Court File No. 32-1763935 Court File No. SUPERIOR COURT OF JUSTICE

Court File No. 32-1763935
Court File No. 32-1763929
Court File No. 32-1764011
ONTARIO
SUPERIOR COURT OF JUSTICE
IN BANKRUPTCY AND INSOLVENCY
IN THE MATTER OF THE NOTICE OF INTENTION TO MAKE
A PROPOSAL OF COMSTOCK CANADA LTD.
AND IN THE MATTER OF THE NOTICE OF INTENTION TO
MAKE A PROPOSAL OF CCL REALTY INC.
AND IN THE MATTER OF THE NOTICE OF INTENTION TO
MAKE A PROPOSAL OF CCL EQUITIES INC.
MOTION RECORD
(Returnable July 9, 2013)
GOWLING LAFLEUR HENDERSON LLP
Barristers and Solicitors
1 First Canadian Place
100 King Street West, Suite 1600
TORONTO, Ontario
M5X 1G5
Alex MacFarlane / Frank Lamie
LSUC No.: 28133Q / 54035S
Telephone: (416) 369-4631 / (416) 862-3609
Facsimile: (416) 862-7661
Lawyers for Comstock Canada Ltd., CCL
Realty Inc., and CCL Equities Inc.
TO:
CHAITONS LLP
500 Yonge Street
10th Floor
Toronto, Ontario, Canada
M2N 7E9
Attention: Harvey Chaiton
Tel: (416) 218-1129
Fax: (416) 218-1849
E-mail: [email protected]
Lawyers for Bank of Montreal
AND TO:
PRICEWATERHOUSE COOPERS INC.
PwC Tower
18 York Street
Suite 2600
Toronto, Ontario, Canada
M5J 0B2
Attention: Paul Van Eyk / Duncan Lau / Pritesh Patel
Tel: (416) 687-8122
E-mail: [email protected] / [email protected] /
[email protected]
Proposal Trustee of Comstock Canada Ltd.
AND TO:
DAVIES WARD PHILLIPS & VINEBERG LLP
155 Wellington Street West
40th Floor
Toronto, ON M5V 3J7
Attention: Robin Schwill
Tel: (416) 863-5502
E-mail: [email protected]
Counsel to PricewaterhouseCoopers Inc. in its capacity as Proposal Trustee of
Comstock Canada Ltd.
AND TO:
BULL, HOUSSER & TUPPER LLP
3000 Royal Centre
1055 West Georgia Street
Vancouver, British Columbia
V6E 3R3
Attention: Jane Milton / Kieran Siddall
Tel: (604) 687-6575
Fax: (604) 641-4949
E-mail: [email protected] / [email protected]
Counsel to Rio Tinto Alcan Inc.
INDEX
1
Notice of Motion
A
Draft Initial Order
B
Draft Discharge Order
2
Affidavit of Geoffrey W. Birkbeck, sworn July 9, 2013
A
Exhibit “A”: Corporation Profile Report in respect of Comstock Canada Ltd.
B
Exhibit “B”: Corporation Profile Report in respect of CCL Realty Inc.
C
Exhibit “C”: Corporation Profile Report in respect of CCL Equities Inc.
D
Exhibit “D”: Credit Agreement dated July 29, 2011
E
Exhibit “E”: Ontario Personal Property Security Registration System Certificate
in respect of Comstock Group
F
Exhibit “F”: Manitoba Property Registry System Certificates in respect of the
Comstock Group
G
Exhibit “G”: Alberta Property Registry Search System Certificates
H
Exhibit “H”: British Columbia Property Registry Search System Certificates
I
Exhibit “I”: List of Unions
J
Confidential Exhibit “J”: Cash Flow Forecast (July 1, 2013 – March 31, 2014)
K
Exhibit “K”: Certificate of Filing of NOI in respect of Comstock Canada Ltd.
L
Exhibit “L”: Certificate of Filing of NOI in respect of CCL Realty Inc.
M
Exhibit “M”: Certificate of Filing of NOI in respect of CCL Equities Inc.
N
Exhibit “N”: Term Sheet
O
Exhibit “O”: Order of the Honourable Mr. Justice Morawetz dated July 3, 2013
P
Exhibit “P”:
Q
Exhibit “Q”: Cost Reimbursement Agreement
R
Exhibit “R”: Consent to Act of PwC
S
Exhibit “S”: 13 Week Cash Flow Forecast
Endorsement of Justice Morawetz dated July 3, 2013
TAB 1
1
Court File No. 32-1763935
Court File No. 32-1763929
Court File No. 32-1764011
ONTARIO
SUPERIOR COURT OF JUSTICE
IN BANKRUPTCY AND INSOLVENCY
IN THE MATTER OF THE NOTICE OF INTENTION TO MAKE
A PROPOSAL OF COMSTOCK CANADA LTD.
AND IN THE MATTER OF THE NOTICE OF INTENTION TO
MAKE A PROPOSAL OF CCL REALTY INC.
AND IN THE MATTER OF THE NOTICE OF INTENTION TO
MAKE A PROPOSAL OF CCL EQUITIES INC.
NOTICE OF MOTION
(Returnable July 9, 2013)
COMSTOCK CANADA LTD. (“Comstock”), CCL REALTY INC. (“CCL Realty”), and
CCL EQUITIES INC. (“CCL Equities” and together with Comstock and CCL Realty, the “Comstock
Group”) will make a motion to a Judge of the Commercial List on Tuesday, July 9, 2013 at 10:00 a.m.,
or as soon thereafter as the motion can be heard, at the Courthouse located at 330 University Avenue,
Toronto, Ontario, Canada.
PROPOSED METHOD OF HEARING: The motion is to be heard orally.
1.
THE MOTION IS FOR an Initial Order and a Discharge Order, substantially in the form
attached hereto as Schedules “A” and “B”, inter alia:
(a)
Abridging the time for service of the Notice of Motion and Motion Record, if
necessary, and declaring that this motion is properly returnable on Tuesday, July 9,
2013, and dispensing with further service thereof;
(b)
Continuing the Comstock Group’s restructuring proceedings under the Companies’
Creditors Arrangement Act, R.S.C. 1985, c. C-36, as amended (the “CCAA”) effective
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Monday, July 8, 2013, and granting an Initial Order under the CCAA, including a stay
of proceedings;
(c)
Declaring that upon the continuance of this proceeding under the CCAA the BIA
proposal provisions shall have no further application to the Comstock Group;
(d)
Declaring that the Comstock Group are parties to which the CCAA applies;
(e)
Appointing PricewaterhouseCoopers Inc. (“PwC” or the “Monitor”) as Monitor and
Officer of this Honourable Court to monitor the assets, businesses, and affairs of the
Comstock Group;
(f)
staying all proceedings taken or that might be taken in respect of the Comstock Group
and staying all proceedings taken or that might be taken in respect of such agreements
or in respect of obligations, claims, or liabilities affecting the Comstock Group;
(g)
staying all proceedings taken or that might be taken in respect of any of the current,
former or future Directors or Officers of the Comstock Group;
(h)
authorizing the Comstock Group to file with this Court a plan of compromise and
arrangement (the "Plan");
(i)
authorizing the Comstock Group to pay certain expenses incurred prior to, on or after
the date of the Initial Order, subject to the provisions of the Initial Order;
(j)
sealing certain confidential information referred to in the Affidavit of Geoffrey W.
Birkbeck sworn July 9, 2013 (the "Birkbeck Affidavit" ) and the unaudited financial
statements to be provided to the Court at the return of the hearing (the “Financial
Statements”);
(k)
approving the Cost Reimbursement Agreement (the “CRA”) made between Comstock
and Rio Tinto Alcan Inc. and the Comstock Group’s execution thereof and the sealing
thereof;
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(l)
approving the a Commitment Letter made between the DIP Lender and the Comstock
Group;
(m)
granting the following charges over the assets and property of the Comstock Group,
with relative priorities as set out below:
(n)
(i)
a charge in favour of the Monitor, counsel to the Monitor, counsel to the
Comstock Group, and counsel to the Comstock Group's sole Director (in a
maximum amount to be agreed by the Comstock Group, the Monitor, and the
Lender), such charge to be in a maximum amount of $1 million, subject to
further Order of the Court;
(ii)
a charge in favour of the DIP Lender (defined below);
(iii)
a charge in favour of the Directors and Officers of the Comstock Group, to a
maximum amount of $[4.6 million];
discharging PwC in its capacity as Interim Receiver (in such capacity, the “Interim
Receiver”) appointed for a limited and specific purpose pursuant to the Order of the
Honourable Mr. Justice Morawetz dated July 3, 2013; and
(o)
2.
such further and other relief as this Honourable Court deems just and/or equitable.
THE GROUNDS FOR THE MOTION ARE:
(a)
The Comstock Group is insolvent;
(b)
The Comstock Group is a company to which the CCAA applies;
(c)
the Comstock Group is a borrower or principal obligor in respect of secured debt
obligations pursuant to a secured credit facility provided pursuant to a Credit
Agreement dated July 29, 2011, as amended (the “Credit Agreement”) among the
Comstock Group, as borrower, and Bank of Montreal as lender (“BMO” or the
"Lender");
(d)
the Comstock Group is in default of certain financial and other covenants under the
Credit Agreement;
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(e)
the Comstock Group considered various alternatives to address its liquidity constraints
and capital structure;
(f)
On Thursday, June 27, 2013, Chrysler Canada locked the Comstock Group out of a
customer facility;
(g)
On Friday, June 28, 2013, the Comstock Group filed Notices of Intention to Make a
Proposal pursuant to the BIA and appointed PwC as the Proposal Trustee in respect of
the proposal proceedings;
(h)
On Wednesday, July 3, 2013, the Honourable Mr. Justice Morawetz issued an Order,
inter alia, appointing PwC as Interim Receiver for the limited and specific purpose of
ensuring Comstock’s payroll was funded by July 4, 2013 and granting the Interim
Receiver a priority charge, including in priority to construction lien and trust claimants,
pursuant to the Interim Receiver’s Borrowings Charge under the Order;
(i)
the Comstock Group requires a stay of proceedings to protect their assets, property and
business as the Comstock Group pursues the restructuring;
(j)
the protection sought will provide the Comstock Group with an orderly and effective
forum for addressing the various matters arising in connection with its restructuring
including its pursuit of a Sales and Solicitation Process in respect of its property and
assets;
(k)
Pursuant to a Commitment Letter dated July 9, 2013, BMO (the “DIP Lender”) has
agreed to advance DIP Financing in respect of the Comstock Group;
(l)
Burlington, Ontario is the Comstock Group's home jurisdiction and the nerve centre of
the Comstock Group's management, business, and operations;
(m)
the circumstances that exist make the Order sought by the Comstock Group
appropriate;
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(n)
PwC has agreed to be appointed as the Monitor of the Comstock Group, pending
approval of this Honourable Court;
(o)
The Financial Statements and the CRA contain confidential and commercially sensitive
information the disclosure of which could prejudice the proposed CCAA proceedings
and certain other parties;
(p)
such further and other grounds as set out in the Birkbeck Affidavit;
(q)
the provisions of the CCAA and this Honourable Court's equitable and statutory
jurisdiction thereunder;
(r)
Rules 1.04, 2.03, 3.02, 14.05(2) and 16 of the Ontario Rules of Civil Procedure, R.R.O.
1990, Reg. 194, as amended;
(s)
Rule 137(2) of the Ontario Courts of Justice Act, RSO 1990, c C.43; and
(t)
such further and other grounds as counsel may advise and this Honourable Court may
permit.
3.
THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the
Motion: x
(a)
the Affidavit of Geoffrey W. Birkbeck, sworn July 9, 2013;
(b)
the Supplemental Affidavit of Geoffrey W. Birkbeck, sworn July 9, 2013;
(c)
the Consent of PwC to act as Monitor;
(d)
the Report of PwC in its capacity as Proposal Trustee and proposed Monitor of the
Comstock Group; and
(e)
Such further material as counsel may advise and this Honourable Court may permit.
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Date: July 9, 2013
GOWLING LAFLEUR HENDERSON LLP
Barrister and Solicitors
Suite 1600, First Canadian Place
100 King Street West
Toronto, ON M5X 1G5
Alex MacFarlane / Frank Lamie
LSUC No.: 28133Q / 54035S
Tel: (416) 369-4631/ (416) 862-3609
Fax: (416) 862-7661
Lawyers for the Comstock Group, Comstock Canada
Ltd., CCL Realty Inc., and CCL Equities Inc.
TAB A
8
Schedule “A”
Court File No. _______________
ONTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
THE HONOURABLE MR.
JUSTICE MORAWETZ
)
)
)
TUESDAY, THE 9th
DAY OF JULY, 2013
IN THE MATTER OF THE COMPANIES' CREDITORS
ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED
AND IN THE MATTER OF A PLAN OF COMPROMISE OR
ARRANGEMENT OF COMSTOCK CANADA LTD., CCL
EQUITIES INC., AND COMSTOCK REALTY INC.
Applicants
INITIAL ORDER
THIS MOTION, made by Comstock Canada Ltd. (“Comstock”), CCL Realty Inc.
(“CCL Realty”), and CCL Equities Inc. (“CCL Equities” and together with Comstock and
CCL Realty, the “Applicants” or the “Comstock Group”), 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 READING the Affidavit of Geoffrey W. Birkbeck sworn July 9, 2013 (the
“Birkbeck Affidavit”) and the Exhibits thereto, and on being advised that the secured creditors
who are likely to be affected by the charges created herein were given notice, and on hearing the
submissions of counsel for Applicants, counsel for Bank of Montreal (“BMO”) , counsel for Rio
Tinto Alcan Inc. (“RTAI”)and those other parties listed on the Counsel Slip, no one appearing
for any other person although duly served as appears from the Affidavit of Service of [NAME]
sworn July 9, 2013 and on reading the consent of PricewaterhouseCoopers Inc. (“PwC”) to act
as the Monitor (in such capacity, the “Monitor”),
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SERVICE
1.
THIS COURT ORDERS that the time for service of the Notice of Application and the
Application Record is hereby abridged and validated so that this Application is properly
returnable today and hereby dispenses with further service thereof.
CONTINUANCE UNDER THE CCAA
2.
THIS COURT ORDERS AND DECLARES that the Applicants are companies to
which the CCAA applies.
3.
THIS COURT ORDERS AND DECLARES that effective July 9, 2013, the Comstock
Group’s proposal proceedings (the “Proposal Proceedings”) commenced under Part III of the
Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended (the “BIA”) is hereby taken
and continued under the CCAA and that as of such date, the provisions of Part III of the BIA
shall have no further application to the Comstock Group.
PLAN OF ARRANGEMENT
4.
THIS COURT ORDERS that the Applicants shall have the authority to file and may,
subject to further order of this Court, file with this Court a plan of compromise or arrangement
(hereinafter referred to as the "Plan").
POSSESSION OF PROPERTY AND OPERATIONS
5.
THIS COURT ORDERS that the Applicants shall remain in possession and control of
its current and future assets, undertakings and properties of every nature and kind whatsoever,
and wherever situate including all proceeds thereof (the "Property"). Subject to further Order
of this Court, the Applicants shall continue to carry on business in a manner consistent with the
preservation of its business (the "Business") and Property. The Applicants shall be authorized
and empowered to continue to retain and employ the employees, consultants, agents, experts,
accountants, counsel and such other persons (collectively "Assistants") currently retained or
employed by it, with liberty to retain such further Assistants as it deems reasonably necessary or
desirable in the ordinary course of business or for the carrying out of the terms of this Order.
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6.
THIS COURT ORDERS that the Applicants shall be entitled but not required to pay the
following expenses whether incurred prior to or after this Order:
(a)
all outstanding and future wages, salaries, employee and pension benefits, vacation
pay and expenses payable on or after the date of this Order, in each case incurred in
the ordinary course of business and consistent with existing compensation policies
and arrangements; and
(b)
the fees and disbursements of any Assistants retained or employed by the Applicants
in respect of these proceedings, at their standard rates and charges.
7.
THIS COURT ORDERS that, except as otherwise provided to the contrary herein, the
Applicants shall be entitled but not required to pay all reasonable expenses incurred by the
Applicants in carrying on the Business in the ordinary course after this Order, and in carrying out
the provisions of this Order, which expenses shall include, without limitation:
(a)
all expenses and capital expenditures reasonably necessary for the preservation of the
Property or the Business including, without limitation, payments on account of
insurance (including directors and officers insurance), maintenance and security
services; and
(b)
payment for goods or services actually supplied to the Applicants following the date
of this Order.
8.
THIS COURT ORDERS that the Applicants shall remit, in accordance with legal
requirements, or pay:
(a)
any statutory deemed trust amounts in favour of the Crown in right of Canada or of
any Province thereof or any other taxation authority which are required to be
deducted from employees' wages, including, without limitation, amounts in respect of
(i) employment insurance, (ii) Canada Pension Plan, (iii) Quebec Pension Plan, and
(iv) income taxes;
(b)
all goods and services or other applicable sales taxes (collectively, "Sales Taxes")
required to be remitted by the Applicants in connection with the sale of goods and
11
services by the Applicants, but only where such Sales Taxes are accrued or collected
after the date of this Order, or where such Sales Taxes were accrued or collected prior
to the date of this Order but not required to be remitted until on or after the date of
this Order, and
(c)
any amount payable to the Crown in right of Canada or of any Province thereof or
any political subdivision thereof or any other taxation authority in respect of
municipal realty, municipal business or other taxes, assessments or levies of any
nature or kind which are entitled at law to be paid in priority to claims of secured
creditors and which are attributable to or in respect of the carrying on of the Business
by the Applicants.
9.
THIS COURT ORDERS that until a real property lease is disclaimed in accordance
with the CCAA, the Applicants shall pay all amounts constituting rent or payable as rent under
real property leases (including, for greater certainty, common area maintenance charges, utilities
and realty taxes and any other amounts payable to the landlord under the lease) or as otherwise
may be negotiated between the Applicants and the landlord from time to time ("Rent"), for the
period commencing from and including the date of this Order, twice-monthly in equal payments
on the first and fifteenth day of each month, in advance (but not in arrears). On the date of the
first of such payments, any Rent relating to the period commencing from and including the date
of this Order shall also be paid.
10.
THIS COURT ORDERS that, except as specifically permitted herein, the Applicants
are hereby directed, until further Order of this Court: (a) to make no payments of principal,
interest thereon or otherwise on account of amounts owing by the Applicants to any of its
creditors as of this date; (b) to grant no security interests, trust, liens, charges or encumbrances
upon or in respect of any of its Property; and (c) to not grant credit or incur liabilities except in
the ordinary course of the Business.
RESTRUCTURING
11.
THIS COURT ORDERS that the Applicants shall, subject to such requirements as are
imposed by the CCAA, have the right to:
12
(a)
permanently or temporarily cease, downsize or shut down any of its business or
operations, and to dispose of redundant or non-material assets not exceeding $50,000
in any one transaction or $250,000 in the aggregate;
(b)
terminate the employment of such of its employees or temporarily lay off such of its
employees as it deems appropriate;
(c)
pay any amounts owing for pre-filing project payables as deemed necessary by the
Applicants, and consented to by the Monitor, for ongoing projects; and
(d)
pursue all avenues of refinancing of its Business or Property, in whole or part, subject
to prior approval of this Court being obtained before any material refinancing,
all of the foregoing to permit the Applicants to proceed with an orderly restructuring of the
Business (the "Restructuring").
12.
THIS COURT ORDERS that the Applicants shall provide each of the relevant landlords
with notice of the Applicants’ intention to remove any fixtures from any leased premises at least
seven (7) days prior to the date of the intended removal. The relevant landlord shall be entitled
to have a representative present in the leased premises to observe such removal and, if the
landlord disputes the Applicants’ entitlement to remove any such fixture under the provisions of
the lease, such fixture shall remain on the premises and shall be dealt with as agreed between any
applicable secured creditors, such landlord and the Applicants, or by further Order of this Court
upon application by the Applicants on at least two (2) days notice to such landlord and any such
secured creditors. If the Applicants disclaims or resiliates the lease governing such leased
premises in accordance with Section 32 of the CCAA, it shall not be required to pay Rent under
such lease pending resolution of any such dispute (other than Rent payable for the notice period
provided for in Section 32(5) of the CCAA), and the disclaimer or resiliation of the lease shall be
without prejudice to the Applicants' claim to the fixtures in dispute.
