AND. PONDEROSA PEACHLAND DEVELOPMENT LIMITED PARTNERSHIP, TREEGROUP PONDEROSA DEVELOPMENT CORP. and B.C. LTD. Respondents

Transcription

1 IN THE SUPREME COURT OF BRITISH COLUMBIA No. S Vancouver Registry IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENTS ACT, R.S.C. 1985, C. C-36, AS AMENDED AND IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF PONDEROSA PEACHLAND DEVELOPMENT LIMITED PARTNERSHIP, TREEGROUP PONDEROSA DEVELOPMENT CORP., AND B.C. LTD. BETWEEN: AND: ROMSPEN INVESTMENT CORPORATION Petitioner PONDEROSA PEACHLAND DEVELOPMENT LIMITED PARTNERSHIP, TREEGROUP PONDEROSA DEVELOPMENT CORP. and B.C. LTD. Respondents ORDER MADE AFTER APPLICATION BEFORE THE HONOURABLE MADAM JUSTICE ~ 12 Aug 2016 FITZPATRICK ON THE APPLICATION of the Petitioner, Romspen Investment Corporation ("Romspen"), coming on for hearing at Vancouver, British Columbia, on the 12th day of August 2016; AND ON HEARING Steven D. Dvorak and Matthew Nied, counsel for the Petitioner, and those other counsel listed on Schedule "A" hereto, and no one appearing for those other respondents listed on Schedule "B" hereto, although duly served; AND UPON READING the material filed, including the Affidavit #2 of Mary Gianfriddo sworn August, 2016, the Affidavit #2 of Ian

2 2 MacKay sworn August, 2016, and the Eleventh Report of the Monitor dated August 4, 2016 (the "Report"): THIS COURT ORDERS AND DECLARES THAT: 1. The sale transaction (the "Transaction") contemplated by the Asset Purchase Agreement dated August 4, 2016 (the "Asset Purchase Agreement") between: (a) Romspen or its Nominee, Ponderosa Holdings (BOG) Limited (the "Fund") and/or NewCo #1 and NewCo #2 (collectively, the "Purchaser"); and (b) Ponderosa Peachland Development Limited Partnership, Treegroup Ponderosa Development Corp. and B.C. Ltd. (collectively, the "Debtors") by D. Manning &Associates Inc., in its capacity as Court Appointed Monitor (the "Monitor"), and not in its personal capacity (collectively, the "Seller") a copy of which is attached as Appendix "E" to the Report is hereby approved, and the Asset Purchase Agreement is commercially reasonable. The execution of the Asset Purchase Agreement by the Monitor on behalf of the Debtors is hereby authorized and approved, and the Monitor is hereby authorized, empowered and directed to take such steps and execute such documents on behalf of the Debtors as may be necessary or desirable for the completion of the Transaction and for, among other things, the conveyance to of the assets described in the Asset Purchase Agreement (the "Transferred Assets"). 2. Each of (i) the Debtors, (ii) all of the Debtors' current and former directors, officers, employees, agents, accountants, legal counsel and shareholders, and all other persons acting on their instruction or behalf, and (iii) all other persons who were served with the Notice of Application dated August 4, 2016 and supporting material in respect of the application, as well as all other persons acting on their instruction or behalf (all of the forgoing, collectively, being "Persons" and each being a "Person"): (a) (b) (c) shall not interfere with the completion of the Transaction and the conveyance to and to of the Transferred Assets; on being instructed to do so by the Monitor, shall deliver to ~ any Transferred Assets in that Person's possession, power, or control; and shall provide the Monitor with such other information, cooperation and assistance, including information and documentation, as the Monitor may reasonably require, at the Purchaser's cost, to facilitate the completion of the Transaction and the conveyance to of the Transferred Assets; 3. Upon delivery by the Monitor to the Purchaser of a certificate substantially in the form attached as Schedule "C" hereto (the "Monitor's Certificate"), all of the Debtors' right, title and interest in and to the Transferred Assets described in the Asset Purchase Agreement and listed in Schedule "~" hereto shall vest absolutely in, and all of the

