Court File No. CV-15-10829-00-CL ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST BETWEEN: BUSINESS DEVELOPMENT BANK OF CANADA Applicant - and - 2159372 ONTARIO LIMITED, ZEEA MARKETING INC. and 2222603 ONTARIO INC. Respondents MOTION RECORD (returnable September 25, 2015) September 16,2015 AIRD & BERLIS LLP Barristers and Solicitors Brookfield Place 181 Bay Street, Suite 1800 Toronto, ON M5J2T9 Steven L. Graff (LSUC # 31871V) Tel: (416) 865-7726 Fax: (416) 863-1515 Email: sgraff@airdberlis.com Ian Aversa (LSUC # 55449N) Tel: (416) 865-3082 Fax: (416) 863-1515 Email: [email protected]Lawyers for The Fuller Landau Group Inc., in its capacity as the court-appointed receiver and manager of 2159372 Ontario Limited, Zeea Marketing Inc. and 2222603 Ontario Inc.
Transcript
Court File No. CV-15-10829-00-CL
ONTARIOSUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
BETWEEN:
BUSINESS DEVELOPMENT BANK OF CANADA
Applicant
- and -
2159372 ONTARIO LIMITED, ZEEA MARKETING INC. and 2222603 ONTARIO INC.
Respondents
MOTION RECORD(returnable September 25, 2015)
September 16,2015 AIRD & BERLIS LLPBarristers and Solicitors Brookfield Place 181 Bay Street, Suite 1800 Toronto, ON M5J2T9
Steven L. Graff (LSUC # 31871V)Tel: (416) 865-7726 Fax: (416) 863-1515 Email: [email protected]
Lawyers for The Fuller Landau Group Inc., in its capacity as the court-appointed receiver and manager of 2159372 Ontario Limited, Zeea Marketing Inc. and 2222603 Ontario Inc.
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO AS REPRESENTED BY THE MINISTER OF FINANCEMinistry of Finance Legal Services Branch 777 Bay Street, 11th Floor Toronto, ON M5G 2C8
Kevin J. O’HaraTel: (416)327-8463Fax: (416) 325-1460Email: kevin.ohara@,ontario.ca
CITY OF TORONTORevenue Services Division 5100 Yonge Street, Lower Level Toronto, ON M2N 5V7
Tel: (416) 395-1238Fax: (416) 696-3605
BANK OF MONTREALToronto Portfolio Management Group 100 King Street West Concourse Level, FCP Toronto, ON M5X 1A1
Lawyers for The Fuller Landau Group Inc., in its capacity as the court-appointed receiver and manager of2159372 Ontario Limited, Zeea Marketing Inc. and 2222603 Ontario Inc.
2159372 ONTARIO LIMITED, ZEEA MARKETING INC. and 2222603 ONTARIO INC.
THIS MOTION, made by The Fuller Landau Group Inc. (“FLG”), in its capacity as the
Court-appointed receiver and manager (in such capacities, the “Receiver”), without security, of
all of the assets, undertakings and properties of 2159372 Ontario Limited (the “Debtor”), for an
order, inter alia, approving the sale transaction (the “Transaction”) contemplated by an
agreement of purchase and sale between the Receiver, as vendor, and Ava Investment Holdings
Inc. (the “Purchaser”), as purchaser, dated July 2, 2015 (as amended, the “Sale Agreement”)
and appended to the First Report of the Receiver dated September 16, 2015 (the “First Report”),
and vesting in the Purchaser the Debtor’s right, title and interest in and to the assets described in
Respondents
APPROVAL AND VESTING ORDER
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the Sale Agreement (the “Purchased Assets”), was heard this day at 330 University Avenue,
Toronto, Ontario.
ON READING the First Report and appendices thereto, and on hearing the submissions
of counsel for the Receiver and such other counsel as were present, no one appearing for any
other person named on the service list, although properly served as appears from the affidavit of
Mona Markussen sworn September 16, 2015, filed,
1. THIS COURT ORDERS AND DECLARES that the Transaction is hereby approved,
and the execution of the Sale Agreement, as amended, by the Receiver is hereby authorized and
approved, with such minor amendments as the Receiver may deem necessary. The Receiver is
hereby authorized and directed to take such additional steps and execute such additional
documents as may be necessary or desirable for the completion of the Transaction and for the
conveyance of the Purchased Assets to the Purchaser.
2. THIS COURT ORDERS AND DECLARES that upon the delivery of a Receiver’s
certificate to the Purchaser substantially in the form attached as Schedule “A” hereto (the
“Receiver’s Certificate”), all of the Debtor’s right, title and interest in and to the Purchased
Assets described in the Sale Agreement, as amended, shall vest absolutely in the Purchaser, 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 the Honourable Justice Wilton-Siegel dated
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June 2, 2015; (ii) all charges, security interests or claims evidenced by registrations pursuant to
the Personal Property Security Act (Ontario) or any other personal property registry system; and
(iii) those Claims listed on Schedule “C” 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 “D”) and, for greater certainty, this Court orders that all
of the Encumbrances affecting or relating to the Purchased Assets are hereby expunged and
discharged as against the Purchased Assets.
3. THIS COURT ORDERS that upon the registration in the Land Registry Office for the
appropriate Land Titles Division of an Application for Vesting Order in the form prescribed by
the Land Titles Act and/or the Land Registration Reform Act, the Land Registrar is hereby
directed to enter the Purchaser, or as it may direct, as the owner of the subject real property
identified in Schedule “B” hereto (the “Real Property”) in fee simple, and is hereby directed to
delete and expunge from title to the Real Property all of the Claims listed in Schedule “C”
hereto.
4. THIS COURT ORDERS that for the purposes of determining the nature and priority of
Claims, the net proceeds from the sale of the Purchased Assets shall stand in the place and stead
of the Purchased Assets, and that from and after the delivery of the Receiver’s Certificate all
Claims and Encumbrances shall attach to the net proceeds from the sale of the Purchased Assets
with the same priority as they had with respect to the Purchased Assets immediately prior to the
sale, as if the Purchased Assets had not been sold and remained in the possession or control of
the person having that possession or control immediately prior to the sale.
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5. THIS COURT ORDERS AND DIRECTS the Receiver to file with the Court a copy of
the Receiver’s Certificate, forthwith after delivery thereof.
6. THIS COURT ORDERS that, notwithstanding:
(a) the pendency of these proceedings;
(b) any applications for a bankruptcy order now or hereafter issued pursuant to the
Bankruptcy and Insolvency Act (Canada) in respect of the Debtor and any
bankruptcy order issued pursuant to any such applications; and
(c) any assignment in bankruptcy made in respect of the Debtor,
the vesting of the Purchased Assets in the Purchaser, or as it may direct, pursuant to this Order
shall be binding on any trustee in bankruptcy that may be appointed in respect of the Debtor and
shall not be void or voidable by creditors of the Debtor, nor shall it constitute nor be deemed to
be a fraudulent preference, assignment, fraudulent conveyance, transfer at undervalue or other
reviewable transaction under the Bankruptcy and Insolvency Act (Canada) or any other
applicable federal or provincial legislation, nor shall it constitute oppressive or unfairly
prejudicial conduct pursuant to any applicable federal or provincial legislation.
7. THIS COURT ORDERS AND DECLARES that the Transaction is exempt from the
application of the Bulk Sales Act (Ontario).
8. 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 Receiver and its agents in carrying out the terms of this
-5-
Order. All courts, tribunals, regulatory and administrative bodies are hereby respectfully
requested to make such orders and to provide such assistance to the Receiver, as an officer of this
Court, as may be necessary or desirable to give effect to this Order or to assist the Receiver and
its agents in carrying out the terms of this Order.
SCHEDULE“A”
Court File No. CV-15-10829-00-CL
ONTARIOSUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
BETWEEN:
BUSINESS DEVELOPMENT BANK OF CANADA
Applicant
- and -
2159372 ONTARIO LIMITED, ZEEA MARKETING INC. and 2222603 ONTARIO INC.
Respondents
RECEIVER’S CERTIFICATE
RECITALS
(A) Pursuant to an Order of the Honourable Justice Wilton-Siegel of the Ontario Superior
Court of Justice (Commercial List) (the “Court”) dated June 2, 2015, The Fuller Landau Group
Inc. (“FLG”) was appointed as receiver and manager (in such capacities, the “Receiver”),
without security, of all of the assets, undertakings and properties of 2159372 Ontario Limited
(the “Debtor”).
(B) Pursuant to an Order of the Court dated September 25, 2015, the Court approved the
agreement of purchase and sale made as of July 2, 2015 (the “Sale Agreement”) between the
Receiver and Ava Investment Holdings Inc. (the “Purchaser”), and provided for the vesting in
the Purchaser of the Debtors’ right, title and interest in and to the assets described in the Sale
Agreement (the “Purchased Assets”), which vesting is to be effective with respect to the
Purchased Assets upon the delivery by the Receiver to the Purchaser of a certificate confirming:
(i) the payment by the Purchaser of the purchase price for the Purchased Assets; (ii) that the
conditions to closing as set out in the Sale Agreement have been satisfied or waived by the
Receiver and the Purchaser; and (iii) that the transaction has been completed to the satisfaction
of the Receiver.
(C) Unless otherwise indicated herein, terms with initial capitals have the meanings set out in
the Sale Agreement.
THE RECEIVER CERTIFIES the following:
1. the Purchaser has paid and the Receiver has received the purchase price for the Purchased
Assets payable on the closing date pursuant to the Sale Agreement, as amended;
2. the conditions to closing as set out in the Sale Agreement, as amended, have been
satisfied or waived by the Receiver and the Purchaser;
3. the transaction has been completed to the satisfaction of the Receiver; and
4. this Certificate was delivered by the Receiver at _____________ [TIME] on
_______________[DATE].
THE FULLER LANDAU GROUP INC., solely in its capacity as the Court-appointed receiver and manager of all of the assets, undertakings and properties of 2159372 Ontario Limited, and not in its personal capacity
Per:Name:Title:
SCHEDULE“B”LEGAL DESCRIPTION OF PROPERTY
PIN Legal Description
1. 10339-0135(LT) Lot 20, Plan 4069 North York; Subject to NY119687; Toronto (North York), City of Toronto
SCHEDULE“C”INSTRUMENTS TO BE DELETED FROM TITLE TO PROPERTY
1. Instrument No. AT2065395 being a Transfer - Power of Sale registered May 8, 2009 in favour of 2159372 Ontario Limited.
2. Instrument No. AT2383529 being a Notice of Assignment of Rents registered May 18, 2010 in favour of Bank of Montreal.
3. Instrument No. AT3447302 being a Charge registered November 5, 2013 in favour of Business Development Bank of Canada.
4. Instrument No. AT3447316 being a Notice of Assignment of Rents registered on November 5, 2013 in favour of Business Development Bank of Canada;
5. Instrument No. AT3693101 being a Lien registered on September 19, 2014 in favour of Her Majesty The Queen in Right of Canada as represented by The Minister of National Revenue.
SCHEDULE“D”PERMITTED ENCUMBRANCES, EASEMENTS AND RESTRICTIVE COVENANTS
1. Instrument No. NY 119687 being a Transfer Easement registered September 20, 1951 in favour of The Corporation of the Township of North York.
2. Plan 64BA277 registered April 20,1972.
3. Instrument No. TB776552 being a Notice registered August 9, 1991 in favour of the City of North York.
Lawyers for The Fuller Landau Group Inc., in its capacity as the
'THE HONOURABLE- ------- -) DAY, THE DAY' ■ ■ ■ . . . ■■■■■ \ - ' : V V ■■ : '
JUSTICE— — ) OF ,20
BETWE E-Nf-
PLAINTIFF
BUSINESS DEVELOPMENT BANK OF CANADA
- and --
Plaintiff
Applicant
DEFENDANT
Defendant
2159372 ONTARIO LIMITED. ZEEA MARKETING INC, and 2222603 ONTARIO INC.
Respondents
APPROVAL AND VESTING ORDER
THIS MOTION, made by [RECEIVER'S NAME^The Fuller Landau Group Inc.
f“FLG”\ in its capacity as the Court-appointed receiver land manager Cm such capacities, the
-“Receiver^”!. without security, of all of the undertaking,—property—and—assets—ef-
[DEBTOR]assets. undertakings and properties of 2159372 Ontario Limited (the -“Debtor-”)* for
an order, inter alia, approving the sale transaction (the -“Transaction-”) contemplated by an
agreement of purchase and sale (the "Sale Agreement") between the Receiver and [NAME OF-
PIJRCHASER | ('the-", as vendor, and Ava Investment Holdings Inc, ('the “Purchaser1^ dated-
[DATE]”\ as purchaser, dated July 2, 2015 las amended, the “Sale Agreement”) and appended
to the First Report of the Receiver dated [DATEISePtember 16. 2015 (the -“First Report-”!, and
vesting in the Purchaser the Debtor’s right, title and interest in and to the assets described in the
Sale Agreement (the -“Purchased Assets-”), was heard this day at 330 University Avenue,
Toronto, Ontario.
ON READING the First Report and appendices thereto, and on hearing the submissions
of counsel for the Peeeiver [NAMES OF OTHER PARTIES APPEARING] and such other
counsel as were present, no one appearing for any other person named on the service list,
although properly served as appears from the affidavit of [NAME^Eunice Baltkois sworn
[DATE]September 16. 2015. filedV*
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^ This model order assumes that-t-hc time for service-does not need to be abridged. The motion seeking a vesting order should-be served on all persons having ail economic interest in-fee Purchased Assets, unless circumstances warrant a different approach. Counsel should consider attaching the affidavit-of service to this Or-der.
1. THIS COURT ORDERS AND DECLARES that the Transaction is hereby approved,-
and the execution of the Sale Agreement, as amended, by the Receiver3 is hereby authorized and
approved, with such minor amendments as the Receiver may deem necessary. The Receiver is
hereby authorized and directed to take such additional steps and execute such additional
documents as may be necessary or desirable for the completion of the Transaction and for the
conveyance of the Purchased Assets to the Purchaser.
2, THIS COURT ORDERS AND DECLARES that upon the delivery of a Receiver’s
certificate to the Purchaser substantially in the form attached as Schedule “A” hereto (the
-“Receiver's Certificate-”), all of the Debtor'ls right, title and interest in and to the Purchased
Assets described in the Sale Agreement [and -tisted-on Schedule B hereto]4, as amended, shall
vest absolutely in the Purchaser, 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-TTh including, without
limiting the generality of the foregoing: (i) any encumbrances or charges created by the Order of
= 3^
3 In some cases, notably where this Ordermaybe relied upon-Tor-preceedings in the United States, a finding that the
necessary. Evidence should be filed to support such a finding,-which finding may then be included in the Court's
3 In some cases, the Debtor will be the vendor under the Sale Agreement, or otherwise actively involved-in the- Transaction. In those cases, care should be taken to ensure that this Order authorizes either or both of the Debtor
4 To allow this Order to be free-standing (and not require reference to the-Court record and/or the Sale Agreement-^ it may be preferable that the Purchased-Assets-be specifically described in a Schedule.The Claims" being vested out may, in some cases, include ownership claims, where ownership is disputed and-tiie dispute-is brought to the attention of the Court. Such ownership-claims would, in that case, stih-continue as against the net-proceeds from the sale of the claimed asset. Similarly, other rights, titles or interests could also be vested out, if the Court is advised what rightsare being affected, and the appropriate persons are served. It is the- Subeommittcc's-vicw that a non-specifie^vesting out oF"rights, titles and interests" is vague and therefore undesirable.
5QGSTOR: 1201-93-7414
the Honourable Justice [NAME]Wilton-Siegel dated [DATElJune 2. 2015: (ii) all charges,
security interests or claims evidenced by registrations pursuant to the Personal Property Security
Act (Ontario) or any other personal property registry system; and (iii) those Claims listed on
Schedule “C” 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 “D”) and, for greater certainty, this Court orders that all of the Encumbrances affecting
or relating to the Purchased Assets are hereby expunged and discharged as against the Purchased
Assets.
3. THIS COURT ORDERS that upon the registration in the Land Registry Office for the
[Registry Division of (LOCATION) of a Transfer/Deed of Land in the form prescribed by the-
Land Registration Reform Act duly executed by the Receiver][appropriate Land Titles Division-
of {LOCATION} of an Application for Vesting Order in the form prescribed by the Land Titles
Act and/or the Land Registration Reform Actf, the Land Registrar is hereby directed to enter the
Purchaser, or as it mav direct, as the owner of the subject real property identified in Schedule
“B” hereto (the “Real Property”) in fee simple, and is hereby directed to deiete and expunge
from title to the Real Property all of the Claims listed in Schedule “C” hereto.
4. THIS COURT ORDERS that for the purposes of determining the nature and priority of
Claims, the net proceeds^ from the sale of the Purchased Assets shall stand in the place and stead
of the Purchased Assets, and that from and after the delivery of the Receiver's Certificate all
Claims and Encumbrances shall attach to the net proceeds from the sale of the Purchased Assets
with the same priority as they had with respect to the Purchased Assets immediately prior to the
= 4^
BQGSTOR; I20I9271M
sales, as if the Purchased Assets had not been sold and remained in the possession or control of
the person having that possession or control immediately prior to the sale.
5. THIS COURT ORDERS AND DIRECTS the Receiver to file with the Court a copy of
the Receiver's Certificate, forthwith after delivery thereof.
hr THIS COURT ORDERS that, pursuant to clause- 7(3)(c) of the Canada -Personal-
Infor-mHiion Protection and Electronic Deeumcnls Act, the Receiver-is authorized and permitted
to disclose and - transfer-to the Purchaser all human resources and payroll information in the
Company's records pertaining to- the Debtor's past and current employees, including personal
information of those employees listed on Schedule to the Sale Agreement. The Purchaser-
shall maintain and protect the privacy of such information and shall be entitled to use the-
personal information provided to—it in a manner which is in all mater-ial respects identical to the
prior use of such information by the Debtor.
A 7ATHIS COURT ORDERS that, notwithstanding:
= 5^
(a) the pendency of these proceedings;
(b) any applications for a bankruptcy order now or hereafter issued pursuant to the
Bankruptcy and Insolvency Act (Canada) in respect of the Debtor and any
bankruptcy order issued pursuant to any such applications; and
(c) any assignment in bankruptcy made in respect of the Debtor^
the vesting of the Purchased Assets in the Purchaser, or as it mav direct, pursuant to this Order
shall be binding on any trustee in bankruptcy that may be appointed in respect of the Debtor and
shall not be void or voidable by creditors of the Debtor, nor shall it constitute nor be deemed to
rnseWency process, or potentially secured claimants may not have had the time-or the ability to register or perfect
crystallization concept.
DQCSTQR; 120192-7X14
= 6^
be a fraudulent preference, assignment, fraudulent conveyance, transfer at undervalue^ or other
reviewable transaction under the Bankruptcy and Insolvency Act (Canada) or any other applicable
federal or provincial legislation, nor shall it constitute oppressive or unfairly prejudicial conduct
pursuant to any applicable federal or provincial legislation.
2, SETHIS COURT ORDERS AND DECLARES that the Transaction is exempt from the
application of the Bulk Sales Act (Ontario).
L f^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 Receiver 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 Receiver, as an officer of this
Court, as may be necessary or desirable to give effect to this Order or to assist the Receiver and
its agents in carrying out the terms of this Order.
BQeSTOfe-1301927\M
Revised: January 2A- 2014
Schedule A Form of Receiver’,s-CertifieateSCHEDULE “A”
Court File No. CV-15-10829-00-CL
ONTARIOSUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
BETWEEN:
PLAINTIFF
BETWEEN:
BUSINESS DEVELOPMENT BANK OF CANADA
- and -~
Plaintiff
Applicant
DEFENDANT
Defendant
2159372 ONTARIO LIMITED. ZEEA MARKETING INC, and 2222603 ONTARIO INC.
Respondents
RECEIVER’S CERTIFICATE
RECITALS
(A) At Pursuant to an Order of the Honourable [NAME OF JUDGE]Justice
Wilton-Siegel of the Ontario Superior Court of Justice (Commercial List! fthe "Court") dated
[DATE OF-ORDER]. [NAME OF RECEIYERf Court”) dated June 2. 2015. The Fuller Landau
Group Inc. ('“FLC”! was appointed as the-receiver land manager tin such capacities, the
BQCSTOR: 1201-92A44
a.
-“Receiver^”). without security, of all of the undertaking,—property—arid—assets—ef-
[DEBTOR] assets. undertakings and properties of 2159372 Ontario Limited (the “Debtor”).
(B) Bt Pursuant to an Order of the Court dated [OATE^September 25. 2015. the Court
approved the agreement of purchase and sale made as of [DATE OF AGREEMENT]Julv 2. 2015
(the -“Sale Agreement-”) between the Receiver [Debtor] and [NAME OF PURCHASERIand
Ava Investment Holdings Inc, (the -“Purchaser-”)* and provided for the vesting in the Purchaser
of the Debtor sDebtors’ right, title and interest in and to the assets described in the Sale
Agreement fthe “Purchased Assets^), which vesting is to be effective with respect to the
Purchased Assets upon the delivery by the Receiver to the Purchaser of a certificate confirming:
(i) the payment by the Purchaser of the Purchase-Pricepurchase price for the Purchased Assets;
(ii) that the conditions to Closingclosing as set out in section • of the Sale Agreement have been
satisfied or waived by the Receiver and the Purchaser; and (iii) that the Transacti ontransaction
has been completed to the satisfaction of the Receiver.
1C) Gt Unless otherwise indicated herein, terms with initial capitals have the meanings
set out in the Sale Agreement.
THE RECEIVER CERTIFIES the following:
U 4-t Thethe Purchaser has paid and the Receiver has received the Purehase-
Rrieepurcha.se price for the Purchased Assets payable on the
the Sale Agreement, as amended:
2, 2t Thethe conditions to Closingclosing as set out in section • of the Sale Agreement*,
as amended, have been satisfied or waived by the Receiver and the Purchaser;-and-
BOGSTOfe-l 201927\ 14
transaction has been completed to the satisfaction of the
Receivers and
1
T. 4t Thisthis Certificate was delivered by the Receiver at________^=== [TIME] on
_________ [DATE],
fL[NAME—OE—RECEIVE Rf/THE FULLER LANDAU GROUP INC., solely in its capacity as
Court-appointed receiver and manager of all of the assets of [DEBTOR}, undertakings and properties of 2159372 Ontario Limited, and not in its personal capacity
Per:Name:Title:
DOOSTOR: I20I927U4
a
SCHEDULE“B”LEGAL DESCRIPTION OF PROPERTY
PIN Legal Description
h 10339-0135(T,T) Lot 20. Plan 4069 North York: Suhiect to NY119687: Toronto (NorthYork! Citv of Toronto
BQC&TOR^43W927\H
a
SCHEDULE“C”INSTRUMENTS TO BE DELETED FROM TITLE TO PROPERTY
2± Instrument No. AT2065395 being a Transfer - Power of Sale registered Mav 8. 2009 in favour of 2159372 Ontario Limited.
4 Instrument No. AT2383529 being a Notice of Assignment of Rents registered Mav 18. 2010 in favour of Bank of Montreal.
4 Instrument No. AT3447302 being a Charge registered November 5. 2013 in favour of Business Development Bank of Canada.
5, Instrument No. AT3447316 being a Notice of Assignment of Rents registered on November 5. 2013 in favour of Business Development Bank of Canada:
4 Instrument No. AT3693101 being a Lien registered on September 19. 2014 in favour of Her Maiestv The Queen in Right of Canada as represented bv The Minister of National Revenue.
SCHEDULE“D”PERMITTED ENCUMBRANCES. EASEMENTS AND RESTRICTIVE COVENANTS
L Instrument No. NY119687 being a Transfer Easement registered September 20, 1951 in favour of The Corporation of the Township of North York.
2* Plan 64BA277 registered April 20. 1972.
;L Instrument No. TB776552 being a Notice registered August 9. 1991 in favour of the City of North York.
D0GSrofe45We7\T4
TAB 4
Court File No. CV-15-10829-00-CL
ONTARIOSUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
THE HONOURABLE )
)
)
FRIDAY, THE 25th DAY
JUSTICE OF SEPTEMBER, 2015
BETWEEN:
BUSINESS DEVELOPMENT BANK OF CANADA
- and -
Applicant
2159372 ONTARIO LIMITED, ZEEA MARKETING INC. and 2222603 ONTARIO INC.
Respondents
ORDER(re: Ancillary Matters)
THIS MOTION, made by The Fuller Landau Group Inc. (“FLG”), in its capacity as the
Court-appointed receiver and manager (in such capacities, the “Receiver”), without security, of
all of the assets, undertakings and properties of 2159372 Ontario Limited (“215”), Zeea
Marketing Inc. (“ZMI”) and 2222603 Ontario Inc. (“222”, and together with 215 and ZMI, the
“Debtors”), for an order, among other things: (i) approving the First Report of the Receiver
dated September 16, 2015 (the “First Report”) and the actions of the Receiver set out therein;
(ii) authorizing and directing the Receiver to distribute, without further Order of this Court,
certain funds on account of the Debtors’ secured indebtedness for principal, interest and costs;
(iii) approving the fees and disbursements of the Receiver and its counsel, including an accrual
2
for fees and disbursements to be incurred to the completion of these proceedings; (iv) approving
the Receiver’s Final Statement of Receipts and Disbursements for 215 (as appended to the First
Report); and (v) sealing Confidential Appendices “1” through “3” (collectively, the
“Confidential Appendices”), was heard this day at 330 University Avenue, Toronto, Ontario.
