UNDER THE NOTICE OF APPOINTMENT OF RECEIVER (Subsection 245(1) INFORMATION STATEMENT

UNDER THE BANKRUPTCY AND INSOLVENCY ACT
NOTICE OF APPOINTMENT OF RECEIVER
(Subsection 245(1) AND
INFORMATION STATEMENT
(Subsection 246(1))
IN THE MATTER OF THE RECEIVERSHIP
OF JOHN DAVID BEST and J. DAVID BEST & SONS PARTNERSHIP
TAKE NOTICE THAT:
On the 4TH day of September, 2014, the undersigned, PricewaterhouseCoopers Inc., became the
Court Appointed Receiver (the "Receiver") in respect the property and assets of JOHN DAVID
BEST and J. DAVID BEST & SONS PARTNERSHIP, insolvent persons that are described below:
Lands and Buildings
Machinery and Equipment
Values S (Note i)
1.00
1.00
Note 1 - Appraisals will be mandated
2. The undersigned became the Court Appointed Receiver in respect of the property described above
by virtue of Court Order by the Supreme Court of Prince Edward Island, see attached Order.
3. The undersigned took the following actions on the 15th day of September, 2014:
•
•
•
Attended the insolvent persons' premises in Prince Edward Island.
A tour of all the properties identified in the Court Order was completed.
Possession, control, and changing of locks were not completed at this time.
4. The following information relates to the receivership:
i) Head office and mailing address of the insolvent persons:
222 Tyron Point Road RR#2
Albany PE C0A lAo
ii) Principal line of business:
Potato farming
iii) Location of Business:
222 Tyron Point Road RR#2
Albany PE
5. The name of and amount owed to each creditor of the insolvent person as determined by the review
of the books and records of the insolvent persons that were present and the total amount owing to
all creditors:
(See Schedule "A")
6. Amount owed by insolvent person to each creditor who holds security on the property described
above:
BMO Bank of Montreal
Farm Credit Canada
Agri-Food Canada
PET Lending Agency
PET Agro-Mart Limited
Bank of Nova Scotia
S1,901,485
S401,133
S262.685
S26,65o
S273,295
S8o,76o
7. Receiver's intended plan of action:
The Receiver will seek to realise on the above noted assets. At this time the Receiver cannot
comment on the estimated realization for the various classes of creditors.
Unlike bankruptcy proceedings, the Bankruptcy and Insolvency Act does not require that a meeting of
creditors be held in a Receivership.
Interim reports regarding the status of the Receivership will be prepared in accordance with Section
246(2) of the Act approximately once every six months. Creditors who wish to receive a copy of the
interim report or the final report may request a copy by writing to the Receiver at the address set out
below.
PricewaterhouseCoopers Inc.
Court Appointed Receiver of
John David Best and J. David Best & Sons Partnership
i6oi Lower Water Street, Suite 400
Halifax, Nova Scotia B3J 3P6
Phone:
(902) 491-7400
(902) 422-1166
Fax:
David Boyd, CA.'CTRP
DATED AT Halifax, Province of Nova Scotia, this 23rd day of September.
PricewaterhouseCoopers Inc.
David Boyd, CA.CIRP
Senior Vice President
FORM 78-- Continued
List
Unsecured Creditors
J. David Best & Sons
No.
Name of creditor
Address
1
Affleck Farms Ltd.
2311 Rte 112
Bedeque PECOB 1CO
2
Agil-Food Canada
1341 Basebne Road
Ottawa ON MA 005
3
AJL Ltd.
4
5
Unsecured claim
Balance of claim
Total claim
437600
0.00
437600
0.00
262,285.00
262 , 285 . 00
84 Caissie Rd., RR1
Richmond PE COB 1YO
14,352.00
0,00
14352 . 00
Allen Produce
305WCovehead Rd.
York PE COA 1PO
13660.00
0.00
13 , 660 . 00
Atlantic Canada Opportunities Agency
Attn: Collections
P0 Box 6051 644 Main Street
Moncton NB E1C 9J8
938200
0.00
9 , 382 . 00
Bank of Montreal
Attn: Anna Graham
Special Accounts
5151 George St., 5th Floor
Halifax NS B3J 3C4
000
1,901,48500
1901485.00
7
Bank of Nova Scotia
do BankruptcyHighway.com
P0 Box 5710u
Toronto ON M8Y 3Y2
0.00
80 , 760 . 00
80 , 760 00
8
Bernards Welding Ltd.
