ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST. GREAT LAKES BIODIESEL INC., EINER CANADA INC. and BIOVERSEL TRADING INC.

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1 Court File No. CV CL ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST BETWEEN: HERIDGE S.A.R.L Applicant - and - GREAT LAKES BIODIESEL INC., EINER CANADA INC. and BIOVERSEL TRADING INC. Respondents IN THE MATTER OF AN APPLICATION UNDER SUBSECTION 243(1) OF THE BANKRUTPCY AND INSOLVENCY ACT, R.S.C c. B-3 AND SECTION 101 OF THE COURTS OF JUSTICE ACT, R.S.O. 1990, c. 43 THIRD REPORT TO THE COURT SUBMITTED BY KPMG INC., IN ITS CAPACITY AS RECEIVER OF GREAT LAKES BIODIESEL INC., EINER CANADA INC. AND BIOVERSEL TRADING INC. October 21, 2015

2 TABLE OF CONTENTS Page 1. Introduction, Terms of Reference and Purpose Choses in Action Against NRCAN Stalking Horse APA.8 Page 2 of 10

3 LISTING OF APPENDICES Appendix A - Receiver s First Report to Court dated November 19, 2014 (without appendices) Appendix B - Bidding Procedure Order Appendix C - Stalking Horse APA Appendix D - Receiver s Second Report to Court dated January 21, 2015 (without appendices) Appendix E - Sale Approval Order Appendix F - NRCAN Contribution Agreement Appendix G - NRCAN Termination letter Page 3 of 10

4 1.0 INTRODUCTION, TERMS OF REFERENCE AND PURPOSE 1. Great Lakes Biodiesel Inc. ( GLB ) is incorporated under the laws of the province of Ontario. GLB s principal asset was a biodiesel refinery plant located in Welland, Ontario (the Biodiesel Plant or the Facility ). Einer Canada Inc. ( Einer Canada ) is incorporated under the laws of the province of Ontario and is a holding company that owns 100% of the shares of Bioversel Trading Inc. ( Bioversel Trading, and together with GLB and Einer Canada, the Debtors ), which is also incorporated under the laws of the province of Ontario. 2. On October 10, 2015, the Court granted an Order appointing KPMG Inc., as receiver (the Receiver ), without security, over all of the assets, property and undertakings (the Property ) of the Debtors (the Receivership Order ). 3. Background information summarizing the Debtors proceedings to November 19, 2014 are included in the Receiver s First Report which is attached, without appendices, as Appendix A. Terms not defined herein have their meanings as defined in the Receiver s First Report. 4. On November 24, 2014, the Court granted an Order (the Bidding Procedure Order ): a. Authorizing and directing the Receiver to execute the agreement of purchase and sale of substantially all of the assets of the Debtors (the Stalking Horse Assets ) between Heridge (the Stalking Horse Bidder ) and the Receiver dated November 19, 2014 (the Stalking Horse APA ). The Stalking Horse APA set a minimum Page 4 of 10

5 floor price in respect of a competitive marketing and sale process for the Stalking Horse Assets; b. Approving the Bidding Procedures (including the marketing and sale process to be undertaken by the Receiver to solicit bids for the Stalking Horse Assets described therein) and authorizing and directing the Receiver to carry out the activities prescribed by the Bidding Procedures; c. Deeming the Stalking Horse APA a Qualified Bid (as defined in the Bidding Procedures) and accepted solely for the purposes of the Stalking Horse Bidder s right to participate in the Auction, if any, in accordance with the Bidding Procedures; and d. Increasing the aggregate amount that the Receiver is empowered to borrow from $1,500,000 to $3,500, A copy of the Bidding Procedure Order and the Stalking Horse APA are attached hereto as Appendices B and C, respectively. 6. On January 27, 2015 the Court granted an Order (the Sale Approval Order ): a. Approving the Stalking Horse APA between the Receiver and Heridge S.a r.l (the Purchaser ) dated November 19, 2014; b. Vesting the Stalking Horse Assets in the Purchaser; c. That confirmed that the Receiver shall have no liability under the Tax Administration Act (Quebec) and the Act respecting Quebec Sales Tax (Quebec); and Page 5 of 10

6 d. Approving the Second Report and the actions, conduct and activities of the Receiver described therein. 7. A copy of the Receiver s Second Report (without appendices) and the Sales Approval Order are attached hereto as Appendix D and Appendix E, respectively. 8. This is the Receiver s third report (the Third Report ) to the Court and is filed in respect of the purchase of the choses in action against Her Majesty the Queen in Right of Canada, represented by the Minister of Natural Resources ( NRCAN ). 9. In preparing this Third Report, the Receiver has been provided with, and has relied upon, unaudited financial information, books and records and financial information (collectively, the Information ) prepared by the Debtors and/or their representatives, and discussions with the Debtors management and/or representatives. The Receiver has reviewed the Information for reasonableness, internal consistency and use in the context in which it was provided and in consideration of the nature of evidence provided to this Court, in relation to the relief being sought herein. However, the Receiver has not audited or otherwise attempted to verify the accuracy or completeness of the Information in a manner that would wholly or partially comply with Canadian Auditing Standards ( CAS ) pursuant to the Chartered Professional Accountants Canada Handbook and, accordingly, the Receiver expresses no opinion or other form of assurance contemplated under the CAS in respect of the Information. 10. All references to monetary amounts in this Third Report are in Canadian dollars unless otherwise specified. Page 6 of 10