ON READING the First Report and the appendices thereto, the affidavit of David Filice
sworn September 14, 2015 (the “Receiver’s Fee Affidavit”) and the affidavit of Steven L. Graff
sworn September 14, 2015 (the “A&B Fee Affidavit”), and on hearing the submissions of
counsel for the Receiver and such other counsel as were present, no one appearing for any other
person named on the service list, although properly served as appears from the affidavit of Mona
Markussen sworn September 16, 2015, filed,
1. THIS COURT ORDERS that the time for service and filing 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.
2. THIS COURT ORDERS that the First Report be and is hereby approved and the actions
of the Receiver described therein be and are hereby approved.
3. THIS COURT ORDERS that the Receiver be and is hereby authorized and directed to
make distributions to Business Development Bank of Canada (“BDC”), without further Order of
this Court, on account of the Debtors’ secured indebtedness owing to BDC for principal, interest
and costs up to the amount of the Debtors’ secured indebtedness owing to BDC.
4. THIS COURT ORDERS that the Receiver’s Final Statement of Receipts and
Disbursements for 215, as appended to the First Report, be and is hereby approved.
3
5. THIS COURT ORDERS that the fees and disbursements of the Receiver, as described
in the First Report and as set out in the Receiver’s Fee Affidavit, be and are hereby approved.
6. THIS COURT ORDERS that the fees and disbursements of the Receiver’s legal
counsel, Aird & Berlis LLP, as described in the First Report and as set out in the A&B Fee
Affidavit, be and are hereby approved.
7. THIS COURT ORDERS that the Fee Accrual (as defined in the First Report) be and is
hereby approved.
8. THIS COURT ORDERS that the Confidential Appendices be and are hereby sealed
until the completion of the Transaction (as defined in the First Report) or further Order of this
Court.
Lawyers
for The Fuller Landau Group Inc., in its capacity as the
court-appointed receiver and
manager of2159372 O
ntario Limited,
Zeea Marketing
Inc. and 2222603 O
ntario Inc.
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TAB 5
Court File No. CV-15-10829-00-CL
ONTARIOSUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
THE HONOURABLE
JUSTICE
) FRIDAY, THE 25th DAY
)) OF SEPTEMBER, 2015
BUSINESS DEVELOPMENT BANK OF CANADA
- and -
Applicant
2159372 ONTARIO LIMITED, ZEEA MARKETING INC. and 2222603 ONTARIO INC.
Respondents
DISCHARGE ORDER
THIS MOTION, made by The Fuller Landau Group Inc. (“FLG”), in its capacity as the
Court-appointed receiver and manager (in such capacities, the “Receiver”), without security, of
all of the assets, undertakings and properties of 2159372 Ontario Limited (“215”), Zeea
Marketing Inc. (“ZMI”) and 2222603 Ontario Inc. (“222”, and together with 215 and ZMI, the
“Debtors”), for an order, among other things: (i) discharging FLG as the Receiver of the assets,
undertakings and properties of the Debtors effective upon the filing of a certificate by the
Receiver certifying that all matters to be attended to in connection with the receivership of the
Debtors have been completed to the satisfaction of the Receiver, in substantially the form
attached hereto as Schedule “A” (the “Discharge Certificate”); and (ii) releasing FLG from any
and all liability, as set out in paragraph 2 of this Order, was heard this day at 330 University
Avenue, Toronto, Ontario.
2
ON READING the First Report of the Receiver dated September 16, 2015 and the
appendices thereto, and on hearing the submissions of counsel for the Receiver and such other
counsel as were present, no one appearing for any other person named on the service list,
although properly served as appears from the affidavit of Mona Markussen sworn September 16,
2015, filed,
1. THIS COURT ORDERS that, upon the Receiver filing the Discharge Certificate, the
Receiver shall be discharged as Receiver of the assets, undertakings and properties of the
Debtors, provided however that notwithstanding its discharge herein: (a) the Receiver shall
remain Receiver for the performance of such incidental duties as may be required to complete
the administration of the receivership herein; and (b) the Receiver 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 FLG, in its capacity as the Receiver.
2. THIS COURT ORDERS AND DECLARES that, upon the Receiver filing the Discharge
Certificate, FLG is hereby released and discharged from any and all liability that FLG now has or
may hereafter have by reason of, or in any way arising out of, the acts or omissions of FLG while
acting in its capacity as the Receiver herein, save and except for any gross negligence or wilful
misconduct on the Receiver’s part. Without limiting the generality of the foregoing, FLG 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 receivership proceedings, save and except for any
gross negligence or wilful misconduct on the Receiver’s part.
SCHEDULE “A”
Court File No. CV-15-10829-00-CL
ONTARIOSUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
BETWEEN:
BUSINESS DEVELOPMENT BANK OF CANADA
Applicant
- and -
2159372 ONTARIO LIMITED, ZEEA MARKETING INC. and 2222603 ONTARIO INC.
Respondents
RECEIVER’S DISCHARGE CERTIFICATE
RECITALS
(A) Pursuant to an Order of the Honourable Justice Wilton-Siegel of the Ontario Superior
Court of Justice (Commercial List) (the “Court”) dated June 2, 2015, The Fuller Landau Group
Inc. (“FLG”) was appointed as receiver and manager (in such capacities, the “Receiver”),
without security, of all of the assets, undertakings and properties of 2159372 Ontario Limited
(“215”), Zeea Marketing Inc. (“ZMI”) and 2222603 Ontario Inc. (“222”, and together with 215
and ZMI, the “Debtors”).
(B) Pursuant to an Order of the Court dated September 25, 2015 (the “Discharge Order”),
FLG was discharged as the Receiver of all of the assets, undertakings and properties of the
Debtors to be effective upon the filing by the Receiver with the Court of a certificate confirming
that all matters to be attended to in connection with the receivership of the Debtors have been
2
completed to the satisfaction of the Receiver, provided, however, that notwithstanding its
discharge: (a) the Receiver will remain the Receiver for the performance of such incidental
duties as may be required to complete the administration of the receivership; and (b) the
Receiver will 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 FLG, in its
capacity as the Receiver.
(C) Unless otherwise indicated herein, terms with initial capitals have the meanings set out in
the Discharge Order.
THE RECEIVER CERTIFIES the following:
1. all matters to be attended to in connection with the receivership of the Debtors have been
completed to the satisfaction of the Receiver; and
2. this Certificate was filed by the Receiver with the Court on the ____ day of
_______________,2015.
THE FULLER LANDAU GROUP INC.,solely in its capacity as the Court-appointed receiver and manager of all of the assets, undertakings and properties of 2159372 Ontario Limited, Zeea Marketing Inc. and 2222603 Ontario Inc., and not in its personal capacity
Per:Name:Title:
Lawyers for The Fuller Landau G
roup Inc., in its capacity as the court-appointed
receiver and m
anager of2159372 Ontario Lim
ited, Zeea M
arketing Inc. and 2222603 O
ntario Inc.
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TAB 6
Court File No.
ONTARIOSUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
Revised: May 11, 2010
—CV-15-1.0829-00-CL
THE HONOURABLE ) WEEKDAY, THE #
" ! ■ ■ ) ■ - ■ ' '
JUSTICE—— ^ DAY OF MONTH, 20YR
BETWEEN^
PLAINTIFF
Plaintiff
THE HONOUR ART E ) FRIDAY. THE 25th DAY
)JUSTICE ) OF SEPTEMBER. 2015
BUSINESS DEVELOPMENT BANK OF CANADA
- and --
Applicant
Defendant
2159372 ONTARIO LIMITED. ZEEA MARKETING INC, and 2222603 ONTARIO INC.
Respondents
DISCHARGE ORDER
THIS MOTION, made by [RECEIVER-S NAME]The Fuller Landau Group Inc.
t“FLG”Y in its capacity as the Court-appointed receiver land manager tin such capacities, the
eOCSTOfe I201925VS
2
-“Receiver^”!. without security, of all of the undertaking, property and assets of [DEBTOR]
(the "Debtor", undertakings and properties of 2159372 Ontario Limited (“215”T Zeea Marketing
Inc. and 2222603 Ontario Inc. (“222”. and together with 215 and ZMI. the “Debtors”),
for an order, among other things:
4t approving the activities of the Receiver as set out in the report of the Receiver dated
fBATEHthe "Report");
2t approving the fees and disbursements of the Receiver and its counsel;
3r approving the distribution of the remaining proceeds available in the estate of-the Debtor-p
limilL[itllUl
4Ui! discharging [RECEIVER'S NAMEjFLfi as the Receiver of the undertaking, property-and-
assets of-the Debtor[; and
5r releasing [RECEIVER'S NAME] assets, undertakings and properties of the Debtors
effective upon the filing of a certificate bv the Receiver certifying that all matters to be attended
to in connection with the receivership of the Debtors have been completed to the satisfaction of
the Receiver, in substantially the form attached hereto as Schedule “A” (the “Discharge
Certificate”!: and tiit releasing FEG from any and all liability, as set out in paragraph 52 of this
Order}4-, was heard this day at 330 University Avenue, Toronto, Ontario.
ON READING the First Report, the affidavits of the Receiver dated September 16. 2015
and its counsel as to fees (the "Fee Affidavits"-lthe appendices thereto, and on hearing the
submissions of counsel for the Receiver and such other counsel as were present, no one else-
appearing for anv other person named on the service list, although properly served as evidenced
bvappears from the Affidavitaffidavit of [NAMEjEunice Baltkois sworn [DATEjrSeptember 16.
2015. filedV*.
^ If this relief is being sought, stakeholders should be-spec ideally advised, and given ample notice. See also Note t, below-
a This model order assumes that the time for service dees not need to be abridged.
DGGSTQRf-l-
2
4t THIS COURT ORDERS that the activities-of the-Receiver, as set out in the Report, are
hereby approved.
2t THIS COURT -ORDERS that the fees and disbursements of the Receiver and its counsel,
as set out m the Report-and the Fee Affidavits, are hereby approved.
3r THIS COURT ORDERS that, after payment of the fees and disbursements herein
approved, the Receiver shall pay the monies-remaining in its hands to [NAME OF PARTY-]3-
T 4HTHIS COURT ORDERS that upon payment of the amounts set out in paragraph 3
hereof [aruk upon the Receiver filing a certificate certifying that it has completed the -other
aeti-vities-described in the Report]the Discharge Certificate, the Receiver shall be discharged as
Receiver of the undertaking, property -and -assets, undertakings and properties of the
DehtorDehtors. provided however that notwithstanding its discharge herein: (a) the Receiver
shall remain Receiver for the performance of such incidental duties as may be required to
complete the administration of the receivership herein^; and (b) the Receiver 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 [RECEIVER'S NAMEJFLG. in its capacity as
the Receiver.
2. V+THIS COURT ORDERS AND DECLARES that [RECEIVER'S NAME], upon the
Receiver filing the Discharge Certificate. FLG is hereby released and discharged from any and all
liability that [RECEIVER'S NAME!FLO now has or may hereafter have by reason of, or in any
way arising out of, the acts or omissions of [RECEIVER'S NAME|FLG while acting in its
capacity as the Receiver herein, save and except for any gross negligence or wilful misconduct on
the Receivers part. Without limiting the generality of the foregoing, [RECEIVER'S
NAMEjFI ,Ct is hereby forever released and discharged from any and all liability relating to matters
3 This model orcler-assumes-that the material filed supports a distribution to-a-specific secured creditor or other party^-
QOGSTOR: 120192518
4
that were raised, or which could have been raised, in the within receivership proceedings, save and
except for any gross negligence or wilful misconduct on the Receiver1^ part.}4
23S32869; 1
4 The modef-order subcommittee was divided as to whether a general release migbf-be appropriate. On the one- hand, the-Receiver has presumably reported its activities to the Court, and-presumably the reported activities have been approved in prior Orders. Moreover, the Order that appointed the-Receiver likely ha& protections in favour of the Receiver. These factors tend to indicate-that a general release of the Receiver is not necessary. On the-other hand, the Receiver has acted only in a representative capacity, as the Court's officer, so the Court may find that it is appropriate to insulate the Receiver from alt liability, by way of-a general-release. Some members of the subcommittee felt that, absent a general release, Receivers might hold back funds and/or wish to eonduct a claims bar- process, which would unnecessarily add time and cost to the receivership. The general release language has been added to this form of model order as an-option only, to be considered by the-presiding Judge in each specific- case. See also Note 1, above.
sees-TORf-mw35t8
SCHEDULE“A”
Court File No. CV-15-10829-00-CL
ONTARIOSUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
BETWEEN:
BUSINESS DEVELOPMENT RANK OF CANADA
Applicant
- and -
2159372 ONTARIO LIMITED. ZEEA MARKETING INC, and 2222603 ONTARIO INC.
Respondents
RECEIVER’S DISCHARGE CERTIFICATE
RECITALS
(A3 Pursuant to an Order of the Honourable Justice Wilton-Siegel of the Ontario Superior
Court of Justice ('Commercial List") (the “Court”) dated June 2. 2015. The Fuller Landau Group
Inc. ('“FLG”! was appointed as receiver and manager (in such capacities, the “Receiver”!,
without security, of all of the assets, undertakings and properties of 2159372 Ontario Limited
t“215”l. Zeea Marketing Inc. (“ZMI”) and 2222603 Ontario Inc. P‘222”, and together with 215
and ZMI. the “Debtors”!.
Pursuant to an Order of the Court dated September 25. 2015 fthe “Discharge Order”).
FLG was discharged as the Receiver of all of the assets, undertakings and properties of the
Debtors to be effective upon the Filing bv the Receiver with the Court of a certificate confirming
that all matters to be attended to in connection with the receivership of the Debtors have been
2
completed to the satisfaction of the Receiver, provided, however, that notwithstanding its
discharge: (a) the Receiver will remain the Receiver for the performance of such incidental duties
as mav be required to complete the administration of the receivership: and tbi the Receiver will
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 FLG. in its capacity as the Receiver.
£Q Unless otherwise indicated herein, terms with initial capitals have the meanings set out in
the Discharge Order.
THE RECEIVER CERTIFIES the following.
U all matters to be attended to in connection with the receivership of the Debtors have been
completed to the satisfaction of the Receiver: and
2. this Certificate was filed bv the Receiver with the Court on the dav of
-2015.
THE FUELER LANDAU GROUP INC..solely in its capacity as the Court-appointed receiver and manager of ail of the assets, undertakings and properties of 2159372 Ontario limited. Zeeat Marketing Inc, and 2222603 Ontario Inc., and not in its personal capacity
Per:Name:
Title:
TAB 7
Court File No. CV-15-10829-00-CL
ONTARIOSUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
BETWEEN:
BUSINESS DEVELOPMENT BANK OF CANADAApplicant
- and -
2159372 ONTARIO LIMITED, ZEEA MARKETING INC. and 2222603 ONTARIO INC.
Respondents
FIRST REPORT OFTHE FULLER LANDAU GROUP INC.
IN ITS CAPACITY AS THE COURT-APPOINTED RECEIVER AND MANAGER OF 2159372 ONTARIO LIMITED, ZEEA MARKETING INC.
and 2222603 ONTARIO INC.
September 16, 2015
TABLE OF CONTENTS
PAGE
INTRODUCTION................................... 1
BACKGROUND AND DISCLAIMER......................................................................................... 3
ACTIVITIES OF THE RECEIVER............................................ 3
SALE OF THE PREMISES..................................................... 5
ATTEMPTS TO IDENTIFY THE EXISTENCE OF OTHER PROPERTY.................... 7
FINAL STATEMENT OF RECEIPTS AND DISBURSEMENTS FOR 215......................8
DISTRIBUTION TO BDC.................................................................................................................8
215’s PROPOSED FINAL DISTRIBUTION............................................................................. 10
RECEIVER FEES AND DISBURSEMENTS........................................................................... 10
LEGAL FEES AND DISBURSEMENTS...................................................................................10
RECEIVER’S REMAINING ACTIVITIES AND PROPOSED DISCHARGE.............. 11
REQUESTS FOR APPROVAL.....................................................................................................11
Appendices
“A” - Receivership Order dated June 2,2015
“B” - Notice of Receiver dated June 10, 2015
“C” - Listing Agreement dated June 18,2015
“D” - Sale Agreement dated July 2, 2015 (as amended, redacted)
“E” - Final Statement of Receipts and Disbursements for 215 (redacted)
“F” - Affidavit of Ruth Thomson sworn January 8, 2015
“G” - Security Opinion
“H” - Fee Affidavit of David Filice sworn September 14, 2015
“I” . Fee Affidavit of Steven L. Graff sworn September 14, 2015
i
TABLE OF CONTENTS (continued)
Confidential Appendices
“1” - Sale Agreement dated July 2, 2015 (as amended, unredacted)
“2” - Appraisal
“3” - Final Statement of Receipts and Disbursements for 215 (unredacted)
ii
Court File No. CV-15-10829-00-CL
ONTARIOSUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
BETWEEN:
BUSINESS DEVELOPMENT BANK OF CANADA
Applicant
- and -
2159372 ONTARIO LIMITED, ZEEA MARKETING INC. and 2222603 ONTARIO INC.
Respondents
INTRODUCTION
1. By order of the Honourable Justice Wilton-Siegel of the Ontario Superior Court of
Justice (Commercial List) (the “Court”) dated June 2, 2015 (collectively, the
“Receivership Order”), which Receivership Order was made on application by Business
Development Bank of Canada (“BDC”) pursuant to section 243(1) of the Bankruptcy and
Insolvency Act, R.S.C. 1985 c. B-3, as amended (the “BIA”), and section 101 of the
Courts of Justice Act, R.S.O 1990, c. C.43, as amended (the “CJA”), The Fuller Landau
Group Inc. (“FLG”) was appointed as receiver and manager (in such capacities, the
“Receiver”), without security, of all of the assets, undertakings and properties of
2159372 Ontario Limited (“215”), Zeea Marketing Inc. (“Zeea”) and 2222603 Ontario
Inc. (“222”, and together with 215 and Zeea, the “Debtors”). A copy of the Receivership
Order is attached as Appendix “A”.
2. The purpose of this First Report to Court (the “First Report”) is to:
a. report on the Receiver’s activities since the granting of the Receivership Order;
b. report to the Court on the Receiver's efforts to sell the real property municipally
known as 106-108 Tycos Drive, Toronto, Ontario (the “Premises”); and
c. recommend to this Court that it make an Order, amongst other things:
i. approving this First Report and the actions of the Receiver described herein;
ii. sealing Confidential Appendices 1 through 3 of this First Report (collectively,
the “Confidential Appendices”) pending completion of the Transaction (as
defined below) or further Order of the Court;
iii. approving the agreement of purchase and sale between the Receiver, as vendor,
and Ava Investment Holdings Inc. (the “Purchaser”), as purchaser, dated July
2, 2015 (as amended, the “Sale Agreement”), and authorizing the Receiver to
complete the transaction contemplated thereby (the “Transaction”);
iv. vesting in the Purchaser, or as it may direct, 215’s right, title and interest in and
to the property described in the Sale Agreement (the “Purchased Assets”), free
and clear of any claims and encumbrances, which Purchased Assets primarily
consist of the Premises;
v. authorizing and directing the Receiver to distribute to BDC, without further
Order of this Court, certain funds on account of the Debtors’ secured
indebtedness for principal, interest and costs owing to BDC;
vi. effective upon the filing of a certificate by the Receiver certifying that all
outstanding matters to be attended to in connection with the receivership of the
Debtors have been completed to the satisfaction of the Receiver,, discharging
FLG as the Receiver;
vii. approving the Receiver’s Final Statement of Receipts and Disbursements, as
appended hereto; and
viii. approving the fees and disbursements of the Receiver and its counsel, including
an accrual for fees and disbursements to be incurred to the completion of these
proceedings.
2
BACKGROUND AND DISCLAIMER
3. 215 was a real estate holding company, and is the registered owner of the Premises. The
Premises consist of land and a building, which building contains offices and warehouse
space.
4. Zeea was an importer and wholesale distributor of food products (and of olives in
particular) to retailers and wholesalers across Canada. Zeea operated its business from the
Premises pursuant to the terms of a lease agreement dated October 1, 2011 between Zeea
and 215. In addition to the space leased to Zeea, approximately 5,000 square feet of the
Premises are leased to David’s Condiments Inc. (“David’s”), an arm’s length tenant of
215.
5. Prior to the commencement of these proceedings, Zeea appears to have stopped carrying
on business from the Premises, with 222 becoming the new operating entity that took
over from Zeea.
6. The Receiver was appointed on June 2, 2015 pursuant to the Receivership Order for the
purpose of realizing on the Debtors’ assets, undertakings and properties (collectively, the
“Property”). The Receiver attended at the Premises on June 2, 2015, but, other than the
space leased to David’s, found the Premises to contain no equipment, inventory nor
books or records.
7. In preparing and filing this First Report, the Receiver has relied upon unaudited financial
information obtained from 215’s former external accountant and discussions with
Argirios Dimacopoulos, principal of 215, third parties and other creditors (collectively,
the “Information”). The Receiver has not audited or otherwise been able to verify the
accuracy or completeness of the Information and expresses no opinion, or other form of
assurance, in respect of the Information.
8. All references to dollars in this First Report are in Canadian currency unless otherwise
noted.
ACTIVITIES OF THE RECEIVER
9. Since the date of the Receivership Order, the Receiver’s activities included:
3
a. taking possession of all the Property at the Premises as of the date of the Receivership
Order;
b. changing the locks to the Premises;
c. issuing a Notice of Receiver, attached hereto as Appendix “B”;
d. opening a Canadian trust bank account in the name of 215;
e. engaging in discussions with David’s, the arm’s length tenant located at the Premises,
to notify it of these receivership proceedings;
f. engaging in discussions with Platinum Asset Services Inc. (“PAS”) to act as the
Receiver’s property manager for the Premises;
g. reviewing 215’s insurance coverage with respect to the Premises, and making
arrangements to have the Receiver named as a loss payee and an additional named
insured;
h. notifying the previous realtor hired by 215 to terminate its listing of the Premises so
that the Receiver could engage a new realtor to market the Premises for sale;
i. conducting the sale process for the sale of the Premises as described in greater detail
below;
j. obtaining from BDC previously issued copies of environmental reports for the
Premises, and reviewing the contents of same to understand the environmental
condition of the Premises;
k. obtaining from BDC a copy of a property appraisal with respect to the Premises that
was issued in January 2015, and reviewing the contents of same to understand the
underlying value of the Premises;
l. engaging a property appraiser to prepare a new appraisal for the Receiver with respect
to the Premises;
m. collecting monthly rents from David’s, and, together with PAS, dealing with all
property management issues;
4
n. requesting information from various parties as to whether any Property exists in
locations other than the Premises;
o. requesting information from various parties as to whether certain identified assets
constitute Property;
p. coordinating banking activities;
q. performing other matters with respect to the Receiver’s appointment; and
r. preparing this First Report.
SALE OF THE PREMISES
10. The Receiver corresponded and met with four real estate agents in order to engage an
agent to list and market the Premises for sale. The Receiver requested that each of the
agents provide its marketing proposal and commission structure for the sale of the
Premises.
11. The Receiver received four marketing proposals. Following an extensive review of the
proposals, the Receiver entered into an agreement with Avison Young Commercial Real
Estate (Ontario) Inc. Real Estate Brokerage (“Avison”) dated June 18, 2015, pursuant to
which the Receiver retained Avison to list and market the Premises for sale. Each of the
realtors’ proposals was well prepared and generally similar in marketing process and
commission structure. However, the Receiver decided to select Avison based on its
specific expertise in industrial properties and its lower commission structure if it were to
find a purchaser itself. A copy of the listing agreement with Avision is attached as
Appendix “C”.
12. Although the Premises had been marketed since September 2014 by another brokerage,
no offers were received until the Receiver was appointed and hired Avison. Shortly after
listing the Premises with Avison, the Receiver received two offers for the Premises - one
from the Purchaser, and another from another party. The offer amount from the Purchaser
was in the range of the selling price to be expected from the proposals received from the
four realtors and was also higher than the appraisal obtained by the Receiver and the
other offer received. In addition, the Purchaser’s offer was an “as is, where is” offer and
5
would save the Receiver from having to incur any other costs if necessary to complete the
sale.