96 Sandy Hill Rd.
Bedeque PE COB 1CO
2.34200
000
2 , 342 . 00
9
Callbecks Home Hardware
613 Water St.
Summerside PE CIN 4H8
284.00
0.00
284 . 00
10
CIBC
do SISKINDS LLP
680 Waterloo Street, P.O. Box 2542
London ON N6A 4G9
41,24700
0.00
41247.00
11
CIBC
do SISKINDS LLP
680 Waterloo Street, P.O. Box 2542
London ON N6A 4G9
28,394.00
000
28 , 394 . 00
12
Conquest Truck & Auto Sales
149 Oal Point Highway
Winnipeg MB R2R 1T7
288.00
000
288 . 00
13
Diamondale Farms
Gd SIn Central
Charlottetown PE CiA 7Ki
1,950.00
000
14
Double R Manufacturing Ltd.
Branch Road, RR#2
Crapaud PE COA IJO
250.00
000
250 . 00
15
Farm Credit Canada
Soecial Credit East
3O9 Legget Drive, Suite 200
KanataONK2K3A3
0.00
401.13300
401 , 133 . 00
16
Francis Farms
Crapaud PE COA 1JO
31,781 00
0.00
31,781.00
17
Good Equipment
73 Capital Drive
Charlottetown PE CIE IE8
7,467.00
0.00
7 . 467 00
18
Grant Thornton
220 Water St., 2nd Floor
Summerside PE Cl N 2V5
21 .043.00
000
21 , 043 . 00
19
H L. Sear Insurance
57 Grafton Street
Chafottetown PE CIA 1K8
17,75900
0.00
17 , 759 . 00
20
Haines Manufacturing (1973) Ltd.
1249 West Riverside Drive
Perth-Andover NB E7H 5G8
2,620.00
000
2 , 620 . 00
21
Island Excavators 1985 Ltd.
P0 Box 72
Crapaud PE COA 1J0
565.00
0 00
565 . 00
22
Island Oxygen Ltd.
20 Exhibition Dr.
Charlottetown PE CiA 5Z5
160.00
0.00
160 . 00
1
FORM 78-- Conbnued
Ust
Unsecured Creditors
J. David Best & Sons
No.
Name of creditor
Address
Unsecured claim
Balance of claim
Total claim
23
Island Petroleum Products Ltd.
P0 Box 130
Chartlottetown PE CiA 7K2
3,567.00
0.00
3 , 567 . 00
24
John Deere Credit Inc.
1001 Champlain Avenue. Suite 401
Burlington ON L7L 5Z4
155500
0.00
1 , 555.00
25
Kubota Canada Ltd.
5900 14th Ave.
Markham ON L3S 4K4
3.384,00
0.00
3 , 384.00
26
Lewis Potato Packers
P0 Box 70
York PB COA 1PO
8,977.00
0.00
8 , 977 . 00
27
Liftow Limited
275 Baig Boulevard
Moncton NB E1E 1E1
825.00
0.00
825 . 00
28
Linkletter Farms
211 Glenn Dr.
Summerside PB C1N 5N2
5,079.00
000
5 , 079 . 00
29
Linkletteis Welding Ltd.
26 Linkletter Ave. RR#3
Summerside PE C1N 4J9
3,560.00
0.00
3 . 560 , 00
30
McCardle Seeds Inc.
P0 Box 28
Kinkora PE COB I NO
9,819.00
000
9 , 819 . 00
31
Mclnnes Cooper
119 Kent Street, Suite 620
Chartlottetown PE CiA 1N3
9,662.00
0.00
9 , 662 , 00
32
Noonan Petroleum Ltd.
21 Harvard Street
Summerside PB C1N 1P3
300.00
0.00
300 . 00
33
Pauls Electromechanical
37 Jenkins Ave.
Summerside PB CIN 1E3
325.00
0.00
325 . 00
34
PEI Agro-Mart Ltd.
2 St.
Sumnierside PB Cl N 4J8
0.00
273,295.00
273 , 295 . 00
35
PEI Bag Co. Ltd.
P0 Box 3990
Central Bedeque PB COB 1GO
16,415.00
0.00
16415 . 00
36
PEI Lending Agency
98 Fitzroy Street, 2nd Floor
Charlottetown PE CIA 1R7
0.00
26.650,00
26 , 650.00
37
Phillips Feed Service Ltd.
