.
Security and that the security was properly registered in respect of
proceeds of
41. The Monitor has obtained advice from counsel that appropriate registrations have been made
in respect of the HSH Security in Ontario, Quebec, Nova Scotia, Newfoundland and
Labrador, British Columbia, Alberta, Saskatchewan, Manitoba and New Brunswick.
42. The Monitor's counsel has advised that one of the key components of the collateral charged
in favour of HSH Bank Syndicate is collateral referred to in the Third Amended and Restated
Credit Agreement dated Februar 22, 2008 (the "HSH Security Agreement") as "Project
Collateral". Project Collateral is defined as follows:
"Project Collateral" means all wind lease options, leases and other rights to real
Title, Equipment,
propert, wind data Chattel Paper, Contracts, Documents of
Intangibles, Instruments, Inventory, Permits and any other personal propert and
all Proceeds thereof and/or Accounts Receivable due thereunder, together with
them, in each case now owned or
all increases, additions and accessions to any of
hereafter acquired, that in each case comprises or is part of
the Projects,
including any Equity Interests held by the Borrower of any entity fonned or
established to hold or own any such propert; provided, that the "Project
Collateral" (x) shall not include the interests and assets described in Sections
2. i (a)(i) and (iii) and (y)shall exclude (i) any wind turbines, turbine supply
agreements and associated equipment and, other than the amounts described in
Section 2.l(a)(ii),all Proceeds thereof, which the Borrower may finance other
than pursuartto the Advances under the Credit Agreement, (ii) any assets related
any non-wind business,
to businesses such asthe solar business, pump storage, or
to
businesses
ofthe
Borrower
not
located
in Canada, (iii)
or any assets related
corprate
assets and other assets that do not relate solely to the Projects
general
that may have been Project Collateral but that have been
assets
or (iv) any
released in accordance with the terms of this Agreement or the Credit
Agreement;
The term Project Collateral is broad. It includes wind lease options, leases and other rights to
real propert, "Permits" and any other personal propert that in each case "comprises or is
par of the Projects". Projects are defined simply as "wind energy projects in Canada being
by the
Borrower or its Affliates". Thereare anumber of exceptions in the
developed
9
79
definition of Project CollateraL. One of the exceptions excludes "wind turbines, turbine
supply agreements and associated equipment... which the Borrower may finance other than
pursuant to the Advances under the Credit Agreement", That is, the HSH Security is not all
encompassing.
43. Interwind also granted security to Lehman (the "Lehman Security"). BLG has advised the
Monitor thatthe Lehman Security charges all otInterwinds "present and future assets,
undertaking and personal property". BLG has advised the Monitor that the Lehman Security
also expressly charges, amongst other things, accounts, intangibles, inventory and equipment
Act ("OPPSA"). BLG
as those terms are defined in the Ontario Personal Property Security
has advised the Monitor that the breadth of the Lehman security is subject to two exceptions:
(i) the Lehman Security does not apply to collateral subject to the HSH Security and (ii) the
the term ofa lease, and (b) contracts and
Lehman security does not apply to (a) the last day of
public licenses that, if charged by the security, would be in default as a consequence of the
grant of a security interest in them unless and until consent is provided. It is not clear
whether the Lehman Security extends to interests in real property.
44. The Monitor has obtained advice from counsel that appropriate registrations have been made
the Lehman Security in Ontario, Nova Scotia and Newfoundland and Labrador.
in respect of
The Monitor has been advised by counsel that there is a registration against lnterwind in
favour of Lehman under the Manitoba PPSA. The Monitor is in the course of obtaining a
Manitoba opinion in respect of
the Lehman Security.