13. Following extensive negotiations between the Receiver and the Purchaser concerning the
purchase price and other terms, the parties entered into the Sale Agreement and the
Purchaser paid a deposit.
14. The Sale Agreement was conditional upon, amongst other things, the Purchaser
completing its due diligence with respect to the physical and environmental condition of
the Premises within a period of approximately 45 days.
15. On August 21, 2015, the Purchaser waived its due diligence condition in exchange for a
reduction to the purchase price. The reduction constituted less than 1% of the value of the
purchase price.
16. The Sale Agreement is also conditional upon the Receiver obtaining an order of this
Court approving the Sale Agreement and vesting title to the Premises in the Purchaser,
free and clear of any encumbrances (the “Approval and Vesting Order”). Subject to the
approval of this Court, there are no other material conditions to closing under the Sale
Agreement.
17. A copy of the Sale Agreement with the deposit and purchase price redacted is attached as
Appendix “D”. The Receiver recommends that the deposit and purchase price remain
sealed until the closing of the Transaction (the “Sealing Order”), because the release of
this information could prejudice the Debtors’ stakeholders in the event that the
Transaction were not to close. The Receiver does not believe that any party would be
prejudiced by the Sealing Order. An unredacted copy of the Sale Agreement is submitted
as Confidential Appendix “1”.
18. The Sale Agreement provides that the Purchaser shall have the right to assign the Sale
Agreement on notice to the Receiver, in which case the Purchaser would nonetheless
remain liable to the Receiver for all the Purchaser’s obligations under the Sale
Agreement. As of the date of this First Report, the Receiver has not received any notice
of assignment from the Purchaser.
19. The closing date for the Transaction has been scheduled for September 30, 2015.
6
20. The Receiver recommends approval of the Sale Agreement for the following reasons:
a. the Premises was marketed for sale for a period of approximately nine months prior to
the receivership by a realtor selected by 215, and then was marketed by Avison for
approximately two weeks after the appointment of the Receiver;
b. the Sale Agreement represents the highest and best offer received for the Premises;
c. the Receiver is satisfied that the Premises was sufficiently exposed to the market, and
that receipt of a higher offer to that submitted by the Purchaser is unlikely;
d. the purchase price is reasonable given the appraised value of the Premises. A copy of
the appraisal commissioned by the Receiver from S. Katchen Appraisals Inc. dated
June 29, 2015 is attached as Confidential Appendix “2”;
e. as the Premises is now vacant, other than the 5,000 square feet leased to David's, the
cost of maintaining the Premises for a longer period will be borne by the Debtors’
estate with no expectation that a higher price would be received if the Premises were
marketed for sale longer; and
f. the Sale Process has the support of the Debtors’ secured creditor, BDC, which, as
described below, is expected to suffer a shortfall on the secured indebtedness owing
to it by the Debtors.
ATTEMPTS TO IDENTIFY THE EXISTENCE OF OTHER PROPERTY
21. As discussed above, and other than the space leased to David’s, the Premises has not
contained any equipment, inventory nor books or records since the Receiver’s
appointment. The Receiver was eventually able to retrieve certain lease documentation
from David’s, and certain property lax statements and the names of a few of the Debtors’
creditors from Mr. Dimacopoulos (collectively, the “Retrieved Material”). Despite its
efforts and enquiries, the Receiver has been unsuccessful in confirming the identification
and/or location, as applicable, of any Property other than the Premises and the Retrieved
Material.
22. FLG and BDC viewed certain assets at the Premises in January 2015, prior to the
granting of the Receivership Order, some of which assets the Receiver located on August
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31, 2015 (Ihe “Relocated Assets”) in a separate building not far from the Premises (the
“Other Location”). In response to questioning from the Receiver in respect to same, Mr.
Dimacopoulos indicated that, notwithstanding their previous appearance at the Premises,
the Relocated Assets had always belonged to his mother and/or her company, Zeea
Olives Etc. Ltd. (“ZOEL"), which rents space at the Other Location. The Receiver asked
that Mr. Dimacopoulos swear an affidavit to this effect. As of the date of this First
Report, the Receiver has not received such an affidavit from Mr. Dimacopoulos.
23. Prior to the Receivership Order being sought or granted, and in an effort to assist Zeea to
purchase certain dip production equipment (the “Dip Production Equipment”) from
Rhea Lux S.A. (“Rhea”), a company located in Kieirch, Luxembourg, BDC advanced
$600,000 in April 2014 to Rhea (the “April Funds”). As of the date of this First Report,
the Dip Production Equipment has not been delivered to Zeea, and the Receiver has been
advised by a Rhea representative that Rhea is an accounting firm and not an equipment
manufacturer. The Receiver has made several enquiries with respect to the location of the
April Funds and the Dip Production Equipment, including, without limitation, enquiries
with Mr. Dimacopoulos and others, but has not been able to obtain any information on
the whereabouts of these assets.
FINAL STATEMENT OF RECEIPTS AND DISBURSEMENTS FOR 215
24. Attached as Appendix “E” is a redacted copy of the Receiver’s Final Statement of
Receipts and Disbursements in respect of 215 (the “215 Statement”), which includes
future receipts and disbursements arising from the closing of the Transaction. An
unredacted copy of the 215 Statement is attached as Confidential Appendix “3”.
25. The 215 Statement shows an excess of receipts over disbursements, but provides for a net
amount less than the amount owing to 215’s first secured creditor, BDC, after paying the
municipal property tax arrears, the commissions due to Avison on the sale of the
Premises, and the costs of the receivership including all professional fees.
DISTRIBUTION TO BDC
26. As set out in greater detail in the Affidavit of Ruth Thomson sworn January 8, 2015 (the
“Thomson Affidavit”) in support of BDC’s receivership application, BDC made a loan
8
to the Debtors, in the principal amount of $2,600,000. A copy of the Thomson Affidavit,
without exhibits, is attached hereto as Appendix “F”.
27. The details of BDC’s loan and security are set out in the Thomson Affidavit. As security
for BDC’s loans, the Debtors granted to BDC, amongst other things:
a. a charge/mortgage granted by 215 in favour of BDC dated November 5, 2013 in
the principal amount of $2,600,000 (the “BDC Mortgage”);
b. a general security agreement from 215 dated October 29,2013;
c. a guarantee for 100% of the outstanding indebtedness to BDC from Zeea;
d. a general security agreement from Zeea dated October 29,2013;
e. a first registered general assignment of rents from 215 dated October 29, 2013;
and
f. a general security agreement from 222 dated January 29, 2015.
28. Aird & Berlis LLP (“A&B”) has provided the Receiver a legal opinion on the validity
and enforceability of, amongst other things, the BDC Mortgage (collectively, the
“Security Opinion”). A&B advises in the Security Opinion that, subject to the usual
qualifications and assumptions, it is of the opinion that the BDC Mortgage provides BDC
with a valid and enforceable registered first charge over the Premises. A copy of the
Security Opinion is attached hereto as Appendix “G”.
29. The Security Opinion also provides an opinion that BDC’s security interest pursuant to
its general security agreements outlined above is good and enforceable in accordance
with their terms and has been properly perfected by registration pursuant to the
provisions of the Personal Property Security Act (Ontario).
30. The Receiver has collected monthly rents in an amount of $19,563.19. The rent monies
received were used to fund the occupancy-related costs such as utilities, cleaning, repairs
and maintenance, changing of locks, property management fees and appraisal fees
(collectively, the “Occupancy Costs”). The Occupancy Costs exceeded the rents
collected. As such, there are no rent proceeds available for distribution.
9
215’s PROPOSED FINAL DISTRIBUTION
31. As described above, BDC holds a first ranking mortgage in the Premises. No payments
have been made since the date of the Receivership Order and interest has continued to
accrue.
32. As at the date of this First Report, 215 is indebted to BDC on the BDC Mortgage in an
amount of approximately $2,700,000.00 plus costs.
33. There will not be sufficient funds to fully repay the indebtedness owed by 215 to BDC on
the BDC Mortgage. Therefore, the Receiver requests the permission of this Court to
distribute the available funds on hand to BDC, after collection of future receipts and
payment of the future disbursements as set out in the 215 Statement.
34. As described in greater detail in the Security Opinion, Her Majesty the Queen in Right of
Canada as represented by the Minister of National Revenue has registered on title to the
Premises a lien in the amount of $92,712 on account of unremitted HST amounts. This
lien was registered subsequent to the BDC Mortgage. In light of the fact that BDC is
expected to suffer a shortfall under the BDC Mortgage, the Receiver does not expect
there to be any proceeds available for a distribution to any subsequent registered
claimants. In addition, 215 was petitioned into bankruptcy on August 11, 2015, such that
35. The Receiver’s invoices rendered since the Receivership Order are attached as exhibits to
the Affidavit of David Filice sworn September 14, 2015 attached hereto as Appendix
“H”. The total amount of fees and disbursements claimed by the Receiver for the period
from June 2, 2015 to August 31,2015 inclusive of HST is $45,545.43 (comprising fees of
$40,283.30, disbursements of $22.39, and HST of $5,239.74).
LEGAL FEES AND DISBURSEMENTS
36. A&B’s invoices rendered since the dale of the Receiver’s appointment are attached as
exhibits to the Affidavit of Steven L. Graff sworn September 14, 2015 attached hereto as
10
Appendix “I”. The total amount of fees and disbursements claimed by A&B for the
period from June 18, 2015 to September 8,2015, inclusive of HST, is $23,496.16.
37. The Receiver has reviewed the detailed statements of account provided by A&B, and
confirms that the services detailed in those documents were in fact provided to the
Receiver. The Receiver is of the view that the time and disbursements incurred and
hourly rates charged by counsel are fair and reasonable in all respects, and is advised by
BDC that it is satisfied with these accounts as well.
38. The Receiver further estimates that additional fees and disbursements in the amount of
$40,000, exclusive of applicable HST (the “Fee Accrual”), will be incurred by the
Receiver and its legal counsel to complete the administration of these receivership
proceedings.
RECEIVER’S REMAINING ACTIVITIES AND PROPOSED DISCHARGE
39. The Receiver’s remaining activities to complete the administration of the Debtors’
receivership principally comprise of:
a. attending at Court to obtain approval of the Sale Agreement and the underlying
Transaction;
b. completing the Transaction;
c. distributing amounts to BDC; and
d. completing any other administrative matters necessary to the Receiver’s discharge.
40. The Receiver proposes that once it has completed the foregoing tasks, it be permitted to
file a certificate confirming same and that it be discharged as the Receiver upon filing the
certificate without further order of this Court.
REQUESTS FOR APPROVAL
41. The Receiver respectfully requests an order of this Court:
a. approving this First Report and the actions of the Receiver described herein;
b. sealing the Confidential Appendices pending completion of the Transaction;
11
c. approving the Sale Agreement and authorizing the Receiver to complete the
Transaction;
d. vesting in the Purchaser, or as it may direct, 215’s right, title and interest in and to the
Purchased Assets;
e. authorizing and directing the Receiver to distribute to BDC, without further Order of
this Court, certain funds on account of the Debtors’ secured indebtedness for
principal, interest and costs owing to BDC;
f. effective upon the filing of a certificate by the Receiver certifying that all outstanding
matters to be attended to in connection with the receivership of the Debtors have been
completed to the satisfaction of the Receiver, discharging FLG as the Receiver;
g. approving the Receiver’s Final Statement of Receipts and Disbursements, as
appended hereto; and
h. approving the fees and disbursements of the Receiver and its counsel, including the
Fee Accrual.
All of which is respectfully submitted this 16th day of September, 2015.
The Fuller Landau Group Inc.,in its capacity as Court appointed receiver and manager of2159372 Ontario Limited, Zeea Marketing Inc, and 2222603 Ontario Inc.,and not in its personal capacity
Per:
Senior Vice President
23814679.3
12
Tab A
Court File No. CV-15-10829-00-CL
THE HONOURABLE
JUSTICE (Nt t-*re>/r
ONTARIOSUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
/vi/2, )
^ UT- I
TUESDAY, THE 2nd
DAY OF JUNE, 2015b{farS
BETWEEN:BUSINESS DEVELOPMENT BANK OF CANADA
- and -Applicant
2159372 ONTARIO LIMITED, ZEEA MARKETING INC. and 2222603 ONTARIO INC.
Respondents
APPLICATION UNDER Section 243(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, and Section 101 of the Courts of Justice Act, R.S.0.1990, c. C.43.
ORDER(Appointing Receiver)
THIS APPLICATION made by the Applicant for an Order pursuant to section 243(1) of
the Bankruptcy and Insolvency Act, R.S.C. 1985, c, B-3, as amended (the "BIA") and section 101
of the Courts of Justice Act, R.S.O, 1990, c. C.43, as amended (the "CJA") appointing The
Fuller Landau Group Inc. as receiver and manager (in such capacities, the "Receiver") without
security, of all of the assets, undertakings and properties of 2159372 Ontario Limited, Zeea
Marketing Inc. and 2222603 Ontario Inc. (collectively, the "Debtors") acquired for, or used in
relation to a business or businesses carried on by the Debtors, was heard this day at 330
University Avenue, Toronto, Ontario.
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ON READING the affidavit of Ruth Thomson sworn January 8, 2015 and the Exhibits
thereto and the consent of the Debtors to this Order and the consent of The Fuller Landau Group
Inc. to act as the Receiver,
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.
APPOINTMENT
2. THIS COURT ORDERS that pursuant to section 243(1) of the BIA and section 101 of
the CJA, The Fuller Landau Group Inc, is hereby appointed Receiver, without security, of all of
the assets, undertakings and properties of the Debtors acquired for, or used in relation to a
business or businesses carried on by the Debtois, including all proceeds thereof (the
"Property").
RECEIVER’S POWERS
3. THIS COURT ORDERS that the Receiver is hereby empowered and authorized, but not
obligated, to act at once in respect of the Property and, without in any way limiting the generality
of the foregoing, the Receiver is hereby expressly empowered and authorized to do any of the
following where the Receiver considers it necessary or desirable:
(a) to take possession of and exercise control over the Property and any and
all proceeds, receipts and disbursements arising out of or from the
Property;
(b) to receive, preserve, and protect the Property, or any part or parts thereof,
including, but not limited to, the changing of locks and security codes, the
relocating of Property to safeguard it, the engaging of independent
security personnel, the taking of physical inventories and the placement of
such insurance coverage as may be necessary or desirable;
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(c) to manage, operate, and carry on the business or businesses of the Debtors,
including the powers to enter into any agreements, incur any obligations in
the ordinary course of business, cease to carry on all or any part of the
business or businesses, or cease to perform any contracts of the Debtors;
(d) to engage consultants, appraisers, agents, experts, auditors, accountants,
managers, counsel and such other persons from time to time and on
whatever basis, including on a temporary basis, to assist with the exercise
of the Receiver's powers and duties, including without limitation those
conferred by this Order;
(e) to purchase or lease such machinery, equipment, inventories, supplies,
premises or other assets to continue the business or businesses of the
Debtors or any part or parts thereof;
(f) to receive and collect all monies and accounts now owed or hereafter
owing to the Debtors and to exercise all remedies of the Debtors in
collecting such monies, including, without limitation, to enforce any
security held by the Debtors;
(g) to settle, extend or compromise any indebtedness owing to the Debtors;
(h) to execute, assign, issue and endorse documents of whatever nature in
respect of any of the Property, whether in the Receiver's name or in the
name and on behalf of the Debtors, for any purpose pursuant to this Order;
(i) to initiate, prosecute and continue the prosecution of any and all
proceedings and to defend all proceedings now pending or hereafter
instituted with respect to the Debtors, the Property or the Receiver, and to
settle or compromise any such proceedings. The authority hereby
conveyed shall extend to such appeals or applications for judicial review
in respect of any order or judgment pronounced in any such proceeding;
Ooc#32046B4v8
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(j) 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;
(k) to sell, convey, transfer, lease or assign the Property or any part or parts
thereof out of the ordinary course of business,
(i) without the approval of this Court in Tespect of any transaction not
exceeding $100,000, provided that the aggregate consideration for
all such transactions does not exceed $300,000; and
(ii) with the approval of this Court in respect of any transaction in
which the purchase price or the aggregate purchase price exceeds
the applicable amount set out in the preceding clause;
and in each such case notice under subsection 63(4) of the Ontario
Personal Property Security Act, or section 31 of the Ontario Mortgages
Act, as the case may be, shall not be required, and. in each case the Ontario
Bulk Sales Act shall not apply,
(l) to apply for any vesting order or other orders necessary to convey the
Property or any part or parts thereof to a purchaser or purchasers thereof,
free and clear of any liens or encumbrances affecting such Property;
(m) to report to, meet with and discuss with such affected Persons (as defined
below) as the Receiver deems appropriate on all matters relating to the
Property and the receivership, and to share information, subject to such
terms as to confidentiality as the Receiver deems advisable;
(n) to register a copy of this Order and any other Orders in respect of the
Property against title to any of the Property;
(o) to apply for any permits, licences, approvals or permissions as may be
required by any governmental authority and any renewals thereof for and
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on behalf of and, if thought desirable by the Receiver, in the name of the
Debtors;
(p) to enter into agreements with any trustee or trustees in bankruptcy
appointed in respect of the Debtors, including, without limiting the
generality of the foregoing, the ability to enter into occupation agreements
for any property owned or leased by the Debtors;
(q) to exercise any shareholder, partnership, joint venture or other rights
which the Debtors may have; and
(r) to take any steps reasonably incidental to the exercise of these powers or
the performance of any statutory obligations,
and in each case where the Receiver takes any such actions or steps, it shall be exclusively
authorized and empowered to do so, to the exclusion of all other Persons (as defined below),
including the Debtors, and without interference from any other Person.
DUTY TO PROVIDE ACCESS AND CO-OPERATION TO THE RECEIVER
4. THIS COURT ORDERS that (i) the Debtors, (ii) all of their current and former
directors, officers, employees, agents, accountants, legal counsel and shareholders, and all other
persons acting on their instructions or behalf, and (iii) all other individuals, firms, corporations,
governmental bodies or agencies, or other entities having notice of this Order (all of the
foregoing, collectively, being "Persons" and each being a "Person") shall forthwith advise the
Receiver of the existence of any Property in such Person's possession or control, shall grant
immediate and continued access to the Property to the Receiver, and shall deliver all such
Property to the Receiver upon the Receiver’s request.
5. THIS COURT ORDERS that all Persons shall forthwith advise the Receiver of the
existence of any books, documents, securities, contracts, orders, corporate and accounting
records, and any other papers, records and information of any kind related to the business or
affairs of the Debtors, and any computer programs, computer tapes, computer disks, or other data
storage media containing any such information (the foregoing, collectively, the "Records") in
Doe#3204684v6
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that Person's possession or control, and shall provide to the Receiver or permit the Receiver to
make, retain and take away copies thereof and grant to the Receiver unfettered access to and use
of accounting, computer, software and physical facilities relating thereto, provided however that
nothing in this paragraph 5 or in paragraph 6 of this Order shall require the delivery of Records,
or the granting of access to Records, which may not be disclosed or provided to the Receiver due
to the privilege attaching to solicitor-client communication or due to statutory provisions
prohibiting such disclosure.
6. THIS COURT ORDERS that if any Records are stored or otherwise contained on a
computer or other electronic system of information storage, whether by independent service
provider or otherwise, all Persons in possession or control of such Records shall forthwith give
unfettered access to the Receiver for the purpose of allowing the Receiver to recover and fully
copy all of the information contained therein 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 Records without the prior written consent of the Receiver. Further, for the purposes of this
paragraph, all Persons shall provide the Receiver with all such assistance in gaining immediate
access to the information in the 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, account names and account numbers that
may be required to gain access to the information.
7. THIS COURT ORDERS that the Receiver shall provide each of the relevant landlords
with notice of the Receiver’s 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 Receiver’s 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 Receiver, or by further Order of this Court
upon application by the Receiver on at least two (2) days notice to such landlord and any such
secured creditors.
Ddc#32046S4v6
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NO PROCEEDINGS AGAINST THE RECEIVER
8. THIS COURT ORDERS that no proceeding or enforcement process in any court or
tribunal (each, a "Proceeding1'), shall be commenced or continued against the Receiver except
with the written consent of the Receiver or with leave of this Court.
NO PROCEEDINGS AGAINST THE DEBTORS OR THE PROPERTY
9. THIS COURT ORDERS that no Proceeding against or in respect of the Debtors or the
Property shall be commenced or continued except with the written consent of the Receiver or
with leave of this Court and any and all Proceedings currently under way against or in respect of
the Debtors or the Property are hereby stayed and suspended pending further Order of this Court.
NO EXERCISE OF RIGHTS OR REMEDIES
10. THIS COURT ORDERS that all rights and remedies against the Debtors, the Receiver,
or affecting the Property, are hereby stayed and suspended except with the written consent of the
Receiver or leave of this Court, provided however that this stay and suspension does not apply in
respect of any "eligible financial contract" as defined in the BIA, and further provided that
nothing in this paragraph shall (i) empower the Receiver or the Debtors to carry on any business
which the Debtors are not lawfully entitled to carry on, (ii) exempt the Receiver or the Debtors
from compliance with statutory or regulatory provisions relating to health, safety or the
environment, (iii) prevent the filing of any registration to preserve or perfect a security interest,
or (iv) prevent the registration of a claim for lien.
NO INTERFERENCE WITH THE RECEIVER
11. THIS COURT ORDERS that 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 Debtors, without written consent of the Receiver or
leave of this Court.
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CONTINUATION OF SERVICES
12. THIS COURT ORDERS that all Persons having oral or written agreements with the
Debtors 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 Debtors 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 Debtors' 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 Debtors or
such other practices as may be agreed upon by the supplier or service provider and the Receiver,
or as may be ordered by this Court.
RECEIVER TO HOLD FUNDS
13. THIS COURT ORDERS that ail funds, monies, cheques, instruments, and other forms
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 tune, net of any disbursements provided
for herein, shall be held by the Receiver to be paid in accordance with the terms of this Order or
any farther Order of this Court.
EMPLOYEES
14. THIS COURT ORDERS that all employees of the Debtors shall remain the employees
of the Debtors until such time as the Receiver, on the Debtors' behalf, may terminate the
employment of such employees. The Receiver shall not be liable for any employee-related
liabilities, including any successor employer liabilities as provided for in section 14.06(1,2) of
the BIA, other than such amounts as the Receiver may specifically agree in writing to pay, or in
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respect of its obligations under sections 81.4(5) or 81.6(3) of the BIA or under the Wage Earner
Protection Program Act.
PIPEDA
15. THIS COURT ORDERS that, 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 the 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 tire 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 any Property 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 Debtors, and shall return all
other personal information to the Receiver, or ensure that all other personal information is
destroyed.
LIMITATION ON ENVIRONMENTAL LIABILITIES
16. THIS COURT ORDERS that nothing herein contained shall require the Receiver 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 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
DoC#32046S4v6
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pursuance of the Receiver’s duties and powers under this Order, be deemed to be in Possession of
any of the Property within the meaning of any Environmental Legislation, unless it is actually in
possession.
LIMITATION ON THE RECEIVER’S LIABILITY
17. THIS COURT ORDERS that the Receiver shall incur no liability or obligation as a
result of its appointment or the carrying out the provisions of this Order, save and except for any
gross negligence or wilful misconduct on its part, or in respect of its obligations under sections
81,4(5) or 81.6(3) of the BIA or under the Wage Earner Protection Program Act. Nothing in
this Order shall derogate from the protections afforded the Receiver by section 14.06 of the BIA
or by any other applicable legislation.
RECEIVER'S ACCOUNTS
18. THIS COURT ORDERS that the Receiver and counsel to the Receiver shall be paid
their reasonable fees and disbursements, in each case at their standard rates and charges unless
otherwise ordered by the Court on the passing of accounts, and that the Receiver and counsel to
the Receiver shall be entitled to and are hereby granted a charge (the "Receiver's Charge") on
the Property, as security for such fees and disbursements, both before and after the making of
this Order in respect of these proceedings, and that the Receiver's Charge shall form a first
charge on the Property in priority to all security interests, trusts, liens, charges and
encumbrances, statutory or otherwise, in favour of any Person, but subject to sections 14.06(7),
81.4(4), and 81.6(2) of the BIA.
19. THIS COURT ORDERS that the Receiver and its legal counsel shall pass its accounts
from time to time, and for this puipose the accounts of the Receiver and its legal counsel are
hereby referred to a judge of the Commercial List of the Ontario Superior Court of Justice.