3 3 Debtors' right, title and interest in and to the Transferred Assets described in the Asset Purchase Agreement and listed in Schedule "~" hereto shall vest absolutely in, in fee simple, free and clear of and from any and all security interests (whether contractual, statutory, or otherwise), hypothecs, mortgages, trusts or deemed trusts (whether contractual, statutory, or otherwise), liens, executions, levies, charges, or other financial or monetary claims, whether or not they have attached or been perfected, registered or filed and whether secured, unsecured or otherwise (collectively, the "Claims") including, without limiting the generality of the foregoing: (i) any encumbrances or charges created by the Order of this Court dated June 23, 2014 (the "Initial Order"); (ii) all charges, security interests or claims evidenced by registrations pursuant to the Personal Property Security Act of British Columbia or any other personal property registry system; and (iii) those Claims listed on Schedule "~" hereto (all of which are collectively referred to as the "Encumbrances", which term shall not include the permitted encumbrances, easements and restrictive covenants listed on Schedule "~" hereto), and, for greater certainty, this Court orders that all of the Encumbrances affecting or relating to the Transferred Assets are hereby expunged and discharged as against the Transferred Assets. 4. Upon presentation for registration in the Land Title Office for the Land Title District of Kamloops of a certified copy of this Order, together with a letter from Kornfeld LLP, solicitors for the Monitor, authorizing registration of this Order, the British Columbia Registrar of Land Titles is hereby directed to: (a) enter as the owner of the Lands, as identified in Schedule "~" hereto, together with all buildings and other structures, facilities and improvements located thereon and fixtures, systems, interests, licenses, rights, covenants, restrictive covenants, commons, ways, profits, privileges, rights, easements and appurtenances to the said hereditaments belonging, or with the same or any part thereof, held or enjoyed or appurtenant thereto, in fee simple in respect of the Lands, and this Court declares that it has been proved to the satisfaction of the Court on investigation that the title of in and to the Lands is a good, safe holding and marketable title and directs the BC Registrar to register indefeasible title in favour of as aforesaid; (b) enter as the owner of the Lands, as identified in Schedule "~" hereto, together with all buildings and other structures, facilities and improvements located thereon and fixtures, systems, interests, licenses, rights, covenants, restrictive covenants, commons, ways, profits, privileges, rights, easements and appurtenances to the said hereditaments belonging, or with the same or any part thereof, held or enjoyed or appurtenant thereto, in fee simple in respect of the Lands, and this Court declares that it has been proved to the satisfaction of the Court on investigation that the title of in and to the Lands is a good, safe holding and marketable title and directs the BC Registrar to register indefeasible title in favour of as aforesaid; and (c) having considered the interest of third parties, to discharge, release, delete and expunge from title to the Lands all of the registered Encumbrances except for those listed in Schedule "~". 5. Upon completion of the Transaction:

4 4 (a) The Romspen Debt shall be reduced by the Romspen Credit Bid Amount (both as defined in the Asset Purchase Agreement, with the quantum of the Romspen Debt then remaining due and outstanding being the "Remaining Romspen Debt"); and (b) The Fund Debt shall be reduced by the Fund Credit Bid Amount (both as defined in the Asset Purchase Agreement, with the quantum of the Fund Debt then remaining due and outstanding being the "Remaining Fund Debt"). 6. Except as expressly set forth in this Order, nothing in this Order will in any manner discharge, affect, impair or release: (a) Any other interests of Romspen, including the Romspen Security (as defined in the Asset Purchase Agreement) or any related agreements, including, without limitation, any guarantees of the indebtedness of the Debtors, or its interest in the Remaining Romspen Debt; or (b) Any other interests of the Fund, including the Fund Security or any related agreements, including, without limitation, any guarantees of the indebtedness of the Debtors, or its interests in the Remaining Fund Debt. 7. The Monitor is to file with the Court a copy of the Monitor's Certificate forthwith after delivery to the Purchaser in accordance with paragraph 3 above. 8. Subject to the terms of the Asset Purchase Agreement, vacant possession of the Transferred Assets, including any real property, shall be delivered by the Monitor to at 12:00 noon on the Closing Date (as defined in the Asset Purchase Agreement), subject to the permitted encumbrances as set out in the Asset Purchase Agreement and listed on Schedule "~". 9. The Monitor, with the consent of the Purchaser, shall be at liberty to extend the Closing Date to such later date as those parties may agree without the necessity of a further Order of this Court, provided that the Closing Date occurs by, 2016, or within days of the date of this Order. 10. Notwithstanding: (a) these proceedings; (b) any applications for a bankruptcy order hereafter made pursuant to the BIA and any such applications; and in respect of all of the Debtors now or any bankruptcy order issued pursuant to (c) any assignment in bankruptcy made by or in respect of all of the Debtors, the vesting of the Transferred Assets pursuant to this Order shall be binding on any trustee in bankruptcy that may be appointed in respect of all of the Debtors and shall not be void or voidable by creditors of all of the Debtors, nor shall it constitute or be deemed to be a transfer at undervalue, fraudulent preference, assignment, fraudulent conveyance or other reviewable transaction under the Bankruptcy and Insolvency Act or