45. The Monitor understands that Interwind, HSH Bank Syndicate and Lehman are paries to a
subordination agreement. BLG has reviewed the Second Amended and Restated
Subordination Agreement dated April i 5,2009, as between lnterwind, the HSH Bank
Syndicate and Lehman, (the "Subordination Agreement"). BLG has advised the Monitor that
the Subordination Agreement postpones and subordinates Lehman's right to payment to that
of the HSH Bank Syndicate and provides that any recoveries on account ofthe Lehman
Security shall be turned over to the HSH Bank Syndicate in respect of Interwinds obligations
to the HSH Bank Syndicate. The Monitor understands that both the HSH Bank Syndicate
the subordination agreement is attached as
and Lehman agree with that view. A copy of
Appendix B to this report. The Subordination Agreement is governed by New York law.
The Monitor has not engaged New York counsel to review the Subordination Agreement.
46. Subject to the limitations referred to in paragraph 43 of this report, the Monitor has been
the HSH Security, the Lehman Security and
advised by counsel that the combined effect of
charge all of Interwinds personal propert for the benefit
the Subordination Agreement is to
of the HSH Bank Syndicate.
47. In the balance of this section of the report the HSH Security and the Lehman Security are
referred to together as the "Senior Security".
48. The balance ofthe proceeds of sale presently held by Interwind are proceeds from (i) the
Turbine Transaction, (ii) the Wind Development Business transaction (with CPY), (iii) the
Solar transaction (with an affiiate ofCIM), (iv) the Elemental Transaction, and (v) the Emera
transaction.
10
80
Remaining Proceeds of the Turbine Transaction
49. As the Monitor previously reported, based on advice from counsel and information provided
by Interwind, the propert sold to Invenergy as part of the Turbine Transaction was subject to
the HSH Security. Attached as Appendix C is an excerpt from the Monitor's Seventh Report
concerning the HSH Security and the then proposed distribution of a portion of the proceeds
of sale to the HSH Bank Syndicate.
Proceeds of the Wind Development Business Transaction
50. The Monitor and its counsel have not completed their review of the application of
the Senior
Security to the subject matter otthe Wind Development Business transaction.
Proceeds of the Solar, Digby and Fermeuse Transactions
51. The assets sold in the Solar, Elemental and Emera Transactions (the "Three Transactions")
consist of: shares and partnership units, contractual rights, trademarks, intellectual propert
and other intangible assets, real propert (including leases and land options), pennits,
licenses, offce furniture and meteorological towers. With the possible exception of
the assets
partnership units in SunE Sky Ryerse LP, which is a Manitoba partnership, all of
are located in Ontario, Nova Scotia or Newfoundland and Labrador.
52. The Monitor has been advised by counsel that the assets sold in the Three Transactions are
subject to the Senior Security, subject to the following possible exceptions:
(a) to the extent that the assets sold in the Solar transaction constitute interests in real
propert; and
(b) in respect of the Solar transaction, where no consent has been provided, contracts and
public
licenses that, if charged by the security, would be in default as a consequence of
the grant of
the secunty.
the first exception, counsel has noted that the Lehman Security extends to all
"assets, undertaking and personal propert" of Interwind and, accordingly, the Lehman
Security may extend to interests in real propert. The Monitor notes that at least some
the assets sold in the Solar transaction constitute interests in real propert.
portion of
53. In respect of
the second exception, neither the Monitor nor its counsel have undertaken a
review of Interwinds Solar contracts and licenses. However, the Monitor is not aware of any
54. In respect of
contract or license to which the exception would apply.
Notice
55. The Monitor understands that the Company has given notice of the Three Transactions, the
Turbine Transaction and the Wind Development Business transaction to all persons with
registrations against Interwind or "SkyPower Corp." listed in the Ontario PPSA Registry and
its equivalent in each applicable jurisdiction.
56. In addition to the HSH Bank Syndicate and Lehman, the following persons have PPSA or
similar registrations in Minnesota, Ontano, Quebec, Newfoundland and Labrador, Nova
11
81
Scotia and Manitoba: RJS Mechanical Inc., Wells fargo Bank, N.A., Nissan Canada Inc,
Nissan Canada Finance Inc., Xerox Canada Ltd., Transportction Lease Systems Inc., CBSC
Capital, Fenneuse Wind Power Corp., WestLB AG, and NordOeutsche Landesbank
Girozentrale.
