ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST ORDER

Transcription

1 District of Ontario Division No. 09 Toronto Court File No Estate No ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST THE HONOURABLE FRIDAY, THE 11 DAY JUSTICE C-GL r'~ ~~~~ ) OF MAY, 2012 OF THE NOTICE OF INTENTION TO MAKE A PROPOSAL OF STRUBS FOOD CORP. STRUBS FOOD CORP. Applicant ORDER THIS MOTION made by Strubs Food Corp. ("Strubs") for an order: (a) approving the first report of BDO Canada Limited ("BDO") in its capacity as proposal trustee in these proceedings (the "Proposal Trustee") dated May 3, 2012, filed (the "First Report"), and the conduct and activities of the Proposal Trustee described therein; (b) approving the sale process (the "Sale Process") substantially in the form attached as Schedule "A" to this order; (c) approving the granting of an extension of the time to file a proposal to and including July 12, 2012; (d) authorizing the Proposal Trustee to carry out the Sale Process and to retain The Fuller Landau Group Inc. ("FLG") as its agent to conduct the Sale Process; and Legal *

2 -2- (e~ approving a first administration charge of $125,000 and a second administration charge of $50,000, was heard this day at 330 University Avenue, Toronto, Ontario. ON READING the affidavit of Frederick Farnden sworn May 4, 2012 (the "Affidavit"), and the exhibits, filed, and the First Report, and the appendices thereto, filed, and on hearing the submissions of counsel for Strubs, counsel for the Proposal TrG~tee, counsel for Royal Bank of Canada ("RBC"), counsel to Business Development Bank of Canada ("BDC"), and no one appearing for any other party although duly served as appears from the affidavit of service of Deborah Ferguson, sworn May 4, 2012, filed; SERVICE 1. THIS COURT ORDERS that the time for service of the notice of motion and the motion record is hereby abridged and validated so that this motion is properly returnable today and hereby dispenses with further service thereof. SALE PROCESS 2. THIS COURT ORDERS that the Sale Process attached as Appendix "A" to this Order is hereby approved. 3. THIS COURT ORDERS that the Proposal Trustee, on behalf of Strubs, is hereby authorized and directed to take such steps as it considers necessary or desirable to carry out the Sale Process and is hereby authorized and directed to retain the Fuller Landau Group Inc. ("FLG") to carry out and to conduct the Sale Process, on the terms set out in the retainer agreement between FLG, the Proposal Trustee and Strubs appended to the First Report, and that, upon such appointment, FLG shall be authorized and empowered to immediately implement and conduct the Safe Process in the name of and on behalf of Strubs. Legal *

3 -3-4. THIS COURT ORDERS that the Proposal Trustee and FLG shall have no personal or corporate liability in connection with conducting the Sale Process, excepting any liability resulting from gross negligence or wilful misconduct. EXTENSION OF TIME TO MAKE A PROPOSAL 5. THIS COURT ORDERS that the time to make a proposal is delayed and extended to July 12, ADIVIINISTRATION CHARGE 6. THIS COURT ORDERS that the Proposal Trustee and counsel to the Proposal Trustee shall be entitled to the benefit of and are hereby granted a charge (the "General Administration Charge") on the current and future assets, undertakings and properties of Strubs, of every nature and kind whatsoever, and wherever situate including all proceeds thereof, other than any equipment subject to first-priority security in favour of BDC (the "General Property"), which charge shall not exceed an aggregate amount of $125,000, as security for their professional fees and disbursements incurred at the standard rates and charges of the Proposal Trustee and its counsel, both before and after the making of this Order in respect of these proceedings. The General Administration Charge shall have the priority set out in paragraph 9 hereof. 7. THIS COURT ORDERS that the Proposal Trustee and counsel to the Proposal Trustee shall be entitled to the benefit of and are hereby granted a charge (the "Equipment Administration Charge") on any equipment subject to first-priority security in favour of BDC (the "Equipment"), which charge shall not exceed an aggregate amount of $25,000, as security for their professional fees and disbursements incurred at the standard rates and charges of the Proposal Trustee and its counsel, both before and after the making of this Order in respect of these proceedings. The Equipment Ad~iinistration Charge shall have the priority set out in paragraph 9 hereof. 8. THIS COURT ORDERS that the filing, registration or perfection of the General Administration Charge and the Equipment Administration Charge shall not be required, and that the General Administration Charge and the Equipment Administration Charge Legal*