18 Exhibition Driv
Charlottetown PB CiA 5Z5
8.451,00
0.00
8 , 451 00
38
Robert K. Buzzell Ltd.
16 Walker Drive
Charlottetown PB CiA 4H8
169.00
0.00
169 . 00
39
Rogers Electric
36 Jenkins Ave.
Summerside PB C1N 1B3
358.00
0.00
358 . 00
40
Shaw Farms Inc.
RR#I
Bonshaw PB COA 1CO
2,000.00
0.00
2 , 000.00
41
Skyeview Farms Ltd.
508 Wynn Road
Blmwood PB COA 1 H3
6,000.00
0.00
6 , 000,00
42
Soil Crop & Water Solutions Ltd.
80 Hilltop Crescent
Florenceville NB E7L 3K3
18,125.00
0.00
18 , 125.00
43
Traction Summerside
3979 Route IA
Summerside PB C1N 4J8
19.00
0.00
19 . 00
44
Webster Farms Inc.
RR1 Middleton
Kinkora PB COB 1NO
2,455.00
0 00
2 , 455.00
45
William Quilty & Sons
RR#2
Cornwall PB COA 1H0
14,000.00
000
14 , 000.00
312,965.00
2,945,608.00
3,258,573,00
Total:
DOCUMENT FILED
SEP
2014
Court File No. Si -BK-3 183
CE EDWARD ISLAND
BETWEEN:
BANK OF MONTREAL
APPLICANT
- and -
JOHN DAVID BEST
RESPONDENT
- and -
JOHN DAVID BEST, BRIAN MICHAEL BEST, GREGORY BEST AND ANDREW
DALE BEST, carrying on business as J, DAVID BEST & SONS
RESPOND ENTS
ORDER FOR RECEIVER
BEFORE THE HONOIJRABLE JTJSTICE__________
UPON the Application of the Applicant, a secured creditor of the Respondents, for an
order appointing PricewaterhouseCoopers Inc. as the receiver of those assets, property and
undertakings of the Respondents which are subject to the Applicant's security pursuant to the
provisions of pursuant to section 243 of the Bankruptcy and Insolvency Act, R. S C. 1985 c-i 3-3,
as amended ("BIA"), Rule 41 of the Rules of Court and section 44 of the Judicature Act,
RS.P.EJ. 1988, Cap. 1-2.1;
AND UPON reading the Affidavits of Shelly Gautreau and David Boyd and the other
materials on file herein;
AND UPON it appearing that PricewaterhouseCoopers Inc. has consented to act as
receiver of the Respondents;
1160627.2
AND UPON hearing D. Bruce Clarke, Q.C. appearing on behalf of the Applicant
in support hereof;
NOW UPON MOTION;
IT IS HEREBY ORDERED THAT:
APPOINTMENT AND POWERS
PricewaterhouseCoopers Inc., a body corporate, be and is hereby appointed as the
receiver (the 'Receiver) of all of the equipment and real property of the Respondents
winch is subject to the Applicant's security, as detailed in Schedule "A" (the "Property"),
together with:
a)
the authority and power to receive, preserve, protect and realize upon the Property
or any part or parts thereof; and
h)
the entitlement to immediate, continuous and unrestricted access to the Property
or any part or parts thereof.
Each of the Respondents, their partners, representatives, nominees, servants, agents and
all other persons having notice of this Order shall forthwith on written request from the
Receiver make available and deliver, without charge, to the Receiver all of the Property
and all deeds, conveyance documents, contracts, papers, accounts and records of every
kind whatsoever relating to the Property (the 'Corporate Records") and allow the
Receiver immediate, continuous and unrestricted access to the Property and the Corporate
Records, provided however that nothing in this paragraph 2 or in paragraph 3 of this
Order shall require the delivery of Corporate Records, or the granting of access to
Corporate Records which may not be disclosed or provided to the Receiver due to the
privilege attaching to solicitor-client communication.
3.
1606272
If any of the Corporate Records are stored in a computer (which term shall include any
electronic data processing or storage system) accessible to any of the persons referred to
in the preceding paragraph of this Order, whether by independent service provider or
otherwise, such person shall, at the request of the Receiver, give the Receiver access to,
and assistance in retrieving, gaining access to, reading and copying such information and
data whether by way of printing the information onto paper or making copies of computer
disks or such other manner of retrieving and copying the information as the Receiver in
its discretion deems expedient, and shall not alter, erase or destroy any Corporate
Records without tire prior written consent of the Receiver. Further, for the purposes of
this paragraph, all such persons shall provide the Receiver with such assistance in gaining
immediate access to the information in the Corporate Records as the Receiver may in its
discretion require including providing the Receiver with instructions on the use of any
computer or other system and providing the Receiver with any and all access codes,
passwords, account names and account numbers that may be required to gain access to
the information.