13.
THIS COURT ORDERS that if a notice of disclaimer or resiliation is delivered
pursuant to Section 32 of the CCAA, then (a) during the notice period prior to the effective time
of the disclaimer or resiliation, the landlord may show the affected leased premises to
prospective tenants during normal business hours, on giving the Applicants and the Monitor 24
hours prior written notice, and (b) at the effective time of the disclaimer or resiliation, the
13
relevant landlord shall be entitled to take possession of any such leased premises without waiver
of or prejudice to any claims or rights such landlord may have against the Applicants in respect
of such lease or leased premises and such landlord shall be entitled to notify the Applicants of
the basis on which it is taking possession and to gain possession of and re-lease such leased
premises to any third party or parties on such terms as such landlord considers advisable,
provided that nothing herein shall relieve such landlord of its obligation to mitigate any damages
claimed in connection therewith.
NO PROCEEDINGS AGAINST THE APPLICANTS OR THE PROPERTY
14.
THIS COURT ORDERS that, except as provided in paragraph 35 herein, until and
including Thursday, August 8, 2013, or such later date as this Court may order (the "Stay
Period"), no proceeding or enforcement process in any court or tribunal (each, a "Proceeding")
shall be commenced or continued against or in respect of the Applicants or the Monitor, or
affecting the Business or the Property, except with the written consent of the Applicants and the
Monitor, or with leave of this Court, and any and all Proceedings currently under way against or
in respect of the Applicants or affecting the Business or the Property are hereby stayed and
suspended pending further Order of this Court.
NO EXERCISE OF RIGHTS OR REMEDIES
15.
THIS COURT ORDERS that, except as provided in paragraph 35 herein, during the
Stay Period, all rights and remedies of any individual, firm, corporation, governmental body or
agency, or any other entities (all of the foregoing, collectively being "Persons" and each being a
"Person") against or in respect of the Applicants or the Monitor, or affecting the Business or the
Property, are hereby stayed and suspended except with the written consent of the Applicants and
the Monitor, or leave of this Court, provided that nothing in this Order shall (i) empower the
Applicants to carry on any business which the Applicants is not lawfully entitled to carry on, (ii)
affect such investigations, actions, suits or proceedings by a regulatory body as are permitted by
Section 11.1 of the CCAA, or (iii) prevent the filing of any registration to preserve or perfect a
security interest.,.
14
NO INTERFERENCE WITH RIGHTS
16.
THIS COURT ORDERS that, except as provided in paragraph 35 herein, during the
Stay Period, no Person shall discontinue, fail to honour, alter, interfere with, repudiate, terminate
or cease to perform any right, renewal right, contract, agreement, licence or permit in favour of
or held by the Applicants, except with the written consent of the Applicants and the Monitor, or
leave of this Court.
CONTINUATION OF SERVICES
17.
THIS COURT ORDERS that during the Stay Period, all Persons having oral or written
agreements with the Applicants or statutory or regulatory mandates for the supply of goods
and/or services, including without limitation all computer software, communication and other
data services, centralized banking services, payroll services, insurance, transportation services,
utility or other services to the Business or the Applicants, are hereby restrained until further
Order of this Court from discontinuing, altering, interfering with or terminating the supply of
such goods or services as may be required by the Applicants, and that the Applicants shall be
entitled to the continued use of its current premises, telephone numbers, facsimile numbers,
internet addresses and domain names, provided in each case that the normal prices or charges for
all such goods or services received after the date of this Order are paid by the Applicants in
accordance with normal payment practices of the Applicants or such other practices as may be
agreed upon by the supplier or service provider and each of the Applicants and the Monitor, or as
may be ordered by this Court.
NON-DEROGATION OF RIGHTS
18.
THIS COURT ORDERS that, notwithstanding anything else in this Order, no Person
shall be prohibited from requiring immediate payment for goods, services, use of lease or
licensed property or other valuable consideration provided on or after the date of this Order, nor
shall any Person be under any obligation on or after the date of this Order to advance or readvance any monies or otherwise extend any credit to the Applicants.
Notwithstanding the
foregoing, RTAI is hereby obligated, pursuant to the terms of the CRA, to reimburse Comstock
for Reimbursement Costs (as those terms are defined in paragraph 32) and transitional costs.
15
Nothing in this Order shall derogate from the rights conferred and obligations imposed by the
CCAA.
PROCEEDINGS AGAINST DIRECTORS AND OFFICERS
19.
THIS COURT ORDERS that during the Stay Period, and except as permitted by
subsection 11.03(2) of the CCAA, no Proceeding may be commenced or continued against any
of the former, current or future directors or officers of the Applicants with respect to any claim
against the directors or officers that arose before the date hereof and that relates to any
obligations of the Applicants whereby the directors or officers are alleged under any law to be
liable in their capacity as directors or officers for the payment or performance of such
obligations, until a compromise or arrangement in respect of the Applicants, if one is filed, is
sanctioned by this Court or is refused by the creditors of the Applicants or this Court.
DIRECTORS’ AND OFFICERS’ INDEMNIFICATION AND CHARGE
20.
THIS COURT ORDERS that the Applicants shall indemnify its directors and officers
against obligations and liabilities that they may incur as directors or officers of the Applicants
after the commencement of the within proceedings, except to the extent that, with respect to any
officer or director, the obligation or liability was incurred as a result of the director's or officer's
gross negligence or wilful misconduct.
21.
THIS COURT ORDERS that the directors and officers of the Applicants shall be
entitled to the benefit of and are hereby granted a charge (the "Directors’ Charge") on the
Property, with the exclusion of any holdbacks owing on the RTI Kitimat Modernization Project
(the “Kitimat Project”). which charge shall not exceed an aggregate amount of $●, as security for
the indemnity provided in paragraph 20 of this Order. The Directors’ Charge shall have the
priority set out in paragraphs 39 and 41 herein.
22.
THIS COURT ORDERS that, notwithstanding any language in any applicable
insurance policy to the contrary, (a) no insurer shall be entitled to be subrogated to or claim the
benefit of the Directors' Charge, and (b) the Applicants' directors and officers shall only be
entitled to the benefit of the Directors' Charge to the extent that they do not have coverage under
any directors' and officers' insurance policy, or to the extent that such coverage is insufficient to
pay amounts indemnified in accordance with paragraph 20 of this Order.
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APPOINTMENT OF MONITOR
23.
THIS COURT ORDERS that PwC is hereby appointed pursuant to the CCAA as the
Monitor, an officer of this Court, to monitor the business and financial affairs of the Applicants
with the powers and obligations set out in the CCAA or set forth herein and that the Applicants
and its shareholders, officers, directors, and Assistants shall advise the Monitor of all material
steps taken by the Applicants pursuant to this Order, and shall co-operate fully with the Monitor
in the exercise of its powers and discharge of its obligations and provide the Monitor with the
assistance that is necessary to enable the Monitor to adequately carry out the Monitor's functions.
24.
THIS COURT ORDERS that the Monitor, in addition to its prescribed rights and
obligations under the CCAA, is hereby directed and empowered to:
(a)
monitor the Applicants' receipts and disbursements;
(b)
report to this Court at such times and intervals as the Monitor may deem appropriate
with respect to matters relating to the Property, the Business, and such other matters
as may be relevant to the proceedings herein;
(c)
assist the Applicants, to the extent required by the Applicants, in its dissemination, to
the DIP Lender and its counsel on a [TIME INTERVAL] basis of financial and other
information as agreed to between the Applicants and the DIP Lender which may be
used in these proceedings including reporting on a basis to be agreed with the DIP
Lender;
(d)
advise the Applicants in its preparation of the Applicants’ cash flow statements and
reporting required by the DIP Lender, which information shall be reviewed with the
Monitor and delivered to the DIP Lender and its counsel on a periodic basis, but not
less than [TIME INTERVAL], or as otherwise agreed to by the DIP Lender;
(e)
advise the Applicants in its development of the Plan and any amendments to the Plan;
(f)
assist the Applicants, to the extent required by the Applicants, with the holding and
administering of creditors’ or shareholders’ meetings for voting on the Plan;
17
(g)
carry out its prescribed duties pursuant to the CRA ( as defined herein) and report to
this Court in respect thereof;
(h)
have full and complete access to the Property, including the premises, books, records,
data, including data in electronic form, and other financial documents of the
Applicants, to the extent that is necessary to adequately assess the Applicants'
business and financial affairs or to perform its duties arising under this Order;
(i)
be at liberty to engage independent legal counsel or such other persons as the Monitor
deems necessary or advisable respecting the exercise of its powers and performance
of its obligations under this Order; and
(j)
perform such other duties as are required by this Order or by this Court from time to
time.
25.
THIS COURT ORDERS that the Monitor shall not take possession of the Property and
shall take no part whatsoever in the management or supervision of the management of the
Business and shall not, by fulfilling its obligations hereunder, be deemed to have taken or
maintained possession or control of the Business or Property, or any part thereof.
26.
THIS COURT ORDERS that nothing herein contained shall require the Monitor to
occupy or to take control, care, charge, possession or management (separately and/or
collectively, "Possession") of any of the Property that might be environmentally contaminated,
might be a pollutant or a contaminant, or might cause or contribute to a spill, discharge, release
or deposit of a substance contrary to any federal, provincial or other law respecting the
protection, conservation, enhancement, remediation or rehabilitation of the environment or
relating to the disposal of waste or other contamination including, without limitation, the
Canadian Environmental Protection Act, the Ontario Environmental Protection Act, the Ontario
Water Resources Act, or the Ontario Occupational Health and Safety Act and regulations
thereunder (the "Environmental Legislation"), provided however that nothing herein shall
exempt the Monitor from any duty to report or make disclosure imposed by applicable
Environmental Legislation. The Monitor shall not, as a result of this Order or anything done in
pursuance of the Monitor's duties and powers under this Order, be deemed to be in Possession of
18
any of the Property within the meaning of any Environmental Legislation, unless it is actually in
possession.
27.
THIS COURT ORDERS that that the Monitor shall provide any creditor of the
Applicants with information provided by the Applicants in response to reasonable requests for
information made in writing by such creditor addressed to the Monitor. The Monitor shall not
have any responsibility or liability with respect to the information disseminated by it pursuant to
this paragraph. In the case of information that the Monitor has been advised by the Applicants is
confidential, the Monitor shall not provide such information to creditors unless otherwise
directed by this Court or on such terms as the Monitor and the Applicants may agree.
28.
THIS COURT ORDERS that, in addition to the rights and protections afforded the
Monitor under the CCAA or as an officer of this Court, the Monitor shall incur no liability or
obligation as a result of its appointment or the carrying out of the provisions of this Order, save
and except for any gross negligence or wilful misconduct on its part. Nothing in this Order shall
derogate from the protections afforded the Monitor by the CCAA or any applicable legislation.
29.
THIS COURT ORDERS that the Monitor, counsel to the Monitor and counsel to the
Applicants shall be paid their reasonable fees and disbursements, in each case at their standard
rates and charges, by the Applicants as part of the costs of these proceedings. The Applicants are
hereby authorized and directed to pay the accounts of the Monitor, counsel for the Monitor,
counsel for the Applicants and the Directors on a [weekly ] basis and, in addition, the Applicants
is hereby authorized to pay to the Monitor, counsel to the Monitor, counsel to the Applicants,
such reasonable retainers as may be requested, to be held by them as security for payment of
their respective fees and disbursements outstanding from time to time.
30.
THIS COURT ORDERS that the Monitor and its legal counsel and counsel to the
Directors shall pass their accounts from time to time, and for this purpose the accounts of the
Monitor and its legal counsel are hereby referred to a judge of the Commercial List of the
Ontario Superior Court of Justice.
31.
THI COURT ORDERS that for the purposes of this Order, the fees and disbursements
of the Monitor and its counsel may also include the fees and disbursements of PwC as Proposal
19
Trustee and Interim Receiver, in the Proposal Proceedings and those of its counsel in such
respects.
32.
THIS COURT ORDERS that the Monitor, counsel to the Monitor, if any, counsel to the
Directors and the Applicants’ counsel shall be entitled to the benefit of and are hereby granted a
charge (the "Administration Charge") on the Property, with the exclusion of any holdbacks
owing on the Kitimat Project, which charge shall not exceed an aggregate amount of $,750,000, (
of which amount, $25,000 shall be allocated to counsel for the Directors) as security for their
respective professional fees and disbursements incurred at the standard rates and charges of the
Monitor and such counsel, both before and after the making of this Order in respect of these
proceedings and in respect of the Proposal Proceedings. The Administration Charge shall have
the priority set out in paragraphs 39 and 41 hereof.
33.
THIS COURT ORDERS that the Proposal Trustee, the Interim Receiver and counsel to
the Proposal Trustee and the Interim Receiver shall also be entitled to the benefit of the
Adminstration Charge for their repective professional fees and disbursements to the extent of
any unpaid fees and disbursements which remain owing with regard to the Proposal Proceedings
after the commencement of these proceedings
34.
THIS COURT ORDERS that the Applicant is hereby authorized and empowered to
obtain and borrow under a credit facility from BMO (the "DIP Lender") in order to finance the
Applicant's working capital requirements and other general corporate purposes and capital
expenditures, provided that borrowings under such credit facility shall not exceed CDN
$7,800,000 unless permitted by further Order of this Court. (the “DIP Credit Facility”)
35.
THIS COURT ORDERS THAT the DIP Credit Facility shall be on the terms and
subject to the conditions set forth in the commitment letter between the Applicant and the DIP
Lender dated July 9, 2013 (the "Commitment Letter"), filed.
36.
THIS COURT ORDERS that the Applicants are hereby authorized and empowered to
execute and deliver such credit agreements, mortgages, charges, hypothecs and security
documents, guarantees and other definitive documents (collectively, the "Definitive
Documents"), as are contemplated by the Commitment Letter or as may be reasonably required
by the DIP Lender pursuant to the terms thereof, and the Applicants are hereby authorized and
20
directed to pay and perform all of their indebtedness, interest, fees, liabilities and obligations to
the DIP Lender under and pursuant to the Commitment Letter and the Definitive Documents as
and when the same become due and are to be performed, notwithstanding any other provision of
this Order.
37.
THIS COURT ORDERS that the DIP Lender shall be entitled to the benefit of and is
hereby granted a charge (the "DIP Lender’s Charge") on the Property, with the exclusion of any
holdbacks owing on the. Kitimat Project, and which DIP Lender's Charge shall not secure an
obligation that exists before this Order is made. The DIP Lender’s Charge shall have the priority
set out in paragraphs [38] and [40] hereof.
38.
THIS COURT ORDERS that, notwithstanding any other provision of this Order:
(a)
the DIP Lender may take such steps from time to time as it may deem necessary or
appropriate to file, register, record or perfect the DIP Lender’s Charge or any of the
Definitive Documents;
(b)
upon the occurrence of an event of default under the Definitive Documents or the DIP
Lender’s Charge, the DIP Lender, upon ● days notice to the Applicants and the
Monitor, may exercise any and all of its rights and remedies against the Applicants or
the Property under or pursuant to the Commitment Letter, Definitive Documents and
the DIP Lender’s Charge, including without limitation, to cease making advances to
the Applicants and set off and/or consolidate any amounts owing by the DIP Lender
to the Applicants against the obligations of the Applicants to the DIP Lender under
the Commitment Letter, the Definitive Documents or the DIP Lender’s Charge, to
make demand, accelerate payment and give other notices, or to apply to this Court for
the appointment of a receiver, receiver and manager or interim receiver, or for a
bankruptcy order against the Applicant and for the appointment of a trustee in
bankruptcy of the Applicant; and
(c)
the foregoing rights and remedies of the DIP Lender shall be enforceable against any
trustee in bankruptcy, interim receiver, receiver or receiver and manager of the
Applicants or the Property.
21
39.
THIS COURT ORDERS AND DECLARES that the DIP Lender shall be treated as
unaffected in any plan of arrangement or compromise filed by the Applicant under the CCAA, or
any proposal filed by the Applicant under the BIA , with respect to any advances made under the
Definitive Documents.
COST REIMBURSEMENT AGREEMENT
40.
THIS COURT ORDER AND DECLARES that the Cost Reimbursement Agreement
(the “CRA”) made as of July 9, 2013 between Comstock and Rio Tinto Alcan Inc. (“RTAI”)
substantially in the form attached as Exhibit “Q” to the Birkbeck Affidavit be and is hereby
approved, ratified and confirmed, and the execution of the CRA by Comstock be and is hereby
authorized and approved. Comstock is hereby authorized and directed to take such additional
steps and execute such additional documents as are contemplated by the CRA or as may be
reasonably required by RTAI to carry out the intention of the CRA.
41.
THIS COURT ORDERS that capitalized terms not defined in paragraphs 32 to 38 shall
have the meanings ascribed to them in the CRA.
42.
THIS COURT ORDERS AND DECLARES that, in accordance with the provisions of
the CRA, RTAI shall be entitled to and is hereby granted a first priority lien on the amounts in
the Holdback Accounts and, subject to the rights of lien claimants to the amounts in the
Holdback Accounts, RTAI may set off against amounts in the Holdback Accounts any amounts
which have been funded by RTAI as Overhead Costs in accordance with the CRA.
43.
THIS COURT ORDERS AND DECLARES that, notwithstanding anything contained
in this order or in any other order made in these proceedings, the rights and remedies of RTAI in
connection with or pursuant to the CRA and the Affected Contracts shall be unaffected by this
order or any order made in these proceedings. Without limiting the generality of the forgoing,
any stay created in these proceedings shall not apply to RTAI, and RTAI may exercise its rights
and remedies in respect of the CRA and Affected Contracts including, without limitation, that
RTAI may terminate the CRA or any or all of the Affected Contracts by giving notice to
Comstock, the Monitor and the Bank of Montreal as provided in the CRA.
22
44.
THIS COURT ORDERS that the execution, delivery, or performance of the CRA shall
neither create nor be deemed to constitute a breach by the Applicants of any Agreement to which
they are a party.
45.
THIS COURT ORDERS that, notwithstanding:
(a)
the pendency of these proceedings and the Proposal Proceedings;
(b)
any applications for a bankruptcy order now or hereafter issued pursuant to the
BIA in respect of Comstock and any bankruptcy order issued pursuant to any such
applications; and
(c)
any assignment in bankruptcy made in respect of Comstock,
the transactions contemplated under the CRA, as approved, ratified and confirmed pursuant to
this Order, shall be binding on any trustee in bankruptcy that may be appointed in respect of
Comstock and shall not be void or voidable by creditors of Comstock, nor shall they constitute
nor be deemed to be a fraudulent preference, assignment, fraudulent conveyance, transfer at
undervalue, or other reviewable transaction under the CCAA, the BIA, or any other applicable
federal or provincial legislation, nor shall it constitute oppressive or unfairly prejudicial conduct
pursuant to any applicable federal or provincial legislation.
46.
THIS COURT ORDERS AND DECLARES that, notwithstanding any other provision
of this Order, the rights and remedies of RTAI under the CRA and the Affected Contracts shall
be enforceable against any trustee in bankruptcy, interim receiver, receiver or receiver and
manager of Comstock in respect of the Disbursement Account.
VALIDITY AND PRIORITY OF CHARGES CREATED BY THIS ORDER
47.
THIS COURT ORDERS that the priorities of the Directors’ Charge, the DIP Charge
and the Administration Charge, as between them, shall be as follows:
First Administration Charge (to the maximum amount of CDN$750,000);
Second DIP Lender’s Charge (to the maximum amount of CDN$7,800,000)
Third Directors’’ Charge (to the maximum amount of [CDN$4,600,000].
23
48.
THIS COURT ORDERS that the filing, registration or perfection of the Directors’’
Charge, DIP Lender’s Charge and the Administration Charge (collectively, the "Charges")
shall not be required, and that the Charges shall be valid and enforceable for all purposes,
including as against any right, title or interest filed, registered, recorded or perfected subsequent
to the Charges coming into existence, notwithstanding any such failure to file, register, record or
perfect.
49.