20. THIS COURT ORDERS that prior to the passing of its accounts, the Receiver shall be
at liberty from time to time to apply reasonable amounts, out of the monies in its hands, against
its fees and disbursements, including legal fees and disbursements, incurred at the standard rates
and charges of the Receiver or its counsel, and such amounts shall constitute advances against its
remuneration and disbursements when and as approved by this Court.
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FUNDING OF THE RECEIVERSHIP
21. THIS COURT ORDERS that the Receiver be at liberty and it is hereby empowered to
borrow by way of a revolving credit or otherwise, such monies from time to time as it may
consider necessary or desirable, provided that the outstanding principal amount does not exceed
$150,000 (or such greater amount as this Court may by further Order authorize) at any time, at
such rate or rates of interest as it deems advisable for such period or periods of time as it may
arrange, for the purpose of funding the exercise of the powers and duties conferred upon the
Receiver by tills Order, including interim expenditures. The whole of the Property shall be and
is hereby charged by way of a fixed and specific charge (the "Receiver’s Borrowings Charge")
as security for the payment of the monies borrowed, together with interest and charges thereon,
in priority to all security interests, trusts, liens, charges and encumbrances, statutory or
otherwise, in favour of any Person, but subordinate in priority to the Receiver’s Charge and the
charges as set out in sections 14.06(7), 81.4(4), and 81.6(2) of the BIA.
22. THIS COURT ORDERS that neither the Receiver's Borrowings Charge nor any other
security granted by the Receiver in connection with its borrowings under this Order shall be
enforced without leave of this Court.
23. THIS COURT ORDERS that the Receiver is at liberty and authorized to issue
certificates substantially in the form annexed as Schedule "A" hereto (the "Receiver’s
Certificates") for any amount borrowed by it pursuant to this Order.
24. THIS COURT ORDERS that the monies from time to time borrowed by the Receiver
pursuant to this Order or any further order of this Court and any and all Receiver's Certificates
evidencing the same or any part thereof shall rank on a pari passu basis, unless otherwise agreed
to by the holders of any prior issued Receiver's Certificates.
SERVICE AND NOTICE
25. THIS COURT ORDERS that the E-Service Protocol of the Commercial List (the
“Protocol”) is approved and adopted by reference herein and, in this proceeding, the service of
documents made in accordance with the Protocol (which can be found on the Commercial List
website at http://www.ontariocourts.ca/sci/nractice/nracticc-directions/toronto/e-seivicc-
nrotocoLO shall be valid and effective service. Subject to Rule 17.05 this Order shall constitute
an order for substituted service pursuant to Rule 16.04 of the Rules of Civil Procedure. Subject to
Rule 3.01(d) of the Rules of Civil Procedure and paragraph 21 of the Protocol, service of
documents in accordance with the Protocol will be effective on transmission. This Court further
orders that a Case Website shall be established in accordance with the Protocol with the
following URL ‘<fullerllp.com>'.
26. THIS COURT ORDERS that if the service or distribution of documents in accordance
with the Protocol is not practicable, the Receiver is at liberty to serve or distribute 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 facsimile
transmission to the Debtors' creditors or other interested parties at their respective addresses as
last shown on the records of the Debtors and that any such service or distribution by courier,
personal delivery or facsimile 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.
GENERAL
27. THIS COURT ORDERS that the Receiver may from time to time apply to this Court
for advice and directions in the discharge of its powers and duties hereunder,
28. THIS COURT ORDERS that nothing in this Order shall prevent the Receiver from
acting as a trustee in bankruptcy of the Debtors.
29. 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 Receiver 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 Receiver, as an officer of this
Court, as may be necessary or desirable to give effect to this Order or to assist the Receiver and
its agents in carrying out the terms of this Order.
Ooc#3Z04684v6
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30. THIS COURT ORDERS that the Receiver 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 terms of this Order, and
that the Receiver 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.
31. THIS COURT ORDERS that the Applicant shall have its costs of this motion, up to and
including entry and service of this Order, provided for by the terms of the Applicant’s security
or, if not so provided by the Applicant's security, then on a substantial indemnity basis to be paid
by the Receiver from the Debtors' estate with such priority and at such time as this Court may
determine.
32. THIS COURT ORDERS that any interested party may apply to this Court to vary or
amend this Order on not less than seven (7) days' notice to the Receiver and to any other party
likely to be affected by the order sought or upon such other notice, if any, as this Court may
order.
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SCHEDULE"A"
RECEIVER CERTIFICATE
CERTIFICATE NO.______________
AMOUNT $,_____________________
1. THIS IS TO CERTIFY that The Fuller Landau Group Inc., the receiver (the
"Receiver") of the assets, undertakings and properties of 2159372 Ontario Limited, Zeea
Marketing Inc. and 2222603 Ontario Inc. (collectively, the “Debtors”) acquired for, or used in
relation to a business or businesses carried on by the Debtors, including all proceeds thereof
(collectively, the “Property”) appointed by Order of the Ontario Superior Court of Justice
(Commercial List) (the "Court") dated the___day of______ , 20__(the "Order") made in an
application having Court file number CV-15-10829-00-CL, has received as such Receiver from
the holder of this certificate (the "Lender") the principal sum of $___________, being part of the
total principal sum of $___________ which the Receiver is authorized to borrow under and
pursuant to the Order.
2. The principal sum evidenced by this certificate is payable on demand by the Lender with
interest thereon calculated and compounded [daily)[monthly not in advance on the_______ day
of each month] after the date hereof at a notional rate per annum equal to the rate of______per
cent above the prime commercial lending rate of Bank of_________ _ from time to time.
3. Such principal sum with interest thereon is, by the terms of the Order, together with the
principal sums and interest thereon of all other certificates issued by the Receiver pursuant to the
Order or to any further order of the Court, a charge upon the whole of the Property, in priority to
the security interests of any other person, but subject to the priority of the charges set out in the
Order and in the Bankruptcy and Insolvency Act) and the right of tire Receiver to indemnify itself
out of such Property in respect of its remuneration and expenses.
4. All sums payable in respect of principal and interest under this certificate are payable at
the main office of the Lender at Toronto, Ontario.
5. Until all liability in respect of this certificate has been terminated, no certificates creating
charges ranking or purporting to rank in priority to this certificate shall be issued by the Receiver
Doe#3204684vB
- 2 -
to any person other than the holder of this certificate without the prior written consent of the
holder of this certificate.
6. The charge securing this certificate shall operate so as to permit the Receiver to deal with
the Property as authorized by the Order and as authorized by any further or other order of the
Court.
7. The Receiver does not undertake, and it is not under any personal liability, to pay any
sum in respect of which it may issue certificates under the terms of the Order.
DATED the_____day of______________ , 20__.
THE FULLER LANDAU GROUP INC,, solely in its capacity as Receiver of the Property, and not in its personal capacity
Per: __________________ _Name:Title:
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2159372 ON
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IN THE MATTER OF THE RECEIVERSHIP OF 2159372 ONTARIO LIMITED, ZEEA MARKETING INC.
AND 2222603 ONTARIO INC.
NOTICE OF RECEIVER (SEC. 245(1))
Take notice that:
1. On June 2, 2015 the undersigned, The Fuller Landau Group Inc., was appointed receiver (the “Receiver”), without security, of 2159372 Ontario Limited (“2159372”), Zeea Marketing Inc. (“Zeea”) and 2222603 Ontario Inc. (“2222603”) (collectively, the “Companies”), that is described below:
ApproximateAssets Net Book Value as at June 2,2015
$Land and Building Unknown
2. The undersigned was appointed Receiver by Order of the Ontario Superior Court of Justice Commercial List in respect of the property described above by virtue of an application to Court by Business Development Bank of Canada (“BDC”), a secured creditor, pursuant to a first-ranking mortgage against the real property located at 106108 Tycos Drive in Toronto, Ontario, and General Security Agreements from 2159372, Zeea and 2222603.
3. The undersigned took control of the Companies’ assets located at 106-108 Tycos Drive, comprising the land and building, on the 2nd day of June, 2015.
4. The following information relates to the receivership:
(a) Address:
• 106-108 Tycos Drive Toronto, ON M6B 1V9
(b) Principal line of business:
• 2159372 - Holding company that owns the property known municipally as 106-108 Tycos Drive, Toronto, Ontario (the “Property”);
• Zeea - Carried on business from the Property as an importer and wholesale distributor of food products, specializing in olives, to retailers and wholesalers across Canada; and •
• 2222603 - New operating company taking over from Zeea, which is no longer carrying on business.
1
(c) Location of business:
106-108 Tycos Drive Toronto, ON M6B1V9
(d) The amount owed by the Companies to each creditor as at June 2, 2015 who holds a security interest on the assets described above is as follows:
Secured Creditor Amount$
2,609,636.49
Security
BDC First-ranking mortgage against the Property and General Security
Agreements from 2159372, Zeea and2222603
Canada Revenue Agency Unknown HST lien
(e) We do not have a separate list of other creditors of the Companies and the amounts owed to each creditor as at June 2, 2015, due to incomplete creditor information received to date, the Receiver is unable to determine the total amount due to other creditors at this time.
(f) The Receiver is in the process of attempting to obtain all books and records, as well as preparing to market the Property for sale.
(g) Contact person for Receiver: Mr. David Filicec/o The Fuller Landau Group Inc.151 BloorSt. West, 12th Floor Toronto, ON M5S 1S4 Telephone: (416) 645-6506 Facsimile: (416) 645-6501
Dated at Toronto, Ontario, this 10U* day of June, 2015.
The Fuller Landau Group Inc,Receiver of 2159372 Ontario Limited,Zeea Marketing Inc, and 2222603 Ontario Inc.
David Filice
2
Tab C
MMEASttAjsoclc
irlg........EstateAssociation
Listing Agreement - CommercialAuthority to Offer for Sale
SELLERS):.Fuller LandaiiCourt Apjpointed Receiver of 2159372 Ontario .^r..... ......... (the "Seller")
In consideralion of Ihe Listing Brokerage listing tK^real property for sale known as...l,Q.6..Ty.?.9?..Ql.l.Y£!.X9I.9.9l9.'..QW...................................................................
until 11:59 p.m. on the..I?.!:!?..........................
{ Seller acknowledges that the length of the Listing Period is negotiable between Ihe Seller and the Listing Brokerage and, if an MLS® listing, may be subject to minimum requirements of the real estate board, however, In accordance with the Real Estate and Business Brokers Act of Ontario (2002),if the Listing Period exceeds six months, the Listing Brokerage must obtain Ihe Seller's initials.
;}0lo offer the Properly for sale at a price of:
Three Million One Hundred_ Thousand.......................................................................................................................Dollars ($Cdn 3^.1.00^.000.00................................. )
and upon ihe terms particularly set out herein, or at such other price and/or terms acceptable to the Seller. It is understood that Ihe price and/or terms set out herein are at the Seller's personal request, after full discussion with the Listing Brokerage's representative regarding potential market value of ihe Property.
The Seller hereby represents and warrants that the Seller Is not a party to any other listing agreement for the Property or agreement to pay commission to any other real estate brokerage for the sale of the property.1, DEFINITIONS AND INTERPRETATIONS: For Ihe purposes of this Listing Agreement ("Authority" or "Agreement"), "Seller" Includes vendor and a
"buyer" includes a purchaser or a prospective purchaser. A purchase shairbe deemed to include the entering into of any agreement to exchange, or Ihe obtaining of an option lo purchase which is subsequently exercised, or the causing of a First Right of Refusal to be exercised, or an agreement to sell or transfer shares or assets. "Real properly" includes real estate as defined in the Real Estate ana Business Brokers Act (2002). The "Properly" shall be deemed lo include any part thereof or interest therein. A "real estate board" includes a real estate association. This Agreement shall be read with all changes of gender or number required by Ihe context. For purposes of this Agreement, anyone introduced lo or shown the Property shall be deemed lo include any spouse, heirs, executors, administrators, successors, assigns, related corporations and affiliated corporations. Related corporations or affiliated corporations shall include any corporalion where one half or a majority of the shareholders, directors or officers of Ihe related or affiliated corporation are Ihe same person(s) as the shareholders, directors, or officers of the corporalion introduced lo or shown the Properly.
2, COMMISSION: In consideration of the Listing Brokerage listing the Properly for sale, the Seller agrees lo pay the Listing Brokerage a commission
3.
of. 4,0.............................. % of the sale price of ihe Properly or. s.^.1.?. transaction completed by. Jeff Flemingtoii, Ben Sykes,, or............Tom C iancy the commission rate.shall be 2.5%..............................................................................................................for any valid offer lo purchase the Property from any source whatsoever obtained during ihe Listing Period and on ihe terms and conditions set out in this Agreemenl OR such other terms and conditions as the Seller may accept.
The Seller further agrees lo pay such commission as calculated above if an agreemenl to purchase is agreed to or accepted by the Seller or anyone on
Ihe Seller's behalf within,.18Q............... days after ihe expiration of the Listing Period (Holdover Period), so long as such agreemenl is with anyonewho was introduced lo the Properly from any source whatsoever during the Listing Period or shown Ihe Property during the Listing Period. If, however, the offer for Ihe purchase of the Property is pursuant lo a new agreement In writing lo pay commission lo another registered real estate brokerage, Ihe Seller's liability for commission shall be reduced by Ihe amount paid by the Seller under the new agreement.
The Seller further agrees lo pay such commission as calculated above even if the transaction contemplated by an agreement lo purchase agreed to or accepted by the Seller or anyone on the Seller's behalf Is not completed, if such non-completion is owing or attributable to Ihe Seller's default or neglect, said commission to be payable on the date set for completion of Ihe purchase of ihe Properly.
Any deposit in respect of any agreement where the transaction has been completed shall first be applied to reduce the commission payable. Should such amounts paid to the Listing Brokerage from the deposit or by the Seller's solicitor not be sufficient, the Seller shall be liable lo pay to the Listing Brokerage on demand, any deficiency in commission and taxes owing on such commission.
In the event Ihe buyer fails lo complete Ihe purchase and Ihe deposit or any part thereof becomes forfeited, awarded, directed or released lo Ihe Seller, the Seller then authorizes Ihe Listing Brokerage lo retain as commission for services rendered, fifty (50%) per cent of the amount of the said deposit forfeited, awarded, directed or released to the Seller (but not lo exceed the commission payable had a sale been consummated) and lo pay the balance of Ihe deposit lo Ihe Seller.
All amounts set out as commission are lo be paid plus applicable taxes on such commission.
REPRESENTATION: The Seller acknowledges that the Listing Brokerage has provided the Seller with written information explaining agency relationships,including information on Seller Representation. Sub-agency, Buyer Representation, Multiple Representation and Customer Service.
The Seller authorizes the Listing Brokerage to cooperate with any other registered real estate brokerage (co-operating brokerage), and lo offer lo pay
Ihe co operating brokerage a commission of.M % of Ihe sale price of Ihe Properly or
out of the commission the Seller pays the Listing Brokerage. The Seller understands that unless the Seller is otherwise informed, ihe co-operating brokerage is representing the interests of the buyer in the transaclion. The Seller further acknowledges that the Listing Brokerage may be listing other properties that may be similar to the Seller's Property and Ihe Seller hereby consents to the Listing Brokerage acting as an agent for more than one seller without any claim by the Seller of conflict of interest. Unless otherwise agreed in writing between Seller and Listing Brokerage, any commission payable to any other brokerage shall be paid out of the commission the Seller pays the Listing Brokerage.
The Seller hereby appoints Ihe Listing Brokerage as the Seller's agent for the purpose of giving and receiving notices pursuant to any offer or agreement to purchase Ihe Property.
MULTIPLE REPRESENTATION: The Seller hereby acknowledges that the Listing Brokerage may be entering into buyer representation agreements with buyers who may be interested in purchasing the Seller's Properly. In the event that Ihe Listing Brokerage has entered Into or enters into a buyer representation agreement with a prospective buyer for the Seller's Properly, the Listing Brokerage will obtain Ihe Seller's written consent to represent both the Seller and Ihe buyer for the transaction at the earliest practical opportunity and in all cases prior to any offer to purchase being submitted or presented.
The Seller understand and acknowledges that the Listing Brokerage must be impartial when representing both the Seller and the buyer and equally protect the interests of the Seller and buyer. The Seller understands and acknowledges that when representing both the Seller and the buyer, ihe Listing Brokerage shall have a duly of full disclosure to both the Seller and Ihe buyer, including a requirement lo disclose all factual Information about the Property known lo the Listing Brokerage.
However, the Seller furlher understands and acknowledges that the Listing Brokerage shall not disclose:
• that ihe Seller may or will accept less than the listed price, unless otherwise Instructed in writing by the Seller;• that the buyer may or will pay more lhan ihe offered price, unless otherwise instructed in writing by the buyer;• the motivation of or personal information about the Seller or buyer, unless otherwise Instructed In writing by the party to which the information
applies or unless failure lo disclose would constitute fraudulent, unlawful or unethical practice;• the price Ihe buyer should offer or the price the Seller should accept; and• the Listing Brokerage shall not disclose lo Ihe buyer the terms of any other offer.
However, it is understood that factual market information about comparable propi potential uses for the Properly will be disclosed to both Seller and buyer lo assist tht
erlies and Information known to Ihe Listing Brokerage concerning em to come to their own conclusions.
Where a Brokerage represents both the Seller and the Buyer (multiple representation), the Brokerage shall not be entitled or authorized to be agent for either the Buyer or the Seller for the purpose of giving and receiving notices,
MULTIPLE REPRESENTATION AND CUSTOMER SERVICE: The Seller understands and agrees lhat the Listing Brokerage also provides representation and customer service lo other sellers and buyers. If Ihe Listing Brokerage represents or provides customer service to more lhan one seller or buyer for the same trade, the Listing Brokerage shall, In writing, at the earliest practicable opportunity and before any offer is made, inform all sellers and buyers of the nature of the Listing Brokerage's relationship lo each seller and buyer.
4. REFERRAL OF ENQUIRIES: The Seller agrees that during the Listing Period, the Seller shall advise the Listing Brokerage immediately of all enquiries from any source whatsoever, and all offers to purchase submitted to Ihe Seller shall be immediately submitted to the Listing Brokerage by the Seller before Ihe Seller accepts or rejects Ihe same. If any enquiry during the Listing Period results in the Seller's accepting a valid offer lo purchase during the Listing Period or within the Holdover Period after Ine expiration of the Listing Period described above, the Seller agrees to pay the Listing Brokerage Ihe amount of commission set out above, payable within five (5) days following Ihe Listing Brokerage's written demand therefor.
5. MARKETING: The Seller agrees lo allow the Listing Brokerage to show and permit prospective buyers lo fully inspect the Properly during reasonable hours and the Seller gives the Listing Brokerage the sole and exclusive right lo place "For Sale" and "Sold" sign(s) upon the Properly.
The Seller consents to the Listing Brokerage including Information in advertising that may identify the Properly. The Seller further agrees lhat Ihe Listing Brokerage shall have sole and exclusive authority to make all advertising decisions relating lo the marketing of the Property during the Listing Period. The Seller agrees that Ihe Listing Brokerage will not be held liable in any manner whatsoever for any acts or omissions With respect to advertising by the Listing Brokerage or any other parly, other lhan by the Listing Brokerage's gross negligence or wilful act.
6. WARRANTY: The Seller represents and warrants (hat the Seller has Ihe exclusive authority and power to execute this Authority to offer I he Properly for sale and lhat the Seller has informed the Listing Brokerage of any third party Interests or claims on the Property such as rights of first refusal, options, easements, mortgages, encumbrances or otherwise concerning Ihe Property, which may affect Ihe sale of Ihe Property,
7. INDEMNIFICATION AND INSURANCE; The Seller will not hold the Listing Brokerage and representatives of the Brokerage responsible for any loss or damage to the Property or contents occurring during the term of this Agreement caused by the Listing Brokerage or anyone else by any means, including theft, fire or vandalism, other lhan by Ine Listing Brokerage's gross negligence or wilful act, The Seller agrees lo indemnify and save harmless Ihe Listing Brokerage and representatives of the Brokerage and any co-operating brokerage from any liability, claim, loss, cost, damage or Injury, including but not limited to loss of the commission payable under this Agreement, caused or contributed to by the breach of any warranty or representation made by the Seller in this Agreement or the accompanying data form. The Seller agrees to indemnify and save harmless the Listing Brokerage and representatives of the Brokerage and any cooperating brokerage from any liability, claim, loss, cost, damage or injury as a result of the Property being affected by any contaminants or environmental problems.The Seller warrants the Properly is insured, including personal liability Insurance against any claims or lawsuits resulting from bodily injury or properly damage lo others caused in any way on or at the Properly and the Seller indemnifies the Brokerage and all of its employees, representatives, salespersons and brokers (Listing Brokerage) and any cooperating brokerage and all of Its employees, representatives, salespersons and brokers (cooperating brokerage) for and against any claims against Ihe Listing Brokerage or cooperating brokerage made by anyone who attends or visits the Property.
8. FAMILY LAW ACT: The Seller hereby warrants that spousal consent is not necessary under the provisions of the Family Law Act, R.S.O. 1990, unless the Seller's spouse has executed the consent hereinafter provided.
9. FINDERS FEES: The Seller acknowledges lhat the Brokerage may be receiving a finder's fee, reward and/or referral incentive, and the Seller consents lo any such benefit being received and retained by the Brokerage in addition lo the commission as described above.
10. VERIFICATION OF INFORMATION: The Seller authorizes Ihe Listing Brokerage lo obtain any information from any regulatory authorities, governments, mortgagees or others affecting the Properly and the Seller agrees to execute and deliver such furlher authorizations in this regard os may be reasonably required. The Seller hereby appoints the Listing Brokerage or the Listing Brokerage's authorized representative as the Seller's attorney to execute such documentation as may be necessary to effect obtaining any information as aforesaid. The Seller hereby authorizes, instructs and directs the above noted regulatory authorities, governments, mortgagees or others to release any and all information lo the Listing Brokerage.
11 USE AND DISTRIBUTION OF INFORMATION: The Seller consents lo Ihe collection, use and disclosure of personal information by the Brokerage for Ihe purpose of listing and marketing the Properly including, but not limited lo: listing and advertising the Properly using any medium including Ine Internet; disclosing Property information lo prospective buyers, brokerages, salespersons and others wno may assist In the sale of the Properly; such other use of the Seller's personal information os is consistent with listing and marketing of the Property. The Seller consents. If this is an MLS® Listing, to placement of the listing information and sales information by the Brokerage into the dalabase(s) of the MLS® System of the appropriate Board, and lo the posting of any documents and other information (Including, without limitation, photographs, images, graphics, audio and video recordings, virtual lours, drawings, floor plans, architectural designs, artistic renderings, surveys and listing descriptions) provided by or on behalf of the Seller into the dalabasejs) of the MLS® System of the appropriate Board, The Seller hereby indemnifies and saves harmless the Brokerage and/or any of its employees, servants, brokers or sales representatives from any and all claims, liabilities, suits, actions, losses, costs and legal fees caused by, or arising out of, or resulting from Ihe posting of any documents or other information (including, without limitation, photographs, images, graphics, audio and video recordings, virtual tours, drawings, floor plans, architectural designs, artistic renderings, surveys and listing descriptions) as aforesaid. The Seller
INITIALS OF LISTING BROKERAGE: INITIALS OF SELLER(S);
acknowledges lhal the database, within the board's MLS® System is the properly of the real estate board(s) and can be licensed, resold, or otherwise dealt with by the board/s). The Seller further acknowledges that the real estate board(s) may: during the term of the listing and thereafter, distribute the information in the database, within the board's MLS® System to any persons authorized to use such service which may include other brokerages, government departments, appraisers, municipal organizations and others; market the Property, at its option, in any medium, including electronic media; during the term of the listing and thereafter, compile, retain and publish any statistics including historical data within the board's MLS® System and retain, reproduce and display photographs, images, graphics, audio and video recordings, virtual tours, drawings, floor plans, architectural designs, artistic renderings, surveys ana listing descriptions which may be used by board members to conduct comparative analyses; and make such other use of the Information as the Brokerage and/or real estate boara(s) deem appropriate, in connection with the listing, marketing and selling of real estate during the term of the listing and thereafter. The Seller acknowledges that the information, personal or otherwise ("Information"), provided to the real estate board or association may be stored on databases located outside of Canada, in which case the information would be subject to the laws of the jurisdiction in which the informalion is located.
In the event that this Agreement expires or is cancelled or otherwise terminated and the Properly is not sold, the Seller, by initialling:
Does Does Notconsent to allow other real estate board members to contact the Seller after expiration or other termination of this Agreement to discuss listing or otherwise marketing the Property.
12. SUCCESSORS AND ASSIGNS; The heirs, executors, administrators, successors and assigns of the undersigned are bound by the terms of this Agreement.