INTERIM DISTRIBUTION TO HSH BANK SYNDICATE
57. As at February 8, 20 I 0, the Company's cash position was approximately $23.3 million. The
Company's Cash Flow Forecast indicates that an estimated $3.5 millon will be required to
continue to fund its obligations (including the KERP payment of $1.8 million) from Februar
8 to March 31,2010.
58. Interwind is seeking approval of an interim distribution to the HSH Bank Syndicate of
USO$8. I milion plus $4.0 million (approximately $ I 2.6 million) in respect of its
indebtedness to the I-ISH Bank Syndicate.
59. Interwind's assets are subject to a number of possible priority claims that in aggregate should
not exceed $8 millon. This includes construction lien claims, in the aggregate amount of not
more than $1.6 million, asserted by Golder ($ 1 ,079,243. 13 plus costs), JW Stantec
($315,000) and Terrain Group ($53,000). The other priority claims are the Administration
Charge, the D&O Charge, the KERP Charge and the Marathon Charge.
the proposed interim distribution to the
HSH Bank Syndicate as well as the estimated costs to March 31, 20 i 0, the Company will
have sufficient cash on hand and other realizable assets to address all Court ordered charges
and the remaining costs of administration of
the Company's CCAA proceedings including the
60. The Monitor is ofthe view that after the payment of
administration of
the proposed claims process discussed below.
CLAIMS PROCESS
61. The Company is seeking this Honourable Court's approval of a call for claims (the "Claims
Process") to ascertain any claims that may exist as against the Directors and Offcers of
Interwind ("D&O Claims"), any claims that may exist related to the post-fiing period (i.e. on
or after August 12,2009) ("Post-Filíng Claims") and certain construction lien claims of
Terrain Group, JW Stantec and Golder (the "Construction Lien Claims").
the Claims Process is to quantifY the 0&0 Claims thaI may exist with a
view to ultimately releasing the Directors' Charge in the amount of $1,250,000 against the
Propert ofInterwind. The Directors' Charge was granted by the Court as security for the
indemnity provided in
paragraph 19 ofthe Initial Order.
62. One objective of
63. The Claims Process wíU also identiryany Post-Filing Claims and the Construction Lien
Claims that may be outstånding against Interwind and wil help ensure that the Company has
funded allof its obligations incurred during the post-filing period and to identitY any priority
the Construction Lien Claims, if
orderly cOinpletion
of
fied and ifvalid, may have, and as such provide for the
the administration oflnterwinds CCAA proceedings.
64. As set out in the Affdavit of Mr. David Bacon of lnterwind sworn February 1 0,20 I 0, and in
the draft Claims Process Order included in Interwinds Motion Record, the Claims Process
contemplates the following, inter alia:
12
82
(a) A call for D&O Claims and Post-Filing Claims with a claims bar date of March 19,
2010;
(b) A call for the Construction Lien Claims with a claims bar date of March S, 20 I 0;
(c) The publ ication by the Monitor of a publ ic notice of the Claims Process in both The
Globe and Mail (National Edition) and La Presse for a period of2 business days;
(d) The dispatch by the Monitor of a claims package to specified parties, including known
creditors, relevant taxing authorities and those paries included on the Service List;
(e) A review by the Monitor, with the Company's assistance, of each proof of claim
received by the respective claims bar dates for the purpose of accepting, revising or
disallowing the amount claimed in each proof of claim by March 26, 2010, in the case of
a 0&0 Claim or a Post-Filing Claim, and by March i 2,20 i 0 in the case of a
Construction Lien Claim;
(t) An opportunity for claimants to dispute any revision or disallowance of
their claim
within 10 business days of receipt of any notice by the Monitor of revision or
disallowance;
(g) Consultation with the Secured Lenders, the Directors and Offcers and Interwind in
respect of certain claimed amounts; and
(h) Service of a motion by Interwind or the Monitor by April 16, 2010, for a determination
of all unresolved, disputed claims.