THIS COURT ORDERS that each of the, the DIP Charge, the DIP Lender’s Charge
and the Administration Charge (all as constituted and defined herein) shall constitute a charge on
the Property,with the exclusion of any holdbacks owing on the Kitimat Project, and such
Charges shall rank in priority to all other present and future security interests, trusts, liens,
construction liens (whether of not perfected or preserved), trust claims (whether or not perfected
or preserved), charges and encumbrances, claims of secured creditors, statutory or otherwise
(collectively, "Encumbrances") in favour of any Person, provided that the Charges shall be
subordinate to the existing mortgages and charges of BMO on any real property owned by any of
the Applicants which secures the amount of the indebtedness of Comstock outstanding to BM
prior to the date of this Order
50.
THIS COURT ORDERS that except as otherwise expressly provided for herein, or as
may be approved by this Court, the Applicants shall not grant any Encumbrances over any
Property, that rank in priority to, or pari passu with, any of the Directors’ Charge and the
Administration Charge, unless the Applicants also obtains the prior written consent of the
Monitor and the beneficiaries of the Directors’ Charge and the Administration Charge, or further
Order of this Court.
51.
THIS COURT ORDERS that the Directors’ Charge, the Administration Charge and the
DIP Lender’s Charge shall not be rendered invalid or unenforceable and the rights and remedies
of the chargees entitled to the benefit of the Charges (collectively, the "Chargees") thereunder
shall not otherwise be limited or impaired in any way by (a) the pendency of these proceedings
and the declarations of insolvency made herein; (b) any application(s) for bankruptcy order(s)
issued pursuant to BIA, or any bankruptcy order made pursuant to such applications; (c) the
filing of any assignments for the general benefit of creditors made pursuant to the BIA; (d) the
provisions of any federal or provincial statutes; or (e) any negative covenants, prohibitions or
24
other similar provisions with respect to borrowings, incurring debt or the creation of
Encumbrances, contained in any existing loan documents, lease, sublease, offer to lease or other
agreement (collectively, an "Agreement") which binds the Applicants, and notwithstanding any
provision to the contrary in any Agreement:
(a)
the creation of the Charges, shall neither create nor be deemed to constitute a breach
by the Applicants of any Agreement to which it is a party;
(b)
the payments made by the Applicants pursuant to this Order and the granting of any
of the Charges, do not and will not constitute preferences, fraudulent conveyances,
transfers at undervalue, oppressive conduct, or other challengeable or voidable
transactions under any applicable law.
SEALING OF CONFIDENTIAL MATERIALS
52.
THIS COURT ORDERS that Confidential Exhibit “J” to the Birkbeck Affidavit and the
Unaudited Financial Statements for the Applicants be and are hereby sealed until further Order
of this Court.
SERVICE AND NOTICE
53.
THIS COURT ORDERS that the Monitor shall (i) without delay, publish in The Globe
and Mail (National Edition) and the National Post (National Edition) a notice containing the
information prescribed under the CCAA, (ii) within five days after the date of this Order, (A)
make this Order publicly available in the manner prescribed under the CCAA, (B) send, in the
prescribed manner, a notice to every known creditor who has a claim against the Applicants of
more than $1000, and (C) prepare a list showing the names and addresses of those creditors and
the estimated amounts of those claims, and make it publicly available in the prescribed manner,
all in accordance with Section 23(1)(a) of the CCAA and the regulations made thereunder.
54.
THIS COURT ORDERS that the Applicants and the Monitor be at liberty to serve this
Order, any other materials and orders in these proceedings, any notices or other correspondence,
by forwarding true copies thereof by prepaid ordinary mail, courier, personal delivery or
electronic transmission to the Applicants' creditors or other interested parties at their respective
addresses as last shown on the records of the Applicants and that any such service or notice by
25
courier, personal delivery or electronic transmission shall be deemed to be received on the next
business day following the date of forwarding thereof, or if sent by ordinary mail, on the third
business day after mailing.
55.
THIS COURT ORDERS that the Applicants, the Monitor, and any party who has filed a
Notice of Appearance may serve any court materials in these proceedings by e-mailing a PDF or
other electronic copy of such materials to counsels' email addresses as recorded on the Service
List from time to time, and the Monitor may post a copy of any or all such materials on its
website at www.pwc.com.
56.
THIS COURT ORDERS that personal service of the CCAA Application herein shall be
effected on the all persons by the publication in The Globe & Mail (National Edition) and the
Daily Commercial News on one occasion of an advertisement substantially as follows by no
later than Wednesday, 10,10 July, 2013:
Court File No. ________________
IN THE MATTER OF THE COMPANIES' CREDITORS
ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED
AND IN THE MATTER OF A PLAN OF COMPROMISE OR
ARRANGEMENT OF COMSTOCK CANADA LTD., CCL EQUITIES
INC., AND COMSTOCK REALTY INC.
TAKE NOTICE that:
An application pursuant to the Companies’ Creditors Arrangement Act,
R.S.C. 1985, c. C-36, as amended (the “CCAA”), was heard in respect of
Comstock Canada Ltd., CCL Equities Inc., and Comstock Realty Inc.
(together, the “Comstock Group”) and an Initial Order pursuant to the
CCAA was issued in respect of the Comstock Group on July 8, 2013 by
Ontario Superior Court of Justice (Commercial List) at 330 University
Avenue, Toronto, Ontario.
Any person wishing to dispute the Initial Order must (a) apply to this Court
to vary or amend the Initial Order on not less than seven (7) days notice to
26
any other party or parties likely to be affected by the Initial Order or upon
such other notice, if any, as this Court may order; (b) serve a Notice of
Motion and corresponding Motion Record on (i) the Comstock Group c/o
Gowling Lafleur Henderson LLP at 1 First Canadian Place, Suie1600-100
King Street West, TorontToronto, Ontario, Attention: Alex MacFarlane and
Frank Lamie; (ii) the Monitor c/o of PricewaterhouseCoopers Inc.,
PwC
Tower, 18 York Street, Suite 2600, Toronto, Attention: Duncan Lau; and (c)
file a copy of the Notice of Motion and Motion Record along with proof of
service with the Ontario Superior Court of Justice (Commercial List) Court
Office at 330 University Avenue, Toronto, Ontario, by no later than
Thursday, July 18, 2013.
GENERAL
57.
THIS COURT ORDERS that the Applicants or the Monitor may from time to time
apply to this Court for advice and directions in the discharge of its powers and duties hereunder.
58.
THIS COURT ORDERS that nothing in this Order shall prevent the Monitor from
acting as an interim receiver, a receiver, a receiver and manager, or a trustee in bankruptcy of the
Applicants, the Business or the Property.
59.
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 and to assist the Applicants, the Monitor and their respective agents in
carrying out the terms of this Order. All courts, tribunals, regulatory and administrative bodies
are hereby respectfully requested to make such orders and to provide such assistance to the
Applicants and to the Monitor, as an officer of this Court, as may be necessary or desirable to
give effect to this Order, to grant representative status to the Monitor in any foreign proceeding,
or to assist the Applicants and the Monitor and their respective agents in carrying out the terms
of this Order.
60.
THIS COURT ORDERS that each of the Applicants and the Monitor be at liberty and is
hereby authorized and empowered to apply to any court, tribunal, regulatory or administrative
body, wherever located, for the recognition of this Order and for assistance in carrying out the
27
terms of this Order, and that the Monitor is authorized and empowered to act as a representative
in respect of the within proceedings for the purpose of having these proceedings recognized in a
jurisdiction outside Canada.
61.
THIS COURT ORDERS that any interested party (including the Applicants and the
Monitor) may apply to this Court to vary or amend this Order on not less than seven (7) days
notice to any other party or parties likely to be affected by the order sought or upon such other
notice, if any, as this Court may order.
62.
THIS COURT ORDERS that this Order and all of its provisions are effective as of
12:01 a.m. Eastern Standard/Daylight Time on the date of this Order.
____________________________________
Lawyers for the Applicants, Comstock Canada
Ltd., CCL Realty Inc., and CCL Equities Inc.
Facsimile: (416) 862-7661
Telephone: (416) 369-4631 / (416) 862-3609
Frank Lamie (LSUC No.: 54035S)
Alex MacFarlane (LSUC No.: 28133Q)
Barristers and Solicitors
1 First Canadian Place
100 King Street West, Suite 1600
TORONTO, Ontario, M5X 1G5
GOWLING LAFLEUR HENDERSON LLP
INITIAL ORDER
ONTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
AND IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF COMSTOCK CANADA LTD., CCL
EQUITIES INC., AND COMSTOCK REALTY INC.
IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED
Court File No.
28
TAB B
29
Schedule “B”
Court File No. 32-1763935
ONTARIO
SUPERIOR COURT OF JUSTICE
IN BANKRUPTCY AND INSOLVENCY
THE HONOURABLE MR.
)
)
)
JUSTICE MORAWETZ
TUEDSDAY, THE 3RD DAY
OF JULY, 2013.
IN THE MATTER OF THE NOTICE OF INTENTION TO MAKE
A PROPOSAL OF COMSTOCK CANADA LTD.
AND IN THE MATTER OF SECTION 47.1 OF THE
BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, C. B-3, AS AMENDED
DISCHARGE ORDER
(Discharging Interim Receiver)
THIS MOTION, made by Comstock Canada Ltd. (“Comstock”) for an Order
discharging PricewaterhouseCoopers Inc. (“PwC”) in its capacity as interim receiver in respect
of Comstock (in such capacity, the "Interim Receiver") and releasing PwC from any and all
liability, as set out in paragraph 3 of this Order, was heard this day at 330 University Avenue,
Toronto, Ontario.
ON READING the Report of the Interim Receiver dated July 9, 2013, and on
hearing the submissions of counsel for Comstock, the Interim Receiver, and the Bank of
Montreal, no one else appearing although served as evidenced by the Affidavit of [NAME]
sworn July 9, 2013, filed;
1.
THIS COURT ORDERS that the time for service of the Notice of Motion and
the Motion is hereby abridged and validated so that this motion is properly returnable today and
hereby dispenses with further service thereof.
30
-22.
THIS COURT ORDERS that upon the repayment in full of Interim Receiver
Certificate No. 001 in the principal amount of $1,500,000, PricewaterhouseCoopers Inc. shall be
discharged as Interim Receiver in respect of Comstock, provided however that notwithstanding
its discharge herein PricewaterhouseCoopers Inc. shall continue to have the benefit of the
provisions of all Orders made in this proceeding, including all approvals, protections and stays of
proceedings in favour of PricewaterhouseCoopers Inc. in its capacity as Interim Receiver.
3.
THIS COURT ORDERS AND DECLARES that PricewaterhouseCoopers Inc.
is hereby released and discharged from any and all liability that PricewaterhouseCoopers Inc.
now has or may hereafter have by reason of, or in any way arising out of, the acts or omissions of
PricewaterhouseCoopers Inc. while acting in its capacity as Interim Receiver herein, save and
except for any gross negligence or wilful misconduct on the Interim Receiver's part. Without
limiting the generality of the foregoing, PricewaterhouseCoopers Inc. is hereby forever released
and discharged from any and all liability relating to matters that were raised, or which could have
been raised, in the within interim receivership proceedings, save and except for any gross
negligence or wilful misconduct on the Interim Receiver's part.
____________________________________
Lawyers for Comstock Canada Ltd.
Telephone: (416) 369-4631 / (416) 862-3609
Facsimile: (416) 862-7661
Alex MacFarlane / Frank Lamie
LSUC No.: 28133Q / 54035S
Barristers and Solicitors
1 First Canadian Place
100 King Street West, Suite 1600
TORONTO, Ontario, M5X 1G5
GOWLING LAFLEUR HENDERSON LLP
(Discharging Interim Receiver)
DISCHARGE ORDER
(PROCEEDING COMMENCED AT TORONTO)
SUPERIOR COURT OF JUSTICE
IN BANKRUPTCY AND INSOLVENCY
ONTARIO
AND IN THE MATTER OF SECTION 47.1 OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, C. B-3, AS AMENDED
IN THE MATTER OF THE NOTICE OF INTENTION TO MAKE A PROPOSAL OF COMSTOCK CANADA LTD.
Court File No. 32-1763935
31
Lawyers for Comstock Canada Ltd.,
CCL Realty Inc., and CCL Equities Inc.
Telephone: (416) 369-4631 / (416) 862-3609
Facsimile: (416) 862-7661
(LSUC No.: 28133Q / 54035S)
Alex MacFarlane / Frank Lamie
GOWLING LAFLEUR HENDERSON LLP
Barristers and Solicitors
1 First Canadian Place
100 King Street West, Suite 1600
TORONTO, Ontario, M5X 1G5
(Returnable July 9, 2013)
NOTICE OF MOTION
(PROCEEDING COMMENCED AT TORONTO)
ONTARIO
SUPERIOR COURT OF JUSTICE
IN BANKRUPTCY AND INSOLVENCY
AND IN THE MATTER OF THE NOTICE OF INTENTION TO MAKE A PROPOSAL OF CCL EQUITIES INC.
AND IN THE MATTER OF THE NOTICE OF INTENTION TO MAKE A PROPOSAL OF CCL REALTY INC.
IN THE MATTER OF THE NOTICE OF INTENTION TO MAKE A PROPOSAL OF COMSTOCK CANADA LTD.
Court File No. 32-1763935
Court File No. 32-1763929
Court File No. 32-1764011
32
TAB 2
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
Request ID:
015467772
Transaction ID: 51308177
Category ID:
UN/E
Date Report Produced: 2013/06/21
59
Time Report Produced: 15:41:10
Page:
1
Province of Ontario
Ministry of Government Services
LIST OF CURRENT BUSINESS NAMES
REGISTERED BY A CORPORATION
Ontario Corporation Number
923451
CORPORATION NAME
COMSTOCK CANADA LTD.
REGISTRATION
DATE
2011/08/10
BUSINESS
NAME
P.M.E. RENTALS
EXPIRY
DATE
2016/08/09
BUSINESS
ID NUMBER
210851325
THE REPORT SETS OUT ALL BUSINESS NAMES REGISTERED OR RENEWED BY THE CORPORATION IN THE PAST 5 YEARS AND
RECORDED IN THE ONTARIO BUSINESS INFORMATION SYSTEM AS AT THE DATE AND TIME OF PRINTING. IF MORE DETAILED
INFORMATION IS REQUIRED, YOU MAY REQUEST A SEARCH AGAINST INDIVIDUAL NAMES SHOWN ON THIS REPORT.
The issuance of this report in electronic form is authorized by the Ministry of Government Services.
Request ID:
015467762
Transaction ID: 51308150
Category ID:
UN/E
Date Report Produced: 2013/06/21
60
Time Report Produced: 15:40:17
Page:
1
Province of Ontario
Ministry of Government Services
CORPORATION DOCUMENT LIST
Ontario Corporation Number
923451
Corporation Name
COMSTOCK CANADA LTD.
ACT/CODE
CIA
CIA
CIA
CIA
CIA
CIA
CIA
CIA
CIA
CIA
CIA
CIA
CIA
CIA
CIA
CIA
DATE
(YY/MM/DD)
DESCRIPTION
FORM
CHANGE NOTICE
PAF: MCCLAIN, TIFFANY
CHANGE NOTICE
PAF: LEDUC, DANIEL J.
ANNUAL RETURN 2012
PAF: FORLIN, DENNIS
CHANGE NOTICE
PAF: MCCLAIN, TIFFANY JOAN
ANNUAL RETURN 2011
PAF: FORLIN, DENNIS
ANNUAL RETURN 2011
PAF: FORLIN, DENNIS
ANNUAL RETURN 2010
PAF: MORABITO, ALDO
CHANGE NOTICE
PAF: SCHACHTER, JOEL
ANNUAL RETURN 2009
PAF: MORABITO, ALDO
CHANGE NOTICE
PAF: QUINN, ROBERT M.
ANNUAL RETURN 2008
PAF: MORABITO, ALDO
ANNUAL RETURN 2007
PAF: ALDO, MORABITO
ANNUAL RETURN 2006
PAF: ALDO, MORABITO
CHANGE NOTICE
PAF: BIRKBECK, GEOFFREY
CHANGE NOTICE
PAF: HUSAIN, FAZAL
ANNUAL RETURN 2004
PAF: WELSH, BARRY
1
2013/06/06
(ELECTRONIC FILING)
1
2013/06/04
(ELECTRONIC FILING)
1C
2013/05/11
(ELECTRONIC FILING)
1
2012/08/14
(ELECTRONIC FILING)
1C
2012/07/14
(ELECTRONIC FILING)
1C
2012/01/28
(ELECTRONIC FILING)
1C
2011/06/25
(ELECTRONIC FILING)
1
2011/05/12
(ELECTRONIC FILING)
1C
2010/03/20
1
2010/02/19
(ELECTRONIC FILING)
1C
2009/05/09
(ELECTRONIC FILING)
1C
2008/05/17
(ELECTRONIC FILING)
1C
2007/07/28
(ELECTRONIC FILING)
1
2006/07/25
(ELECTRONIC FILING)
1
2005/08/24
1C
2005/07/23
(ELECTRONIC FILING)
Request ID:
015467762
Transaction ID: 51308150
Category ID:
UN/E
Date Report Produced: 2013/06/21
61
Time Report Produced: 15:40:17
Page:
2
Province of Ontario
Ministry of Government Services
CORPORATION DOCUMENT LIST
Ontario Corporation Number
923451
Corporation Name
COMSTOCK CANADA LTD.
ACT/CODE
CIA
CIA
CIA
CIA
CIA
CIA
CIA
CIA
CIA
CIA
CIA
BCA
CIA
CIA
CIA
CIA
DATE
(YY/MM/DD)
DESCRIPTION
FORM
CHANGE NOTICE
PAF: JOKI, VILHO
ANNUAL RETURN
PAF: JOKI, VILHO
CHANGE NOTICE
PAF: JOKI, VILHO
ANNUAL RETURN
PAF: JOKI, VILHO A
ANNUAL RETURN
PAF: WALTERS, PHILIP J
ANNUAL RETURN
PAF: JOKI, VILHO
ANNUAL RETURN
PAF: JOKI, V.A.
CHANGE NOTICE
PAF: WALTERS, PHILIP JAMES
CHANGE NOTICE
PAF: WALTERS, PHILIP J
ANNUAL RETURN
PAF: JOKI, V.A.
CHANGE NOTICE
PAF: JOKI, VILHO A.
ARTICLES OF AMENDMENT
CHANGE NOTICE
PAF: JOKI, VILHO A.
SPECIAL NOTICE 3
PAF: LOEWEN, FRANK
CHANGE NOTICE
PAF: LOEWEN, FRANK
CHANGE NOTICE
PAF: SCHACHTER, JOEL S.
1
2005/02/11
1C
2004/07/10
1
2004/04/08
1S
2004/01/02
(ELECTRONIC FILING)
1S
2003/11/14
(ELECTRONIC FILING)
1C
2003/07/20
(ELECTRONIC FILING)
1C
2002/07/21
(ELECTRONIC FILING)
1
2001/09/05
1
2001/08/31
1C
2001/07/11
1
1996/02/12
3
1
1996/01/03
1995/11/03
1
1995/03/14
1
1995/02/06
1
1994/08/04
(ELECTRONIC FILING)
(ELECTRONIC FILING)
Request ID:
015467762
Transaction ID: 51308150
Category ID:
UN/E
Date Report Produced: 2013/06/21
62
Time Report Produced: 15:40:17
Page:
3
Province of Ontario
Ministry of Government Services
CORPORATION DOCUMENT LIST
Ontario Corporation Number
923451
Corporation Name
COMSTOCK CANADA LTD.
ACT/CODE
CIA
CIA
BCA
CIA
CIA
CIA
CPCV
DATE
(YY/MM/DD)
DESCRIPTION
FORM
SPECIAL NOTICE 2
PAF: SCHACHTER, JOEL S.
CHANGE NOTICE
PAF: SCHACHTER, JOEL S.
APP'N FOR AUDIT EXEMPTION
CHANGE NOTICE
PAF: SCHACHTER, JOEL S.