4 -4- shall be valid and enforceable for all purposes, including as against any right, title or interest filed, registered, recorded or perfected subsequent to the General Administration Charge or the Equipment Administration Charge coming into existence, notwithstanding any such failure to file, register, record or perfect. 9. THIS COURT ORDERS that the General Administration Charge and the Equipment Administration Charge shall constitute a charge on the General Property and the Equipment, respectively, and shall rank in priority to all other security interests, trusts, liens, charges and encumbrances, claims of secured creditors, statutory or otherwise (collectively, "Encumbrances") in favour 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"), other than any Encumbrances in favour of RBC. 10. THIS COURT ORDERS that except as otherwise expressly provided for herein, or as may be approved by this Court, Strubs shall not grant any Encumbrances over any General Property or any Equipment that rank in priority to, or pari passu with the General Administration Charge or the Equipment Administration Charge unless Strubs also obtains the prior written consent of the chargees entitled to the benefit of the General Administration Charge and the Equipment Administration Charge (collectively, the "Chargees"), or further Order of this Court. 11. THIS COURT ORDERS that the General Administration Charge and the Equipment Administration Charge shall not be rendered invalid or unenforceable and the rights and remedies of the Chargees 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 applications) for bankruptcy orders) issued pursuant to the Bankruptcy and Insolvency Act (Canada), R.S.C. 1985, c. B-3 (the "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 provincian statutes; or (e) any negative covenants, prohibitions or other similar provisions with respect to borrowings, incurring debt or the creation of Encumbrances, Legal*

5 -5- contained in any existing loan documents, lease, sublease, offer to lease or other agreement (collectively, an "Agreement") which binds Strubs, and notwithstanding any provision to the contrary in any Agreement: (a) the creation of the General Administration Charge and the Equipment Administration Charge shall not create or be deemed to constitute a breach by Strubs of any Agreement to which it is a party; (b) none of the Chargees shall have any liability to any Person whatsoever as a result of any breach of any Agreement caused by or resulting from the creation of the General Administration Charge and the Equipment Administration Charge; and (c) the payments made by Strubs pursuant to this Order and the granting of the General Administration Charge and the Equipment Administration Charge do not and will not constitute preferences, fraudulent conveyances, transfers at undervalue, oppressive conduct, or other challengeable or voidable transactions under any applicable law. 12. THIS COURT ORDERS that any charge created by this Order over leases of real property in Canada shall only be a charge in Strubs' interest in such real property leases. AID AND ASSISTANCE OF OTHER COURTS 13. THIS COURT REQUESTS the aid and recognition of any court or any judicial, regulatory, or administrative body in any province or territory of Canada and the Federal Court of Canada and any judicial, regulatory, or administrative tribunal or other court constituted pursuant to the Parliament of Canada or the legislature of any province and any court or any judicial, regulatory or administrative body of the United States and the states of other subdivisions of the United States and of any other nation or state to act in aid of and to be complementary to this Court in carrying out the terms of this Order. Legal*

6 GENERAL 14. THIS COURT ORDERS that any interested party may apply to this Court to vary or amend this Order on not less than seven days notice to any other party or parties likely to be affected by the Order sought or upon such other notice as this Court may order. t, ~~ I in~gr~t p ~o~o~ -~o ~~ v ~~~ N~:. Q~.l I B~nK ~~f,~(',1~~~re!.e I p~+~s LE ~ 1 ZO~~ nay Legal *

7 in THE MATTER OF THE NOTICE OF INTENTION TO MAKE A PROPOSAL OF STRUBS FOOD CORP. District of Ontario Division No. 09 Toronto Court File No Estate No ONTARIO SUPERIOR COURT OF JUSTICE (PROCEEDING COMMENCED AT TORONTO) ORDER Patriquin Law Professional Corporation 112 Yorkville Avenue, 3~d Floor 100 King Street West, Suite 1600 TORONTO, Ontario, M5R 1 B9 Scot Patriquin LSUC No N Telephone: (416) Facsimile: (416) Lawyers for Strubs Food Corp Lesal*