Each of the Respondents, their partners, representatives, nominees, servants, agents and
all other persons having notice of this Order are hereby restrained and enjoined from
disturbing or interfering with the Receiver, or the Receivers possession and control of the
Property, or the Receivers entitlement to the Corporate Records, except with the
Receiver's prior written consent or with leave of the Court being granted after at least 10
clear days prior notice to the Receiver.
Each of the Respondents, their partners, representatives, nominees, servants, agents and
all other persons having notice of this Order shall be and are hereby restrained from
selling, transferring, alienating, mortgaging, encumbering or dealing with the Property in
any manner without the Receivers written consent or further order of this Court.
6.
The Property hereby vests in the Receiver subject to any registered security interesis
therein.
7.
Subject to the terms hereof, the Receiver be and is hereby empowered, from time to time,
to do every act or thing which, in its opinion, is necessary or desirable to do for the
purpose of receiving, preserving, protecting or selling the Property, or any part or paiis
thereof, including without limitation, all or any of the following acts or things, until
further Order of this Court:
to take possession and control of the Property and any and all proceeds or receipts
arising out of or from the Property;
b)
to refrain from exercising its right to take possession or control of such Property
as the Receiver deems impractical or inappropriate in the Receiver's discretion;
to maintain, protect and preserve the Property and to take such steps as, in the
opinion of the Receiver, are necessary or appropriate to establish and thaintain
control over the Property, or any part or parts thereof, including, but not limited
to, the changing of the locks and security codes, engaging independent security
personnel, taking physical inventory as may be deemed necessary or appropriate
in the discretion of the Receiver and the placement of adequate insurance as
required;
d)
to receive and collect all monies and accounts now owed or hereafter owing to the
Respondents and to exercise all remedies of the Respondents in collecting such
monies, including, without limitation, to enforce any security held by the
Respondents;
to institute and prosecute all suits, proceedings and actions as may, in the
Receivers judgment, be necessary and desirable to properly receive, protect and
preserve the Property and likewise to defend all suits, proceedings and actions
160627.2
4
instituted against the Property and/or the Receiver and to appear and conduct the
prosecution or defence of any such suits, proceedings and actions now pending in
any court, the prosecution or defence of which will, in the judgment of the
Receiver, be necessary or desirable to properly receive, protect and preserve the
Property. The foregoing authority shall extend to appeals or judicial reviews as
the Receiver shall deem proper or advisable in respect of any order or judgment
pronounced in any suit, proceeding or action;
f)
to settle, extend or compromise any indebtedness owing to the Respondents;
g)
to execute, assign, issue and endorse documents of whatever nature in respect of
any of the Property, whether in the Receivers name or in the name and on behalf
of the Respondents, for any purpose pursuant to this Order;
h)
to make such expenditures as shall be, in the Receivers discretion, necessary in
the normal course and in otherwise fulfilling the Receiver's powers and duties
hereunder. Any such expenditure properly made or incurred by the Receiver shall
be allowed in passing the Receivers accounts and such expenditures shall form a
first charge on the Property in priority to all other claims and charges;
to take steps to preserve, protect, repair (including, without limitation, to make
repairs of a capital nature), maintain, renew and restore the Property or any part or
parts thereof as the Receiver considers necessary to fulfill the Receiver's duties
and powers hereunder;
j)
to make such expenditures (including, without limitation, capital expenditures or
other expenditures properly made by the Receiver in fulfilling its duties and
powers hereunder) which directly or indirectly benefits, protects, preserves,
enhances or improves the Property;
k)
to apply for any permits, licences, approvals or permissions, if necessary or
considered advisable, from any governmental or regulatory authority;
I)
to settle and pay any claims which may be made or brought that relate to the
Property on such terms and in such manner as Ihe Receiver deems necessary or
advisable;
to negotiate and enter into any agreement and to amend any existing agreements
as the Receiver shall deem proper and advisable in fulfilling its duties and powers
hereunder;
to pay or make arrangements with any creditors or encumbrancers of the Property,
including real property taxes and that any such arrangements or payments shall be
allowed to the Receiver in passing its accounts and shall form a charge on the
Property;
I 160627.2
5
o)
to market any or all of the Property, including advertising and soliciting offers in
respect of the Property or any part or parts thereof and negotiating such terms and
conditions of sale as the Receiver in its discretion may deem appropriate;
p)
to sell, convey, transfer, assign, lease or dispose of any or all of the Property in
such manner as the Receiver, in its discretion, shall determine as being
commercially reasonable including, without limitation, selling the Property or any
part or parts thereof by way of tender, public auction or private sale;
q)
take all steps as are reasonably necessary to complete any such sale, conveyance,
transfer, assignment, lease or disposal including, without limitation, executing and
delivering such deeds, bills of sale and other documents and to do or perform all
acts or things as may be necessary or appropriate, in the opinion of the Receiver,
to effect and complete any such transactions as contemplated herein;
to take such other steps as the Receiver may deem necessary or desirable to
preserve and protect the Property of the Respondents in its custody or which are
reasonably incidental to the exercise of these powers.