SPECIAL NOTICE
PAF: JOEL S. SCHACHTER,
CHANGE NOTICE
PAF: JOEL S. SCHACHTER,
CORPORATE CONVERSION-ADD
1
1994/03/15
1
1994/02/17
20
1
1993/06/28
1993/06/09
1
1993/04/13
1
1993/04/08
ADD
1992/06/27
THIS REPORT SETS OUT ALL DOCUMENTS FOR THE ABOVE CORPORATION WHICH HAVE BEEN FILED ON OR AFTER
JUNE 27, 1992, AND RECORDED IN THE ONTARIO BUSINESS INFORMATION SYSTEM AS AT THE DATE AND TIME OF
PRINTING. ADDITIONAL HISTORICAL INFORMATION MAY EXIST ON MICROFICHE.
ALL "PAF" (PERSON AUTHORIZING FILING) INFORMATION IS DISPLAYED EXACTLY AS RECORDED IN ONBIS. WHERE PAF IS
NOT SHOWN AGAINST A DOCUMENT, THE INFORMATION HAS NOT BEEN RECORDED IN THE ONBIS DATABASE.
The issuance of this report in electronic form is authorized by the Ministry of Government Services.
Request ID:
015467763
Transaction ID: 51308151
Category ID:
UN/E
Date Report Produced: 2013/06/21
63
Time Report Produced: 15:40:18
Page:
1
Province of Ontario
Ministry of Government Services
CORPORATION PROFILE REPORT
Ontario Corp Number
923451
Corporation Name
Incorporation Date
COMSTOCK CANADA LTD.
1990/12/12
Jurisdiction
ONTARIO
Corporation Type
ONTARIO BUSINESS CORP.
Corporation Status
Former Jurisdiction
ACTIVE
NOT APPLICABLE
Registered Office Address
Date Amalgamated
Amalgamation Ind.
NOT APPLICABLE
NOT APPLICABLE
New Amal. Number
Notice Date
NOT APPLICABLE
NOT APPLICABLE
3455 LANDMARK ROAD
BURLINGTON
ONTARIO
CANADA L7M 1T4
Letter Date
NOT APPLICABLE
Mailing Address
Revival Date
Continuation Date
NOT APPLICABLE
NOT APPLICABLE
Transferred Out Date
Cancel/Inactive Date
NOT APPLICABLE
NOT APPLICABLE
EP Licence Eff.Date
EP Licence Term.Date
NOT APPLICABLE
NOT APPLICABLE
Date Commenced
in Ontario
Date Ceased
in Ontario
NOT APPLICABLE
NOT APPLICABLE
3455 LANDMARK ROAD
BURLINGTON
ONTARIO
CANADA L7M 1T4
Number of Directors
Minimum
Maximum
00001
Activity Classification
NOT AVAILABLE
00020
Request ID:
015467763
Transaction ID: 51308151
Category ID:
UN/E
Province of Ontario
Ministry of Government Services
Date Report Produced: 2013/06/21
64
Time Report Produced: 15:40:18
Page:
2
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
923451
COMSTOCK CANADA LTD.
Corporate Name History
Effective Date
COMSTOCK CANADA LTD.
1996/01/03
COMSTOCK LIMITED
1991/09/18
923451 ONTARIO LIMITED
1990/12/12
Current Business Name(s) Exist:
YES
Expired Business Name(s) Exist:
YES - SEARCH REQUIRED FOR DETAILS
Administrator:
Name (Individual / Corporation)
Address
GEOFFREY
W
BIRKBECK
111 FORSYTHE STREET
Suite # 702
OAKVILLE
ONTARIO
CANADA L6K 3J9
Date Began
First Director
2003/12/01
NOT APPLICABLE
Designation
Officer Type
OFFICER
CHIEF EXECUTIVE OFFICER
Resident Canadian
Transaction ID: 51308151
Category ID:
UN/E
Request ID: 015467763 Province of Ontario Date Report Produced: 2013/06/21
65
Ministry of Government Services
Time Report Produced: 15:40:18
Page:
3
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
923451
COMSTOCK CANADA LTD.
Administrator:
Name (Individual / Corporation)
Address
GEOFFREY
W
BIRKBECK
111 FORSYTHE STREET
Suite # 702
OAKVILLE
ONTARIO
CANADA L6K 3J9
Date Began
First Director
2011/07/29
NOT APPLICABLE
Designation
Officer Type
Resident Canadian
DIRECTOR
Y
Administrator:
Name (Individual / Corporation)
Address
GEOFFREY
111 FORSYTHE STREET
BIRKBECK
Suite # 702
OAKVILLE
ONTARIO
CANADA L6K 3J9
Date Began
First Director
2011/07/29
NOT APPLICABLE
Designation
Officer Type
OFFICER
CHAIRMAN
Resident Canadian
Request ID:
015467763
Transaction ID: 51308151
Category ID:
UN/E
Province of Ontario
Ministry of Government Services
Date Report Produced: 2013/06/21
66
Time Report Produced: 15:40:18
Page:
4
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
923451
COMSTOCK CANADA LTD.
Administrator:
Name (Individual / Corporation)
Address
RICHARD
83 THIRD STREET
FERRUCCI
GARDEN CITY
NEW YORK
UNITED STATES OF AMERICA 11530
Date Began
First Director
2011/07/29
NOT APPLICABLE
Designation
Officer Type
Resident Canadian
DIRECTOR
N
Administrator:
Name (Individual / Corporation)
Address
DENNIS
6337 MORETTA DRIVE
FORLIN
NIAGARA FALLS
ONTARIO
CANADA L3J 4H6
Date Began
First Director
2011/07/29
NOT APPLICABLE
Designation
Officer Type
OFFICER
CHIEF FINANCIAL OFFICER
Resident Canadian
Transaction ID: 51308151
Category ID:
UN/E
Request ID: 015467763 Province of Ontario Date Report Produced: 2013/06/21
67
Ministry of Government Services
Time Report Produced: 15:40:18
Page:
5
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
923451
COMSTOCK CANADA LTD.
Administrator:
Name (Individual / Corporation)
Address
ALLEN
414 VICTORIA AVENUE NORTH
GREENSPOON
HAMILTON
ONTARIO
CANADA L8L 5G8
Date Began
First Director
2011/07/29
NOT APPLICABLE
Designation
Officer Type
Resident Canadian
DIRECTOR
Y
Administrator:
Name (Individual / Corporation)
Address
DAN
2200 RIVER ROAD
LEDUC
MANOTICK
ONTARIO
CANADA K4M 1B4
Date Began
First Director
2011/07/29
NOT APPLICABLE
Designation
Officer Type
DIRECTOR
Resident Canadian
Y
Request ID:
015467763
Transaction ID: 51308151
Category ID:
UN/E
Province of Ontario
Ministry of Government Services
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
923451
COMSTOCK CANADA LTD.
Administrator:
Name (Individual / Corporation)
Address
PETER
R.R. #1
SEMMENS
HILLSDALE
ONTARIO
CANADA L0L 1V0
Date Began
First Director
2011/03/09
NOT APPLICABLE
Designation
Officer Type
OFFICER
CHIEF OPERATING OFFICER
Resident Canadian
Administrator:
Address
Name (Individual / Corporation)
PETER
R.R. #1
SEMMENS
HILLSDALE
ONTARIO
CANADA L0L 1V0
Date Began
First Director
2011/03/09
NOT APPLICABLE
Designation
Officer Type
Resident Canadian
OFFICER
PRESIDENT
Y
Date Report Produced: 2013/06/21
68
Time Report Produced: 15:40:18
Page:
6
Request ID:
015467763
Transaction ID: 51308151
Category ID:
UN/E
Province of Ontario
Ministry of Government Services
Date Report Produced: 2013/06/21
69
Time Report Produced: 15:40:18
Page:
7
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
923451
COMSTOCK CANADA LTD.
Last Document Recorded
Act/Code Description
CIA
CHANGE NOTICE
Form
1
Date
2013/06/06 (ELECTRONIC FILING)
THIS REPORT SETS OUT THE MOST RECENT INFORMATION FILED BY THE CORPORATION ON OR AFTER JUNE 27, 1992, AND RECORDED
IN THE ONTARIO BUSINESS INFORMATION SYSTEM AS AT THE DATE AND TIME OF PRINTING. ALL PERSONS WHO ARE RECORDED AS
CURRENT DIRECTORS OR OFFICERS ARE INCLUDED IN THE LIST OF ADMINISTRATORS.
ADDITIONAL HISTORICAL INFORMATION MAY EXIST ON MICROFICHE.
The issuance of this report in electronic form is authorized by the Ministry of Government Services.
70
Request ID:
015467932
Transaction ID: 51308625
Category ID:
UN/E
Date Report Produced: 2013/06/21
71
Time Report Produced: 16:05:35
Page:
1
Province of Ontario
Ministry of Government Services
CORPORATION PROFILE REPORT
Ontario Corp Number
2290877
Corporation Name
Incorporation Date
CCL REALTY INC.
2011/07/04
Jurisdiction
ONTARIO
Corporation Type
ONTARIO BUSINESS CORP.
Corporation Status
Former Jurisdiction
ACTIVE
NOT APPLICABLE
Registered Office Address
Date Amalgamated
Amalgamation Ind.
NOT APPLICABLE
NOT APPLICABLE
New Amal. Number
Notice Date
NOT APPLICABLE
NOT APPLICABLE
3455 LANDMARK ROAD
BURLINGTON
ONTARIO
CANADA L7M 1T4
Letter Date
NOT APPLICABLE
Mailing Address
Revival Date
Continuation Date
NOT APPLICABLE
NOT APPLICABLE
Transferred Out Date
Cancel/Inactive Date
NOT APPLICABLE
NOT APPLICABLE
EP Licence Eff.Date
EP Licence Term.Date
NOT APPLICABLE
NOT APPLICABLE
Date Commenced
in Ontario
Date Ceased
in Ontario
NOT APPLICABLE
NOT APPLICABLE
3455 LANDMARK ROAD
BURLINGTON
ONTARIO
CANADA L7M 1T4
Number of Directors
Minimum
Maximum
00001
Activity Classification
NOT AVAILABLE
00011
Request ID:
015467932
Transaction ID: 51308625
Category ID:
UN/E
Province of Ontario
Ministry of Government Services
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
2290877
CCL REALTY INC.
Corporate Name History
Effective Date
CCL REALTY INC.
2011/07/04
Current Business Name(s) Exist:
NO
Expired Business Name(s) Exist:
NO
Administrator:
Name (Individual / Corporation)
Address
GEOFFREY
3455 LANDMARK ROAD
BIRKBECK
BURLINGTON
ONTARIO
CANADA L7M 1T4
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
DIRECTOR
Resident Canadian
Y
Date Report Produced: 2013/06/21
72
Time Report Produced: 16:05:35
Page:
2
Request ID:
015467932
Transaction ID: 51308625
Category ID:
UN/E
Province of Ontario
Ministry of Government Services
Date Report Produced: 2013/06/21
73
Time Report Produced: 16:05:35
Page:
3
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
2290877
CCL REALTY INC.
Administrator:
Name (Individual / Corporation)
Address
GEOFFREY
3455 LANDMARK ROAD
BIRKBECK
BURLINGTON
ONTARIO
CANADA L7M 1T4
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
Resident Canadian
OFFICER
CHAIRMAN
Y
Administrator:
Name (Individual / Corporation)
Address
RICHARD
85 THIRD STREET
FERRUCCI
GARDEN CITY
NEW YORK
UNITED STATES OF AMERICA 11530
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
DIRECTOR
Resident Canadian
N
Request ID:
015467932
Transaction ID: 51308625
Category ID:
UN/E
Province of Ontario
Ministry of Government Services
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
2290877
CCL REALTY INC.
Administrator:
Name (Individual / Corporation)
Address
DENNIS
6337 MORETTA DRIVE
FORLIN
NIAGARA FALLS
ONTARIO
CANADA L3J 4H6
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
OFFICER
SECRETARY
Administrator:
Name (Individual / Corporation)
Resident Canadian
Address
DENNIS
6337 MORETTA DRIVE
FORLIN
NIAGARA FALLS
ONTARIO
CANADA L3J 4H6
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
OFFICER
VICE-PRESIDENT
Resident Canadian
Date Report Produced: 2013/06/21
74
Time Report Produced: 16:05:35
Page:
4
Request ID:
015467932
Transaction ID: 51308625
Category ID:
UN/E
Province of Ontario
Ministry of Government Services
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
2290877
CCL REALTY INC.
Administrator:
Name (Individual / Corporation)
Address
ALLEN
414 VICTORIA AVENUE N.
GREENSPOON
HAMILTON
ONTARIO
CANADA L8L 5G8
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
Resident Canadian
DIRECTOR
Y
Administrator:
Name (Individual / Corporation)
Address
F. PATRICK
101 STREET
KIRBY
Suite # 10180
EDMONTON
ALBERTA
CANADA T5J 3S4
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
DIRECTOR
Resident Canadian
Y
Date Report Produced: 2013/06/21
75
Time Report Produced: 16:05:35
Page:
5
Request ID:
015467932
Transaction ID: 51308625
Category ID:
UN/E
Province of Ontario
Ministry of Government Services
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
2290877
CCL REALTY INC.
Administrator:
Name (Individual / Corporation)
Address
DAN
45 O'CONNOR STREET
LEDUC
Suite # 1500
OTTAWA
ONTARIO
CANADA K1P 1A4
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
Resident Canadian
DIRECTOR
Y
Administrator:
Name (Individual / Corporation)
Address
PETER
3455 LANDMARK ROAD
SEMMENS
BURLINGTON
ONTARIO
CANADA L7M 1T4
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
DIRECTOR
Resident Canadian
Y
Date Report Produced: 2013/06/21
76
Time Report Produced: 16:05:35
Page:
6
Request ID:
015467932
Transaction ID: 51308625
Category ID:
UN/E
Province of Ontario
Ministry of Government Services
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
2290877
CCL REALTY INC.
Administrator:
Name (Individual / Corporation)
Address
PETER
3455 LANDMARK ROAD
SEMMENS
BURLINGTON
ONTARIO
CANADA L7M 1T4
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
Resident Canadian
OFFICER
PRESIDENT
Y
Date Report Produced: 2013/06/21
77
Time Report Produced: 16:05:35
Page:
7
Request ID:
015467932
Transaction ID: 51308625
Category ID:
UN/E
Province of Ontario
Ministry of Government Services
Date Report Produced: 2013/06/21
78
Time Report Produced: 16:05:35
Page:
8
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
2290877
CCL REALTY INC.
Last Document Recorded
Act/Code Description
CIA
ANNUAL RETURN 2011
Form
1C
Date
2012/07/28
THIS REPORT SETS OUT THE MOST RECENT INFORMATION FILED BY THE CORPORATION ON OR AFTER JUNE 27, 1992, AND RECORDED
IN THE ONTARIO BUSINESS INFORMATION SYSTEM AS AT THE DATE AND TIME OF PRINTING. ALL PERSONS WHO ARE RECORDED AS
CURRENT DIRECTORS OR OFFICERS ARE INCLUDED IN THE LIST OF ADMINISTRATORS.
ADDITIONAL HISTORICAL INFORMATION MAY EXIST ON MICROFICHE.
The issuance of this report in electronic form is authorized by the Ministry of Government Services.
Request ID:
015467933
Transaction ID: 51308626
Category ID:
UN/E
Date Report Produced: 2013/06/21
79
Time Report Produced: 16:05:36
Page:
1
Province of Ontario
Ministry of Government Services
CORPORATION DOCUMENT LIST
Ontario Corporation Number
2290877
Corporation Name
CCL REALTY INC.
ACT/CODE
CIA
CIA
BCA
DATE
(YY/MM/DD)
DESCRIPTION
FORM
ANNUAL RETURN 2011
PAF: FORLIN, DENNIS
CHANGE NOTICE
PAF: CAREY, PHILIP B.
ARTICLES OF INCORPORATION
1C
2012/07/28
1
2011/12/09
(ELECTRONIC FILING)
1
2011/07/04
(ELECTRONIC FILING)
THIS REPORT SETS OUT ALL DOCUMENTS FOR THE ABOVE CORPORATION WHICH HAVE BEEN FILED ON OR AFTER
JUNE 27, 1992, AND RECORDED IN THE ONTARIO BUSINESS INFORMATION SYSTEM AS AT THE DATE AND TIME OF
PRINTING. ADDITIONAL HISTORICAL INFORMATION MAY EXIST ON MICROFICHE.
ALL "PAF" (PERSON AUTHORIZING FILING) INFORMATION IS DISPLAYED EXACTLY AS RECORDED IN ONBIS. WHERE PAF IS
NOT SHOWN AGAINST A DOCUMENT, THE INFORMATION HAS NOT BEEN RECORDED IN THE ONBIS DATABASE.
The issuance of this report in electronic form is authorized by the Ministry of Government Services.
80
Request ID:
015467929
Transaction ID: 51308615
Category ID:
UN/E
Date Report Produced: 2013/06/21
81
Time Report Produced: 16:05:12
Page:
1
Province of Ontario
Ministry of Government Services
CORPORATION PROFILE REPORT
Ontario Corp Number
2290879
Corporation Name
Incorporation Date
CCL EQUITIES INC.
2011/07/04
Jurisdiction
ONTARIO
Corporation Type
ONTARIO BUSINESS CORP.
Corporation Status
Former Jurisdiction
ACTIVE
NOT APPLICABLE
Registered Office Address
Date Amalgamated
Amalgamation Ind.
NOT APPLICABLE
NOT APPLICABLE
New Amal. Number
Notice Date
NOT APPLICABLE
NOT APPLICABLE
3455 LANDMARK ROAD
BURLINGTON
ONTARIO
CANADA L7M 1T4
Letter Date
NOT APPLICABLE
Mailing Address
Revival Date
Continuation Date
NOT APPLICABLE
NOT APPLICABLE
Transferred Out Date
Cancel/Inactive Date
NOT APPLICABLE
NOT APPLICABLE
EP Licence Eff.Date
EP Licence Term.Date
NOT APPLICABLE
NOT APPLICABLE
Date Commenced
in Ontario
Date Ceased
in Ontario
NOT APPLICABLE
NOT APPLICABLE
3455 LANDMARK ROAD
BURLINGTON
ONTARIO
CANADA L7M 1T4
Number of Directors
Minimum
Maximum
00001
Activity Classification
NOT AVAILABLE
00011
Request ID:
015467929
Transaction ID: 51308615
Category ID:
UN/E
Province of Ontario
Ministry of Government Services
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
2290879
CCL EQUITIES INC.
Corporate Name History
Effective Date
CCL EQUITIES INC.
2011/07/04
Current Business Name(s) Exist:
NO
Expired Business Name(s) Exist:
NO
Administrator:
Name (Individual / Corporation)
Address
GEOFFREY
3455 LANDMARK ROAD
BIRKBECK
BURLINGTON
ONTARIO
CANADA L7M 1T4
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
DIRECTOR
Resident Canadian
Y
Date Report Produced: 2013/06/21
82
Time Report Produced: 16:05:12
Page:
2
Request ID:
015467929
Transaction ID: 51308615
Category ID:
UN/E
Province of Ontario
Ministry of Government Services
Date Report Produced: 2013/06/21
83
Time Report Produced: 16:05:12
Page:
3
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
2290879
CCL EQUITIES INC.
Administrator:
Name (Individual / Corporation)
Address
GEOFFREY
3455 LANDMARK ROAD
BIRKBECK
BURLINGTON
ONTARIO
CANADA L7M 1T4
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
Resident Canadian
OFFICER
CHAIRMAN
Y
Administrator:
Name (Individual / Corporation)
Address
RICHARD
85 THIRD STREET
FERRUCCI
GARDEN CITY
NEW YORK
UNITED STATES OF AMERICA 11530
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
DIRECTOR
Resident Canadian
N
Request ID:
015467929
Transaction ID: 51308615
Category ID:
UN/E
Province of Ontario
Ministry of Government Services
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
2290879
CCL EQUITIES INC.