13. CONFLICT OR DISCREPANCY; If there is any conflict or discrepancy between any provision added to this Agreement (including any Schedule attached hereto) and any provision in the standard pre-set portion hereof, the added provision shall supersede the standard pre-set provision to the extent of such conflict or discrepancy. This Agreement, Including any Schedule attached hereto, shall constitute the entire Authority from the Seller to the Brokerage. There is no representation, warranty, collateral agreement or condition, which affects this Agreement other than as expressed herein.
14. ELECTRONIC COMMUNICATION: This Listing Agreement and any agreements, notices or other communications contemplated thereby may be transmitted by means of electronic systems, in which case signatures shall be deemed to be original. The transmission of this Agreement by the Seller by electronic means shall be deemed to confirm the Seller has retained a true copy of the Agreement.
15. SCHEDULE(S)........................................................................................................................................and data form attached hereto form(s) part of this Agreement.
THE LISTING BROKERAGE AGREES TO MARKET THE PROPERTY ON BEHALF OF THE SELLER AND REPRESENT THE SELLER |N AN ENDEAVOUR TO OBTAIN A VALID OFFER TO PURCHASE THE PROPERTY ON THE TERMS SET OUT IN THIS AGREEMENT OR ON SUCH OTHER TERMS SATISFACTORY TO THE SELLER.
....... ............................................................ date....Lj1j.1L... ...............(AulWized io tind ihe Listing Brokerage) (Klame of Person Signing)
THIS AUTHORITY HAS BEEN READ AND FULLY UNDERSTOOD BY ME AND I ACKNOWLEDGE THIS DATE I HAVE SIGNED UNDER SEAL.Any representations contained herein or as shown on the accompanying data form respecting the Properly are true to the best of my knowledge, information and belief.
SIGNED, SEALED AND DELIVERED I have hereunto set my hand and seal:
T^Fullcr Landau, Ontario&kfc(Nome of Seller) ( ^
.................. • date............................................................................(Signolure of Seller/Authorized Signing Officer) (Seol
O'7'tV/W
(bignolure or beiler/Aulhorized bigmng Ulticer)
(Signolure of SelletyAulhorized Signing Officer)
(Tel. No.)
(Seol)DATE.,...^.^. 18//<f VC &y<r>
SPOUSAL CONSENT; The undersigned spouse of the Seller hereby consents to the listing of ihe Property herein pursuant to the provisions of the Family Law Act, R.S.O, 1990 and hereby agrees that he/she will execute all necessary or incidental documents to further any transaction provided for herein.
[Spouse) (SealjDATE.
DECLARATION OF INSURANCE
The broker/salesperson.....................................................................................................................................................................................(Name of Broker/Salesperson)
hereby declares lhal he/she is insured as required by the Real Estate and Business Brokers Act (REBBA) and Regulations.
(Slgnaiurefs) ol Broker/Salespersonj
ACKNOWLEDGEMENT
The Seller(s) hereby acknowledge lhal Ihe Seller(s) fully understand Ihe terms of this Agreement and have received a true copy of Ihls
Agreement on Ihe ..................... ........................................................ ........... day of ................................................................... , 20 ...................................................
|ASSESSMENT | ASSESSMENT YEAR | CONDO MAINTENANCE FEES (MONTHLY)
» MANDATORY FOR COMMERCIAL & INDUSTRIAL CONDOS ONLY
FORM 590REV, JAN 201*1
m\> ?.Q\A Toionlo Real Estate Botwd ('TRED'}, Alt rights reserved. This torn) was developed hy TREE lor me use anti reproduction o( Us members and licensees only.Any other use or ic/production Is prohibited oxcopl with prior whiten consent ol TRED.Do not alter when printing or reproducing the standard pro-sol portion.
SELLERS INITIALSPage 1 ol 4
WEBFomis® May/2014
DETAILS
ZONING ■
lindustrial J
TYPE-PRIMARY (check 1) CATEGORY (ebook 1) USE (chock 1)
□ Commercial Retail I-! Highway G Automotive Related G Hospilalily/Food Related G Retail Slore Related □ Service RelatedProperly Commercial G Health & Beauty Related G Ollier(Do not use lor Q Mulli-UseSale ol Business) □ Relail
G ServiceG Commercial CondoG Inslilulional* | G Bank* G Church* G School* n Other* *uses [or Institutional category only j
□ Sale ol Business n With Properly G Apparel □ Coin Laundromat G Florist G Hotel/Motel/InnG Without Properly G Art Gallery G ConvenlenceA/arlety G Food Court Outlet G Manufacturing
G Art Supplies G Copy/Prinllng G Foolwoar G MarinaG Aulomollve Rolaled G Cralls/Hobby G Frull/Vegelable/Market G Medlcal/DenlalG Bakery G Dairy Products G Funeral Home G OtherG Banquet Hall □ Day Care G Furniture G Pizzeria□ Bar/Tavern/Pub G Delicatessen G Garden/Landscaping □ Real Estate Office
G Beauty Salon □ Dellvery/Courler G Gas Station □ Reslaurant
G Bed & Breakfast G Dislribuling G Goll Course G Sell StorageG Butcher/Meal G Drugslore/Pharmacy G Golf Driving Range □ Service RelatedG Cabins/Cottages G Dry Cleaning/Laundry □ Gravel Pil/Quarry G Spa/Tanning□ Cafd G Electronics G Grocery/Supormarket G Sporling GoodsG Car Wash □ Enlerlalnmenl G Hair Salon G Sporls/Enlerlainmenl
G Calerer/Caloteria G Fast Food/Takeoul G Hardware/Tools O Travel Agency
G Collee/Donut Shop G Fitness/Training G Home Improvemenl □ Wood Working
□ Slore With G Store WithAparlment/Ollico Apartmont/Oltice
□ Investment G Accommodation 1 G Bed A Breaklasl 1 G Cabins/Collages 1 □ HolekMolol/|nn 1 G Olher 1G Apartment 2 G Apts-2 To 5 Unils 2 G A|Jls-6 To 12 Units 2 O Apls-13 To 20 Units 2 Q Apis-Over 20 Unils2 G Seniors Residence 2 O Olher2 |
G RelailG InriuslrlalG Recreational3 G Ollice
D Goll3 G Marina 3 G Campground 3 GSpofls/Enlerlainmonl3 G Other3
| I • uses for Accommodation only z - uses for Apartment only 3 - usos for Recreational only All others hove no uses. |
□ Ollice G Ollice G Medlcal/Denlal D Professional Office D Ollier
Vj Industrial Free Standing □ Cooler/Froezer/ O Faclory/ManulaCturlng G Olher G WarehouseG Mulli-Unfl G Industrial Condo
Food Inspected □ Laboratory G Transportation
□ Farm G Agricultural G Cash Crop □ Hobby G Livestock G Olher□ Dairy Products G Horse
□ Land G Raw (Oulslde □ Bush G Hospitality G Parking Lol G RestrictedOfficial Plan) □ Goll G Office G Recreational G Relail
Percentage Square Feel Sq. Ft. Divisible Square Metres Sq. M. Divisible
□□□□
RETAIL AREA
RETAIL AREA CODE
(check 1)
□ Percentage□ Square Feel G Sq, Ft. Divisible G Square Metres G Sq, M. Divisible
FORM 590REV. JAN 2014
m& £014 Toionio Real Eslalo Board (“TRED'). All ilglUs reserved, This form was developed by TnEB lor iho use and reproduction of its members and iicenseos only.Any olher uso or reproduction is prohibited except with prior wrltlon consent ol THEU.Do not alter when priming or reproducing the standard pre-sal portion.
SELLERS INITIALSPage 2 ot A
WEB Forms® May/2014
| APPROXIMATE AGE|
□ New
0 0-5 Years
□ 6- 15 Years
□ 16-30 Years
□ 31 -50 Years
1 I 51-99 Years
100 + Yoars
| AREA INFLUENCES|
(chock 2)
f] Greenbell/Conservallon
□ Major Highway
□ Public Transit
□ Recreallon/Cornmunily Cenler
□ Skiing
CD Subways
PHYSICALLYHANDICAPPED-EQUIPPED
□ Yes □ No
BASEMENT
Cl Yes □ No
| UFFI | (check 1)
□ No
U Partially Removed
□ Removed
□ Yes
CLEAR HEIGHT
FEET ill
[ BAY SIZE [
WIDTH FT l
LENGTH FT l
INCHES
INI
IN l
COMMENTS
SPRINKLERS
□ No
D Partial
0 Yes
S3 Available
□ Yes
□ No
(chock 1)
VOLTS
AMPS | L
(check 1)
0 Municipal
□ None
□ Other
□ Well
| WATER SUPPLY TYPES |
(check 1)
Q Bored Well
□ Cistern
□ Community Well
□ Drilled Well
□ Dug Well
□ Lake/Rivor
Q Shared Well
AIR CONDITIONING
(check 1)
□ No
O Partial
63 Yes
REMARKS FOR CLIENTS (use up to 463 characters)
(chock 1)
□ Baseboard
□ Elec Forced Air
□ Elec Hot Water
□ Gas Forced Air Closed
63 Gas Forced Air Open
□ Gas Hot Water
□ None
□ Oil Forced Air
□ Oil Hot Water
Q Oil Steam
Q Olher
□ Propane Gas
□ Radiant
□ Solar
O Steam Radiators
□ Water Radiators
Q Woodburning
| WASH ROOMS] |_____ |
SHIPPING DOOR TYPES
TRUCK LEVEL SHIP DOORS #
lLDOORHEIGHT
DOORWIDTH
FT l
FT l
IN L
IN l
DOUBLE MAN SHIP DOORS #
LDOORHEIGHT
DOORWIDTH
FT l
FT l
INL
inL
DRIVE-IN LEVEL SHIP DOORS #
DOOR „, HEIGHT FT1
DOORWIDTH
FT l
INL
IN L
1, Appear In the Brokerage Full, Client Full and Flyer Reports In TorontoMLS.2. Are published on the Internet.
GRADE LEVEL SHIP DOORS#
L
DOOR | HEIGHT ^ 1
DOORWIDTH
FT L
INI
INI
ELEVATOR (check 1)
□ Frelghl/Publlc
□ Frelghl
63 None
□ Public
GARAGETYPE (check 1)
□ Boulevard□ Covered
d) Double Delached
□ In/Oul
□ Lane□ None
□ Other53 Oulside/Surface
□ Pay□ Plaza□ Public□ Reserved/Asslgned
□ Single Delached
□ Street□ Underground
□ Valet
□ Visitor
| PARKING SPACES TOTAL
NUMBER OF TRAILER PARKING SPOTS
| OUTSIDE STORAGE |
□ No Q Yes
□ Available D No t3l
Yes
CRANE
(3 No □ Yes
SURVEY
No □ Yes
|SOIL TEST| (check 1)
□ Construction Audit
[3 Construction & Environmental
□ Environment Audit
□ No
□ Yes
SEWERS (check 1)
□ None
□ Sanitary Available
Q Sanitary + Storm
63 Sanitary + Storm Available
Q Sanitary
□ Septic Available
□ Sepllcs
□ Storm
D Storm Available
Unit' lifaHilw Freestanding building located in popular design district with updated/replaced exterior front facade, windows and asphalt. Recently replaced roof, renovated office and upgraded T5 lighting. Former use was food packaging. Building is equipped with floor drains, sealed floors, water and an air conditioned plant. This building is very Clean. Well suited for many other uses including home decor, flooring/fixtures, furniture/appliances, etc.
| EXTRAS~~| (uso up to 240 characlors)
1. Appear In the Brokerage Full and Client Full Reports In TorontoMLS.2, Are published on the Internet.
For information package and to book a tour please contact Tom Clancy at 905-283-2388 or via email [email protected]
FORM 590ffl
Q 201-1 Toronto Real Estalo Boaid ('TREB'}. All lights reserved, This form was developed by THEB lor iho use and reproduction of its ntembors and licensees only.Any olhor uso or reproduction is prohibited oxcopl with prior wiiltoii consent til TREB.Do not alter when printing of reproducing the standard pre-set poillon,
[remarks FOR brokerages! (use up lo 260 characters)
1. Appear In the Brokerage Full Report In TorontoMLS and not on the Client Reports,2. Are not published oh the Internet.3. LIST ALL EQUIPMENT THAT IS RENTED, LEASED, OR LEASED TO OWN FOR THE PROPERTY INCLUDING THE DETAILS AND TERMS.
All information to be verified and confirmed by the purchaser
FINANCIAL INFORMATION
FINANCIAL STATEMENTHotATTEuETRANCHisE'E
Yes □ No □ Yes □ No □ Yes Q No Q □ One □ Two □ Three □ Four Q Five □ Six □ Seven □Varies
| OTHER EXPENSES [ | GROSS INCOME/SALES| | VACANCY ALLOWANCE| [OPERATING EXPENSES| |NET INCOME BEFORE PeHtI
L J J L
| EST, INV, VALUES AT COST] | COMMON AREA UPCHARGE [ [PERCENTAGE RENT
[mortgage comments]
EXPENSES E | YEAR EXPENSES |
Actual □ Estimated P I_________ |♦ COMPLETE ONLY IF YOU HAVE ENTERED ANY AMOUNT(S)
J
BROKERAGE INFORMATION
LISTING BROKERAGE
IAVISON YOUNG COMMERCIAL REAL ESTATE ('ONTARIO')
iBcxi Svkes
OFFICE PHONE
L.B. FAX NO.
905-712-2100
i905-712-2937BROKER 1/SALESPERSON 1 PHONE
i905-283-2324 JBROKER 2/SALESPERSON 2
i Jeff FlemingtonBROKER 2/SALESPERSON 2 PHONE
COMMISSION TO CO-OPERATING BROKERAGE
12%
1905-283-2336
ENERGY CERTIFICATION CERTIFICATION LEVEL
P Yes P No P Yes U No
| GREEN PROPERTY INFORMATION STATEmInt]
P Yes P No
L
PERMISSION TO ADVERTISE ^^HDISTRIBUTE TO INTERNET^^^I DISPLAY ADDRESS ON INTERNET
P Yes P No P Yes P No P Yes □ No
APPOINTMENTS
OCCUPANCY (check 1)
P Ovmer/Tenant P Owner p Partial P Tenant 0 Vacant
CONTACT AFTER EXPIRED HOLDOVER DAYS
P Yes 2) No 1180 i
| VIRTUAL TOUR URL | (100 characters).
PHOTO OPTIONS
Q Use photo Irom pholo librmy {2 Upload your own pholo(s) Q No photo (or this listing
SELLER HEREBY ACKNOWLEDGES HAVING RECEIVED A COPY OF PART 2 OF 2 OF THE LISTING AGREEMENT,
SIGNATURE /y _______________________________ ________________ _____________ DATE
SIGNATURE_________________ __________________________________ ____________________ ________________________________________ DATE _____________
FORM 590 r-5 2ot4 Tomnio Heal Esiaio Board CTfiED’). Ail rights reserved. This form was developed by THEM tor (ho uso and reprodycdon of Ha mombors and fcensoes only.Any olh&r use or reproduction is prohibited oxcopl with prior written consent of TnEB.Do net oiler when printing or reproducing lha standard pm-sol portion,
Page 4 of 4
WEBForms® May/2014REV. JAN 2014
Tab D
agreement of purchase and sale{to* 1st m me rtoviHa or ontabo]•to BPURCHASER AviW*riy«wnHau)MMtgt.___________ _____________________ , rgno to ton\^DOR.TH;FUU^Uww)OroorhW.Cow[7A«f^rTt?RKrTrCTI>i1TOnOwrvrolWTtt. 9m totonbg REAL PROPERTY:
Addw. .10MMTvco>0rf»« trontnconha rorti tbtof TycmDrfvt ___________InttM OtYcTTcrenlo «nd hadno « tatioe cl WrH maw a ku by a ti«p9i at
1WM_____ "«« « tea >nd tapt/ ilwM u IT .26 PI 40CT NORTH VPRK. SIT RYIHM7- TORONTO IN
WWlffllfttift.ffl W. ft toAftw CT1 BTtndmtlTk O.TB ibb Hh« •PnmatvD■■■■■■■■L-tcom.
VOWO.CfTVOPTOnONTO.
purchase pmce,__0B
DEPOSIT
PwdBttt urtr*u (upon Btaebneal ■ _ Dotin (CONS]
ntqdfabbttomprrcbbb AvlmYourioCgwnmil!lRrrIgr<i<ittOnt«rfciTW:. RwlEiaiiiBnftrrwr fa Be
heW In Suit ptndno compItSat or ott»r tambuten oftnli Apoemen! and Is 9* credfal Iwnnlthe Pinduse Price an
w.fltHoa PinfcBerigreesbpaylMtMSKBuloUma
Pwrctow agmi to pay 9» bibna ol 9m Puretat Prica by bmli brtfl a ccrfjted thajua la CM Vtndar an doting uibfcd tab* iflual a^udRMfii
Pinhatv agree to nouns M cutrtnj Ttrunl ipon CorapiriJon of fli AotmuujiI ol Purehuo and Sale
eartntMTm er tacupotiBMMMH KyanviBt—■B<H«lto***- iJdmttB____ torrt
I—rtot»«toy —afraUtfjbBfi^i—!■»tVtnooqkimttouBto.
ue {ar
IE®1taStor Vrtf
SCHEDULE “A"
To bo read vrtth end lata B part ol Ih'j Agreement of Pisrhace end Sole behreorr
Art Vf.rtTTMWnHcmPC1 »<____________________ ___________________________fPUaoUJifalxwiTt<iFuutrtlj»ort)0»wi>Vc.C»irr»^purtT?nfPllvt)iC>»?IWT2CiWTPupU“rT? r/cxcnl
Rt: The PurrciUse mn Biu of tee-1 at Trego Oxrve, Toaorrro. ON
II It undertax! and ogrer d by Ore Purchaser and the Vsndor Owl tho deposh cheque W not bo cenifta! a deposited In lho Agcnft fUal Estate Trust Aseotfil unis thb Aoreotrent fui been accepted by both partes Thenusflcr, Iht dsposlt shaj bo put Into on Herat! bearing arcautl and lho Vilarest Sh*3 ncava to thebvnefil cf the Purohaseron closing
Commercial Reel Estate (Qnta'o) Ire. In Tout lo be held In l/usL Interest to oaue b he Puhdiaier's benellL
2. As$mmiTIt fa agreed but (ha Purchaser shat haw h* rlyhrt al any Vmo prior Is Ihe data that b ten (10) day* prior to he dole on viLAdi lho masher obtains the court approve! conierrptalorf In ^actfcu 1 of Schadiie "B* herein to csslgn thb AgnMamnl to a eorpenitbn or eorporcrtfans. end/or perron or persons, and yitien such assignment dull hove been mode and wnf en nodes iherrof shall hove been given to the Vendor or Its Bc&ton, the assignee shslr assume st| sr the pundszur's rights end obtgoBcvu hereunder to the sung artefriandtnBe some moraier as If eudi assignee had rspeuted tti Agreement of Pirehaie and Sole u Purchaser, md thereupon ol of Iha obi jettons of the Purchaser hereunder shot eeaon and isimbata
3, POCVMEWT3 FOR DEUVETTY
The Vender vdl provide to th« purchaser vrtttto free (5) business days of acceptance of this offer by both parties tho Iribvring;
(a) An up to dele survey of tho iiAjeci property ibcvrtrg ell buErfingr, essemonts, parting amt, rights cd Ways, are) fences,
(b) Copy of aS plans ard tpedltoabans bOUdng, without Brrttfng the generally of the foregoing, till orchSaetapt, mechanical end dMtifcsd ptsns and iptdfics&n* prepared by a tpaHVed archied and/or ongtoear (Ire Trans') that ore In the Vendor's possession.
(c) Recent sc3 tests end environmental reports (phase I and II) prepared by a qua Sled probtiknal environmental engineer.
(d) Access la ad documents, boohs and records relating to management, and expense. tnebtSng tS realty lax bib lor lire last M calendar year,
(s) Access to Ihe Purchases, is agents and representative] to he premises lor the propose of cartylng cut nidi fopedkns as the Purchaser tfee.Tn necessary
(f) Copies of el) executed service melnlaranee, lasses andfer olhar contracts alluding
t £622511
The Purchaser submits upon waiver al condllerw a second deposit in Ihe amount VMl •HlHI^HBHHMMiceili’ied cheque or bank tfrali piryabb to Arisen Young
tho tends.
Pape 2 of Schedule “A’To be read with end form a pad ol this Agreement oI Purchase and Sale between:
This Agreement of Purchase and Sale shall be amdilimal fev thirty (30) busmen days 'The Approval Period" (ram Uie receiving ol Iha last of the 'Documents tor Delivery", upon the Purchaser satisfying Is ell in IU sole and orbilrary discreticfi u s to the folowing
1) The physical and environmental conditions ol the building I property aro acceptable
3) Tha Purchaser has received acceptable financing lo complete (Ite Ironsaction
3) The Purchaser being soUsTied v,llh the edstrin Lflaw
Unless the Purohaser notifies the Vendor In writing on or before fhe end of "The Approval Period* that such conditions have been satisfied or waived by it then, notwithstanding any Intermediate ads or negotiations, the Agreement shal be of no (other force or effect, end the deposit shall be relumed to the Purchaser.
This clause b torerted for the benefit of Ihe Purchaser end may be waived by the Purchaser al any time,
5. E-MAILfFACSIMILE TRANSMISSION
Both parties agree tha! Ws Agreement of Purchase and Sale, when executed and/or (lie executed acceptance hereol, may be communicated by e-mail, telecopier end/a facsimile transmission and that such agreement shall be legal and Unding upon the parties hereto A1 communicaHcns shall be deemed to be received el the lime of transmission.
6. VENDOR'S KHEPQNSIBILmES
Prior lo completion, the Vendor shal perform the following
a) Remove any garbage around end toskfr the property and deliver the property to a broom-swept condliton.
b) Vendor wtl use reasonable efforts to provide on or before dosing on estoppel certifieale from the Tenant confirming details of the existing Lease arrangements as percopyefceitificale to be defivered to the Vendor,
The Purchaser hereby acknowledges that this Agreement ol Purchase end Sale has been executed by the Purchaser based In part on Information which has been made pubfidy available through the Toronto Real Estate Board's Multiple Using Sendee, which to formation may not be completely accurate or reliable The Purchaser hereby acknowledges that It has taken such steps os are necessary and appropriate to Investigate and verify the accuracy end retlabBty of Information provided through the Toronto Real Estate Board's MtiMpte Listing Sendee, and from other sources, upon which the Purchaser may Intend lo rely to completing this transaction.
The Purchaser hereby represents end warrants to the Vendor that it b now or wifi be prior to the dele of dosing registered as a registrant under Subdivision D d! Division V of Part IX of Ihe Excise fax Act (Canada) for the purposes of Harmon bed Safes Tax (*1137"), The Purchaser covenants to dofiver to the Vendor upen dosing, a dederaSon and todemrly of the Purchaser confirming the accuracy, as at the date of dosing, of the re presents bora and warranties set out to this sedlcn and agreeing to Indemnify the Vendor for any amounts tor which the Vendor nay become liable as a result of any failure by tha Purchaser to pay die HST payable In respect of the sab of the subfad property under Part IX of the Excise Tax Acf (Canada) Provided that the Purchaser defivers such dedarabon and Indemnity, then the Purchaser shal not be required to pay to the Vendor, nor shaft the Vendor be recubed to coled from the Purchaser, the K5T In respect to the cubfed property.
7. V5BlflC<WQN
b. H£L
Page 3 ol Schedule ’A'To be read with end term t perl ol tbit Agreement aIPurchnu end 5a'e between
Re: Th6Pubchaae>woSju.b of lOs-loaTtcos Dtgvg, Toiwro, on
6, LEGAL ADVICE
The Parties to Ihb Agreement acknowledge Bat CS Rfclrsrd EEs Llrnled and Aviscn Young Commercial Real Estals (Ontario) Inc, has recommended lhal they obtain advice from their legal Counsel prior to signing this document The Parties further acknowledge lhal no /fttormalion provided by CB Ridiord Ellis Limited and Avison Young Commercial Real Estate (Ontario) Inc. h to be construed as expert legal or tax advice
1D, PROPERTY MAimEMANCE
The Vendor agrees to operate menage and maintain the property and the building unlit closing In a manner oonslslenl vsilh lhal prior to entering Into Ihls agreement The properly is la be dear at alt debris and garbage ol the time ot daj'ng All fixtures end chattels purchased by Ihe Puichaser shaO be tn the same condition on dosing, subjecl to reasonable wear and tear
11. AGEHCV DISCLOSURE - DUAL AGENCY
The parties lo this transaction hereby ncknowtodgas that Ihe listing 3raker and Cooperating Broker are the ssrno Firm, such thnt there has been, and Is dual agency, the Purchaser and Vendor having previously consenled lo such dual agency.