8.
The Receiver be and is hereby authorized to retain from time to time such agents,
consultants, advisors, experts, auditors and solicitors, and hire personnel or employees on
a temporary basis or otherwise as the Receiver may consider necessary for the purpose of
receiving, preserving, protecting and realizing upon the Property or generally performing
its powers hereunder, provided that the issuance of this order itself shall not cause (or be
deemed to have caused) the Receiver to be considered a successor employer of any
employee of the Respondents or any related entity pursuant to my collective agreement
governing employment or labour statute or regulation or any other statute, regulation or
rule in law or equity. The Receiver shall be at liberty to apply to this Court for directions
as to whether any course of action pursuant to this order will cause it to be a successor
employer.
The Receiver may and is hereby authorized and empowered to apply to any other courts
in any other jurisdictions, whether in Canada, the United States, or elsewhere, for Orders
recognizing the appointment of the Receiver by this Court and confirming the powers of
the Receiver in any other jurisdiction or jurisdictions, and all courts of all other
jurisdictions are hereby respectfully requested to make such Orders and provide such
other aid and assistance to the Receiver, as an officer of this Court, as they may deem
necessary or appropriate in furtherance of this Order.
SALE OF PROPERTY
1 0.
60627.2
The deeds, transfers, bills of sale and other documents executed by the Receiver and
delivered to any purchaser shall convey to the said purchaser all the estate, right, title,
interest, claim, property and demand in and to the Property conveyed by the Receiver, of
the Applicant, of the Respondents and of all persons claiming or entitled by, from and
6
under the Respondents. The Receiver shall execute such further documents as may be
reasonably required by the said purchaser.
11.
For greater certainty, it is hereby confirmed the deed(s) or bills of sale executed and
delivered by the Receiver pursuant to the authority granted to the Receiver under this
order shall be effective to foreclose upon all instruments and security interests registered
against the Property, and in particular:
(a)
The following instruments registered against lands of David Best, Gregory Best,
Brian Michael Best and Andrew Dale Best situated at Westmoreland, Queens
County, PEI, identified as PIN 224154 and PIN 224196 or the claims of any
person claiming thereunder:
(i)
(ii)
(iii)
(b)
The following instruments registered against lands of David Best situated at North
Tryon and Tryon, Prince County, PB!, identified as PU) 569863, 695510, 215590,
591750, 208439, 208306 and 208405:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
606272
Mortgage in favour of Bank of Montreal, registered in the Registry Office
for Queens County on April 7th, 2006 as Document #2685 in Book 5078;
Mortgage in favour of Cavendish Agri Services Ltd., registered in the
Registry Office for Queens County on June 6th, 2012 as Document #3860
in Book 5417; and
Mortgage in favour of P.13.1. Lending Agency, registered in the Registry
Office for Queens County on October 260, 2012 as Document #8179 n
Book 5439.
Mortgage in favour of Bank of Montreal, registered in the Registry Office
for Prince County on February 4th, 2005 as document #456 in Book 3011;
Mortgage in favour of P131 Agrornart Ltd., registered in the Registry
Office for Prince County on May 15th, 2008 as Document #1824 in Book
3099;
Mortgage in favour of Bank of Montreal, registered in the Registry Office
for Prince County on February 23, 201 1 as document #612 in Book
3171;
Mortgage in favour of Cavendish Agri Services, registered in the Registry
Office for Prince County on June 7th, 2012 as document #1967 in Book
3200;
Mortgage in favour of PET. Lending Agency, registered in the Registry
Office for Prince County on October 29th, 2012 as Document #4031 in
Book 3210; and
Mortgage in favour of the Bank of Nova Scotia, registered in the Registry
14th,
Office for Prince County on November
2012 as Document #4247 in
Book 3211.