Administrator:
Name (Individual / Corporation)
Address
DENNIS
6337 MORETTA DRIVE
FORLIN
NIAGARA FALLS
ONTARIO
CANADA L3J 4H6
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
OFFICER
SECRETARY
Administrator:
Name (Individual / Corporation)
Resident Canadian
Address
DENNIS
6337 MORETTA DRIVE
FORLIN
NIAGARA FALLS
ONTARIO
CANADA L3J 4H6
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
OFFICER
VICE-PRESIDENT
Resident Canadian
Date Report Produced: 2013/06/21
84
Time Report Produced: 16:05:12
Page:
4
Request ID:
015467929
Transaction ID: 51308615
Category ID:
UN/E
Province of Ontario
Ministry of Government Services
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
2290879
CCL EQUITIES INC.
Administrator:
Name (Individual / Corporation)
Address
ALLEN
414 VICTORIA AVENUE N.
GREENSPOON
HAMILTON
ONTARIO
CANADA L8L 5G8
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
Resident Canadian
DIRECTOR
Y
Administrator:
Name (Individual / Corporation)
Address
F. PATRICK
101 STREET
KIRBY
EDMONTON
ALBERTA
CANADA T5J 3S4
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
DIRECTOR
Resident Canadian
Y
Date Report Produced: 2013/06/21
85
Time Report Produced: 16:05:12
Page:
5
Request ID:
015467929
Transaction ID: 51308615
Category ID:
UN/E
Province of Ontario
Ministry of Government Services
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
2290879
CCL EQUITIES INC.
Administrator:
Name (Individual / Corporation)
Address
DAN
45 O'CONNOR STREET
LEDUC
Suite # 1500
OTTAWA
ONTARIO
CANADA K1P 1A4
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
Resident Canadian
DIRECTOR
Y
Administrator:
Name (Individual / Corporation)
Address
PETER
3455 LANDMARK ROAD
SEMMENS
BURLINGTON
ONTARIO
CANADA L7M 1T4
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
DIRECTOR
Resident Canadian
Y
Date Report Produced: 2013/06/21
86
Time Report Produced: 16:05:12
Page:
6
Request ID:
015467929
Transaction ID: 51308615
Category ID:
UN/E
Province of Ontario
Ministry of Government Services
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
2290879
CCL EQUITIES INC.
Administrator:
Name (Individual / Corporation)
Address
PETER
3455 LANDMARK ROAD
SEMMENS
BURLINGTON
ONTARIO
CANADA L7M 1T4
Date Began
First Director
2011/07/04
NOT APPLICABLE
Designation
Officer Type
Resident Canadian
OFFICER
PRESIDENT
Y
Date Report Produced: 2013/06/21
87
Time Report Produced: 16:05:12
Page:
7
Request ID:
015467929
Transaction ID: 51308615
Category ID:
UN/E
Province of Ontario
Ministry of Government Services
Date Report Produced: 2013/06/21
88
Time Report Produced: 16:05:12
Page:
8
CORPORATION PROFILE REPORT
Ontario Corp Number
Corporation Name
2290879
CCL EQUITIES INC.
Last Document Recorded
Act/Code Description
CIA
ANNUAL RETURN 2011
Form
1C
Date
2012/07/28
THIS REPORT SETS OUT THE MOST RECENT INFORMATION FILED BY THE CORPORATION ON OR AFTER JUNE 27, 1992, AND RECORDED
IN THE ONTARIO BUSINESS INFORMATION SYSTEM AS AT THE DATE AND TIME OF PRINTING. ALL PERSONS WHO ARE RECORDED AS
CURRENT DIRECTORS OR OFFICERS ARE INCLUDED IN THE LIST OF ADMINISTRATORS.
ADDITIONAL HISTORICAL INFORMATION MAY EXIST ON MICROFICHE.
The issuance of this report in electronic form is authorized by the Ministry of Government Services.
Request ID:
015467930
Transaction ID: 51308616
Category ID:
UN/E
Date Report Produced: 2013/06/21
89
Time Report Produced: 16:05:11
Page:
1
Province of Ontario
Ministry of Government Services
CORPORATION DOCUMENT LIST
Ontario Corporation Number
2290879
Corporation Name
CCL EQUITIES INC.
ACT/CODE
CIA
CIA
BCA
DATE
(YY/MM/DD)
DESCRIPTION
FORM
ANNUAL RETURN 2011
PAF: FORLIN, DENNIS
CHANGE NOTICE
PAF: CAREY, PHILIP B.
ARTICLES OF INCORPORATION
1C
2012/07/28
1
2011/12/09
(ELECTRONIC FILING)
1
2011/07/04
(ELECTRONIC FILING)
THIS REPORT SETS OUT ALL DOCUMENTS FOR THE ABOVE CORPORATION WHICH HAVE BEEN FILED ON OR AFTER
JUNE 27, 1992, AND RECORDED IN THE ONTARIO BUSINESS INFORMATION SYSTEM AS AT THE DATE AND TIME OF
PRINTING. ADDITIONAL HISTORICAL INFORMATION MAY EXIST ON MICROFICHE.
ALL "PAF" (PERSON AUTHORIZING FILING) INFORMATION IS DISPLAYED EXACTLY AS RECORDED IN ONBIS. WHERE PAF IS
NOT SHOWN AGAINST A DOCUMENT, THE INFORMATION HAS NOT BEEN RECORDED IN THE ONBIS DATABASE.
The issuance of this report in electronic form is authorized by the Ministry of Government Services.
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The Property Registry
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275
Business Debtor
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Results
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Services
Search Services
Individual Debtor
Business Debtor
Registration
Number
Search by Business Debtor
Date: 2013-07-05
Time: 8:16:53 AM
Inquiry Number: 10203586519
User ID:
Business Name:
Comstock Canada Ltd.
Credit Card Receipt
Serial Number
Document Copies
Other Services
Fees
1 exact match was found.
0 similar matches were found.
Party Code
EXACT MATCHES
Registration
History
Contact Us
Business Debtor Name
No. of Registrations
1. COMSTOCK CANADA LTD.
4
1. COMSTOCK CANADA LTD.
1.1 COMSTOCK CANADA LTD.: Registration 201309348805 (2013-05-29 3:08:07 PM)
Registered under
The Personal Property Security Act
Expiry Date (YYYY-MM-DD)
2017-05-29
Debtor Address
3455 LANDMARK ROAD
BURLINGTON, ON
Canada L7M 1T4
This registration is jointly
registered with these business
debtors
COMSTOCK CANADA LTD.
Secured Parties
(party code, name, address)
RCAP LEASING INC.
5575 NORTH SERVICE RD, STE 300
BURLINGTON, ON
Canada L7L 6M1
General Collateral Description
COMPUTER EQUIPMENT FROM TIME TO TIME LEASED BY THE SECURED
PARTY TO THE DEBTOR AS DESCRIBED ON LEASES, CONDITIONAL
SALES AGREEMENTS AND ANY OTHER FINANCING AGREEMENTS ENTERED
INTO BETWEEN THE SECURED PARTY AND THE DEBTOR FROM TIME TO
TIME AND ANY PROCEEDS THEREOF, TOGETHER WITH ALL REPLACEMENT
PARTS, ACCESSORIES AND ATTACHMENTS.
1.2 COMSTOCK CANADA LTD.: Registration 201216675300 (2012-09-19 4:52:36 PM)
Registered under
The Personal Property Security Act
Expiry Date (YYYY-MM-DD)
2013-09-19
Debtor Address
3455 LANDMARK ROAD
BURLINGTON, ON
Canada L7M 1T4
Secured Parties
(party code, name, address)
ATCO STRUCTURES & LOGISTICS LTD.
30 ALBERTA AVENUE
PO BOX 3759
SPRUCE GROVE, AB
Canada T7X 3A9
260121226
Mobile Home
2012
OFFICE
7/5/2013
The Property Registry
Page 2 of 2
276
260121230
Mobile Home
2012
OFFICE
Serial Numbered Goods
(serial number, category, year,
description)
124061831
Mobile Home
2006
LAVATORY
ST111-0713
Mobile Home
2011
SEWAGE TANK
1.3 COMSTOCK CANADA LTD.: Registration 201112304202 (2011-07-22 4:18:10 PM)
Registered under
The Personal Property Security Act
Expiry Date (YYYY-MM-DD)
2021-07-22
Debtor Address
3455 LANDMARK ROAD
BURLINGTON, ONTARIO
Canada L7M 1T4
Secured Parties
(party code, name, address)
BANK OF MONTREAL
100 KING STREET WEST
11TH FLOOR
TORONTO, ONTARIO
Canada M5X 1A1
General Collateral Description
*The security interest is taken in all of the debtor's present and afteracquired personal property.
1.4 COMSTOCK CANADA LTD.: Registration 201112302706 (2011-07-22 4:13:03 PM)
Registered under
The Personal Property Security Act
Expiry Date (YYYY-MM-DD)
2021-07-22
Debtor Address
3455 LANDMARK ROAD
BURLINGTON, ONTARIO
Canada L7M 1T4
Secured Parties
(party code, name, address)
BANK OF MONTREAL
100 KING STREET WEST
11TH FLOOR
TORONTO, ONTARIO
Canada M5X 1A1
General Collateral Description
*The security interest is taken in all of the debtor's present and afteracquired personal property.
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277
Business Debtor
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Services
Search by Business Debtor: 1 similar match was found.
Search Services
Business Debtor Name
No. of Registrations
1. CCL REALTY INC.
2
Individual Debtor
Business Debtor
Registration
Number
Serial Number
Document Copies
Other Services
Fees
Party Code
Registration
History
1. CCL REALTY INC.
c Include in Printed Search Results
d
e
f
g
1.1 CCL REALTY INC.: Registration 201112301700 (2011-07-22 4:01:21 PM)
Registered under
The Personal Property Security Act
Expiry Date (YYYY-MM-DD)
2021-07-22
Debtor Address
3455 LANDMARK ROAD
BURLINGTON, ONTARIO
Canada L7M 1T4
Secured Parties
(party code, name, address)
BANK OF MONTREAL
100 KING STREET WEST
11TH FLOOR
TORONTO, ONTARIO
Canada M5X 1A1
Contact Us
General Collateral Description
*The security interest is taken in all of the debtor's present and after-acquired
personal property.
1.2 CCL REALTY INC.: Registration 201112300304 (2011-07-22 3:56:08 PM)
Registered under
The Personal Property Security Act
Expiry Date (YYYY-MM-DD)
2021-07-22
Debtor Address
3455 LANDMARK ROAD
BURLINGTON, ONTARIO
Canada L7M 1T4
Secured Parties
(party code, name, address)
BANK OF MONTREAL
100 KING STREET WEST
11TH FLOOR
TORONTO, ONTARIO
Canada M5X 1A1
General Collateral Description
*The security interest is taken in all of the debtor's present and after-acquired
personal property.
Registration Number: 201112520614 (2011-07-27 10:20:53 AM)
Sections Changed: Secured Parties, Business Debtors
Change History
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7/5/2013
The Property Registry
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278
Business Debtor
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Services
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Individual Debtor
Business Debtor
Registration
Number
Search by Business Debtor
Date: 2013-07-05
Time: 8:25:34 AM
Inquiry Number: 10203586951
User ID:
Business Name:
CCL Equities Inc.
Credit Card Receipt
Serial Number
Document Copies
Other Services
Fees
1 exact match was found.
0 similar matches were found.
Party Code
EXACT MATCHES
Registration
History
Contact Us
Business Debtor Name
No. of Registrations
1. CCL EQUITIES INC.
1
1. CCL EQUITIES INC.
1.1 CCL EQUITIES INC.: Registration 201112304709 (2011-07-22 4:24:17 PM)
Registered under
The Personal Property Security Act
Expiry Date (YYYY-MM-DD)
2021-07-22
Debtor Address
3455 LANDMARK ROAD
BURLINGTON, ONTARIO
Canada L7M 1T4
Secured Parties
(party code, name, address)
BANK OF MONTREAL
100 KING STREET WEST
11TH FLOOR
TORONTO, ONTARIO
Canada M5X 1A1
General Collateral Description
*The security interest is taken in all of the debtor's present and afteracquired personal property.
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Additional Options:
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280
Personal Property Registry
Search Results Report
Page 1 of 11
Search ID#: Z04797986
Transmitting Party
GOWLING LAFLEUR HENDERSON LLP
Party Code: 50016237
Phone #: 403 298 1004
Reference #: T998163/TSC
1400, 700 2 STREET S.W.
CALGARY, AB T2P 4V5
Search ID #: Z04797986
Date of Search: 2013-Jul-03
Time of Search: 07:35:51
Business Debtor Search For:
COMSTOCK CANADA LTD.
Both Exact and Inexact Result(s) Found
NOTE:
A complete Search may result in a Report of Exact and Inexact Matches.
Be sure to read the reports carefully.
281
Personal Property Registry
Search Results Report
Page 2 of 11
Search ID#: Z04797986
Business Debtor Search For:
COMSTOCK CANADA LTD.
Search ID #: Z04797986
Date of Search: 2013-Jul-03
Registration Number: 11072520673
Registration Date: 2011-Jul-25
Time of Search: 07:35:51
Registration Type: SECURITY AGREEMENT
Registration Status: Current
Expiry Date: 2021-Jul-25 23:59:59
Exact Match on:
Debtor
No: 1
Debtor(s)
Block
1
Status
COMSTOCK CANADA LTD.
3455 LANDMARK ROAD
BURLINGTON, ON L7M 1T4
Current
Secured Party / Parties
Block
1
Status
BANK OF MONTREAL
100 KING STREET WEST, 11TH FLOOR
TORONTO, ON M5X 1A1
Current
Collateral: General
Block
Description
Status
1
ALL OF THE DEBTOR'S PRESENT AND AFTER-ACQUIRED PERSONAL PROPERTY.
Current
282
Personal Property Registry
Search Results Report
Page 3 of 11
Search ID#: Z04797986
Business Debtor Search For:
COMSTOCK CANADA LTD.
Search ID #: Z04797986
Date of Search: 2013-Jul-03
Registration Number: 11072520737
Registration Date: 2011-Jul-25
Time of Search: 07:35:51
Registration Type: SECURITY AGREEMENT
Registration Status: Current
Expiry Date: 2021-Jul-25 23:59:59
Exact Match on:
Debtor
No: 1
Debtor(s)
Block
1
Status
COMSTOCK CANADA LTD.
3455 LANDMARK ROAD
BURLINGTON, ON L7M 1T4
Current
Secured Party / Parties
Block
1
Status
BANK OF MONTREAL
100 KING STREET WEST, 11TH FLOOR
TORONTO, ON M5X 1A1
Current
Collateral: General
Block
Description
Status
1
ALL OF THE DEBTOR'S PRESENT AND AFTER-ACQUIRED PERSONAL PROPERTY.
Current
283
Personal Property Registry
Search Results Report
Page 4 of 11
Search ID#: Z04797986
Business Debtor Search For:
COMSTOCK CANADA LTD.
Search ID #: Z04797986
Date of Search: 2013-Jul-03
Registration Number: 12061909976
Time of Search: 07:35:51
Registration Type: SECURITY AGREEMENT
Registration Date: 2012-Jun-19
Registration Status: Current
Expiry Date: 2014-Jun-19 23:59:59
Inexact Match on:
Debtor
No: 1
Amendments to Registration
13061726117
Renewal
2013-Jun-17
Debtor(s)
Block
1
Status
COMSTOCK CANADA
2116 LOGAN AVENUE
WINNIPEG, MB R2R 0J2
Current
Secured Party / Parties
Block
1
Status
ATCO STRUCTURES & LOGISTICS LTD.
PO Box 3759, 30 Alberta Avenue
SPRUCE GROVE, AB T7X 3A9
Phone #: 780 962 3111
Current
Fax #: 780 962 8733
Collateral: Serial Number Goods
Block
Serial Number
Year
Make and Model
Category
Status
1
240085202
2008
12X40 SKID OFFICE
MH - Mobile Home
Current
Collateral: General
Block
Description
Status
284
Personal Property Registry
Search Results Report
Page 5 of 11
Search ID#: Z04797986
1
All equipment, fixtures, furnishings, components, parts, appurtenances, accessories,
modules, and other goods or equipment of any kind which may from time to time, be
incorporated or installed in or attached to the above described mobile homes.
All camp facilities supplied by the secured party to the debtor including without limitation,
the kitchen/diner complex, the recreation complex, all dormitory units, the sewage treatment
equipment, the water storage equipment, telephone systems, fire alarm systems, utilidors
and heat tracing, underground mechanical, t.v. systems, fencing, parking rails and walkways.
Proceeds: Goods, inventory, chattel paper, securities, documents of title, instruments,
money, intangibles, and accounts (all as defined in the Personal Property Security Act) and
insurance proceed.
Current
285
Personal Property Registry
Search Results Report
Page 6 of 11
Search ID#: Z04797986
Business Debtor Search For:
COMSTOCK CANADA LTD.
Search ID #: Z04797986
Date of Search: 2013-Jul-03
Registration Number: 12071719302
Time of Search: 07:35:51
Registration Type: SECURITY AGREEMENT
Registration Date: 2012-Jul-17
Registration Status: Current
Expiry Date: 2013-Jul-17 23:59:59
Inexact Match on:
Debtor
No: 1
Debtor(s)
Block
1
Status
COMSTOCK CANADA
3455 LANDMARK ROAD
BURLINGTON, ON L7M 1T4
Current
Secured Party / Parties
Block
1
Status
ATCO STRUCTURES & LOGISTICS LTD.
PO Box 3759, 30 Alberta Avenue
SPRUCE GROVE, AB T7X 3A9
Phone #: 780 962 3111
Current
Fax #: 780 962 8733
Collateral: Serial Number Goods
Block
Serial Number
Year
Make and Model
Category
Status
1
224085387
2008
10 X 24 SKID LAVATORY
MH - Mobile Home
Current
2
ST1110749
2011
1000g SEWAGE TANK
MH - Mobile Home
Current
Collateral: General
Block
Description
Status
286
Personal Property Registry
Search Results Report
Page 7 of 11
Search ID#: Z04797986
1
All equipment, fixtures, furnishings, components, parts, appurtenances, accessories,
modules, and other goods or equipment of any kind which may from time to time, be
incorporated or installed in or attached to the above described mobile homes.
All camp facilities supplied by the secured party to the debtor including without limitation,
the kitchen/diner complex, the recreation complex, all dormitory units, the sewage treatment
equipment, the water storage equipment, telephone systems, fire alarm systems, utilidors
and heat tracing, underground mechanical, t.v. systems, fencing, parking rails and walkways.
Proceeds: Goods, inventory, chattel paper, securities, documents of title, instruments,
money, intangibles, and accounts (all as defined in the Personal Property Security Act) and
insurance proceed.
Current
287
Personal Property Registry
Search Results Report
Page 8 of 11
Search ID#: Z04797986
Business Debtor Search For:
COMSTOCK CANADA LTD.
Search ID #: Z04797986
Date of Search: 2013-Jul-03
Registration Number: 12071823834
Time of Search: 07:35:51
Registration Type: SECURITY AGREEMENT
Registration Date: 2012-Jul-18
Registration Status: Current
Expiry Date: 2013-Jul-18 23:59:59
Inexact Match on:
Debtor
No: 1
Debtor(s)
Block
1
Status
COMSTOCK CANADA
3455 LANDMARK ROAD
BURLINGTON, ON L7M 1T4
Current
Secured Party / Parties
Block
1
Status
ATCO STRUCTURES & LOGISTICS LTD.
PO Box 3759, 30 Alberta Avenue
SPRUCE GROVE, AB T7X 3A9
Phone #: 780 962 3111
Current
Fax #: 780 962 8733
Collateral: Serial Number Goods
Block
Serial Number
Year
Make and Model
Category
Status
1
240129652
2012
12 X 40 OFFICE
MH - Mobile Home
Current
Collateral: General
Block
Description
Status
288
Personal Property Registry
Search Results Report
Page 9 of 11
Search ID#: Z04797986
1
All equipment, fixtures, furnishings, components, parts, appurtenances, accessories,
modules, and other goods or equipment of any kind which may from time to time, be
incorporated or installed in or attached to the above described mobile homes.
All camp facilities supplied by the secured party to the debtor including without limitation,
the kitchen/diner complex, the recreation complex, all dormitory units, the sewage treatment
equipment, the water storage equipment, telephone systems, fire alarm systems, utilidors
and heat tracing, underground mechanical, t.v. systems, fencing, parking rails and walkways.