65. It is conceivable that the Claims Process may not be completed before the expiry of
the Stay
being requested by Interwind. The claims bar date is March 5, 2010 and March i 9, 20 i 0 for
the Constrction Lien Claims and for the D&O Claims and Post-Filing Claims, respectively.
there are claims fied that are disputed, their ultimate resolution may not occur
However, if
until after March 31, 20 i O.
EXTENSION OF TH STAY PERIOD
66. An extension otthe Stay to March 3 i, 2010 will allow Interwind to complete the transaction
with respect to the Non-Turbine Assets and the Second Closing of the CPV Purchase
Transaction. It wíl also give Interwind time to deal with the disposition of its remaining
assets and to administer the Claims Process.
67. The Monitor is of
the view
that the Company has acted, and is acting, in good faith and with
due diligence. The Monitor is also of
the view that the proposed extension of
the Stay ís
appropriateand necessary in the circumstances.
MONITOR'S RECOMMENDATIONS
68. The Monitor recommends approval of
the following:
(a) An interim distribution in the amount of USD $8. i million and $4.0 million to the HSH
Bank Syndicate in respect of Interwind's indebtedness to the HSH Bank Syndicate;
13
83
(b) the Claims Process relating to potential D&O Claims, Post-Filing Claims and
Construction Lien Claims; and
(c) an extension of
the stay of proceedings in respect ot!nterwind to March 31,20 10.
69. The Monitor respectfuJly requests that this Honourable Court also approve its Eighth, Ninth
and Ninth Supplementary Reports and its activities as set out therein.
**** ** ******* * *** * **
All of which is respectfully submitted to this Honourable Court at Toronto, Ontario this 17th day
of
February, 2010.
KPMG INC., in its capacity as
Monitor of Interwind Corp.
w~
Jenny Poulos
Vice-President
14
84
Appendix F
The Order dated February 12lh, 2010 amending the Approval and Vesting Order dated
January 19th, 2010
85
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ONTARIO
SUPERIOR COURT OF ,JUSTICE
(COMMERCIAL LIST)
THE HONOURABLE MR.
)
FRIDAY, THE 1211i
JUSTICE MORA WETZ
)
)
DAY OF FEBRUARY, 2010
IN THE MATTER OF THE COMPANIES' CREDITORS
ARRANGEMENTACT, R.S.C.1985, c. C-36, AS AMENDED
AND IN THE MATTER OF A PLAN OF COMPROMISE OR
ARRANGEMENT OF INTERWIND CORP.
ORDER AMENDING APPROVAL AND VESTING ORDER
THIS MOTION, made by Interwind Corp. (formerly known as SkyPower Corp.) (the
"Debtor"), pursuant to the Companies' O'editors Arrangement Act, R.S,C. 1985, c. C-36, as
amended (the "CCAA") was heard this day at 330 University Avenue, Toronto, Ontario,
ON HEARING the submissions of counsel for the Debtor, KPMG Inc., as monitor
(the "Monitor"), and Cry Canada Development ULC,
1. THIS COURT ORDERS that, unless othcrwise defined, all capitalizcd terms herein
shall have the meaning given to such terms in the Approval and Yestíng Order ofthis Court
dated January 19,2010 (the "Approval and Vesting Order").
2. THIS COURT ORDERS AND DECLARES that service of this motion is hereby
declared to be good and suttcient and no other person is required to have been served with
notice of
this motion,
86
-2.,
3. THIS COURT ORDERS that the Second Amendment to the Purchase Agreement
(the "Second Amendment") and the Transaction, as amended by the Second Amendment, be
and are hereby approved. The execution of the Second Amendment by the Debtor is hereby
authorized and approved, and the Debtor is hereby authorized and directed to take such
additional stcps and execute such additional documents as may be necessary or dcsirable for
the completion of the Transaction, as amended by Second Amendment, and for the
conveyance of the Purchased Assets to the Purchaser as contemplated herein.
4. THIS COURT ORDERS that Schedule "B-1" attached hereto forms a Schedule to
the Approval and Vesting Order.