7
The following instruments registered against lands of David Best situated at North
Tryon and Tryon, Prince County, PEI, identified as P11) 908202, 605964, and
674317:
(i)
(ii)
(iii)
(iv)
(v)
(d)
Mortgage in favour of Bank of Montreal, registered in the Registry Office
for Prince County on February 4th, 2005 as document #456 in Book 3011;
Mortgage in favour of Bank of Montreal, registered in the Registry Office
for Prince County on February 23, 2011 as document #612 in Book
3171;
Mortgage in favour of Cavendish Agri Services, registered in the Registry
Office for Prince County on June 7°', 2012 as document #1967 in Book
3200;
Mortgage in favour of P.E.I. Lending Agency, registered in the Registry
Office for Prince County on October 29th, 2012 as Document #4031 in
Book 3210; and
Mortgage in favour of the Bank of Nova Scotia, registered in the Registry
Office for Prince County on November 14°', 2012 as Document #4247 in
Book 3211.
The following instruments registered against lands of David Best situated at
Queens County, PEI, identified as P11)224188, 504829, 224543, 208330, 224535,
749457 and 493031:
(1)
(iii)
Mortgage in favour of Farm Credit Canada, registered in the Registry
Office for Queens County on March 16, 1999 AS Documnt #1563 in
Book 1075;
Mortgage in favour of Bank of Montreal, registered in the Registry Office
for Queens County on February 3d, 2005 as document #763 in book,
5020; and
Mortgage in favour of Bank of Montreal, registered in the Registry Office
for Queens County on February 22"', 2011 as document #1065 in Book
5351
RECEIVER TO HOLD FUNDS
12.
11606272
All finds, monies, cheques, instruments, and other fonns of payments received or
collected by the Receiver from and after the making of this Order from any source
whatsoever, including without limitation the sale of all or any of the Property and the
collection of any accounts receivable in whole or in part, whether in existence on the date
of this Order or hereafter coming into existence, shall be deposited into one or more new
accounts to be opened by the Receiver (the 'Post-Receivership Accounts") and the
monies standing to the credit of such Post-Receivership Accounts from time to time, net
of any disbursements provided for herein, shall be held by the Receiver to be paid in
accordance with the terms of tins Order or any further Order of this Court.
8
PRIVACY RIGHTS OF THIRD PARTIES
Pursuant to clause 7(3)(c) of the Canada Personal Information Protection and Electronic
Documents Act, the Receiver shall disclose personal information of identifiable
individuals to prospective purchasers or bidders for the Property and to their advisors, but
only to the extent desirable or required to negotiate and attempt to complete one or more
sales of Property (each, a 'Sale"). Each prospective purchaser or bidder to whom such
personal information is disclosed shall maintain and protect the privacy of such
information and limit the use of such information to its evaluation of the Sale, and if it
does not complete a Sale, shall return all such information to the Receiver, or in the
alternative destroy all such information. The purchaser of the Property, or any part or
parts thereof, shall be entitled to continue to use the personal information provided to it,
and related to the Property purchased, in a manner which is in all material respects
identical to the prior use of such information by the Respondents, and shall return all
other personal information to the Receiver, or ensure that all other personal information is
destroyed.
ENVIRONMENTAL OBLIGATIONS
14.
Nothing in the making of this Order in and of itself shaU cause the Receiver to be (or to
be deemed to be) in possession, charge or control of the Property for the purposes of any
order, directive, violation, claim, demand, cause of action, rule, duty or obligation in law,
equity or under any environmental statute, regulation or by4aw ('Environmental
Obligations").
15.
Nothing herein contained shall require the Receiver to occupy or to take control, care,
charge, possession or management (separately andlor 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, provided however that nothing herein
shall exempt the Receiver from any duty to report or make disclosure imposed by
applicable Environmental Legislation. The Receiver shall not, as a result of this Order or
anything done in pursuance of the Receiver's duties and powers under this Order, be
deemed to be in Possession of any Property within the meaning of any Environmental
Legislation, unless it is actually in possession.
Nothing in the making of this Order in and of itself shall vest in the Receiver the
ownership, control, possession or management of any Property which may be a source of
a pollutant or contaminant; a waste disposal site, or cause or contribute or threaten to
cause or contribute a discharge, release or deposit of a substance contrary to any
Environmental Obligation.