Proceeds: Goods, inventory, chattel paper, securities, documents of title, instruments,
money, intangibles, and accounts (all as defined in the Personal Property Security Act) and
insurance proceed.
Current
289
Personal Property Registry
Search Results Report
Page 10 of 11
Search ID#: Z04797986
Business Debtor Search For:
COMSTOCK CANADA LTD.
Search ID #: Z04797986
Date of Search: 2013-Jul-03
Registration Number: 13052926645
Registration Date: 2013-May-29
Time of Search: 07:35:51
Registration Type: SECURITY AGREEMENT
Registration Status: Current
Expiry Date: 2017-May-29 23:59:59
Exact Match on:
Debtor
No: 1
Exact Match on:
Debtor
No: 2
Exact Match on:
Debtor
No: 3
Exact Match on:
Debtor
No: 4
Exact Match on:
Debtor
No: 5
Debtor(s)
Block
1
Status
COMSTOCK CANADA LTD.
18020-105 AVE NW UNIT 100
EDMONTON, AB T5S 2P1
Block
2
Status
COMSTOCK CANADA LTD.
DROP 161 TAR ISLAND PLANT
FORT MCMURRAY, AB T9H 3E3
Block
3
Current
Status
COMSTOCK CANADA LTD.
49KM OF FT MCMURRAY EAST OF FT MCKA
FORT MCMURRAY, AB T9H 3G2
Block
4
Current
Current
Status
COMSTOCK CANADA LTD.
TAR ISLAND FACILITY
FORT MCMURRAY, AB T9H 3E3
Current
Block
Status
5
Current
290
Personal Property Registry
Search Results Report
Page 11 of 11
Search ID#: Z04797986
COMSTOCK CANADA LTD.
3455 LANDMARK ROAD
BURLINGTON, AB L7M 1T4
Secured Party / Parties
Block
1
Status
RCAP LEASING INC.
5575 NORTH SERVICE RD, STE 300
BURLINGTON, ON L7L 6M1
Current
Collateral: General
Block
Description
Status
1
COMPUTER EQUIPMENT FROM TIME TO TIME LEASED BY THE SECURED PARTY
TO THE DEBTOR AS DESCRIBED ON LEASES, CONDITIONAL SALES AGREEMENTS
AND ANY OTHER FINANCING AGREEMENTS ENTERED INTO BETWEEN THE
SECURED PARTY AND THE DEBTOR FROM TIME TO TIME AND ANY PROCEEDS
THEREOF, TOGETHER WITH ALL REPLACEMENT PARTS, ACCESSORIES AND
ATTACHMENTS.
Current
Result Complete
291
Personal Property Registry
Search Results Report
Page 1 of 3
Search ID#: Z04797987
Transmitting Party
GOWLING LAFLEUR HENDERSON LLP
Party Code: 50016237
Phone #: 403 298 1004
Reference #: T998164/TSC
1400, 700 2 STREET S.W.
CALGARY, AB T2P 4V5
Search ID #: Z04797987
Date of Search: 2013-Jul-03
Time of Search: 07:36:25
Business Debtor Search For:
CCL REALTY INC.
Exact Result(s) Only Found
NOTE:
A complete Search may result in a Report of Exact and Inexact Matches.
Be sure to read the reports carefully.
292
Personal Property Registry
Search Results Report
Page 2 of 3
Search ID#: Z04797987
Business Debtor Search For:
CCL REALTY INC.
Search ID #: Z04797987
Date of Search: 2013-Jul-03
Registration Number: 11072520561
Registration Date: 2011-Jul-25
Time of Search: 07:36:25
Registration Type: SECURITY AGREEMENT
Registration Status: Current
Expiry Date: 2021-Jul-25 23:59:59
Exact Match on:
Debtor
No: 1
Debtor(s)
Block
1
Status
CCL REALTY INC
3455 LANDMARK ROAD
BURLINGTON, ON L7M 1T4
Current
Secured Party / Parties
Block
1
Status
BANK OF MONTREAL
100 KING STREET WEST, 11 FLOOR
TORONTO, ON M5X 1A1
Current
Collateral: General
Block
Description
Status
1
ALL OF THE DEBTOR'S PRESENT AND AFTER-ACQUIRED PERSONAL PROPERTY.
Current
293
Personal Property Registry
Search Results Report
Page 3 of 3
Search ID#: Z04797987
Business Debtor Search For:
CCL REALTY INC.
Search ID #: Z04797987
Date of Search: 2013-Jul-03
Registration Number: 11072520625
Registration Date: 2011-Jul-25
Time of Search: 07:36:25
Registration Type: SECURITY AGREEMENT
Registration Status: Current
Expiry Date: 2021-Jul-25 23:59:59
Exact Match on:
Debtor
No: 1
Debtor(s)
Block
1
Status
CCL REALTY INC.
3455 LANDMARK ROAD
BURLINGTON, ON L7M 1T4
Current
Secured Party / Parties
Block
1
Status
BANK OF MONTREAL
100 KING STREET WEST, 11TH FLOOR
TORONTO, ON M5X 1A1
Current
Collateral: General
Block
Description
Status
1
ALL OF THE DEBTOR'S PRESENT AND AFTER-ACQUIRED PERSONAL PROPERTY.
Current
Result Complete
294
Personal Property Registry
Search Results Report
Page 1 of 2
Search ID#: Z04797990
Transmitting Party
GOWLING LAFLEUR HENDERSON LLP
Party Code: 50016237
Phone #: 403 298 1004
Reference #: T998162/TSC
1400, 700 2 STREET S.W.
CALGARY, AB T2P 4V5
Search ID #: Z04797990
Date of Search: 2013-Jul-03
Time of Search: 07:36:58
Business Debtor Search For:
CCL EQUITIES INC.
Exact Result(s) Only Found
NOTE:
A complete Search may result in a Report of Exact and Inexact Matches.
Be sure to read the reports carefully.
295
Personal Property Registry
Search Results Report
Page 2 of 2
Search ID#: Z04797990
Business Debtor Search For:
CCL EQUITIES INC.
Search ID #: Z04797990
Date of Search: 2013-Jul-03
Registration Number: 11072520814
Registration Date: 2011-Jul-25
Time of Search: 07:36:58
Registration Type: SECURITY AGREEMENT
Registration Status: Current
Expiry Date: 2021-Jul-25 23:59:59
Exact Match on:
Debtor
No: 1
Debtor(s)
Block
1
Status
CCL EQUITIES INC.
3455 LANDMARK ROAD
BURLINGTON, ON L7M 1T4
Current
Secured Party / Parties
Block
1
Status
BANK OF MONTREAL
100 KING STREET WEST, 11TH FLOOR
TORONTO, ON M5X 1A1
Current
Collateral: General
Block
Description
Status
1
ALL OF THE DEBTOR'S PRESENT AND AFTER-ACQUIRED PERSONAL PROPERTY.
Current
Result Complete
296
297
298
299
300
301
302
303
304
305
306
307
308
309
310
311
312
313
314
1‐910 COBALT CRES
45 McIntosh Dr
45 McIntosh Dr
1035 Sutton Dr
87 Cole Ave
P.O. Box 764
210‐2750 Quaddra St
215‐3480 Gilmore Way
701‐161 Portage Ave
207 2725‐12th St NE
16214 ‐ 118th Ave
17725‐ 103 Ave
200,4224 ‐ 93rd St
160‐4400 Dominion St
190 Attwell dr, ste 580
110 Sheppard Ave E, Ste 705
4232‐ 93rd St
151 Frobisher Dr, ste E220
151 Frobisher Dr, ste E220
3 Forwell Dr
556 Notre Dame Ave
6688 Tempo Rd PO Box 324
701 Ontario St 1204 St Jerome St
P.O. Box 764
370 York Blvd, Ste 102
1104 Fennell Ave E
9335 ‐ 47 St
9th Floor, 9707 ‐110 St
1955 Upper James
111 Sheppard Ave E
111 Sheppard Ave E
111 Sheppard Ave E
10504 ‐ 122nd St
6891 MacPherson Ave
9th Floor, 9707 ‐110 St
Local 402
Local 128
Local 146
Local 128
Local 343
Local 343
Local 527
Local 1735
CLRA‐ MB
CLRA‐ AB
Local 488
ECA
Local 424
Local 993
Epsca
Local 353
Local 424
Local 303
Local 804
Local 804
Local 2085
Local 120
Local 530
Local 1687
Local 2085
Local 105
BTC
Local 110
Local 720
Local 736
Local 721
Local 736
Local 786
Local 720
Local 97
Local 92
Admin Funds
Boilermaker Benfit Plan Administrators
Boilermaker Benfit Plan Administrators
Boilermaker Union Dues
Carpenter Trade Improv. Fund
Carpenters c/o Coughlin & Assoc
Carpenters Fund
Carpenters Union Funds
Construction Labour Relations Construction Labour Relations Edmonton Pipe Trades Funds
Electrical Assoc. of Alberta
Electrical Industry Benefit Funds
Electrical Industry Fund
Electrical Power Systems Electricians ‐ c/o TEIBAS
Electricians Dues
Electricians Funds c/o Benefit Plan Services
Electricians Funds c/o Benefit Plan Services
Electricians Union Dues
Electricians Union Dues
Electricians Union Funds
Electricians Union Funds
Electricians Union Funds
Electricians Union Funds c/o Coughlin
Electricians Unions, c/o Electrical Contractors Assoc
Hamilton Building Trades Council
Insulators Union Funds
Ironworker H&W and Pensiond Funds
Ironworker Union Dues
Ironworkers Pension & Welfare
Ironworkers Pension & Welfare
Ironworkers Pension & Welfare
Ironworkers Union Dues
Ironworkers Union Funds
Laboureres H&W and Pension Funds
Addr 1
Union #
Union Addresses
Thunder Bay, On
Markham, On
Markham, On
Burlington, On
Winnipeg,Mb
Winnipeg,Mb
Victoria, BC
Burnaby, BC
Winnipeg,Mb
Calgary, Ab
Edmonton,AB
Edmonton,AB
Edmonton,AB
Burnaby, BC
Etobicoke,On
Toronto,On
Edmonton,AB
Waterloo,On
Waterloo,On
Kitchener,On
Winnipeg,Mb
Lambeth, On
Sarnia,On
Sudbury, On
Winnipeg,Mb
Hamilton, On
Hamilton, On
Edmonton,AB
Edmonton,AB
Hamilton, On
North York, On
North York, On
North York, On
Edmonton,AB
Burnaby, BC
Edmonton,AB
Addr 2
P7B
L3R
L3R
L7L
R2L
R3C
V8T
V5G
R3G
T2E
T5V
T5S
T6E
V5G
M9W
M2N
T6E
N2V
N2V
N2B
R3B
N6P
N7T
P3A
R3C
L8R
L8T
T6B
T5K
L9B
M2N
M2N
M2N
T5N
V5J
T5K
5W3
8C7
8C7
5Z8
1J3
2L4
4E8
4Y1
0Y4
7J2
1M6
1J2
5P5
4G3
6A9
6Y8
5P5
2C9
2C9
1W3
1S4
1P9
1M3
2V9
2L4
3L1
1R9
2R7
3T4
1k8
6S2
6S2
6S2
1M6
4N2
3T4
Postal
Code
315
11311 Kingsway Ave
151 Karl Clark Rd NW
12750 ‐ 127 St
6188 Kingsway 490 East Roadway 225 Metcalfe st, Ste 600
837 Desmon St
541 Waterfront Dr
RRSP Fund c/o Servus Credit Union
RRSP Fund c/o Servus Credit Union
Sheet Metal Union Funds
Teamster Union Funds
U.A. Canadian Training Fund ‐ Local 666
Union Dues
Union Dues/ Training Fund
Local 720 RRSP Fund c/o Servus Credit Union
Local 424
Local 110
Local 280
Local 213
Cdn Training
Local 993
Local 1258
104 10319‐106th Ave
P.O. Box 9002, Stn Main
P.O. Box 9002, Stn Main
P.O. Box 9002, Stn Main
12150 ‐ 154 St
1255 Confederation St
P.O. Box 9252 P.O. Box 764
44 Hughson St S
204, 2725 ‐ 12 Steet NE
Suite 101 2635‐37 Ave NE
P.O. Box 764
177 15210 ‐ 123 Ave
3542 Kingsway
700 Dorval Dr, Ste 502
222 Rowntree Dairy Rd, Unit 4
P.O. Box 764
402 ‐ 4333 Ledger Ave
2245 Speers Rd
244 Cree Cres
34 Higgins Ave
225 Frobisher Dr
1640 Bancroft Dr
959 Alloy Dr
1151 Confederation St
P.O. Box 8
195 Dartnell Rd, Ste 102
3‐26 Caristrap St
45 McIntosh Dr
151 Frobisher Dr, ste E220
151 Frobisher Dr, ste E220
203 ‐ 1658 Fosters Way
88 St Regis Cres. S
Local 92
Local 837
Local 506
Local 1089
Local 92
Local 1089
Local 506
Local 1258
Local 837 MCA
Local 1460
Local 1443
Local 1460
Local 1611
Nat. Maint
Millwrights
Local 987
Local 115
Local 793
Local 987
Local 254
Local 527
Local 800
Local 628
Local 663 Local 666
Local 67
Local 401
Local 46
Local 527
Local 800
Local 170
Local 254
Labourers Union Dues
Labourers Pension Fund
Labourers Pension Fund
Labourers Pension Fund
Labourers Training Fund
Labourers Trust Funds
Labourers Unin Funds c/o The Royal Bank
Labourers Union Funds
Labourers Union Funds & Vac. Pay
Mech. Contractors Assoc. Of Alberta
Millwright Pension Fund
Millwright Union Funds c/o Coughlin
Millwrights Union Funds
Millwrights Union Funds
National Maintenance Council
Ont. Millwrights C/o Manion ,Wilkins & Assoc
Operator Funds c/o Coughlin Operator Union Funds
Operators Benefit Trust Fund
Operators Union Dues
Pipefitter Union Dues
Pipefitter Union Dues
Pipefitter Union Dues
Pipefitter Union Funds
Pipefitter Union Funds
Pipefitter Union Funds
Pipefitter Union Funds
Pipefitter Union Funds
Pipefitter Union Funds
Pipefitter Union Funds c/o Benefit Plan Services
Pipefitter Union Funds c/o Benefit Plan Services
Pipefitter Union Funds c/o. CIBC
Pipefitters Union Funds c/o Global Benefit
Addr 1
Union #
Edmonton,AB
Edmonton,AB
Burnaby, BC
Vancouver, BC
Ottawa,On
Kamloops,BC
Winnipeg,Mb
Edmonton,AB
Edmonton,AB
Oakville,On
Oakville,On
Oakville,On
Edmonton,AB
Sarnia,On
Toronto,On
Winnipeg,Mb
Hamilton, On
Calgary, Ab
Calgary, Ab
Winnipeg,Mb
Edmonton,AB
Vancouver, BC
Oakville,On
Woodbridge,On
Winnipeg,Mb
Burnaby, BC
Oakville,On
Winnipeg,Mb
Winnipeg,Mb
Waterloo,On
Sudbury, On
Thunder Bay, On
Sarnia,On
Thorold,On
Hamilton, On
Bowmanville,On
Markham, On
Waterloo,On
Waterloo,On
Delta, BC
Toronto,On
Addr 2
0P4
0B9
0B9
0B9
1J2
4M7
3M1
2L4
2A7
7J2
5Z6
2L4
1G8
5X7
3V3
9T2
2L4
4G9
6X8
3W1
0A5
2G4
1R8
5Z8
3Y5
3Y7
3V9
3Y7
8C7
2C9
2C9
6S6
1T8
T6N
T5L
V5J
V5T
K2P
V2B
R3B
1H5
1A5
1H5
1X3
1P9
5K3
0H1
T5G 0X3
T5H
L6J
L6J
L6J
T5V
N7S
M5W
R3C
L8N
T2E
T1Y
R3C
T6G
V5R
L6K
L4L
R3C
V5G
L6L
R3J
R3B
N2V
P3B
P7C
N7S
L2V
L8W
L1C
L3R
N2V
N2V
V3M
M3J
Postal
Code
316
317
318
319
District of
Division No.
Court No.
Estate No.
Ontario
07 - Hamilton
32-1763935
32-1763935
In the Matter of the Notice of Intention to make a
proposal of:
Comstock Canada Ltd.
Insolvent Person
PRICEWATERHOUSECOOPERS INC.
Trustee
Date of the Notice of Intention:
June 28, 2013
CERTIFICATE OF FILING OF A NOTICE OF INTENTION TO MAKE A PROPOSAL
Subsection 50.4 (1)
I, the undersigned, Official Receiver in and for this bankruptcy district, do hereby certify that the aforenamed
insolvent person filed a Notice of Intention to Make a Proposal under subsection 50.4 (1) of the Bankruptcy and
Insolvency Act.
Pursuant to subsection 69(1) of the Act, all proceedings against the aforenamed insolvent person are stayed as of
the date of filing of the Notice of Intention.
E-File/Dépôt Electronique
Date: June 28, 2013, 15:14
Official Receiver
Federal Building, 55 Bay Street North, 9th Floor, Hamilton, Ontario, Canada, L8R3P7, (877)376-9902
320
321
District of
Division No.
Court No.
Estate No.
Ontario
07 - Hamilton
32-1763929
32-1763929
In the Matter of the Notice of Intention to make a
proposal of:
CCL Realty Inc.
Insolvent Person
PRICEWATERHOUSECOOPERS INC.
Trustee
Date of the Notice of Intention:
June 28, 2013
CERTIFICATE OF FILING OF A NOTICE OF INTENTION TO MAKE A PROPOSAL
Subsection 50.4 (1)
I, the undersigned, Official Receiver in and for this bankruptcy district, do hereby certify that the aforenamed
insolvent person filed a Notice of Intention to Make a Proposal under subsection 50.4 (1) of the Bankruptcy and
Insolvency Act.
Pursuant to subsection 69(1) of the Act, all proceedings against the aforenamed insolvent person are stayed as of
the date of filing of the Notice of Intention.
E-File/Dépôt Electronique
Date: June 28, 2013, 15:07
Official Receiver
Federal Building, 55 Bay Street North, 9th Floor, Hamilton, Ontario, Canada, L8R3P7, (877)376-9902
322
323
District of
Division No.
Court No.
Estate No.
Ontario
07 - Hamilton
32-1764011
32-1764011
In the Matter of the Notice of Intention to make a
proposal of:
CCL Equities Inc.
Insolvent Person
PRICEWATERHOUSECOOPERS INC.
Trustee
Date of the Notice of Intention:
June 28, 2013
CERTIFICATE OF FILING OF A NOTICE OF INTENTION TO MAKE A PROPOSAL
Subsection 50.4 (1)
I, the undersigned, Official Receiver in and for this bankruptcy district, do hereby certify that the aforenamed
insolvent person filed a Notice of Intention to Make a Proposal under subsection 50.4 (1) of the Bankruptcy and
Insolvency Act.
Pursuant to subsection 69(1) of the Act, all proceedings against the aforenamed insolvent person are stayed as of
the date of filing of the Notice of Intention.
E-File/Dépôt Electronique
Date: June 28, 2013, 16:15
Official Receiver
Federal Building, 55 Bay Street North, 9th Floor, Hamilton, Ontario, Canada, L8R3P7, (877)376-9902
324
325
Term Sheet
Bank of Montreal is pleased to offer PricewaterhouseCoopers Inc., in its capacity as interim
receiver of Comstock Canada Ltd. (the “Company”) a short term credit facility subject to the terms
and conditions set forth in this Term Sheet. The offer of financing constituted by this Term Sheet
is open for acceptance by the execution and return of a duplicate copy by 5:00pm on July 3,
2013, after which date the offer will expire and this Term Sheet shall be of no further force or
effect.
Borrower
PricewaterhouseCoopers Inc., in its capacity as interim receiver of the
Company (the “Borrower”).
Lender
BMO Bank of Montreal (the “Lender”).
Facility Type
Short Term Demand Credit Facility (the “Facility”).
Amount
Maximum principal amount of $1,500,000.
Interest Rate
10% per annum, not in advance, payable on Maturity (as hereinafter
defined).