1Z. PURCHASER’S CONSENT
Foflovwig acceptance of this agreement, the Vendor agrees not to enter Into any new leases, renewals, or cancellations without the prior written consent ol the Purchaser.
Q|(3fhr^iatf Vmda
.SCHEDULE"!!"
SECTION li EVIDENCE FDII S.U.E
I. The Seller's dilfgaitansawitalned In lliis Agreen'.cnl slinll be caedhtmial upon the Seller secetvlng on order or the Superior Court of Jur.kc In a form SBllsIaetory la lie Seller, or sudi oilier court as lea JutbdieUeo In the mailer (ilx “Court"), oppiovlng dre ulc dI lie Property lo tc veiled In Ilia Ouyer, free end elerrnroil mortgages ond/orsctulfiy Interests rqdilcrod jgaimi Ihc Properly ns contemplated by lldj Asrtement (iht “Court Approval"),
The Seller tovenanu urn) egrcca la use roisatobla commercial efforts la ollaupt lo satisfy tills condillcn. If llie uite of Ihc Property Is net approved hy lie Court, dill Agreement sJintliie tennlnaiedvvllliouiony penalty or llabUtfyrthaDnevcrlo the Seller or llie Buyer, Ollier liven the mum by lie Seller lo lie Buyer ortlie Deposit, lull wlllinut cost or oilier eompeftsallcn, and each oDIie Seller end Uie Buyer slutll tie released from oil oilier obligations hereunder creep! Tor live nUlgillons or llie Buyer Hal pro speetrieolly noted licrrtu in survive C/nsing or direr Icnnlnallnn nr lliii Apecnvenl,
In Ilia eveni ilal tin sale of lire Properly li enjoined or not approval by the Court, where any pan oflhc Property Is remand from llie enirtrol of Ilia Seller by any mans or process, or legal proceedings arc thrtmened oguJnsl lie Seller lo real rain the tale or tls Property, or tvliere the Property Is mlc nan! In whole or In part by any pally cull lied llierelo it law on or prior lo Clotlnp, (lie Seller, al Its option, may terminate tills Agrocrnenl Urtlhoul any penalty or liubtllly whatsoever td the Seller or (lie Buyer, oiler lluit the return by the Seller to the Buyer ot tire Deposit, wlsjvotit deductlun, snd without cost or Oder compensation, end exit or Ihc Seller und Hie Buyer oliall bo tideaied firnn til oilier obligations hereunder, eiecpt Tor the obligations oTilie Dujer lira! ore specifically Haled herein lo survive Closing nr oilier lerinbiaiton or tills AgraancBI,
BECTION Jr CONDITION OFTHEFBOPEUTV
% Tic Ouyer shall ptnclue Its Property « It crisis tl the dote oT acceptance or lids Agreement, on tn “os-ts, wherods" Irasts, wkhoui reprove illation, warranty or comllllan wtdi inspect (a the lUness. eondiilon, toning or lauTut me at the Property, The Setter, its Agent, so anyone else on lu behalf, realms no tcprescnlaikins or warranty wlUi respect tn any defeew In wtHlcninnihip, slate or repair, location ol srruelutei, wulls, retelling waits or fences (free linndlag nr olhsrwtiaj. The Seller shall Itaro m responsibility Whatsoever lo remedy any s)er=ei, Infroctlan, work onler, deficiency notice or oflwnodco of Boo-eomptlana: oreaestwhments by buildings or reoees on la Uie Property or on lo adjoining properties or amxls, or complete nay unfinished work, whether csltthtg as at ilia dote tsT acceptance or llie Agscctnentor coming Into existence between the old dare end ihc dale of dosing oT (lie AgrcemenL Tlie Buyer acknowledges that lie las rolled enitrely upon till own Inspection and Investigation with rospeet to title marten and tire tpsonlliy, quality, timmo, eoroStloo and value of the Property.
Wllhout Ihnlllng the generality or (Ik ferego trig, any and nil csiodlllcna, warrantlo or leprosentatlans expressed or Implied pumssnl to lie Sale or Goods Art (Ontario) da not apply hemic and liave beat Waived by the Buyer.
The description of the Property eoniatnesl In this Agreement Is for tic purposes uf IdeurlffcilfiHi only and no rcprcseiiatjan. warranty nr condllien has or will la given by the Seller concerning the whlence or tear racy or such derortpltan.
SECTION JiTtaE
3. (a) Tlie Buyer dull accept tlilolo Use Proposy, subject to, and whether complied withor not, any und oil registered rnlriethinj, agreements or covenants which tun with the land, rcgbtena] casements for the supply aT nsltkles end terriers to tlie Property or through tiro Property to ndjolabighdjacait properties or other casements, rcgsslerod leases, stg)i(i<or<way, rlglui or rc<alry hy-lsivs, stmduri subdivision or she plan agreements (Inchidtng any levies or charges payable thereunder}, with llie Municipality endfer Piddle Utility, and any cncioaclirocnlv.
(h) The Seller stall rial he required In deliver a discharge; release or teasjgnracnl ofdie Mortgage, or nay chnr$e/monpge of bnd, assignnetil, lien or oilier ctramibronx reclstered
against lint Title Id ilie frcpe/iy which tvotild lor extinguished Iiy an order oTtin: Coitn referred lu In Section I above.
(c) Tile Seller stall not Ik required |a furnish or produce eny obstruct, deed, ikcbnllan, municipal occuparty pcnnlt or surveyor Ollier document or evidence or Jills esccpt those In Its possession.
SECTION it ADJUSTMENTS
'I, The Buyer atudl pay In the Seller rut rinsing, Uie balance of lie purclnoc price, subject in adjustment fnr Ilia current year's manlclpat tares ruiil lire Seller aliall not be rciycraihte Far tie piyrncnl of, cm) tlicre ilnll lie no adjustment foe, develop mem Tea, Imports, lot levies, local Improvement charges, or sewer clurgei, Tic Seller and tli: Buyer agree list lire adjustment, 1C any, for the current yetr's municipal loses dull be Unetl upon 100ft or lire nranlctfol loses For the prupeny for tho year previous to the me in rvblclt tills Irmr.telion Is seliedulcd la close, unless ns at lire dote nl thU Agreement lire tetavanl municipality lias Israeli die final lot Mil Tor the subjcii prupeny, Tor lire year In width ibis Agreement It seliedulcd to e|nu, In ivlileli Inter ewes tire said adjustment slttll be on lire bails of lire said final bill. In cllltcr ease, lire day of florins shall be opponloned In tire Buyer, The Seller and lire Buyer runlrcruertre dial tlicre will lie nn FutUter idjustmtnl For monlclpat laves, tret] that the Seller will not provide Its undatallng la readjust any Item relating lo municipal rases on lha Slnlcmem nr Adjustments after Mich date.
5. The Buyer ogress to temll la die Seller rvltldn ten {10} days oF receipt or credit or oil iu rebatci or credit ndJuststcoU nf my bind pppftoble to die Property up la lire Date orCMng und same SlBill remain lire praprtly oF the Seiler lo be held In trust by ihu Buyer, The Buyer ogress (a enter Into and deliver to lire Seller n us rebate unifcrtallng lu Ibis efTerl on Closing-
SECTION Sr GENERAL
fi, |o) The Boyer euvaaanls sod agrees nor lo register Notices of ttiii Agreement, Aodgnmem llincof, Caution, Certificate oF pending Ullpllcn, or nny oilier InstntmcnJ or reference to till] Agreement or Ids flier Interest In lb: Property, IF nny sutll registration oceiira, tire Seller may. ol hs opltnn, Icrailnale Bib Agrecmesil anil all deposit monies slull be Forfeited nr liquldalcd damages oniloouso penally. Tlte Buyer liereby tnevnahly emurnte la a earn order removing any such rcglsiratlons and agrees lo bear all costs In obtaining such aider.
(l>) Notwithstanding any oilier daises In this Agreement, the Seller has no knowledge and mattes no representation whatsoever es lo whether die Property has been Insulated with Urea Formaldehyde rsaut Iruublkm or any mlrer type of rotates btsvlatlun, or wlielber die Properly contains nny other nbUnneea. liquid gases or materials wltrch may be teszardous oc itsslc.
<c) Tills Agreement, any amendments thereto, sad any notices given ponuard lo Ibis Agreement of Purchase and Sale may be l ran emitted by Iclecepler or fill machine and dial! In hireling upon die parties liereto u if escorted In lire original, The Buyev agrees lo delists en esttcuied original agreement lotlie Seller within two days of oteeptance of lids AgresmciU.
(d) Upon terrainsdon of tills Agreement by reason of default nf the Buyer, the deposit, logeilier with any Interest therein, alrell be pold la Uts Seller by tlte Seller's agent, renlirvfdi wlibuut any Further direcllua sir cun sent Front Ilia Buyer being required, and die Buyer sltall not direct or cause ornttenipt lo emue theScller'a agent la do otherwise,
(e) Wliure the provisions or tills Schedule "B" rantHcl tvltls or are InamtUtcsn wtilr any terms In das preprinted, typed or wrillot terms of Ilie standard Form of Agreement or Pureture end Sale andfor Schedule "A” auaelied llterete to tvlileh Ibis Schedule "jr Is aliaclied, tlic panics agree dial lire protlslons oF lids Sdiedole “D" sltall govern and prevail.
(0 Tlte Buyer aliall nor require lbs Seller to male any tutcmcMs conleni|listed by section 50(12) ot lUc P/urudrig Act. ILS.O, 1910, Clispler PJ3, Tlte Buyer agrees to sailsry IilmielF Willi respect to compliance trlili tlw Pfitruthf Are,
Igl Tlte term "Seller’ u used heroin, dull levs no InFeretas or reference lo die present re jittered ormerof dm Property,
111) No Injun/e sltall be iremlesrcd on eumplelicn of tires AgrecmenL
o-
(l) The Buyer wkmiivlcdpes dial d.c Seller may lie urable iq deliver teyc M tie Proper!)' on lire dale of clusbig; nail apreer I tut lltc Seller will provide only such key or keyc m are In ka poaiidoa.Mlcn ressaiubly available eAar clotlnf.
(J| Tits Seller .drill nol lie ofcllplcl to provide lu ttjtutory decimation. stvent or olhrrvvUe, ns in lu Vnlia « o Oinsdian rtelrknl for purposes ors.l Ifi of die Inmuc TitiAa, end provision by ll uf o wilitcn watemcnl to |lie effect Hurt It Is not n nonrcsliltcl shall be neccplcd by lhiBvycrn'i»aili.rj:iory evidence ofcsnu
|b) This Agreement (lull be completed by no laisr Ilian 1.10 p.m, un Ihc dale i ratified herein, or In sny mention hereof, Tor tumplcttan,
• (I) If any lerrn. provides!, votennn!, Indemnity or condition of lids Agreement,Including, william linilllaj Ihc generality nf lie fcrcynlng, lids Schedule “0”. nr lu appllnllon losny pemm or clrcoraarnirr slrell lo any client be, or he found by u csmtpelcnl oultinrlijr lobe, Invalid of unmfonroble. Ills remainder of ibis Agreement of III: eppliraslon of iw,b term, provision, Indemnity nr candhlon lo penons nr rlirumsianesi olher Ilian llicse |p which ll Is, or U I.eM lo le, Invalid nr unenforceable, doll nol he affected thereby and fall lenn, provision, indemnity or condiltcn of ihlr Agreement ilmll lie valid and enforceable lu die fullest ealent prnnliicd by law,
(m) The Insertion of headings In lids Schedule “O' Is for cunrcntcncc and case or reference only, rad dull nol otTrcl the Inlcrprclollon,
(n) Union eaprculy provided forelccuiserc In tills Ajrtentcnl, Us Duytr Is not.pilsr lu lie eomptellan of Oils Agreement. entitled lo ester In, nn, or upon the Property. Tor (he purposes uriropetllen, or ntlterwlsc. tvlllcut die express ivrlllefl control or (lie Seller, vrldcli cuiuenl rosy be arblimrily ivlihladii,
AMO t*t i ps. TH£ FULLER LANDAU GROUP INC. COURT APPOINTED RECEIVER 0F216M71 ONTARIO LIMITED
day of July ,2a IS
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Toronto, ON
Tbs Cuyeri>) end Sdkr(») fcjidn tsgrno to tbs fdbwtng Anuirfiwanta to t
InttrtnMtU:
Delete:
All references to *Av» Investments Holdings Inc*
Purchase Price: J
5, CONDITIONS
Thu Agreement of Purchase sod Sole shall be enaditkxnil forth lily (30) business days "The Approval Period* from the receiving of tbe hut oflhe "Documents Tor Delivery", upon the Purchaser ariify lag lisdf In Its (ok sod nbitmiy discretion as to the following’
1) The physiol and environmental conditions of the building / property sro acceptable
2) The Purchaser hu received acceptable frouncing to complete the transaction! and
3) The Purchaser bring satisfied with the crating Lease.
Unleu the Purchaser notilies the Vender in writing on or before the end ofTbe Approval Period" that such conditions have been satisfied or waived by it then, notwithstanding my Intermediate acts or negotiations, the Agreement shall be of no Rather force or effect, »od the deposit shall be returned to the Purchaser.
This ettuse It inserted for the bene lit of the Purchaser and may be waived by the Purchaser at say lime.
Insert:
All deleted references to "Avo Investments Holdings Inc.*
Purchase Price:
5. CONDITIONS
This Agreement of Purchase and Sale shall be conditional until August 21,2015 "The^ satisfying hseifln Its sole and arbitrary discrelioa as to the foSawing: ■
2) The Purchaser has received acceptable financing to complete the transaction.
Unless the Purchaser notifies the Vendor hi writing on or before the end or "The Approval Period* that such conditions have been satisiled or waived try it then, ootwithstandtog any intermediaiE nets nr negotiations, the Agrecrnenl shall be Of no Rather force or effect, and the deposit shall be returned to the Purchaser.
This clause Is inserted for the benefit of the Purchaser and may be waived by the Purchaser at any time.
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iOUfc THF- PULLER LANDAU GROUP !NC COURT APPOINTED RFL'EIVER OFJ+Wir^ONTARIO LIMITED
MAirsoMsm IW-108 Tyco* Drive
Turon/n, ON
i. CONDITIONS
This Agreement orPutchasc and Sale shall be condition*! until August 21,2013 "The Approval Period", upon the Purchaser satisfying itself in Its sole and arbitrary discretion as to the following
2) The Purchaser has received acceptable financing lo complete the imttsaclion
Unless the Purchaser notifies die Vendor in writing on or before the end of "Die Approval Period" that such conditions have been satisfied or waived by it then, notwithstanding any Intermediate nets or scgotulioni, the Agreement shall be or no further force or effect, and Ihe deposit shall he returned lo die Purchaser.
This clause is inserted for the benefit of lltc Purchaser nnd may be waived by the Purchaser at any time .
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to* prpesex cJ An Worrrt ircbdai pirtheuf Iwanl orri Uum and "'sXr i. T«,vd hndnd svd bue< end 'Aiyoamrf*SikthtuQ ond Sole’ neluEhi on Agr*trrv-nt idIiqm .
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Tab E
2159372 ONTARIO INC.STATEMENT OF RECEIPTS AND DISBURSEMENTS
FOR THE PERIOD JUNE 2, 2015 TO SEPTEMBER 16, 2015
$RECEIPTS
Advances from BDC by way of guarantee of Receiver's fees 36,281.35Rental income 19,563.19HST collected 2,543.22
TOTAL RECEIPTS 58,387.76
DISBURSEMENTSReceiver's fees and costs 32,107.39Insurance 6,970.93Utilities 1,358.95Appraisal costs 2,595.00HST paid 5,363.68Property Management and related costs 4,013.88Change of Locks and taking possession activities 1,472.00Receivership filing fee 210.00Repayment to Secured Creditor (funding of bankruptcy costs) 2,000.00Bank charges 13.16
TOTAL DISBURSEMENTS 56,104.99
EXCESS OF RECEIPTS OVER DISBURSEMENTS 2,282.77
BALANCE AVAILABLE _________ 2,282.77
FUTURE RECEIPTSSale of land and buildingSeptember 15 rent from tenant 7,682.69Cash on hand with CIBC 800.00
. Closing adjustments for property taxes (estimate) 10,590.84FUTURE DISBURSEMENTS
Realtor commissions -Priority claim - property taxes (estimate) 55,536.13Property management fees unpaid and estimated to closing 3,292.40Utilities (estimated) 1,200.00Closing adjustments for rent and security deposits 3,841.35Receiver fees unpaid and estimated to discharge 28,198.30Secured Creditor funding of 2159372 bankruptcy 12,000.00Receiver's legal fees unpaid and estimated to discharge 40,804.10Secured Creditor's legal fees (estimated) 25,000.00HST ________ 12,804.32
TOTAL FUTURE DISBURSEMENTS 182,676.60
EXCESS OF RECEIPTS OVER DISBURSEMENTS (161,320.30)
2,685,000.00DISTRIBUTION TO BDC
Tab F
Court File No. CV-15-10829-00-CL
ONTARIOSUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
BETWEEN:
BUSINESS DEVELOPMENT BANK OF CANADA
Applicant- and -
2159372 ONTARIO LIMITED and ZEEA MARKETING INC
Respondents
APPLICATION UNDER Section 243(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c, B-3, and Section 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
AFFIDAVIT OF RUTH THOMSON
I, RUTH THOMSON, of the City of TORONTO, in the Province of Ontario, MAKE OATH
AND SAY AS FOLLOWS:
1. I am a Business Specialist, Special Accounts with the Applicant, Business Development Bank of
Canada (“BDC”), and am the individual responsible for managing the loan account of 2159372 Ontario
Limited (“215”). As such, I have knowledge of the matters to which 1 hereinafter depose. This affidavit
is sworn in support of an application by BDC for the appointment of The Fuller Landau Group Inc.
(“Fuller Landau”) as receiver of the undertakings, properties and assets of 215 and Zeea Marketing Inc.
(collectively, the "Respondents”).
BACKGROUND
2. 215 is an Ontario corporation incorporated on January 3, 2008 with a registered head office of
100 Graydon Hall Drive, Toronto, Ontario. Adriana Valentina Dimacopoulos (“Valentina”) is the sole
OOC#322O07Bv3
office and director of 215. A copy of the corporate profile for 215 dated December 3, 2014 is attached
hereto as Exhibit “A”.
3. 215 is the registered owner of the land and a single story 19,600 square foot building (the
“Building") located at 106-108 Tycos Drive in the City of Toronto, Province of Ontario (the
“Property”).
4. Zeea Marketing Inc, (“Zeea") is an Ontario corporation incorporated on December 10, 2003 with
its registered head office located at the Property. Argirios Dimacopoulos (“Argl") is the sole office and
director of Zeea. Argi is Valentina’s husband, although I understand that the couple is in the process of
separating. A copy of the corporate profile for Zeea is attached hereto as Exhibit “B”.
5. Zeea is an importer and wholesale distributor of food products, specializing in olives, to retailers
and wholesalers across Canada. It carries on business from the Building pursuant to the terms of the lease
agreement dated October 1,2011 between Zeea and 215, a copy of which is attached as Exhibit “C” (the
“Zeea Lease").
6. Pursuant to the Zeea Lease, Zeea leases 8,000 square feet of space on two floors of the Building.
In addition to Zeea, approximately 12,000 square feet of the Building is leased to Davids Condiments
Inc., an arm’s length tenant of 215, pursuant to the terms of a lease agreement dated May 14, 2014 a copy
of which is attached hereto as Exhibit “D”. •
THE LOAN
7. Pursuant to an offer letter dated October 1, 2013, as amended by letters dated November 4, 2013
and April 3, 2014 (the “Commitment Letter”), BDC made credit facilities in the total amount of $2.6
million (the “Loan”) available to 215 for the purpose of:
(a) refinancing the existing mortgage on the Property in an amount of $1,810,000;
DaC#322O870v3
(b) financing of dip production equipment purchase in an amount of $600,000;
(c) financing of Zeea’s working capital in the amount of 123,500; and
(d) payment of property tax arrears in the amount of $66,500.
A copy of the Commitment Letter is attached hereto as Exhibit “E".
8. The Commitment Letter references and incorporates Schedule “A” containing BDC’s standard
loan terms. Although BDC’s executed copy of the Commitment Letter does not include a copy of
Schedule “A", attached hereto as Exhibit “F” is a copy BDC’s standard Schedule “A” document
effective at the time that the Loan was extended.
9. The Commitment Letter required that funds dedicated towards the equipment portion of the loan
be disbursed by BDC to the vendor(s) of the equipment upon receipt of invoices evidencing expenditures
to be made. Pursuant to the terms of the Commitment Letter, on April 8, 2014 BDC paid $600,000 to
Rhea Lux S.A., a company located in Kiekirch, Luxembourg, for the purchase of dip production
equipment for Zeea (the “Dip Equipment”).
10. As security for the Loan, BDC obtained (among other things):
(a) a first-ranking mortgage on the Property, a copy of which is attached hereto as Exhibit “G”;
(b) a general security agreement dated October 29, 2013 from 215 providing a first security interest in all present and after-acquired personal property, except consumer goods, a copy of which is attached hereto as Exhibit “H”;
(c) a guarantee of Zeea for 100% of the outstanding Loan balance, a copy of which is attached hereto as Exhibit “I”;
(d) a general security agreement dated October 29, 2014 from Zeea providing a first security interest in all present and after-acquired personal property, except consumer goods, a copy of which is attached hereto as Exhibit “J”; and
(e) a first registered general assignment of rents, a copy of which is attached hereto as Exhibit “K”.
DOCK322087BV3
The documents listed at subparagraphs (a) through (e) above, together with the Commitment Letter, shall
be referred to herein as the “Loan and Security Documents”.
OTHER SECURED CREDITORS OF THE RESPONDENTS
11. Iam advised by BDC’s legal counsel, Chaitons LLP, that in addition to the registration in favour
of BDC, a title search for the Property discloses one other registration in favour of Her Majesty the Queen
in Right of Canada as represented by the Minister of National Revenue for a lien in an amount of $92,712
registered September 19, 2014. A copy of the title search against the Property obtained by Chaitons dated
December 2, 2014 is attached hereto as Exhibit “L”.
12. Iam advised by Chaitons that it obtained a search from the Ontario Personal Property Security
Registration System (the “PPSR”) in respect of registrations which are outstanding against 215 as at
December 2, 2014 attached hereto as Exhibit “M”. In addition to the registration in favour of BDC, the
search discloses the particulars of one other registration, registered after BDC, in favour of BMW Canada
Inc. in respect of a motor vehicle.
13. Iam advised by Chaitons that it obtained a search from the PPSR in respect of registrations which
are outstanding against Zeea as at December 2, 2014, a copy of which is attached hereto as Exhibit “N’\
In addition to the registration in favour of BDC, the search discloses the particulars of one other
registration, registered after BDC, in favour of Ford Credit Canada Leasing in respect of a motor vehicle.
14. I am advised by Chaitons that it was advised by the City of Toronto that as at January 7, 2015,
215 is indebted to the City for realty taxes on the Property in an amount of $30,663.66. A copy of the tax
certificate will be provided to the Court prior to the hearing of BDC’s application.
DEFAULT UNDER THE LOAN
15. From the inception of the Loan in October 2013, the Respondents have defaulted on multiple
□OCtf3220B79v3
occasions on payment and other obligations under the Loan. As a consequence of these defaults, on
August 14,2014, the Loan was transferred to BDC’s special accounts and has been managed by me since
that date.
16. Following the transfer of the Loan to special accounts, I set up a meeting with Argi and the
Respondents’ controller, Zafar Munir, which took place on September 3,2014.
17. During the September 3, 2014 meeting, 1 learned, among other things, that;
(a) Zeea is no longer carrying on business from the Property and that 2222603 Ontario Inc.
(“222”), is the new operating company. Argi is the sole director and officer of 222. A
copy of 222’s corporate profile dated December 3, 2014 is attached hereto as Exhibit
“O”.
(b) Despite payment of the invoice by BDC in April 2014, the Dip Equipment was never
received by Zeea. The Respondents have not provided BDC with any explanation as to
the whereabouts of the Dip Equipment or expected delivery date.
18. Zeea “ceasing to carry on all or substantial part of its business” constitutes an event of default
under the Loan and Security Documents.
19. On September 5, 2014,1 sent a letter to Argi outlining the various defaults under the Loan and the
actions required to remedy these defaults, including requirements that:
(a) 222 undergo BDC’s standard due diligence process and provide a general security agreement in favour of BDC as security for the Loan;
(b) the Respondents provide an update on the delivery of the DIP Equipment;
(c) the Respondents provide up to date interim financial reports for 222,215 and Zeea; and
(d) 215, Zeea and 222 complete and execute a consent form authorizing Canada Revenue Agency and the Ministry of Revenue to release information on their respective tax liabilities to BDC.