5. THIS COURT ORDERS that Schedule "B" to the Approval and Vesting Order be
amended as follows:
(a) by changing the number of Meterological Towers listed under "Wind-Projects-
Byran 1" from 3 to 9;
(b) by changing the riumber of MET Towers listed under "Robert Hills - Robert
Hills i" from 1 to 2; and
(c) by changing the number of Met Towers listed under "Robert Hils - Robert
Hills 2" from 1 to 2.
6. THIS COURT ORDERS that thc last sentence of the first paragraph of the Approval
and Vesting Order be and is hereby deleted in its entirety and replaced with the following:
For purposes of this Approval and Vesting Order, "Purchaser"
shall mean either CPV Canada Development ULe or any
subsidiary or affliate of CPV CanadcrDevelupment ULC to
whom CPV Canada Development ULC has assigned any or all
of its rights and/or obligations under the Purchase Agreement
prior to the completion of the Purchase of the Initial Closing
Purchased Assets or the Second Closing Purchased Assets, as
the case lTay be, or to whom CPV Canada Development ULC
has directed in writing, prior to the completion of the purchase
of the Initial Closing Purchased Assets or the Second Closing
Purchased Assets, as the case may be, that title to such
purchased assets be transferred upon such closing, in any event
87
-3.
in accordance with the provisions of Section 11.8 of the
Purchase Agreement.
7. TI-IS COURT ORDERS that paragraph 3 of
the Approval and Vesting Order, be and
is hereby deleted in its entirety and replaced with the following:
THIS COURT ORDERS AND DECLARES that:
(a) upon delivery of a Monitor's certificate to the Purchaser
substantially in the form attached as Schedule "A"
hereto in connection with the Initial Closing Purchased
Assets (the "Monitor's First Certificate"), the
Purchased Assets descri bed in the Purchase Agreement
and listed on Schedule "B" hereto, other than those
assets listed in Schedule "8-1" hereto (the "Initial
Closing Purchased Assets"); and
(b) upon delivery of a Monitor's certificate to the Purchaser
substantially in the form attached as Schedule "A"
hereto in connection with the Second Closing Purchased
Assets (the "Monitor's Second Certificate"), such of
the Purchased Assets listed in Schedule "B-1" hereto as
the parties have agreed form part of the Transaction and
as are listed in an Appendix to the Monitor's Second
Certificate (the "Second Closing Purchased Assets"),
shall vest in and, in the Province of Quebec, be transfcrred to
the Purchaser absolutely, free and clear of and from any and all
rights, titles, interests, security intercsts (whether contractual,
statutory or otherwise), liens, hypothecs, hypothecations, rights
of accession, mortgages, charges, pledges, assignments, estates,
trusts or deemed trusts (whether contractual, statutory or
otherwise), judgments, agreements, executions, writs of seizure
and sale, options, disputes, debts, liabilities (whether direct,
indirect, absolute or contingent), taxes, executions, levies or
other encumbrances or claims of any kind or nature, whether or
not they have attached or been perfected, registered or fied and
whether secured, unsecured or otherwise, and whether
liquidated or contingent (collectively, the "Claims"), and in the
case of each of the subsidiaries or partnerships owned, directly
or indirectly, by the Debtor the shares or partnership units of
which are being acquired by the Purchaser as part of the Initial
Closing Purchased Assets or the Second Closing Purchased
Assets (the "Acquired Entities"), as the case may be, free and
the assets of
any Acquired Entity, whether any such Claims came into
clear of and from any and all Claims against any of
88
-4,'
existence prior to, subsequent to or as a result of any Order of
the Ontario Superior Court of Justice in these proceedings,
including without limiting the generality of the foregoing, (i)
any encumbrances or charges created by any Order or Orders of
the Ontario Superior Court of Justice in these proceedings, (ii)
all charges, security interests or claims evidenced by
registrations pursuant to the Personal Property Security Act
(Ontario) or any other personal property registry system,
registered, recorded or filed against the Debtor or against any
Acquired Entity, (iii) the Claims, if any, of any goveriunental
authority, whether federal, provincial, regional or municipal, for
any remittance or payment on account of any tax (including
without limitation any income, sales, goods and services and
property tax), assessment, levy or other statutory remittance
payable by the Debtor or by any of the Acquired Entities, or in
respect of any amounts withheld by the Debtor or by any of the
Acquired Entities from its employees, and (iv) those Claims
listed on Schedule C hereto (al1 of which are collectively
referred to as the "Encumbrances") and, for greater certainty,
this Court orders that all of the Encumbrances affecting or
relating to the Initial Closing Purchased Assets and Second
Closing Purchased Assets be and are hereby expunged and
discharged as against the Initial Closing Purchased Assets and
Second Closing Purchased Assets, provided that the term
"Claims" and the term "Encumbrances" as used herein shall not
include any "Permitted Encumbra11es" as such term is defined
in the Purchase Agreement.