5 5 any other applicable federal or provincial legislation, nor shall it constitute oppressive or unfairly prejudicial conduct pursuant to any applicable federal or provincial legislation. 11. THIS COURT HEREBY REQUESTS the aid and recognition of any court, tribunal, regulatory or administrative body, wherever located, to give effect to this Order and to assist the Monitor and its agents in carrying out the terms of this Order. All courts, tribunals, regulatory and administrative bodies are hereby respectfully requested to make such orders and to provide such assistance to the Monitor, as an officer of this Court, as may be necessary or desirable to give effect to this Order or to assist the Monitor and its agents in carrying out the terms of this Order. 12. The Petitioner or any other party have liberty to apply for such further or other directions or relief as may be necessary or desirable to give effect to this Order. 13. Endorsement of this Order by counsel appearing on this application, other than counsel for the Petitioner, is hereby dispensed with. 14. This Order be entered on an expedited basis. THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY CONSENT: Signature of party lawyer for Romspen Investment Corporation Steven D. Dvorak By the Court. Reg istra r

6 A-1 SCHEDULE A LIST OF COUNSEL IN ATTENDANCE

7 SCHEDULE B LIST OF RESPONDENTS NOT APPEARING ALTHOUGH DULY SERVED

8 SCHEDULE C MONITOR'S CERTIFICATE RECITALS A. Pursuant to an Order of the Honourable Madam Justice Fitzpatrick of the British Columbia Supreme Court (the "Court") dated June 23, 2014, D. Manning &Associates Inc. was appointed as (the "Monitor") of Ponderosa Peachland Development Limited Partnership, Treegroup Ponderosa Development Corp. and B.C. Ltd. (collectively, the "Debtors"). B. Pursuant to an Order of the Court dated August, 2016, the Court approved the sale transaction (the "Transaction") contemplated by the Asset Purchase Agreement dated August, 2016 (the "Asset Purchase Agreement") between: a) Romspen Investment Corporation or its Nominee, Ponderosa Holdings (BOG) Limited and/or NewCo #1 and NewCo #2 (the "Purchaser"); and b) The Debtors by D. Manning &Associates Inc. as the Monitor, and not in its personal capacity (the "Seller") and provided for the vesting in and its assignees of the Debtors' right, title and interest in and to the Transferred Assets, which vesting is to be effective with respect to the Transferred Assets upon the delivery by the Monitor to the Purchaser of a certificate confirming (i) that the Purchaser has satisfied the Purchase Price for the Transferred Assets; and (ii) the Transaction has been completed to the satisfaction of the Monitor. C. Unless otherwise indicated herein, terms with initial capitals have the meanings set out in the Asset Purchase Agreement. THE MONITOR CERTIFIES the following: 1. The Purchaser has satisfied the Purchase Price for the Transferred Assets pursuant to the Asset Purchase Agreement; 2. The Transaction has been completed to the satisfaction of the Monitor. 3. This Certificate was delivered by the Monitor at [TIME] on [DATE]. D. Manning &Associates Inc., in its capacity as Court Appointed Monitor of Ponderosa Peachland Development Limited Partnership, Treegroup Ponderosa Development Corp. and B.C. Ltd. and not in its personal capacity Per:

9 C~ Name: Title:

10 C-1 [NTD: REMAINING SCHEDULES TO BE ADDED]

11 No. S Vancouver Registry IN THE SUPREME COURT OF BRITISH COLUMBIA ROMSPEN INVESTMENT CORPORATION _ ~ Petitioner PONDEROSA PEACHLAND DEVELOPMENT LIMITED PARTNERSHIP, TREEGROUP PONDEROSA DEVELOPMENT CORP. and B.C. LTD. Respondents ORDER MADE AFTER APPLICATION CASSELS BROCK & BLACKWELL LLP Lawyers West Georgia Street Vancouver BC V6E 3C8 Matthew Nied mnied@casselsbrock.com Tel: Fax: Lawyers for the Petitioner MN/cef File Filing Agent: West Coast Title Search