Doc#322OB70v3
A copy of my September 5, 2014 letter is attached hereto as Exhibit “P”.
20. The Respondents failed to remedy the defaults set out in my September 5 letter and to comply
with the requirements set out therein.
21. On October 24,2014, 215 defaulted on its payment obligations under the Loan.
22. On November 17,2014, BDC demanded repayment of all amounts due under the Loan and issued
to 215 and Zeea Notices of Intention to enforce Security pursuant to Section 244(1) (the “BIA Notices”)
of the Bankruptcy and Insolvency Act (Canada) (the “BIA”). Attached hereto collectively as Exhibit “Q”
are copies of BDC’s demand letters and BIA Notices.
23. Following the receipt of the demand letters, at the request of the Respondents, BDC commenced
discussions with the Respondents and their respective legal counsel of the terms on which BDC would be
willing to forbear its enforcement rights under the Loan. These discussions were unsuccessful and the
parties were not able to negotiate a forbearance agreement on terms acceptable to BDC.
IT IS JUST AND CONVENIENT TO APPOINT A RECEIVER
24. It is just and convenient in the circumstances to appoint a receiver over the assets, property and
undertakings of the Respondents.
25. For the reasons set out above, including, the transfer of operations from Zeea to 222 and the
concerns around' the "purchase” of the Dip Equipment, BDC has lost faith in the Respondents’
management.
26. The Respondents have been in default of their obligations under the Loan since the summer of
2014 and have failed to take any steps to cure these defaults. On November 17, 2014 BDC demanded
repayment of all amounts due under the Loan and served BIA Notices. As at January 7, 2015, Zeea is
Doc#3220878v3
indebted to BDC under the Loan in the total amount of $2,605,517.57 for principal and interest, plus
costs.
28. Pursuant to the terms of the Loan and Security Documents, BDC has the right to immediately
enforce its security, including the right to apply to the Court for the appointment of a receiver over the
Respondents' property.
29. BDC proposes that Fuller Landau be appointed as receiver of the Respondents for the puipose of
realizing on BDC's security. Fuller Landau has advised BDC that it is prepared to act as receiver if so
appointed. Attached hereto as Exhibit “R” is a copy of Fuller Landau’s executed consent.
30. This affidavit is sworn in support of BDC’s application for the appointment of a receiver over the
property, assets and undertakings of the Respondents and for no other or improper puipose.
)))SWORN before me at the City of Toronto, )Province of Ontario this 8th day of January, 2015 )
The Fuller Landau Group Inc.151 Bloor Street West 12'" FloorToronto, ON M5S 1S4
Attention: David Filice
Dear Sirs/Mesdames:
Re: Receivership of 2159372 Ontario Limited (“215”), Zeea Marketing Inc. (“Zeea”)________ and 2222603 Ontario Inc, (“222”, and together with 215 and Zeea, the “Debtors”)
The Fuller Landau Group Inc., in its capacity as the court-appointed receiver and manager (in such capacities, the “Receiver”), without security, of all of the assets, undertakings and properties of the Debtors, has requested our opinion concerning the perfection of the security documents herein discussed granted to Business Development Bank of Canada (“BDC”) by the Debtors, We confirm that we have received and reviewed the security documents granted by each of the Debtors in favour of BDC described herein, and hereby provide you with our opinion concerning the perfection of same.
A. DOCUMENTS EXAMINED AND SEARCHES CONDUCTED
I In connection with the opinions contained in this letter, we have examined a copy of:
| 1. the General Security Agreement dated October 29, 2013, granted by 215 to BDC (the"215 GSA”);
2, the General Security Agreement dated October 29, 2013, granted by Zeea (the “Zeea GSA”);
3, the General Security Agreement dated January 29, 2015, granted by 222 (the “222 GSA”, and together with the 215 GSA and the Zeea GSA, the “General Security Agreements”);
4, the Collateral Mortgage in the amount of $2,600,000 from 215 over 106-108 Tycos Drive, Toronto, Ontario and as legally described in the Land Registry Office for the Land Title Division of Toronto (No. 80) under PIN No. 10339-0135 (LT) (the “Premises”) registered on November 5, 2013 under Instrument No, AT3447302 (the “Charge”); and
5, the General Assignment of Rents over the Premises dated October 29, 2013 and registered on title to the Premises on November 5, 2013 under Instrument No,
Srookiield Place, 181 Bay Street, Suite 1800, Box 754 ■ Toronto, ON • M5J 2T9 - Canada T 416.863.1500 F 416.863.1515
AT3447316 (the “GAR”, and together with the Charge and the General Security Agreements, the “Security”).
In addition, in connection with the opinions contained in this letter, we have conducted the following searches:
1. certified searches from the Ontario Personal Property Registration System against each of the Debtors with file currency of June 21,2015 (the “PPSA Search”); and
2. a review of the parcel pages for PIN 10339-0135 (LT) with a file currency of June 22, 2015.
We have conducted no further searches in connection with the delivery of this opinion.
B. OPINIONS
General Security Agreements
1. The 215 GSA
We have reviewed the 215 GSA and note that it appears to be properly executed and delivered on behalf of 215 by Adriana Valentina Dimacopoulos in her capacity as President. We see no irregularity in the 215 GSA and expect that it is enforceable in accordance with its terms,
Registration under the Personal Property Security Act (Ontario) (the “PPSA”) in respect of the 215 GSA was made on October 28, 2013, against each of 215 and Zeea, under Reference File No. 691373358 and Registration No. 20131028 1312 1862 7613 which was subsequently amended and renewed, and which covers “Inventory”, “Equipment”, “Accounts”, “Other” and "Motor Vehicle” (collectively, the "First PPSA Registration”). The First PPSA Registration appears to be in good order with an expiry date of October 28, 2044. We, therefore, conclude that, subject to the assumptions and qualifications contained herein, the 215 GSA represents a valid and perfected security interest in the assets and undertaking of 215 described therein, being all of 215’s equipment, inventory, accounts and book debts, business records, intellectual property, contractual rights, insurance claims and all equipment located at the Premises.
2. The Zeea GSA
We have reviewed the Zeea GSA and note that it appears to be properly executed and delivered on behalf of Zeea by Argirios Dimacopoulos, in his capacity as President. We see no irregularity in the Zeea GSA and expect that it is enforceable in accordance with its terms,
As noted above, registration under the PPSA in respect of the Zeea GSA was made pursuant to the First PPSA Registration, We, therefore, conclude that, subject to the assumptions and qualifications contained herein, the Zeea GSA represents a valid and perfected security interest in the assets and undertaking of Zeea described therein, being all of Zeea’s equipment, inventory, accounts and book debts, business records, intellectual property, contractual rights, insurance claims and all equipment located at the Premises.
Aird & Berlis llp
Barristers and Solicitors
3. The 222 GSA
-3 -
We have reviewed the 222 GSA and note that it appears to be properly executed and delivered on behalf of 222 by Argirios Dimacopoulos in his capacity as President. We see no irregularity in the 222 GSA and expect that it is enforceable in accordance with its terras.
Registration under the PPSA in respect of the 222 GSA was made on January 23, 2015, against 222, under Reference File No. 703161963 and Registration No. 20150123 1159 1590 8435 which was subsequently renewed, and which covers “Inventory”, “Equipment”, “Accounts”, “Other” and “Motor Vehicle” (collectively, the “Second PPSA Registration”), The Second PPSA Registration appears to be in good order with an expiry date of January 23, 2046. We, therefore, conclude that, subject to the assumptions and qualifications contained herein, the 222 GSA represents a valid and perfected security interest in the assets and undertaking of 222 described therein, being all of 222’s equipment, inventory, accounts and book debts, business records, intellectual property, contractual rights, insurance claims and all equipment located at the Premises.
Charge & GAR
4. Charge
We have reviewed the Charge in respect of the Premises, granted by 215, and registered on November 5, 2013, as Instrument No. AT3447302. The Charge secures all liabilities and obligations of 215 to BDC up to the principal amount of $2,600,000 and is subject to Standard Charge Terms 20011. We see no irregularity in the Charge and expect that it is enforceable in accordance with its terms.
5, GAR
We have also reviewed the GAR in respect of the Premises, granted by 215, and registered on November 5, 2013, as Instrument No, AT3447316. The GAR is granted by 215 as collateral security for the payment and performance of all present and future debts, liabilities and obligations under the Charge. BDC may rely on the First PPSA Registration for the purposes of the GAR, as the Fist PPSA Registration did not provide a general collateral description, We see no irregularity in the GAR and expect that it is enforceable in accordance with its terms.
As is normally the case for mortgaged security, we have not performed a full title search, As noted above, we have, however, sub-searched title to the Premises and reviewed the registered documents shown on the parcel register for the Premises, 215 remains the registered owner of the Premises.
Based exclusively upon our review of the aforementioned searches and documents, and subject to the assumptions and qualifications contained herein, we confirm that 215 appears to hold good and valid title to the Premises and that BDC holds a good and valid first Charge and GAR, respectively, subject to any prior registrations.
Aird & Berlis LLPBarristers and Solicitors
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Conclusions
Based on and limited by the foregoing, and subject to the assumptions and qualifications herein contained, we are of the opinion that:
1, the security interests created by the respective General Security Agreements in the collateral described therein have been properly perfected under the PPSA (to the extent required) and would rank in priority to the interest of a trustee in bankruptcy in the assets, properties and undertakings of the respective Debtors which are described in the respective General Security Agreements and are located in the Province of Ontario, or, in the case of accounts, where the party obligated to pay an account is a resident of the Province of Ontario; and
2. the Charge and GAR have been registered against title to the Premises and constitute a valid and enforceable Charge and GAR in favour of BDC.
C. OTHER PPSA REGISTRATIONS
We note that there are registrations made by other companies against certain of the Debtors. In particular, each of:
• BMW Canada Inc. has made a registration against 215 and Adriana V. Dimacopoulos; and
• Ford Credit Canada Leasing, a division of Canadian Road Leasing has made a registration against Zeea and 2229074 Ontario Corp. (which, for greater certainty, is a distinct entity from 222),
Details of those registrations are attached hereto at Schedule “A”, We have not reviewed the security documents with respect to these registrations and express no opinion with respect these registrations.
D. OTHER REGISTRATIONS ON TITLE
We note that there is additional registration on title to the Premises, being a Lien in the amount of $92,712 that was registered on September 19, 2014 as Instrument No. AT3693101 in favour of Her Majesty the Queen in Right of Canada as represented by the Minister of National Revenue.
We have not reviewed this instrument and express no opinion with respect to this registration.
E. ASSUMPTIONS
In connection with the opinions contained in this letter, we have assumed the following:
1. the entering into, execution and delivery of the Security to BDC has been duly authorized by all necessary resolutions and other corporate actions on the part of each of the Debtors, as applicable;
Aird & Berlis llp
Barristers and Solicitors
2.
-5 -
the Security has been executed and delivered to BDC by a director and/or officer of each of the Debtors, as applicable, duly authorized to execute and deliver those documents, and the signatures on the copies of the Security examined by us are those of the duly authorized director and/or officer of each of the Debtors, as applicable;
3. the Security constitutes valid and enforceable obligations of each of the Debtors, as applicable, to BDC as security for the Debtors’ respective obligations to BDC, subject to the requirements of the PPSA, the Bankruptcy and Insolvency Act (Canada) (the “BIA”), the Mortgages Act (Ontario) and the Planning Act (Ontario);
4. the Security has been unconditionally delivered by each of the Debtors, as applicable, to BDC;
5. the Security has not been assigned, released, discharged or otherwise impaired, either in whole or in part;
6. the financing statements filed under the PPSA in respect of the Security, if any, were completed in compliance with the regulations under the PPSA and copies thereof were delivered to each of the Debtors, as applicable, in accordance with the provisions of the PPSA;
7. each of the Debtors is indebted to BDC and received adequate consideration for the grant of the Security, as applicable;
8. the genuineness of the signatures and the conformity to authentic original documents of the documents submitted to us as photocopies, electronic copies or fax copies, and all documents were fully completed prior to signature;
9. “2159372 Ontario Limited”, “Zeea Marketing Inc.” and “2222603 Ontario Inc.” were the proper legal names of each of the Debtors, respectively, at the time of execution and delivery of the Security, as applicable, and these names have not subsequently changed;
10. each of the Debtors was a valid and subsisting corporation at the time of execution and delivery of the Security, as applicable;
11. copies of the PPSA searches examined by us in connection with the opinions given herein were complete and accurate when examined and continue to reflect registrations against each of the Debtors, as of the date hereof;
12. each of the Debtors, as applicable, and BDC intended the security interests created by the Security to attach, value has been given and each of the Debtors obtained rights in the collateral secured by the Security; and
13. all facts set forth in official public records and other documents supplied by public officials or otherwise conveyed to us by public officials are complete, true and accurate.
t
Aird & Berlis LLPBarristers and Solicitors
-6-
F. QUALIFICATIONS
The opinions that we have expressed in this letter are further subject to the following qualifications:
1. we express no opinion as to the right, title or interest of any of the Debtors in or to any of their respective assets, undertakings and properties, including without limitation, in the case of 215, its right, title or interest, if any, in the Premises;
2. we express no opinion on whether any secured party may have a perfected purchase money security interest which may exist in respect of any of the assets, undertakings and properties of the Debtors;
3. we express no opinion as to whether a security interest was created in the following property:
(a) property consisting of a receivable, license, approval, privilege, franchise, permit, lease or agreement to the extent that the terms of such property or any applicable law prohibit its assignment or require, as a condition of its assignability, a consent, approval or other authorization or registration which has not been made or given;
(b) permits, quotas or licenses which are held by or issued to the Debtors;
(c) federal crown debts; and
(d) any real property or interest therein;
4. we have made no searches under applicable statutes, including the Copyright Act (Canada), the Patent Act (Canada) and the Trade-marks Act (Canada), to confirm that BDC has made registrations that may be necessary to perfect its security interests, if any, in intellectual property;
5. we express no opinion as to the ranking or priority of any of the Security in relation to the security interests, liens (including construction liens and any holdbacks required to be maintained pursuant to the Construction Lien Act (Ontario)) or trust claims of any other party, if any;
6. the validity, binding effect and enforceability of the Security may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, winding-up, moratorium, or other similar laws affecting the enforceability of creditors’ rights generally;
7. the rights and remedies of BDC contained in the Security may be subject to and affected by general principles of equity;
Aird & Berlis LLPBarristers and Solicitors
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8. no opinion is expressed as to the enforceability of any provision in the Security which suggests that modifications, amendments or waivers of or with respect to any of the Security that are not in writing will not be effective;
9. no opinion is given regarding any provision in the Security which purports to relieve a person from a liability or duty otherwise owed or to require compliance regardless of law;
10. we express no opinion as to the effect of those provisions of the Security which purport to allow the severance of invalid, illegal or unenforceable provisions or restricting their effect;
11. enforcement of the Security may be affected or limited by any collateral agreements or arrangements relating thereto entered into between the parties thereto, of which we are not aware;
12. enforcement of the rights to indemnity, contribution and waiver of contribution may be limited or voided by applicable law and may not be ordered by a court on grounds of public policy;
13. the enforceability of the Security is subject to the Limitations Act, 2002 (Ontario), and we express no opinion as to whether a court may find that any provision of the Security will be unenforceable as an attempt to vary or exclude a limitation period under that statute;
14. we express no opinion as to the enforceability of any provision of the Security which may be characterized by a court as an unenforceable penalty and not as a genuine pre-estimate of damages;
15. we express no opinion as to the application of the Securities Act (Ontario);
16. we express no opinion as to the enforceability of any provision of the Security:
(a) which purports to waive all defences which might be available to, or constitute a discharge of the liability of the Debtors and or any party thereto;
(b) to the extent it purports to exculpate, or provide indemnity to, BDC, its agents or any receiver, manager or receiver-manager appointed by it from liability in respect of acts or omissions which may be illegal, fraudulent or involve wilful misconduct; or
(c) which states that amendments or waivers of or with respect to the Security that are not in writing will not be effective;
17. we express no opinion as to any provision of the Security which states that any failure to exercise, or any delay in exercising, any right or remedy shall not operate as a waiver thereof;
Aird & Berlis LLPBarristers and Solicitors
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18, we have not explored and express no opinion as to whether the Security may be successfully attacked as a preference under section 95 of the BIA or any similar provincial legislation;
19, a waiver of a provision of applicable law may not be effective;
20, any provision which is considered to offend public policy or to contravene laws of public order may not be enforceable;
21, to the extent that the Security purports to extend the benefit thereof to persons who are not parties to the Security, those persons may be unable to enforce that benefit;
22, no opinion is given as to security interests which are not registered on title to the Premises;
23, the enforceability of the Charge or the GAR, as applicable, may be subject to the terms of any instruments or encumbrances registered on title to the Premises in priority to the Charge, the GAR and/or any instruments or encumbrances to which BDC has agreed to postpone registered on title to the Premises subsequent to the Charge or the GAR, as applicable; and
24, we have not conducted any title or off-title searches in connection with the Premises other than a review of the parcel pages, Without limiting the generality of the foregoing, we have not conducted any searches for compliance of the Charge, the GAR or 215’s title to the Premises with the terms of the Planning Act (Ontario).
The opinions that we have expressed in this letter are limited to the laws of the Province ofOntario and the federal laws of Canada applicable in Ontario. We trust that the foregoingopinions are satisfactory for your purposes. If you should have any questions or require furtherclarification in any respect, please do not hesitate to contact us,
Yours very truly,
AIRD & BERLIS llp
Aird & Berlis llp
Barristers and Solicitors
9
SCHEDULE“A”PPSA SEARCH SUMMARY
Enquiries and searches were made against 2159372 Ontario Limited, Zeea Marketing Inc. and 2222603 Ontario Inc. at the registration system maintained pursuant to the PPSA, The currency of each of the PPSA searches is June 21, 2015. Such enquiries and searches failed to disclose any undischarged registrations, filings or recordings with respect to the aforementioned names except as follows:
Legend:
A - Accounts DOM- Date of Maturity I - Inventory 0 - OtherCF- Caution Filing E - Equipment MV - Motor Vehicle RSLA Repair & Storage
Lien ActCG - Consumer
GoodsGCD - General Collateral
Description;NFMD - No Fixed Maturity
Date$- Amount
2159372 Ontario LimitedRegistration Number File
NumberExpiry .Date '
Debtoi Secured Party Collateral Classilicalu ii IK
scription1. 20131028 1312 1862 7613
Amended to include MV in the collateral classification by 20131112 1443 1862 8881 Renewed for 6 years by 20140819 1557 2611 6986
691373358 Oct 28, 2044
2159372OntarioLimited
ZeeaMarketing Inc.
Business Development Bank of Canada
I, E, A, 6, MV
2. 20130909 1041 1529 6446 690107544 Sept 9, 2018
2159372 Ontario Ltd
Adriana VDiinacopotilos(04Jull978)
BMW Canada Inc
CG, E, O, MV $100,910 NFMD 2013 Porsche Panamera w/VIN
1. 20131028 1312 1862 7613 Amended to include MV in the collateral classification by 20131112 1443 1862 8881 Renewed for 6 years by 20140819 15572611 6986
691373358 Oct 28, 2044
2159372OntarioLimited
ZeeaMarketing Inc.
Business Development Bank of Canada
I, E, A, O, MV
2. 20130215 1051 1529 6093 684733662 Feb 15, 2016
ZeeaMarketing Inc
2229074 Ontario Corp
Ford Credit Canada Leasing, a division of Canadian Road Leasing Company.
1, 20150123 1159 1590 8435 Renewed for 6 years by 20150123 1452 1590 8452
703161963 Jan 23, 2046
2222603 Ontario Inc,
Business Development Bank of Canada
r, E, A, O, MV
23152553,3
Aird & Berlis llpBarristers and Solicitors
Tab H
Court File No. CV-15-10829-OOCL
ONTARIOSUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
BETWEEN:
BUSINESS DEVELOPMENT BANK OF CANADAApplicant
• and -
2159372 ONTARIO LIMITED, ZEEA MARKETING INC. and 2222603 ONTARIO INC.
Respondent
Affidavit of DAVID FILICE (Sworn September 14,2015)
1, David Filice, of the City of Vaughan, in the Province of Ontario MAKE OATH AND SAY:
1. I am a Senior Vice President and a licensed Trustee with The Fuller Landau Group Inc.,
the Court Appointed Receiver (the “Receiver”) of 2159372 Ontario Limited (“215”),
Zeea Marketing Inc. (“Zeea”), and 2222603 Ontario Inc. ( “222” and together with 215
and Zeea, the "Debtors”), and as such have knowledge of the matters deposed to herein,
except where such knowledge is stated to be based on information and belief, in which
case I state the source of the information and verily believe such information to be true.
2. The Receiver was appointed, without security, of all of the assets, undertakings and
properties of the Debtors by Court Order dated June 2, 2015.
3. The Receiver has prepared Statements of Account in connection with its appointment as
Receiver detailing its services rendered and disbursements incurred for the period from
June 2, 2015 through to the date of August 31, 2015. Attached hereto and marked as
Exhibit “A” to this my Affidavit are copies of the Statements of Account. The hours
detailed in the Statements of Account are charged at the normal billing rates and charges
of the personnel of The Fuller Landau Group Inc. and as referenced in the Statements of
Account. The average hourly rate in respect of the account is $401.95.
4. This Affidavit is made in support of a motion to, inter alia, approve the activities of the
Receiver and its accounts.
SWORN before me at the City of ) Toronto, in the Province of Ontario ) this If^day of September, 2015. )
'VYKWzi/ )A Commissioner, etc.
DAVID FILICE
Minna Linda Niva, a Commissioner, etc., Province of Ontario, for The Fuller Landau Group Inc. and Its associates and affiliates. Expires August 20, 2018.
Attached is Exhibit “A”
Referred to in the
AFFIDAVIT OF DAVID FILICE
Sworn before me
This/1/ day of September, 2015
_____
Commissioner for taking Affidavits, etc
SSPS
2159372 Ontario Limited, Zeea Marketing Inc., and 2222603 Ontario Inc. Summary of fees
Business Development Bank of Canada 70 York Street Suite 1202Toronto, ON M5J 1S9
Attention: Ms. Ruth Thomson
Invoice No. 110200
Client No. 1306257:01 DAF
INVOICE
TO PROFESSIONAL SERVICES RENDERED:
With respect to our appointment as Court Appointed Receiver of 2159372 Ontario Limited, Zeea Marketing Inc., and 2222603 Ontario Inc. for the period June 2, 2015 to June 30, 2015 as set out in the attached detailed time dockets.
5 23,040.00
____________2,995.20
$_______ 26,035.20
OUR STANDARD FEE D. Filice - 45.50 @ $450/hr.M. Niva-11.20 @ $225/hr.S. Murphy- 0.50@ $90/hr.
Note:
Wire funds to Account No. 145057-001, Branch No. 10002, Institution Code 016, Swift Code HKBCCATT
Our fee.................
HST.........................
BALANCE DUE
HST Registration No. R130795669
Payment Is due on receipt of account.Amount outstanding In excess of thirty days will be charged interest at 12% per annum until paid In full.
Client No. 1306257:01 DAF Invoice No. 110200Please complete and return or visit the Client Resources section on our website at www.fullerlandau.com
if you wish to pay your account by Visa or MasterCard
Business Development Bank of Canada 70 York Street Suite 1202Toronto, ON M5J 1S9
Attention: Ms, Ruth Thomson
Invoice No. 110843
Client No. 1306257:01 DAF
INVOICE
TO PROFESSIONAL SERVICES RENDERED:
With respect to our appointment as Court Appointed Receiver of 2159372 Ontario Limited, Zeea Marketing Inc., and 2222603 Ontario Inc. for the period July 1, 2015 to July 31, 2015 as set out in the attached detailed time dockets.
OUR STANDARD FEED. Fllice-16.80 @$450/hr.M. Niva - 6.60 @ $225/hr.
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THE FULLER LANDAU GROUPinc
August 31, 2015
Business Development Bank of Canada 70 York Street Suite 1202Toronto, ON M5J 1S9
Attention: Ms. Ruth Thomson
Invoice No. 111008
Client No. 1306257:01 DAF
INVOICE
TO PROFESSIONAL SERVICES RENDERED:
With respect to our appointment as Court Appointed Receiver of 2159372 Ontario Limited, Zeea Marketing Inc., and 2222603 Ontario Inc. for the period August 1, 2015 to August 31, 2015 as set out in the attached detailed time dockets.
OUR STANDARD FEE D. Filice-16.90 @$450/hr.M. Niva - 2.55 @ $225/hr.M. Baxter-0.17 @$115/hr.