8. THIS COURT ORDERS that
paragraph 4 of
the Approval and Vesting Order be and
is hereby deleted in its entirety and replaced with the following
THIS COURT ORDERS that for the purposes of determining
the nature and priority of the Claims, the net proceeds from the
sale of the Initial Closing Purchased Assets shall stand in the
place and stead
of the Initial Closing Purchased Assets and the
net proceeds of the Second Closing Purchased Assets shall
stand in the place and stead of the Second Closing Purchased
Assets, and that from and after:
(a) the delivery of the Monitor's First Certificate to the
Purchaser, all Claims and Encumbrances shall attach to
the net proceeds from the sale of the Initial Closing
Purchased Assets; and
(b) the delivery of the Monitor's Second Certificate to the
Purchaser, all Claims and Encumbrances shall attach to
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the net proceeds from the sale of the Second Closing
Purchased Assets,
with the same priority as they had with respect to the applicable
Purchased Assets immediately prior to the sale, as if the such
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 applicable sale.
9. THIS COURT ORDERS that paragraph 5 ofthc Approval and Vesting Order be and
is hereby deleted in its entirety and replaced with the following:
TI-:IS COURT ORDERS AND DIRECTS the Monitor to fie
with the Court a copy of the Monitor's First Certificate
forthwith after the delivery thereof to the Purchaser, and a copy
of the Monitor's Second Certificate forthwith after the delivery
thereof
to the Purchaser.
10. THIS COURT ORDERS that the following provisions of the Second Amendment be
and they are hereby sealed pending further Order of the Court: the amount shown in 8(a), the
amount shown in 8(b), 8(d), and thc amounts shown in 8(t).
II. 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 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 offcer 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.
90
-6. ,.
12. THIS COURT ORDERS that each of
the Applicant and the Monitor be at liberty and
are 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,
.&i~-ji
ENTERED AT IINSCRIT Å TORONTO
BOOK NO:
LE I DANS lE REGISTRE NO.:
ON I
FEB 1 2 2010
PEfl i PAR; USrJoanne Nicoara
R//ii/øtrar, SlIpørjor Ciiurt 0' JustIce
91
Appendix G
The Second Order dated March 25th, 2010 amending the Approval and Vesting Order
dated J anuary 19th, 2010
~2
Court File No. 09-8321-00CL
ONTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
THE HONOURABLE MR.
)
)
THURSDA Y, THE 251h
JUSTICE MORA WETZ
)
DAY OF MARCH, 2010
IN THE MATTER OF THE COMPANIES' CREDITORS
ARRANGEMENT ACT, RS.C. 1985, c. C-36, AS AMENDED
AND IN THE MATTER OF A PLAN OF COMPROMISE OR
ARRNGEMENT OF INTERWIND CORP.
SECOND ORDER AMENDING APPROVAL AND VESTING ORDER
THIS MOTION, made by Interwind Corp. (formerly known as SkyPower Corp.) (the
"Debtor"), pursuant to the Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, as
amended (the "CCAA") was heard this day at 330 University Avenue, Toronto, Ontario.