6O627.2
9
RECEIVER'S ACCOUNTS
The Receiver shall from time to time pass its accounts for the period commencing as of
the date of this Order and any fees or expenditures, both before and after the date of this
Order, including any necessary solicitor's fees on a solicitor and client basis, which shall
be properly made or incurred by the Receiver shall be allowed it in passing its accounts
and shall form a charge on all the Property in priority to the claims of the Applicant or
any other creditor and that the Receiver be allowed such payments in its accounts, and
when the accounts are so passed, the balance be disbursed as this Court may direct. The
Receiver shall be at liberty, before passing its accounts and applying to have its
remuneration fixed, to pay to itself in respect to its services as Receiver a reasonable
amount incurred at the normal rates and charges of the Receiver or its counsel, either
monthly or at such longer intervals as its deems appropriate, which amounts shall
constitute an advance against its remuneration when fixed. Any questions from persons
other than the Applicant relating to the Receiver's accounts shall be referred to this Court
upon at least four (4) clear days' notice to the Receiver.
18.
Notwithstanding that the Receiver's charge may be repaid from proceeds from the sale of
any asset, any creditor affected by such payment shall benefit from the allocation of the
related expense to all of the creditors of the Respondents. The allocation shall be made as
follows: the costs, fees, expenses and liability giving rise to any charge granted hereunder
shall be paid or applied in the following manner with the priorities set out as follows
unless otherwise ordered by this Court:
(a)
(b)
(c)
19.
The Receiver shall determine the payments to be made to the Applicant and any other
creditor based on the following allocation process:
(a)
(b)
(c)
160627.2
First, applying the costs incurred in these proceedings specifically attributable to
an individual asset or group of assets against the realizations from such asset or
group of assets or as a charge against such assets;
Second, applying the costs pro rata against all of the assets based on the net
realization from such asset or group of assets or as a charge against such assets;
and
Third, applying non-specific costs incurred in these proceedings pro rata against
the assets based on the net realization from such asset or group of assets or as a
charge against such assets.
The Receiver shall determine the portion of the proceeds of sale attributable to
any asset or groups of assets;
The Receiver shall deduct the charge against such asset or group of assets as set
out in Section 18;
The Receiver shall then make the net payment from such asset to the secured
creditors in accordance with their priority over such asset or group of assets until
such time as the indebtedness to that creditor has been satisfied in full or until
10
such time as the net proceeds from that particular asset or group of assets has been
exhausted;
(d)
if the proposed allocation by the Receiver is acceptable to the respective secured
creditors, the Receiver may make such payment(s) without further order of this
court. Any disputes as to such allocation shall be resolved by this court on notice
to all appropriate parties.
The Receiver shall be at liberty, from time to time, to make interim payments to the
Applicant or any other secured creditor out of the amounts realized by the Receiver in
liquidating the Property based on the allocation process set out in Section 19.
STAY OF PROCEEDINGS
That, without limiting the generality of any of the provisions herein, no person, firm,
corporation, union, government, governmental agency or board shall levy, pursue, initiate
or continue any distress, suit, course of action or proceeding against the Respondents, the
Property or the Receiver, Nor shall any person, firm, corporation, union, government,
governmental agency or board take, institute or continue any action at law, equity or
other proceeding against the Respondents or the Receiver whether before a court,
tribunal, board or administrative body without leave of this Court first being obtained by
application made on seven (7) clear days' notice to the Receiver. No person, firm
corporation, union, government, governmental agency or board shall otherwise interfere
with the carrying on the business of the Respondents by the Receiver and, without
limiting the generality of the foregoing, no person, firm, corporation, union, government,
governmental agency or board having agreements or other arrangements with the
Respondents or in connection with the Property shall accelerate, terminate, suspend,
nodi', cancel or withdraw any agreements, licences, insurance or any such
arrangements relating to the Property.
22.
That, without limiting the generality of the foregoing, all persons, firms and corporations
he enjoined from discontinuing, disturbing or interfering with utility or other services
including, without limitation, the furnishing of fuel, gas, heat, eleciricity, water,
telephone, garbage or waste collection or any other utilities or services of a similar
nature, furnished up to the present date to the Respondents, and they are hereby enjoined
from cutting off, discontinuing or altering any such utilities or services to the Receiver
except upon ftirther Order of this Court.