Fee
$[•]
Purpose
To provide the Borrower with funds to be made available to the Company
solely to pay the Company’s payroll and amounts owing to independent
contractors each due July 4, 2013 (collectively, the “Payees”).
Maturity
The Facility matures and is repayable on the earlier of: (i) demand; (ii) the
date upon which the Company obtains an initial order under the
Companies’ Creditors Arrangement Act and an order approving DIP
financing; (iii) termination of the current proposal proceedings under the
Bankruptcy and Insolvency Act (Canada); and (iv) July [12], 2013.
Availability
Available by way of a single Canadian Dollar direct advance to the
Company on the direction of the Borrower to be evidenced by an Interim
Receiver’s Certificate.
Security
All debts, liabilities, and obligations of the Borrower and the Company
under the Facility shall be secured by a first-ranking super-priority charge
pursuant to the IR Order (as hereinafter defined) over all of the present and
after acquired real and personal, tangible and intangible property and
assets of the Company in favour of the Lender in priority to all,
assignments, security interests, trusts, liens, charges and encumbrances
whatsoever, statutory or otherwise including, without limitation,
construction liens and trust claims.
Remedies
In the event that the Facility is not paid in full on Maturity, the Lender may
exercise all rights and remedies available to it, including the appointment of
a receiver over all of the property, assets and undertaking of the Company.
Doc#2673119v1
326
Conditions
Precedent
The advance of the Facility is conditional upon the Company obtaining an
order appointing the Borrower as Interim Receiver of the Company in a
form satisfactory to Lender in its sole discretion (the “IR Order”),
authorizing the Borrower to enter into and perform its obligations under this
Term Sheet, and receipt by the Lender of a statement of all amounts owing
to the Payees.
Fees and Expenses
The Company shall be responsible for all costs, fees and expenses incurred
by the Lender in connection with the negotiation, preparation and
administration of this Term Sheet and the enforcement of the Security
including, without limitation, all court attendances in connection therewith.
All such fees and expenses shall be added to the Facility and secured by the
Security.
Governing Law
Province of Ontario.
Please acknowledge acceptance of this Term Sheet by signing and returning a signed copy to the
Lender no later than 5.00 p.m. July 3, 2013, the expiry date of this offer.
Yours truly,
BANK OF MONTREAL
Per:____________________________
Name:
Title:
Accepted this _____ day of July, 2013.
PRICEWATERHOUSECOOPERS INC.,
in its capacity as interim receiver of
Comstock Canada Ltd.
Per:____________________________
Name:
Title:
The foregoing is hereby acknowledged and agreed to this _____ day of July, 2013.
COMSTOCK CANADA LTD.
Per:____________________________
Name:
Title:
Doc#2673119v1
327
328
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330
331
332
333
334
335
336
337
338
339
340
HIGHLY CONFIDENTIAL
COST REIMBURSEMENT AGREEMENT
July 8, 2013
Comstock Canada Ltd.
3455 Landmark Road
Burlington, Ontario
L7M 1T4
Dear Sirs/Mesdames:
We have been advised that Comstock Canada Ltd. (“Comstock”), and each of its
affiliates CCL Equities Inc. and CCL Realty Inc. (collectively, the “CCAA Applicants”), filed a
notice of intention under section 50.4 of the Bankruptcy and Insolvency Act on June 28, 2013 and
have or intend to continue such proceedings and obtain relief as debtor companies under the
Companies’ Creditors Arrangement Act (Canada) (the “CCAA”) pursuant to an order (the
“CCAA Initial Order”) of the Ontario Superior Court of Justice – Commercial List (the
“CCAA Court”).
Pursuant to the contracts listed in Schedule A attached hereto (collectively, the “Affected
Contracts”), Comstock had agreed to perform the work as more particularly defined in such
Affected Contracts (the “Work”) in connection with the construction of the “Kitimat
Modernization Project” (the “Project”).
Due to its inability to fund the costs associated with the Work as such costs are incurred,
Comstock will not be able to continue to perform the Work without support for its working
capital needs in connection with the Project. The weekly forecasted costs in respect of the Work
are set forth in Schedule B hereto (as updated in accordance with the provisions of this
Agreement, the “Cost Forecast”).
Subject to the terms and conditions set forth or referred to in this cost reimbursement
agreement (as amended, restated and supplemented from time to time, this “Agreement”), Rio
Tinto Alcan Inc. is willing to make certain amounts available to Comstock for the sole purpose
of providing Comstock with the liquidity support necessary to enable it to continue to perform
the Work relating to the Project.
459541.2
COST REIMBURSEMENT AGREEMENT
341
HIGHLY CONFIDENTIAL
TERMS AND CONDITIONS
Contractor:
Comstock Canada Ltd. (“Comstock”)
Owner:
Rio Tinto Alcan Inc. (the “Owner”)
Monitor:
PricewaterhouseCoopers Inc., in its capacity as “Monitor” (the “Monitor”)
under the proceedings of the CCAA Applicants under the CCAA (the
“CCAA Case”).
Term:
The term of this Agreement shall be from the date of the CCAA Initial
Order to the Termination Date (as defined below) (the “Term”).
Fundings:
During the Term, provided no Event of Termination (as defined below) has
occurred and is continuing, the Owner agrees to deposit into the
Disbursement Account (as defined below), forthwith after the issuance of
the CCAA Initial Order by the CCAA Court in respect of the month of July,
2013, and on the first business day of each month thereafter, an amount
sufficient to reimburse Comstock for the total disbursements forecast for
such month as set forth on the then-current Cost Forecast (each such
deposit, a “Funding”).
Permitted Uses:
The proceeds of Fundings may only be used to reimburse Comstock for the
following costs (collectively, the “Reimbursable Costs”):
(i)
costs incurred in respect of the Work as specified in the Cost
Forecast, which include, without limitation, costs relating to
labour, expenses, materials, subcontractors and permitted aged
accounts payable (collectively, the “Construction Costs”); and
(ii)
a portion of its overhead costs as specified in the Cost Forecast,
which include, without limitation, payroll and benefits,
insurance, general and office expenses, professional fees
associated with the CCAA Case and accrued payroll and source
deductions (collectively, the “Overhead Costs”).
For greater certainty, except as explicitly set forth in this Agreement,
without the prior consent of the Owner and the Monitor, the proceeds of the
Fundings shall not be used to pay and the Reimbursable Costs shall not
include:
(i)
459541.2
any interest, principal, fees, costs, expenses or other amounts
owing by Comstock to Bank of Montreal (“BMO”) under
Comstock’s credit facilities with BMO;
-2-
COST REIMBURSEMENT AGREEMENT
342
HIGHLY CONFIDENTIAL
(ii)
any profit which would otherwise accrue to Comstock under the
Affected Contracts;
(iii)
any costs or expenses relating to any sales and investor
solicitation process in respect of Comstock; or
(iv)
any interest, principal, fees, costs, expenses or other amounts
owing by Comstock to any lender in any debtor-in-possession
financing provided to Comstock in the CCAA Case.
For greater certainty, subject to the exclusions set forth above, the Owner
agrees that for the period ending November 30, 2013, and notwithstanding
that the Affected Contract may have been terminated or assigned to a third
party prior to that date it will fund the lesser of:
(i)
for each calendar month the amount set out in the line items
marked “Payroll and benefits”, “Insurance”, “General and
office”, “Professional Fees” and “Accrued Payroll and
Source Deductions” in the Cost Forecast for that month; and
(ii)
50% of Comstock’s actual total Overhead Costs for the items
described in (i) for that calendar month,
to a maximum of $4,238,500, and this obligation of the Owner shall survive
the termination of the Affected Contracts.
Comstock acknowledges that the payments of Reimbursable Costs (which
include the payment of $3,926,768 set out in the Cost Forecast in line item
“Aged AP”) under this Agreement are the only amounts that are owing or
payable to Comstock by the Owner under the Affected Contracts at the date
of this Agreement or at any time during the Term.
Requests for
Reimbursements:
Subject to availability of proceeds in the Disbursement Account, Comstock
may request withdrawals from the Disbursement Account in respect of
Reimbursable Costs (each such withdrawal, a “Reimbursement”) by
delivering to the Owner and the Monitor a duly completed Reimbursement
Request in the form attached hereto as Schedule C, no later than 2:00 p.m.
(Toronto time) on any business day during the Term. The obligation of the
Owner to permit a Reimbursement pursuant to a Reimbursement Request
shall be subject to the satisfaction of each of the Reimbursement Conditions
(as defined below).
Disbursement
Account:
Reimbursements shall be made from the Project account maintained by the
Owner at its bank only in accordance with the terms of this Agreement.
The Owner shall make payments from the Disbursement Account in
accordance with a Reimbursement Request, in order to disburse a
459541.2
-3-
COST REIMBURSEMENT AGREEMENT
343
HIGHLY CONFIDENTIAL
Reimbursement approved pursuant to this Agreement.
Conditions
Precedent:
Reimbursement
Conditions:
459541.2
The obligations of the Owner under this Agreement, including without
limitation the obligation to make the first Funding from the Disbursement
Account, are subject to and conditional upon the satisfaction of the
following conditions:
(i)
issuance of the CCAA Initial Order satisfactory in form and
substance to the Owner, and such order being in full force and
effect, and such order shall not have been amended, modified or
stayed;
(ii)
the Owner shall have received the Cost Forecast, in form and
substance satisfactory to the Owner;
(iii)
Comstock shall have delivered a duly executed original of this
Agreement;
(iv)
no Event of Termination shall have occurred and be continuing;
(v)
the Owner shall have received evidence satisfactory to it that
BMO has agreed to provide a debtor in possession credit facility
to Comstock for the period to March 31, 2014;
(vi)
this Agreement shall have been approved by the CCAA Court as
part of the application for the CCAA Initial Order and the
CCAA Initial Order shall provide: (a) that the Owner shall have
a first priority lien in the amounts in the Holdback Accounts (as
defined below) subject only to the rights of lien claimants to
those amounts; as security for the payment by the Owner of
Overhead Costs under this Agreement; (b) that the right of the
Owner to terminate this Agreement in accordance with its terms
shall not be subject to any stay granted by the CCAA Court; and
(c) that the Owner may terminate any or all of the Affected
Contracts by giving notice to Comstock as provided in this
Agreement; and
(vii)
the Owner shall have received from BMO a release of claims in
a form satisfactory to the Owners’ counsel.
The obligation of the Owner to permit a Reimbursement from the
Disbursement Account shall be subject to the satisfaction of the following
conditions (the “Reimbursement Conditions”):
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COST REIMBURSEMENT AGREEMENT
344
HIGHLY CONFIDENTIAL
(i)
Comstock shall have submitted to the Owner a Reimbursement
Request, duly executed by Comstock’s chief financial officer,
and approved by the Monitor, together with all invoices and
supporting information relating to such Reimbursement
Request;
(ii)
no Event of Termination shall have occurred or be continuing or
would result from the proposed Reimbursement, unless the
Reimbursement funds will be used to cure such Event of
Termination;
(iii)
the Owner and the Monitor shall have received the latest Cost
Forecast; and
(iv)
no notice shall have been received by the Owner of a motion or
application to stay, modify, vary, amend, reverse, amend, or
vacate in whole or in part the CCAA Initial Order, or which in
any way seeks to impair, limit or lessen the security, protections,
rights, or remedies of the Owner, whether under the CCAA
Initial Order or under this Agreement, and there shall exist no
such motion or application.
For greater certainty, the Reimbursable Costs allowed in connection with
any Comstock invoices submitted in support of a Reimbursement Request
shall not include any profit component accruing to Comstock included in the
amount of such invoice.
Holdbacks:
Representations
and Warranties:
Comstock acknowledges that:
(i)
the Owner is required by applicable law to maintain holdback
accounts with respect to the Affected Contracts (the “Holdback
Accounts”);
(i)
the Owner has a first priority lien on the amounts in the
Holdback Accounts; and
(i)
subject to the rights of lien claimants to the amounts in the
Holdback Accounts, the Owner may set off against amounts in
the Holdback Accounts any amounts which have been funded
by the Owner as Overhead Costs in accordance with this
Agreement.
Comstock represents and warrants to the Owner as follows:
(i)
459541.2
Comstock is a corporation duly organized, validly existing and
in good standing under the laws of the Province of Ontario, is
-5-
COST REIMBURSEMENT AGREEMENT
345
HIGHLY CONFIDENTIAL
duly qualified and licensed as an extra-provincial corporation in
the Province of British Columbia, and, subject to the entry of
the CCAA Initial Order by the CCAA Court, has all requisite
power and authority (including, without limitation, all
governmental licenses, permits and other approvals) to own or
lease and operate its properties and to carry on its business as
now conducted and as proposed to be conducted;
459541.2
(ii)
upon the entry of the CCAA Initial Order, the execution,
delivery and performance by Comstock of this Agreement, and
the consummation of each aspect of the transactions
contemplated hereby, are within Comstock’s corporate powers,
have been duly authorized by all necessary corporate action, and
do not (a) contravene Comstock’s constitutive documents, (b)
violate any applicable law, (c) conflict with or result in the
breach of, or constitute a default under, any contract, loan
agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting Comstock, or any of its
properties entered into by Comstock after the date of the CCAA
Initial Order, or (d) except for the liens created in the
Disbursement Account pursuant to the CCAA Initial Order,
result in or require the creation or imposition of any lien upon or
with respect to any of the properties of Comstock;
(iii)
this Agreement has been duly executed and delivered by
Comstock. This Agreement is, subject to the entry of the CCAA
Initial Order, the legal, valid and binding obligation of
Comstock, enforceable against Comstock in accordance with its
terms and the CCAA Initial Order;
(iv)
except for the entry of the CCAA Initial Order, filings or
recordings already made or to be made pursuant to any federal
law, rule or regulation, no authorization, approval or other
action by, and no notice to or filing with, any governmental
authority or regulatory body or any other third party, is required
for (a) the due execution, delivery, recordation, filing or
performance by Comstock of this Agreement, or for the
consummation of each aspect of the transactions contemplated
hereby, (b) the grant by Comstock of the Account Charge, (c)
the validity, priority, perfection or maintenance of the Account
Charge (including the requisite priority set forth in the CCAA
Initial Order) or (d) subject to the CCAA Initial Order, the
exercise by the Owner of its rights and remedies under this
Agreement or with respect to the Disbursement Account;
(v)
Comstock has no outstanding claims against the Owner under
any of the Affected Contracts, other than the $5,693,436.86
-6-
COST REIMBURSEMENT AGREEMENT
346
HIGHLY CONFIDENTIAL
account receivable owing to Comstock in respect of Work
accomplished (which shall be extinguished by virtue of
Reimbursements in the amount of $3,926,768 under this
Agreement); and
(vi)
Covenants:
459541.2
upon payment to Comstock from the Disbursement Account of
the first payment and resulting payment by Comstock of its
existing accounts payable, all known existing lien claims will
have been paid and satisfied in full; provided that Comstock will
advise the Owner promptly if it is notified of any new lien
claims.
Comstock covenants and agrees with the Owner as follows:
(i)
it shall not use the proceeds of any Reimbursement for any
purposes other than those expressly contemplated in this
Agreement;
(ii)
it will continue to perform its obligations under the Affected
Contracts in accordance with the terms and conditions of the
Affected Contracts, subject only to the terms and conditions of,
and as modified by, this Agreement and the CCAA Initial
Order;
(iii)
it shall provide the Owner, to the extent reasonably practicable,
with at least three (3) business days advance notice of all court
filings made by it, together with copies of all related court
materials, and shall provide the Owner with notice of all court
filings that any other person or entity intends to make, as
indicated in any way to Comstock by such person or entity, as
soon as reasonably practicable after obtaining knowledge of
such intended filings;
(iv)
it shall maintain its corporate existence, comply in all material
respects with all applicable statutory laws and regulations
(including, all applicable construction or builders lien related
legislation in all jurisdictions in which it carries on business)
and obtain and maintain in good standing in all material respects
all material leases and licences and permits;
(v)
it shall permit the Owner and its employees and agents to enter
upon and inspect its property, assets, books and records from
time to time upon reasonable notice and during regular business
hours;
(vi)
it shall not apply to the CCAA Court to terminate or assign any
-7-
COST REIMBURSEMENT AGREEMENT
347
HIGHLY CONFIDENTIAL
of the Affected Contracts without the prior written consent of
the Owner;
Reporting:
Transition:
During the Term, Comstock covenants with the Owner as follows:
(i)
it will deliver to the Owner, with a copy to the Monitor, no later
than the first business day of each month, an updated Cost
Forecast, including reconciliation reports in respect of submitted
invoices and disbursements with respect to Reimbursable Costs,
and such other information as the Owner may require, all in
form and substance satisfactory to the Owner, together with a
report clearly distinguishing those Reimbursable Costs which
relate to items in respect of which the Owner is required by
applicable law to maintain a holdback and those in respect of
which no holdback is required by applicable law; and
(ii)
such other information, in electronic format whenever and
wherever possible, as the Owner may reasonably request.
If the Affected Contracts are terminated by the Owner, or are assigned by
Comstock to a third party at the request of the Owner and with the approval
of the CCAA Court, the Owner and Comstock, with the assistance of the
Monitor, shall calculate and pro rate all amounts owing to one another under
the Affected Contracts and this Agreement at the effective date of the
termination or assignment and shall set off those amounts against each
other. The party which is obligated to pay the other after such set off shall
pay that amount promptly to the other party. In the event of termination of
the Affected Contracts by the Owner or the assignment of the Affected
Contracts by the Owner to a third party with the approval of the CCAA
Court, Comstock shall assist the Owner with an orderly transition of the
Work to a third party selected by the Owner it its sole discretion.
For greater certainty, all transition costs attributable directly to the
termination or the assignment of the Affected Contracts pursuant to this
Agreement or pursuant to the terms of the Affected Contracts (the
“Transition Costs”), shall be for the account of the Owner and shall not
form part of Overhead Costs or form part of the maximum liability of the
Owner to fund Overhead Costs set out under “Permitted Uses”.
Termination Date:
459541.2
This Agreement shall terminate on the date (the “Termination Date”)
which is the earliest of:
(i)
March 31, 2014 (the “Expiry Date”);
(ii)
the effective date of any plan of reorganization or arrangement
confirmed by the CCAA Court approved by the creditors of
Comstock and by the CCAA Court;
-8-
COST REIMBURSEMENT AGREEMENT
348
HIGHLY CONFIDENTIAL
(iii)
the effective date of any sale of Comstock or all of its property
and assets confirmed by the CCAA Court;
(iv)
the date on which the CCAA Initial Order expires without being
extended or on which the CCAA Case shall be terminated or
dismissed;
(v)
the date on which all of the Affected Contracts are terminated or
assigned in accordance with the provisions below set forth under
the heading “Termination or Assignment of Affected
Contracts”; and
(vi)
the date on which the Owner declares this Agreement
terminated following the occurrence of an Event of Termination
(as defined below).
Upon any termination of this Agreement, whether on account of an Event of
Termination or otherwise, the Parties shall, with the assistance of the
Monitor, calculate and pro rate (to the extent possible) all Reimbursable
Costs incurred or accrued to the Termination Date. To the extent that any
balance of Reimbursable Costs remains to be paid on the Termination Date,
the Owner shall promptly pay such balance to Comstock. To the extent that
a refund of Reimbursable Costs is owing to the Owner on account of the pro
ration described above, Comstock shall pay to the Owner the amount of
such refund to the extent that it has obtained a refund from the parties
providing goods or services to which such pro ration applies.
Upon 45 days prior written notice to Comstock, the Monitor and BMO, the
Termination or
Owner, notwithstanding anything in the Affected Contracts to the contrary,
Assignment of
Affected Contracts: shall be entitled to:
(i)
terminate any or all of the Affected Contracts; or
(ii)
require that Comstock make application to the CCAA Court for
approval of the assignment of all of its rights and obligations in,
to and under any or all of the Affected Contracts to a third party
identified by the Owner for such consideration as determined by
the Owner and such third party in their sole discretion and shall
take such action, and execute and deliver such further
documents as may be reasonably necessary or appropriate to
obtain such an Order.