Wire funds to Account No. 145057-001, Branch No. 10002. Institution Code 016, Swift Code HKBCCATT
HST Registration No. R130795669
Payment is due on receipt of account.Amount outstanding in excess of thirty days will be charged interest at 12% per annum until paid in full.
Client No. 1306257:01 DAF _________________________ invoice No. 111008Please complete and return or visit the Client Resources section on our website at www.fullcrlandau.com
if you wish to pay your account by Visa or MasterCard
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1
Tab I
Court File No. CV-15-10829-00-CL
ONTARIOSUPERIOR COURT OF JUSTICE
COMMERCIAL LIST
BETWEEN:
BUSINESS DEVELOPMENT BANK OF CANADA
Applicant
- and -
2159372 ONTARIO LIMITED, ZEEA MARKETING INC. and 2222603 ONTARIO INC.
Respondents
AFFIDAVIT OF STEVEN L. GRAFF(sworn September 14,2015)
I, STEVEN L. GRAFF, of the City of Toronto, in the Province of Ontario, MAKE
OATH AND SAY AS FOLLOWS:
1. I am a lawyer at Aird & Berlis LLP and, as such, I have knowledge of the matters to
which I hereinafter depose. Aird & Berlis LLP is acting as counsel for The Fuller
Landau Group Inc. (“FLG”), in its capacity as the Court-appointed receiver and manager,
without security, of all of the assets, undertakings and properties of 2159372 Ontario
Limited, Zeea Marketing Inc. and 2222603 Ontario Inc. (collectively, the “Debtors”).
2. Aird & Berlis LLP has prepared statements of account in connection with its mandate as
counsel to FLG, detailing its services rendered and disbursements incurred, namely:
(a) an account dated July 31, 2015 in the amount of $14,929.69 in respect of the
period from June 18, 2015 to July 29, 2015; and
(b) an account dated September 9, 2015 in the amount of $8,566.47 in respect of the
period from August 10, 2015 to September 8, 2015,
(collectively, the “Statements of Account”).
Attached hereto and marked as Exhibit “A” to this Affidavit are copies of the Statements
of Account. The average hourly rate of Aird & Berlis LLP is $391.11.
3. Attached hereto and marked as Exhibit “B” to this Affidavit is a chart detailing the
lawyers, law clerks and articling students who have worked on this matter.
4. This Affidavit is made in support of a motion to, inter alia, approve the attached accounts
of Aird & Berlis LLP and the fees and disbursements detailed therein, and for no
improper purpose whatsoever.
SWORN before me at the City of in the Province of Ontario day of September, 2015
missioner, etc.
Attached is Exhibit “A”
Referred to in the
AFFIDAVIT OF STEVEN L. GRAFF
llComnri
Sworn before me
day of September, 2015
rwwoner for taking Affidavits, etc
IN ACCOUNT WITH: Aird & Berlis llpBarristers and Solicitors
Brookfield Place, 181 Bay Street Suite 1800, Box 754, Toronto, ON M5J2T9 Canada
T 416.863,1500 F 416,863.1515 www, alrdberlls.com
The Fuller Landau Group Inc,151 Bloor Street West 12th FloorToronto, ON M5S 1S4
Attention: Mr. Gary Abrahamson Account No.: 513491
PLEASE WRITE ACCOUNT NUMBERS ON THE BACK OF ALL CHEQUES
File No.: 31507/125302
July 31,2015________________________________________________________________________
Re: Zeea Marketing Inc.
FOR PROFESSIONAL SERVICES RENDERED on your behalf throughout the period ended July 29, 2015
LAWYER DATE RATE / HOUR
TIME VALUE DESCRIPTION
SLG 18/06/15 $725.00 0,20 $145.00 Telephone call with D. Felice re status and next steps
IEA 22/06/15 $425.00 3.00 $1,275.00 Email to and from S. Graff, R. Hooke and client regarding APA; Telephone call with R.Hooke regarding same; Instruct R. Hooke regarding changes to the APA; Emails to and from clients and R, Hooke regarding same; Engaged with reviewing the application record, the order and the endorsement; Instruct S. Morris regarding ordering searches; Engaged with reviewing the BDC security; Instruct J. Nemers and S. Morris regarding preparation of a security opinion; Instruct J. Nemers regarding preparation of motion materials; Emails to and from client and M. Poliak regarding the order, the service list and next steps
KC 22/06/15 $285.00 0,40 $114.00 Receipt and review of instructions;Subsearch title; Draft memo outlining ownership and encumbrance information
SLG 22/06/15 $725,00 0.50 $362.50 Lengthy telephone call with R. Thomson, D.Felice and M. Poliak re bankruptcy of entity and correct approach
Aird & Berlis LLPPage 2 of Account No. 513491
LAWYER DATE RATE/HOUR
TIME VALUE DESCRIPTION
RTH 22/06/15 $650.00 0.80 $520.00 E-mail from I, Aversa; Telephone call to I. Aversa; Review and revise schedule B; Review agreement; E-mail to client; E-mail from J. Nemers; E-mail from K. Connell
SRM 22/06/15 $325.00 0,60 $195.00 Order profiles and PPSA searches; Brief review of same; Begin review of BDC non- neg; Email from K. Connell re parcel abstract and registrations on title
JTN 22/06/15 $285.00 1.40 $399.00 Engaged with drafting of Notice of Motion, draft Ancillary Order, draft Approval and Vesting Order and draft Discharge Order
IEA 23/06/15 $425.00 0.50 $212.50 Conference call with client, M. Poliak and S. Graff regarding update and next steps; Emails to and from J. Nemers and S. Morris regarding security opinion and PPSA searches
SRM 23/06/15 $325.00 0.60 $195.00 Review certified PPSA searches and report on same
IEA 25/06/15 $425.00 0.30 $127.50 Emails to and from M. Poliak, S. Graff and clients regarding update and next steps; Emails to and from R, Hooke and J. Nemers regarding the draft motion material
SLG 25/06/15 $725.00 0.10 $72.50 Email on approach to bankruptcy
SRM 28/06/15 $325.00 2.00 $650.00 Revise non-neg security granted to BDC and prepare security opinion re same
IEA 29/06/15 $425.00 0.30 $127.50 Emails to and from S. Morris and J. Nemers regarding the security opinion; Instruct J. Nemers regarding same
IEA 06/07/15 $425.00 0.50 $212.50 Telephone call with J. Nemers regarding security opinion; Instruct J. Nemers regarding email to M. Poliak; Emails to and from M. Poliak and J, Nemers regarding security granted to 222; Discuss with J. Nemers regarding same; Emails to and from C. McNeill and J. Nemers regarding same
CAM 06/07/15 $550.00 0.10 $55.00 Emails to and from J. Nemers regarding security review
JTN 06/07/15 $285.00 2.00 $570,00 Engaged with revisions to security review; Email to M. Poliak re request for securityissued by 222; Receipt and review of same;
Aird&Berlis LLPPage 3 of Account No. 513491
LAWYER DATE RATE / HOUR
TIME VALUE DESCRIPTION
Engaged with further revisions to security review; Email draft to C. McNeill for real property review
IEA 07/07/15 $425.00 0.60 $255.00 Emails to and from client and S, Graff regarding letter to the company; Engaged with reviewing emails regarding same; Instruct J. Nemers regarding preparation of letters; Engaged with reviewing and revising the letters and emails to and from client and J, Nemers regarding same
SLG 07/07/15 $725.00 0.30 $217,50 Emails with D. Felice re information requests; prepare letter to debtor rep; review letter
JTN 07/07/15 $285.00 1.20 $342,00 Draft two letters re client’s outstanding requests for access to certain books and records; Email chain with client re same
IEA 08/07/15 $425.00 0.30 $127.50 Engaged with issuing letters to Z. Munir and A. Dimacopoulus; Emails to and from debtor and client regarding missing documentation
JTN 08/07/15 $285.00 0.30 $85,50 Revise, finalize and arrange delivery for letters re books and records
IEA 10/07/15 $425.00 0.30 $127.50 Emails to and from N. Kahn and J. Nemers re security opinion and next steps
NIK 10/07/15 $650.00 1.50 $975,00 Review opinion letter; Review subsearch of title; Review mortgage and related security documents; Exchange email and voicemail messages with I. Aversa and J. Nemers
JTN 10/07/15 $285,00 0.30 $85.50 Telephone call and follow-up email with N. Kahn re real property security review; Email outcome to I. Aversa
IEA 13/07/15 $425.00 1.50 $637.50 Engaged with reviewing and revising the security opinion and issuing it; Emails to and from J. Nemers regarding same; Emails to and from M. Poliak regarding the hearing; Engaged with reviewing the company's motion record and emails regarding the same; Engaged with reviewing the motion record; Discuss with J. Nemers regarding next steps
JTN 13/07/15 $285.00 0.40 $114.00 Engaged with revisions to and finalization ofsecurity opinion; Email same to client
Aird & Berlis LLPPage 4 of Account No, 513491
LAWYER DATE RATE / HOUR
TIME VALUE DESCRIPTION
IEA 14/07/15 $425.00 0.30 $127.50 Engaged with reviewing documents from M. Poliak re the property; Emails to and from client, M. Poliak and J. Nemers re same; Instruct J. Nemers re same
IEA 15/07/15 $425,00 0.50 $212.50 Emails to and from M. Poliak, client and J.Nemers re sale or property; Instruct J. Nemers re same; Discuss with J. Nemers re same; Emails re the APA; Emails to and from client and J, Nemers re books and records; Instruct J, Nemers re same; Emails to and from M. Poliak and client re the forbearance agreement
JTN 15/07/15 $285.00 0.40 $114.00 Telephone call with D. Filice re general update; Discussion with I. Aversa re same; Receipt and review of executed sale agreement
IEA 16/07/15 $425.00 0.30 $127.50 Emails to and from client and J. Nemers regarding correspondence to M. Matin; Engaged with reviewing same and providing comments; Emails and discussions regarding same
JTN 16/07/15 $285.00 0.50 $142.50 Draft, share with client and send email to principal's counsel enumerating books and records subject to outstanding request
IEA 18/07/15 $425.00 0.20 $85.00 Emails to and from client, M. Poliak and J. Nemers regarding books and records and service list
IEA 20/07/15 $425,00 0.40 $170.00 Emails to and from client and J. Nemers and discussions with J. Nemers regarding same; Emails to and from opposing counsel, client and J. Nemers
SLG 20/07/15 $725.00 0.20 $145.00 Review emails between receiver and company rep re document production
JTN 20/07/15 $285.00 0.80 $228.00 Engaged with assembly of correspondence with A. Dimacopolous for circulation to N. Boyko and H, Saginur and tasks associated therewith
IEA 21/07/15 $425.00 0.20 $85,00 Telephone call with client re hearing and next steps
IEA 22/07/15 $425.00 2.00 $850.00 Attend hearing; Emails to and from client and M. Poliak re same; Emails to and from
Aird & Berlis LLPPage 5 of Account No. 513491
LAWYER DATE RATE / HOUR
TIME VALUE DESCRIPTION
client and M. Poliak re lease; Engaged with reviewing lease
IEA 23/07/15 $425,00 0.20 $85.00 Emails to and from M. Poliak and J. Nemers re order and endorsement
IEA 24/07/15 $425.00 1.00 $425.00 Emails to and from client, M. Poliak and J. Nemers regarding correspondence from Argi; Instruct J. Nemers regarding same; Engaged with reviewing the application record regarding the guaranee claim and emails to and from client and J. Nemers regarding same; Emails to and from M. Poliak regarding the draft bankruptcy order
SLG 24/07/15 $725.00 0.10 $72.50 Discussion re dealing with emails
JTN 24/07/15 $285.00 1.10 $313.50 Receipt and review of threatening emails; Discussions, telephone calls and emails with S. Graff, I. Aversa and S. Sood re same; Email possible next steps to client re same
SS 24/07/15 $550.00 0.40 $220.00 Review and consider email chain; Confer with J. Nemers regarding reporting matter police; Draft and revise email
IEA 27/07/15 $425.00 0.30 $127.50 Emails to and from client and M. Poliak regarding correspondence from Agri; Instruct J, Nemers regarding same
SLG 27/07/15 $725.00 0.20 $145.00 Review letter re communications with T rustee
JTN 27/07/15 $285.00 0.80 $228.00 Draft letter to A. Dimacopoulos re recent email correspondence; Discussion with S. Graff re same; Email same to client for approval
IEA 28/07/15 $425.00 0.50 $212.50 Emails to and from Agri and client regarding correspondence to Agri; Emails to and from R. Thomson and client regarding emails; Telephone call with H, Saginur and J, Nemers; Instruct J. Nemers regarding update email to client; Emails to and from client and J. Nemers regarding same
JTN 28/07/15 $285.00 0.50 $142.50 Attend on conference call with I. Aversa andH. Saginur; Email re same to client
Aird & Berlis LLPPage 6 of Account No. 513491
LAWYER DATE RATE / HOUR
TIME VALUE DESCRIPTION
IEA 29/07/15 $425.00 0.90 $382.50 Emails to and from client and J. Nemers; Emails to and from M. Poliak regarding bankruptcy order; Engaged with reviewing the bankruptcy order and consent and providing comments; Emails to and from client and M. Poliak regarding same
TOTAL: 31.80 $12,841.00
Name Hours Rate Value
Steven L, Graff (SLG) 1.60 $725.00 $1,160.00Ian E. Aversa (IEA) 14.10 $425,00 $5,992.50Kari Connell (KC) 0.40 $285.00 $114.00Randy T. Hooke (RTH) 0.80 $650,00 $520.00Shannon R. Morris (SRM) 3.20 $325.00 $1,040.00Jeremy T, Nemers (JTN) 9.70 $285.00 $2,764.50Christie A. McNeill (CAM) 0.10 $550.00 $55.00Norman I. Kahn (NIK) 1.50 $650.00 $975.00Sanj Sood (SS) 0.40 $550.00 $220.00
OUR FEEHST at 13%
$12,841.00$1,669.33
DISBURSEMENTS
COST INCURRED ON YOUR BEHALF AS AN AGENT
Subject to HST
Search Under P.P.S.A. $48.00Due Diligence $24.00
Total Agency Costs
Service Provider Fee $27.00Due Diligence $36.00Teraview Search $111.00Photocopies - Local $73.50Postage $10.65Fax Charges $4.00Photocopies $28.50Imaging/Scanning $2.75Binding and Tabs $14.00
$72,00
Aird & Berus LLPPage 7 of Account No. 513491
Total Disbursements HST at 13%
$307.40$39.96
AMOUNT NOW DUE $14,929.69
UNT HEREIN
PAYMENT OF THIS ACCOUNT IS DUE ON RECEIPT
IN ACCORDANCE WITH THE SOLICITORS ACT, ONTARIO, INTEREST WILL BE CHARGED AT THE RATE OF 1.0% PER ANNUM ON UNPAID AMOUNTS CALCULATED FROM A DATE THAT IS ONE MONTH AFTER THIS ACCOUNT IS DELIVERED.
GST / HST Registration # 12184 6639 RT0001
NOTE: This account may be paid by wire transfer in Canadian funds to our account at The Toronlo-Dominion Bank, TD Centre, 55 King Street West, Toronto, Ontario, M5K 1A2. Account number 5221521, Transit number 10202, Swift Code TDOMCATTTOR. Please include the account number as reference.
IN ACCOUNT WITH: Aird & Berlis llpBarristers and Solicitors
Brookfield Place, 181 Bay Street Suite 1800, Box 754, Toronto, ON M5J2T9 Canada
T 416.863,1500 F 416.863.1515 www.airdberlis.com
The Fuller Landau Group Inc.151 Bloor Street West 12th Floor Toronto, ON Canada M5S 1S4
Attention: Mr. Gary Abrahamson '
September 9, 2015
Account No.: 516033
PLEASE WRITE ACCOUNT NUMBERS ON THE BACK OF ALL CHEQUES
File No.: 31507/125302
Re: Zeea Marketing Inc.
FOR PROFESSIONAL SERVICES RENDERED on your behalf throughout the period ended September 8, 2015
LAWYER DATE RATE/HOUR
TIME VALUE DESCRIPTION
IEA 10/08/15 $425.00 0.50 $212.50 Emails to and from M. Poliak and client regarding the hearing; Emails to and from client and J. Nemers regarding the sale transaction; Discussions with J. Nemers and R. Hooke regarding same; Emails to and from proposed purchaser and client regarding proposed extension
RTH 10/08/15 $650.00 0.40 $260.00 Email from J. Nemers; Email re receipt of agreement of purchase and sale; Email from agent re extension; Email to agent; Email from I. Aversa
JTN 10/08/15 $285.00 0.20 $57.00 Emails re status of real property sale
IEA 11/08/15 $425.00 0.50 $212.50 Telephone call and emails to andfrom client re update on the sale transaction and next steps; Engaged with reviewing the bankruptcy order and emails re same; Emails to and from proposed purchaser and client re the sale transaction
RTH 11/08/15 $650.00 0.20 $130.00 Email from client, agent and I. Aversa
JTN 13/08/15 $285.00 1.00 $285.00 Draft, revise and circulate letter re statement of affairs and first meeting of creditors
IEA 12/08/15 $425.00 0.40 $170.00 Telephone call with D. Filice re bankruptcy and next steps; Instruct J. Nemers re preparation of a letter re statement of affairs and first meeting of creditors
IEA 17/08/15 $425.00 0.50 $212.50 Telephone call and emails to and from H. Saginur and client re statement of affairs and first meeting of creditors
IEA 13/08/15 $425.00 1.10 $467.50 Emails to and from client and J. Nemers re correspondence tocounsel for Valentina re first meeting of creditors and draft statement of affairs; Emails to and from counsel for the proposed purchaser and client re the proposed transaction; Engaged with reviewing revised APS and emails to and from client,R. Hooke and J. Nemers re same; Engaged with reviewing draft letter to H. Saginur and providing comments; Discussion with J. Nemers re same; Emails to and from and J. Nemers re same; Instruct J. Nemers to issue letter
IEA 18/08/15 $425.00 0.50 $212.50 Telephone call from client re firstmeeting of creditors; Emails to and from H. Saginur re the first meeting of creditors and the statement of affairs; Telephone call with client re same
IEA 19/08/15 $425.00 0.50 $212.50 Emails to and from H. Saginur re thefirst meeting of creditors and the statement of affairs; Telephone call and emails to and from client resame
Aird & Berlis LLPPage 3 of Account No. 516033
LAWYER DATE RATE / HOUR
TIME VALUE DESCRIPTION
IEA 20/08/15 $425.00 0.60 $255.00 Emails to and from client and H. Saginur regarding the first meeting of creditors and the statement of affairs
IEA 21/08/15 $425.00 0.40 $170.00 Emails to and from H. Saginur and client regarding the first meeting of creditors and the statement of affairs
IEA 31/08/15 $425.00 1.00 $425.00 Telephone calls and emails to and from client and J. Nemers and instruct J. Nemers regarding same
JTN 31/08/15 $285.00 1.10 $313.50 Draft letter to A. Dimacopoulos re correspondence with client; Emails with client re same; Telephone call with client and I. Aversa re Zeea Olives
IEA 01/09/15 $425.00 1.00 $425.00 Telephone calls and emails to and from client and J. Nemers and instruct J. Nemers regarding same
JTN 01/09/15 $285.00 2.20 $627.00 Engaged with review of events fromyesterday that transpired at and/or concerned, as applicable, the real property municipally known as 18 Raitherm Road a.k.a. 10 Gurney Crescent; Draft and revise letter re same; Emails and telephone calls with client re same; Issue letter
AP 01/09/15 $170.00 0.50 $85.00 Conducted prelim and corporate profile search against Zeea Olives Etc. Ltd.; 1474287 Ontario Inc.; and 1508269 Ontario Limited, attended to electronic filing, reviewed, summarised and reported same
AYS 01/09/15 $295.00 0.60 $177.00 Prepare subsearch re subject lands
IEA 02/09/15 $425.00 2.00 $850.00 Telephone calls and emails to and from client and J. Nemers andinstruct J. Nemers regarding same; Instruct J. Nemers regarding review of trustee's report; Engaged with reviewing revised version and providing comments; Telephone call with J. Nemers regarding same; Emails to and from client and J. Nemers regarding same
Aird & Berlis LLPPage 4 of Account No. 516033
LAWYER DATE RATE / HOUR
TIME VALUE DESCRIPTION
JTN 02/09/15 $285.00 1.10 $313.50 Receipt and review of email and voicemail from A. Dimacopoulos; Discussion with I. Aversa and D. Filice re same; Email to M. Martin re same; Receipt and review of emails from H. Saginur; Respond to same; Receipt and review of draft report; Engaged with revisions to same; Email to M. Poliak re court scheduling
IEA 03/09/15 $425.00 1.00 $425.00 Telephone calls and emails to and from J. Nemers and M. Polick regarding hearing date; Instruct J. Nemers regarding motion materials
SLG 03/09/15 $725.00 0.20 $145.00 Review email with Argi and J. Nemers and counsel
JTN 03/09/15 $285.00 1.70 $484.50 Engaged with revisions to draft court materials; Emails with R. Hooke re closing; Coordinate court hearing date and emails to client and M. Poliak re same; Email chain with M. Martin re creditor meeting and A. Dimacopoulos; Emails with H. Saginur re related matters
IEA 04/09/15 $425.00 0.30 $127.50 Emails to and from client, H. Sagineur and J. Nemers
JTN 04/09/15 $285.00 0.40 $114.00 Telephone call with H. Saginur; Follow-up emails to H. Saginur and client re same
IEA 08/09/15 $425.00 0.30 $127.50 Discussions with J. Nemersregarding upcoming motion and next steps regarding same
TOTAL: 20.20 $7,496.50
Name
Ian E. Aversa (IEA) Randy T. Hooke (RTH) Jeremy T. Nemers (JTN) Anita Purushotham (AP) Aaron Y. Silver (AYS) Steven L. Graff (SLG)
Taxi $17.70Imaging/Scanning $5.75Photocopies - Local $3.75Due Diligence $36.00
Total Disbursements $63.20HST at 13% $8.22
AMOUNT NOW DUE $8,566.47
THIS IS OUR ACCOUNT HEREIN Airdj& Berlis LLP
Si§/ven L. Graff
E.&O.E.
PAYMENT OF THIS ACCOUNT IS DUE ON RECEIPT
IN ACCORDANCE WITH THE SOLICITORS ACT, ONTARIO, INTEREST WILL BE CHARGED AT THE RATE OF 1.0% PER ANNUM ON UNPAID AMOUNTS CALCULATED FROM A DATE THAT IS ONE MONTH AFTER THIS ACCOUNT IS DELIVERED.
GST / HST Registration #12184 6539 RT0001
NOTE: This account may be paid by wire transfer in Canadian funds to our account at The Toronto-Dominion Bank, TD Centre, 55 King Street West, Toronto, Ontario, M5K 1A2. Account number 5221521, Transit number 10202, Swift Code TDOMCATTTOR. Please include the account number as reference.
23794610.1
REMIT TO:Aird & Berlis LLP Brookfield Place, Suite 1800 Box 754, 181 Bay Street Toronto, Ontario M5J 2T9 T 416 863 1500 F 416 863 1515
The Fuller Landau Group Inc. File No.: 31507-125302 Account No.: 516033 Date: September 9, 2015
This account may be paid by wire transfer in Canadian funds to our account at The Toronto-Dominion Bank, TD Centre, 55 King Street West, Toronto, Ontario, M5K 1A2. Account number 5221521, Transit number 10202, Swift Code TDOMCATTTOR. Please include the account number as reference.
Attached is Exhibit “B”
Referred to in the
AFFIDAVIT OF STEVEN L. GRAFF
Sworn before me
Commissioner for taking Affidavits, etc
STATEMENT OF RESPONSIBLE INDIVIDUALS
Aird & Berlis LLP’s professional fees herein are made with respect to the following individuals
Lawyer Call to Bar2015
Hrly Rates Total Time Value
Steven L. Graff 1991 $725.00 1.80 $1,305.00
Ian Aversa 2008 $425.00 24.70 $10,497.50
Jeremy Nemers 2014 $285.00 17.40 $4,959.00
Randy Hooke 1989 $650.00 1.40 $910.00
Norman Kahn 1981 $650.00 1.50 $975.00
Christie McNeill 1996 $550.00 0.10 $55.00
Sanj Sood 1999 $550.00 0.40 $220.00
Aaron Y. Silver 2013 $295.00 0.60 $177.00
Clerk/Student Call to Bar Avg Hrly Rate Total Time Value
Shannon Morris N/A $325.00 3.20 $1,040.00
Kari Connell N/A $285.00 0.40 $114.00
Anita Purushotham N/A $170.00 0.50 $85.00
*Standard hourly rates listed. However, in certain circumstances adjustments to the account were made.