That no creditor of, nor any person having a contractual relationship with the
Respondents may exercise any right of set-off or trust claim with respect to its accounts
with, or claims against, the Respondents, except with leave of this Court first being
obtained.
160627.2
11
Liberty is hereby preserved to any interested person to apply to this Court upon notice to
the Receiver for leave to take any of the actions or do any of the things prohibited by the
terms of Sections 21, 22 or 23 or otherwise to vary the terms thereof.
CONTINUATION OF SERVICES
25.
All Persons having oral or written agreements with the Respondents or statutory or
regulatory mandates for the supply of goods andlor 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 Respondents are hereby restrained until further Order of this Court from
discontinuing, altering, interfering with or terminating the supply of such goods or
services as may be required by the Receiver, and that the Receiver shall be entitled to the
continued use of the Respondents current telephone numbers, facsimile numbers, internet
addresses and domain names, provided in each case that the normal prices or charges for
all such goods or services received after the date of this Order are paid by the Receiver in
accordance with normal payment practices of the Respondents or such other practices as
may be agreed upon by the supplier or service provider and the Receiver, or as may he
ordered by this Court.
GENERAL
The Receiver need not file security with this Court for the due and proper performance of
its duties as such Receiver, but the Receiver shall make good any default in connection
with the Receiver's custody or management of the Property or any part or parts thereof
unless relieved from any default on such terms as this Court thinks fit.
27.
Liberty is hereby preserved to any interested person including, without limitation, any
holder of an encumbrance or security in priority to that of the Applicant for such further
or other order which may be an order recognizing, enforcing, preserving or protecting the
rights of all other persons, if any, having secured claims superior to that of the Applicant
upon any part of the Property upon a minimum of four (4) clear days' notice to the
Receiver and the Applicant.
28.
The appointment of the Receiver shall continue from the date hereof until terminated by a
Further order of this Court.
29.
The Receiver shall report to this Court at least annually as to the state of the Property and
the conduct of its administration hereunder.
I J6O27.2
12
30.
Dated
The Receiver may, from time to time, apply to this Court for advice and directions in the
discharge of its powers and duties hereunder.
Prince Edward Island, this 4'day of September, 2014.
stice of the Supreme Cou
of Prince Edward Island
160627.2
13
SCHEDULE "A"
Prope
pJ. ay4 Best & Sons
Real Property with provincial parcel numbers 224154 and 224196
Property of Joim David Best
Real Property with provincial parcel numbers 2241 88, 504829, 224543, 208330, 224535,
749457, 493031, 908202, 569863, 605964, 674317, 695510, 215590, 591750, 208439,
208306, and 208405
2006 Model 90404 Row Fuller, S/N 904055123
Allan Potato Harvester, S/N A300063 9
NV3010 "New" Navigator Guidance System, S/N NAVS3433
All of the debtor's present and after-acquired personal property used in the business of
the debtor, including various serial-numbered and non-serial-numbered goods identified
as follows:
Serial Numbered Equipm
I 160627.2
Trucks:
Serial Number
1970 GMC
1967 GMC
1977 Chevrolet
1977 Chevrolet
1980 Chevrolet
1991 GMC
1981 GMC
1981 Chevrolet
1971 GMC
1983 Chev 14 Ton
CE6037 132064
C925371 116042
CCE667V 132952
CCE677U132739
C17DEAV124124
I 0DS7H4M5MJ520898
1 0DS7D4E2BV583559
1GB57DYE2I3VI344 10
CEGD3YI 938520
2GCGC24W9OI 192917
Tractors
Model
Serial Number
International Tractor
International Tractor
International Tractor
International Tractor
International Tractor
Case Magnum Tractor
Case Maum Tractor
Massey Ferguson
186
1086
1086
H 100
966
7110
7220
65
2690017-V 12544
2610183 -VS 15 108
2610183-V53203
2690007-VO 12210
25101 87-V027609
AJ80058335
AJB0068663
CGW70376
14
Other Serial Number Machines
Model
Serial Number
John Deer Combine
Allan Potato Harvester
Gregson Potato Sprayer
7720
508622
A 175
9607062
Non Serial Numbered Equipment:
Telescopic Bin Piler
Alan Bin Piler
Fertilizer Spreader
Dalman Harvester
2-Dahnn Windrowers
Clark Foridift
Toyota Forklift
Toyota 5 000th Forklift
Pallet Boxes
John Deere 4 Rower Potato Planter
Weigh-o-matic Machine
I 160627.2