Upon termination or assignment of the Affected Contracts:
(i)
459541.2
the Owner shall pay all Reimbursable Costs which have accrued
up to and including the date of such termination or assignment;
and
-9-
COST REIMBURSEMENT AGREEMENT
349
HIGHLY CONFIDENTIAL
(i)
Events of
Termination:
notwithstanding any provision of the Affected Contracts to the
contrary, the Owner shall have no further liability whatsoever to
Comstock under the Affected Contracts.
Each of the following shall constitute an “Event of Termination” under
this Agreement:
(i)
the issuance of a CCAA Initial Order, unless the provisions of
such CCAA Initial Order which pertain to this Agreement are
satisfactory in form and substance to the Owner;
(ii)
if the CCAA Initial Order expires without being extended or if
the CCAA Case shall be dismissed or if a receiver or receivermanager is appointed for Comstock;
(iii)
the entry of any order staying, amending, reversing, vacating or
otherwise modifying, without the consent of the Owner, this
Agreement or any of the terms of the CCAA Initial Order which
pertain to this Agreement, or any other order is made in respect
of the CCAA Applicants which is or may be prejudicial to the
Owner’s interests;
(iv)
if Comstock applies the proceeds of any Reimbursement for any
use not permitted by the CCAA Initial Order (as it may be
amended from time to time) or not permitted under this
Agreement;
(v)
if this Agreement
terminated or illegal;
(vi)
if Comstock undertakes any actions with respect to its business
operations, including ceasing to carry on business, which would,
in the determination of the Owner, have a material adverse
effect on the ability of Comstock to perform the Work in respect
of the Project;
(vii)
if any representation or warranty made or given in this
Agreement was false or erroneous when made;
becomes
unenforceable,
invalidated,
(viii) if Comstock breaches, fails to observe or fails to perform any
covenant or obligation under this Agreement.
(ix)
if all of the Affected Contracts are terminated in accordance
with their terms or pursuant to this Agreement.
Upon the occurrence of an Event of Termination, the Owner shall be
entitled to exercise any or all of the following remedies:
459541.2
- 10 -
COST REIMBURSEMENT AGREEMENT
350
HIGHLY CONFIDENTIAL
(i)
without any notice or demand, suspend the right of Comstock to
request any Reimbursements from the Disbursement Account;
and
(ii)
upon providing three (3) business days prior notice to Comstock
and the Monitor, and upon obtaining an order from the CCAA
Court, terminate this Agreement.
Interpretation:
The definitions of terms in this Agreement shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine
and neuter forms. The words “include”, “includes” and “including” shall be
deemed to be followed by the phrase “without limitation”. The word “will”
shall be construed to have the same meaning and effect as the word “shall”.
Unless the context requires otherwise (a) any definition of or reference to
any agreement, instrument or other document herein shall be construed as
referring to such agreement, instrument or other document as from time to
time amended, amended and restated, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any reference herein to any person shall
be construed to include such person’s successors and assigns, (c) the words
“herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, and (d) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
Governing Law:
This Agreement shall be construed in accordance with and governed by the
laws of the Province of British Columbia and the federal laws of Canada
applicable therein and the parties shall attorn to the jurisdiction of the
CCAA Court.
Affected Contracts: Except to the extent modified by this Agreement or the CCAA Initial Order
(including, without limitation, modifications to the payment provisions of
the Affected Contracts) or as terminated or assigned pursuant to this
Agreement, the Affected Contracts, including, without limitation the
termination rights of the Owner thereunder and any extension of the term of
any Affected Agreement) shall continue in full force and effect as between
the parties thereto, provided that on the only amounts which will be payable
by the Owner on a termination of the Affected Contracts for any reason will
be the Overhead Costs and the Transition Costs each as provided in this
Agreement.
Conflict:
459541.2
If any provision of this Agreement conflicts with any provision in any of the
Affected Contracts, the provision of this Agreement shall govern to the
- 11 -
COST REIMBURSEMENT AGREEMENT
351
HIGHLY CONFIDENTIAL
extent of such conflict.
Entire Agreement:
This Agreement and all documents contemplated by or delivered under or in
connection with this Agreement, constitute the entire agreement between the
parties with respect to the subject matter and supersedes all prior
agreements, negotiations, discussions, undertakings, representations,
warranties and understandings, whether written or verbal.
Further Assurances Each of the Owner and Comstock shall execute and deliver all such
documents and take all such actions as may be reasonably required to carry
out the intention of the this Agreement.
Amendments:
No amendment, supplement, restatement or termination of any provision of
this Agreement is binding unless it is in writing and signed by each party to
this Agreement and approved by the Monitor and the CCAA Court.
Waivers:
No failure to exercise, and no delay in exercising, on the part of the Owner,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, remedy, power or
privilege shall preclude the exercise of any other right, remedy, power or
privilege.
Notice:
All notices and other communications provided for hereunder shall be in
writing (including via facsimile communication) and mailed, telecopied or
delivered:
459541.2
(i)
if to Comstock, at 3455 Landmark Road, Burlington, Ontario, in
each case to the attention of Geoffrey Birkbeck, fax number
905.335.3169 with a copy to Gowling Lafleur Henderson LLP,
special insolvency counsel to Comstock, at its address at First
Canadian Place, 100 King Street West, Suite 1600, Toronto,
Ontario, Canada M5X 1G5, Attention: Alex MacFarlane, fax
number 416.862.7661;
(ii)
if to the Owner, at 1188 Sherbrooke Street West, Montreal,
Quebec, Canada H3A 3G2, Attention: Michel Lamarre, Project
Director, fax number 514.848.8115 with a copy to Bull, Housser
& Tupper LLP, 3000-1055 West Georgia Street, Attention: Jane
Milton, Q.C., fax number 604.646-2676;
(iii)
if to the Monitor, at PwC Tower, 18 York Street, Suite 2600,
Toronto, Ontario, M5J 0B2, Attention: Paul van Eyk, fax
number 416.365.8215 with a copy to Davies Ward Phillips and
Vineberg LLP, 155 Wellington Street West, Toronto, ON M5V
3J7, Attention: Robin Schwill, fax number 416.863.0871.
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COST REIMBURSEMENT AGREEMENT
352
HIGHLY CONFIDENTIAL
or at such other address as shall be designated by such party in a written
notice to the other parties. All such notices and communications shall, when
mailed, telegraphed or telecopied, be effective three business days after
being deposited in the mail, first class postage prepaid or confirmed as
received when sent by telecopier, respectively.
Assignment and
Enurement:
This Agreement shall enure to the benefit of and be binding on the parties
hereto and their successors and permitted assigns. Comstock may not assign
its rights or obligations under this Agreement without the prior written
consent of the Owner and the approval of the Monitor.
Counterparts:
This Agreement may be executed and delivered by way of facsimile or by
email using secure portable document format (.pdf) and in any number of
counterparts each of which when executed and delivered is an original but
all of which taken together constitute one and the same instrument.
Time of the
Essence:
For each provision of this Agreement, time is of the essence.
[SIGNATURE PAGE FOLLOWS]
459541.2
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COST REIMBURSEMENT AGREEMENT
353
HIGHLY CONFIDENTIAL
If the foregoing is acceptable to you, please confirm your acceptance of the terms and
conditions as set forth herein by executing and delivering this Agreement to the Owner by no
later than 5:00 pm (Toronto time) on July 9, 2013.
Yours very truly,
RIO TINTO ALCAN INC.
Per:
Name:
Title:
FOR VALUE RECEIVED and hereby acknowledged, the
undersigned hereby agrees, acknowledges and accepts the
within terms and conditions.
DATED: July ______, 2013
COMSTOCK CANADA LTD.,
a debtor and a debtor-in-possession, as
Borrower
Per:
Name: Geoffrey W. Birkbeck
Title: CEO
459541.2
COST REIMBURSEMENT AGREEMENT
354
HIGHLY CONFIDENTIAL
Schedule A – Affected Contracts
Contract Number
459541.2
Description
25363-5000-HC2-SS02-0001
Steel Erection - Carbon & Casthouse Buildings
25363-4000-HC2-SS02-0001
Steel Erection - Reduction Area & Main
Substation
25363-8660-FC5-XE44-0001
On-Site Material Handling
25363-5000-HC2-G00Z-0001
Carbon & Casthouse Mechanical & Electrical
Installation
Sch. A - 1
COST REIMBURSEMENT AGREEMENT
355
HIGHLY CONFIDENTIAL
Schedule B – Cost Forecast
(Please see attached)
459541.2
Sch. B - 1
COST REIMBURSEMENT AGREEMENT
356
HIGHLY CONFIDENTIAL
Schedule C – Form of Reimbursement Request
REIMBURSEMENT REQUEST
Reimbursement Request No [●]
Date: [●]
Rio Tinto Alcan Inc.
[●]
Attention:
[●]
Kitimat Modernization Project
1.
This Reimbursement Request is delivered pursuant to the Cost Reimbursement
Agreement dated as of July [●], 2013 (as amended, restated, supplemented or otherwise
modified from time to time, the “Cost Reimbursement Agreement”), between,
Comstock Canada Ltd. (“Comstock”) and Rio Tinto Alcan Inc. (the “Owner”).
Capitalized terms not defined in this Reimbursement Request have the meaning given to
them in the Cost Reimbursement Agreement.
2.
Comstock hereby requests a Reimbursement from the Disbursement Account on the
following terms:
3.
459541.2
Proposed Reimbursement
Date
:
[]
Amount of Reimbursement
:
CDN$[]
List of Reimbursements
which are subject to holdback
requirement
:
The following are (i) Reimbursable Costs which relate to Construction Costs in respect of
actual Work completed and invoiced or (ii) Reimbursable Costs (other than Construction
Costs) which have been incurred or have been invoiced and will become due for payment
within 10 days of the proposed Reimbursement Date:
Sch. C - 1
COST REIMBURSEMENT AGREEMENT
357
HIGHLY CONFIDENTIAL
Description of Project Costs
Amount
Date for Payment
TOTAL AMOUNT
4.
We hereby confirm that each Reimbursement Condition as set forth in the Cost
Reimbursement Agreement has been satisfied on the date of this Reimbursement
Request.
5.
The proceeds of this Reimbursement will be deposited to a specific bank account of
Comtock and shall be paid or applied by Comstock forthwith to the Reimbursable Costs
described in this Reimbursement Request in accordance with the Cost Reimbursement
Agreement.
6.
Enclosed herewith is supporting information for this Reimbursement Request including,
without limitation, applicable invoices in respect of Reimbursable Costs and other
documentation required to support the Reimbursable Costs described above.
7.
The balance as of this date in the Disbursement Account is CDN$ ___________.
8.
The undersigned hereby certifies, in his capacity as a chief financial officer of Comstock
that no Event of Termination has occurred and is continuing or would occur as a result of
the proposed Reimbursement, unless the Reimbursement funds will be used to cure such
Event of Termination.
9.
This Reimbursement Request is irrevocable.
Yours very truly,
Name:
Title:
459541.2
Sch. C - 2
Chief Financial Officer
COST REIMBURSEMENT AGREEMENT
358
HIGHLY CONFIDENTIAL
Consent of Monitor
PricewaterhouseCoopers Inc., in its capacity as monitor in the proceedings under
the Companies’ Creditors Arrangement Act relating to Comstock (in such capacity, the
“Monitor”), has reviewed the amount of the Reimbursement requested by Comstock in the
within Reimbursement Request and the invoices and supporting documentation relating thereto.
The Monitor confirms to the Owner that:
(a)
(b)
the Reimbursable Costs referenced in the within Reimbursement Request are:
(i)
Construction Costs; or
(ii)
Overhead Costs; and
the Reimbursable Costs referenced in the within Reimbursement Request do not
contain any profit accruing to Comstock.
Accordingly, the Monitor hereby approves Comstock issuing this Reimbursement
Request to the Owner.
Yours very truly,
PRICEWATERHOUSECOOPERS INC., in
its capacity as Monitor in the proceedings under
the Companies’ Creditors Arrangement Act
relating to Comstock Canada Ltd.
Per:
Name:
Title:
459541.2
Sch. C - 3
COST REIMBURSEMENT AGREEMENT
359
360
Court File No.
ONTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
IN THE MATTER OF THE COMPANIES' CREDITORS
ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED
AND IN THE MATTER OF A PLAN OF COMPROMISE OR
ARRANGEMENT OF COMSTOCK CANADA LTD., CCL
EQUITIES INC., AND COMSTOCK REALTY INC.
Applicants
CONSENT
We, PricewaterhouseCoopers Inc., hereby consent to act as Monitor in respect of Comstock
Canada Ltd., CCLEquities Inc., and CCL Realty Inc.
Dated at Toronto this 8th day of July, 2013.
PricewaterhouseCoopers Inc.
Per:
Name:
Title:
361
2
3
(907,079)
907,079
-
(907,079)
4,755,979
62,500
130,000
4,948,479
1,064,283
2,977,117
4,041,400
26-Jul
4
(765,254)
765,254
-
(765,254)
4,777,497
275,000
162,500
170,000
20,316
5,405,313
1,662,942
2,977,117
4,640,059
2-Aug
1
357,479
(357,479)
-
357,479
3,303,663
62,500
130,000
3,496,163
440,371
1,295,395
2,117,875
3,853,641
9-Aug
2
(695,482)
695,482
-
(695,482)
4,083,060
275,000
62,500
130,000
4,550,560
306,345
901,145
2,647,588
3,855,078
16-Aug
3
(20,852)
20,852
-
(20,852)
2,888,860
62,500
130,000
3,081,360
306,345
901,145
1,853,018
3,060,508
23-Aug
4
184,333
(184,333)
-
184,333
2,910,378
275,000
162,500
170,000
37,509
3,555,387
478,664
1,408,038
1,853,018
3,739,721
30-Aug
1
1,094,624
(1,094,624)
-
1,094,624
2,829,262
62,500
92,500
2,984,262
130,038
70,138
1,846,041
2,032,668
4,078,886
6-Sep
2
(230,995)
230,995
-
(230,995)
4,445,346
275,000
62,500
92,500
4,875,346
90,462
48,792
1,284,203
3,220,895
4,644,351
13-Sep
3
488,598
(488,598)
-
488,598
2,812,526
62,500
92,500
2,967,526
90,462
48,792
1,284,203
2,032,668
3,456,124
20-Sep
4
1
Receipts and disbursements exclude GST, HST and PST.
Cash receipts from accounts receivable are based on historical patterns and assume customers do not delay payment and/or apply setoffs as a result of the Companies' current situation. Collection of these amounts is subject to timing differences within the month, which may result in forecast variances. For the
purposes of this forecast, collections were assumed to be higher during the first and last week of the month.
Cash receipts from holdback receivables are based on the targeted date of completion. In addition, receipts are based on historical patterns and assume customers do not delay payment and/or apply setoffs as a result of the Companies' current situation. Collection of these amounts is subject to timing differences,
which may result in forecast variances.
Receipts on new invoices assume customers pay based on contract terms. This forecast further assumes continued project work is completed on schedule and is not materially impacted by the Companies' current situation. Collection of these amounts is subject to timing differences, which may result in forecast
variances.
The Companies’ biggest customer, Rio Tinto Alcan Inc. (“RTA”), has agreed to a cost reimbursement process with Comstock for its four outstanding projects in Kitimat, British Columbia (the "RTA Projects"). Under this cost reimbursement agreement, RTA has agreed to advance funds to the Companies specifically in
order to allow it to continue to operate the RTA Projects for a period of time until the RTA Projects can be transitioned in an orderly manner. Furthermore, as part of this agreement, RTA has agreed to pay a proportion of the Companies' ongoing corporate overhead expenses and administration costs incurred under
these CCAA proceedings.
Project costs includes payment for labour, materials, job expenses and subcontractors costs, as well as payment of potential trust claims, relating to continued projects, subject to collections of accounts receivables. This forecast assumes the Companies' current situation does not impact its ability to procure goods
and services on pre-filing terms going forward, and that project schedules are not materially impacted by the Companies' current situation.
Represents payroll and benefit costs for corporate and head office staff. This forecast assumes pre-filing source deductions are remitted during the week ending July 12, 2013.
Represents general office and administrative costs, including rent, utilities, property taxes, project-related travel, etc.
Professional fees for the Companies' legal counsel, directors' and officers' counsel, the Monitor and its legal counsel, and other professionals involved in the Companies' restructuring.
Interest on the debtor-in-possession facility (the "DIP Facility") has been calculated as 6% of the average drawn balance and paid on the last day of each month.
Repayment of the $1.5 million advanced to the Interim Receiver by the Bank of Montreal on July 3, 2013 to fund the Companies' accrued labour costs owing up to the week ended June 28, 2013.
The Companies and its advisors are in late stage discussions with a potential DIP lender to provide financing to fund ongoing operations through these CCAA proceedings.
4
5
6
7
8
9
10
11
12
13
14
(3,265,374)
(1,500,000)
4,765,374
-
(3,265,374)
50,327,936
2,650,000
1,562,500
1,622,500
90,228
56,253,164
7,394,618
243,958
12,566,448
32,782,766
52,987,790
Total
3
581,190
(581,190)
-
581,190
3,085,688
50,000
132,500
32,402
3,300,590
89,169
1,639,713
2,152,898
3,881,780
4-Oct
This cash flow statement is based on assumptions regarding future events and market forces. Receipts and disbursements are based on the Companies' current operations and backlog of contracts. There could be significant changes to the Companies' operations during these BIA proceedings and therefore actual
results may vary from the information presented even if the hypothetical assumptions occur. These variations may be material.
892,774
(892,774)
-
892,774
2,834,044
275,000
162,500
92,500
3,364,044
141,346
76,237
2,006,566
2,032,668
4,256,818
27-Sep
2
Notes and Forecast Assumptions
1
The purpose of this cash flow statement is to determine the liquidity requirements for Comstock Canada Ltd. (“Comstock”), CCL Realty Inc. (“Realty”) and CCL Equities Inc. (“Equities”) (collectively, the "Companies") during the initial stage of these CCAA proceedings.
13
14
(2,356,176)
(1,500,000)
3,856,176
-
DIP Loan Facility
Beginning Cash
Net cash flow
Repayment of Interim Receiver's borrowings
DIP advance (repayment)
Ending balance
(1,888,534)
1,888,534
-
(1,888,534)
(2,356,176)
Net Cash Flow
1,064,283
3,675,367
4,739,650
19-Jul
6,160,684
275,000
62,500
130,000
6,628,184
8
9
10
11
12
Disbursements
Project costs
Corporate payroll & benefits
SG&A
Professional fees
DIP Interest
Total Disbursements
1
1,529,907
3,209,867
4,739,774
12-Jul
5,440,951
1,000,000
525,000
130,000
7,095,951
4
5
6
7
Notes
Receipts
Collection of accounts receivable
Collection of holdbacks
Receipts on new invoices
Receipts under cost reimbursement plan
Total Receipts
Week Ending
Comstock Canada Ltd., CCL Realty Inc. and CCL Equities Inc.
CCAA Weekly Cashflow Forecast
For period July 8, 2013 to October 4, 2013
362
363
Lawyers for Comstock Canada Ltd.,
CCL Realty Inc., and CCL Equities Inc.
Telephone: (416) 369-4631 / (416) 862-3609
Facsimile: (416) 862-7661
Alex MacFarlane / Frank Lamie
(LSUC No.: 28133Q / 54035S)
Barristers and Solicitors
1 First Canadian Place
100 King Street West, Suite 1600
TORONTO, Ontario, M5X 1G5
GOWLING LAFLEUR HENDERSON LLP
(Returnable July 9, 2013)
MOTION RECORD
(PROCEEDING COMMENCED AT TORONTO)
ONTARIO
SUPERIOR COURT OF JUSTICE
IN BANKRUPTCY AND INSOLVENCY
AND IN THE MATTER OF THE NOTICE OF INTENTION TO MAKE A PROPOSAL OF CCL EQUITIES INC.
AND IN THE MATTER OF THE NOTICE OF INTENTION TO MAKE A PROPOSAL OF CCL REALTY INC.
IN THE MATTER OF THE NOTICE OF INTENTION TO MAKE A PROPOSAL OF COMSTOCK CANADA LTD.
Court File No. 32-1763935
Court File No. 32-1763929
Court File No. 32-1764011