ON HEARING the submissions of counsel for the Debtor, KPMG Inc., as monitor
(the "Monitor"), and CPV Canada Development ULC and CPV Canada Energy LP, and
reading the Aftìdavit of Derek Bulas sworn March 25, 2010 (the "Bulas Affdavit"),
1. THIS COURT ORDERS that, unless otherwise de1ìned, all capitalized terms herein
shall have the meaning given to such terms in thc Approval and Vesting Order of this Court
dated January 19,2010, as amended by an Order Amending Approval and Vesting Order of
this Court dated Februar 12,2010.
2. THIS COURT ORDERS AND DECLARES that service of this motion is hereby
declared to be good and suffcient and no other person is required to have been served with
notice of
this motion.
93
-2-
3. THIS COURT ORDERS that the Third Amendment to the Purchase Agreement
attached as Exhibit "A" to the Bulas Affidavit (the "Third Amendment") and the
Transaction, as amended by the Third Amendment, be and are hereby approved. The
execution of the Third Amendment by the Debtor is hereby authorized and approved, and the
Debtor is 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,
as amended by Third Amendment, and for the conveyance of the Purchased Assets to the
Purchaser as contemplated therein.
4. THIS COURT ORDERS that the following provisions of the Third Amendment be
and they are hereby sealed pending further Order of the Cour: (i) the amounts shown in 2(b);
(li) the amounts shown in 2( c); and (ii) the amounts shown in 2( d).
5. 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 Banuptcy Court fqr the District of Dclaware,
to give effect to this Order and assist the Debtor, 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 Debtor and 10 the Monitor, as an offcer 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 Debtor and the Monitor and their respective agents in carrying out
the terms of
this Order.
6. THIS COURT ORDERS that each of the Debtor and the Monitor be at liberty and
are hereby authorized and empowered to apply to any court, tribunal, regulatory or
administrative body, wherever located, including, without limitation, the United States
Banuptcy Court for the District of Delaware, for the recognition of this Order and for
assistance in carrying out the terms of this Order.
¡~¡\TEr1l:D I\T liNSeI'm À ToriONTO
ON i BOOI( NO:
L(~ I DANS LE rlEGISTFIE NO.:
MAR Z 5 2010
PEA/PAR~
7g2~j
\5829296
AN IN THE MATTER OF A PLA OF COl\lPROMISE OR ARGEMENT OF INERWI CORP.
Counel to Interwind Corp.
Fax: 416-979-1234
Tel: 416-979-2211
Jason Wadden (LSUC# 46757M)
Fred Myers (LSUC#263l OA)
Robert Chadwick (LSUC# 35165K)
Barsters & Solicitors
Bay Adelaide Centre
333 Bay Street, Suite 3400
Toronto, Ontao M5H 2S7
Goodmans LLP
ORDER
Proceeding commenced at Toronto
(COMMRCIA LIST)
ONTARO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF TH COMPANIES' CREDITORS ARGEMENT ACT, R.S.C.1985, C. C~36, AS AMNDED
Court File No.: 09-8321-00CL
-.
~
\5872068
AND IN THE MATTER OF A PLAN OF COMPROMISE OR ARNGEMENT OF INTERWIN CORP.
AMENDED
IN TH MATTER OF THE COMPANIES' CREDITORS ARRNGEMENT ACT, R.S.C. 1985, C. C-36, AS
Lawyers for the Receiver ofInterwind Corp.
Tel: 416.979.2211
Fax: 416.979.1234
Joe Cosentino (LSUC #394050)
Fred Myers (LSUC #2631 OA)
Robert Chadwick (LSUC #35165K)
Baristers & Solicitors
Bay Adelaide Centre
333 Bay Street, Suite 3400
Toronto, Ontario M5H 2S7
Goodmans LLP
(Returnable August 9, 2010)
MOTION RECORD
Proceeding commenced at Toronto
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
ONTARIO
Court File No.: 09-8321-00CL