7 2.0 CHOSES IN ACTION AGAINST NRCAN 11. The Receiver understands that GLB entered into a contribution agreement (the NRCAN Agreement ) with Her Majesty the Queen in Right of Canada, represented by the Minister of Natural Resources on December 6, The NRCAN Agreement is attached as Appendix F. 12. The NRCAN Agreement provided GLB with a subsidy of up to $65,380,000 for the production and sale of Renewable Alternatives to Diesel, each as defined in the NRCAN Agreement. 13. On October 30, 2013 NRCAN provided notice to GLB that the NRCAN Agreement was terminated immediately as GLB had failed to properly commission its facilities, a claim GLB refuted. The notice of termination is attached as Appendix G. 14. Prior to the receivership, GLB had commenced a claim (the Claim ) against NRCAN seeking damages in excess of $60 million for breach of the NRCAN Agreement. It was the Receiver s understanding that Heridge viewed the choses in action and the Claim as an important component of the purchase by Heridge of substantially all of the assets of the Debtors. Page 7 of 10

8 3.0 STALKING HORSE APA 15. The Receivership Order provides that the Receiver is empowered and authorized to sell, transfer, lease or assign the Property outside of the ordinary course of business, with approval of the Court. 16. The Stalking Horse APA, negotiated between the Receiver and Heridge, was approved as part of the Sale Approval Order on January 27, The Stalking Horse APA contemplated the sale of all or substantially all of the Debtors assets (the Purchased Assets ). The Purchased Assets comprised the following: a. Purchased Land being GLB s interest in the Land, the Building and the Fixed Assets which form part thereof; b. Purchased Equipment being all of the Debtor Inventory and Equipment; and c. Remaining Assets being: i. The Accounts Receivable; ii. The BTI Cash; iii. All choses in action of the Debtors; iv. The Assumed Contracts; v. All Intellectual Property and Intellectual Property Rights; vi. All Permits and Licenses; Page 8 of 10

9 vii. All Goodwill; viii. All customer lists relating to the Business; and ix. All Books and Records. 18. The consideration for the Stalking Horse Assets pursuant to the terms of the Stalking Horse APA was as follows: a. Purchased Land: a credit bid by Heridge of $1 million of the outstanding debt borrowed by the Receiver from Heridge in these receivership proceedings pursuant to the terms of the Receivership Order, as amended (the Receivership Debt ); b. Purchased Equipment: a credit bid by Heridge of US$11.5 million (i.e. principal and outstanding interest amounts outstanding under the Debenture) plus $1.185 million (i.e. enforcement costs permitted under the Debenture, approximately $ million in total); and c. Remaining Assets: a credit bid by Heridge $1.5 million of the Receivership Debt. 19. The Sale Approval Order granted by the Court vested all of the Debtors right, title and interest in and to the Purchased Assets to Heridge and Atlantic Biodiesel Corporation ( ABC ), Heridge s permitted assignee of the rights of Heridge under the Stalking Horse APA to purchase the Purchased Land. 20. The Receiver completed each of the sale of the Purchased Assets (other than the Purchased Land) to Heridge and the sale of the Purchased Land to ABC on February 12, 2015 (the Closing Date ). Page 9 of 10

10 21. The Receiver understands that all of the Purchased Assets, including the choses in action acquired by Heridge, were then assigned to ABC following the Closing Date. 22. It is the Receiver s understanding that Heridge/ABC intended to purchase and did purchase, through the Stalking Horse APA, the choses in action against NRCAN. 23. All of which is respectfully submitted this 21 st day of October, KPMG INC., COURT-APPOINTED RECEIVER OF GREAT LAKES BIODIESEL INC., EINER CANADA INC. AND BIOVERSEL TRADING INC. and not in its personal capacity Per: Phillip J. Reynolds Senior Vice President Per: Jorden Sleeth Vice President Page 10 of 10

11 Appendix A Receiver s First Report to Court dated November 19, 2014 (without appendices)

12 Court File No. CV CL ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST BETWEEN: HERIDGE S.A.R.L Applicant - and - GREAT LAKES BIODIESEL INC., EINER CANADA INC. and BIOVERSEL TRADING INC. Respondents IN THE MATTER OF AN APPLICATION UNDER SUBSECTION 243(1) OF THE BANKRUTPCY AND INSOLVENCY ACT, R.S.C c. B-3 AND SECTION 101 OF THE COURTS OF JUSTICE ACT, R.S.O. 1990, c. 43 FIRST REPORT TO THE COURT SUBMITTED BY KPMG INC., IN ITS CAPACITY AS RECEIVER OF GREAT LAKES BIODIESEL INC., EINER CANADA INC. AND BIOVERSEL TRADING INC. November 19, 2014 LEGAL_1:

13 Table of Contents Page 1.0 INTRODUCTION, TERMS OF REFERENCE AND PURPOSE Introduction INTERIM RECEIVER S ACTIVITIES Ongoing Monitoring Insurance RECEIVER S ACTIVITIES Introduction Management, Employees and Contractors Record Retention and Office Move Office Furniture Realizations Rail Cars Demand Letters Heridge Security Opinion Cash in Bioversel Trading s Bank Accounts ASSETS AND LIABILITIES OF THE DEBTORS Assets Liabilities STALKING HORSE APA AND RECEIVER S PROPOSED MARKETING AND SALE PROCESS The Stalking Horse Asset Purchase Agreement Proposed Sale Process and Bidding Procedures Bidding Procedures Observations in Respect of the Sale Process and the Stalking Horse APA RECEIPTS, DISBURSEMENTS AND PROJECTED CASH FLOWS RECOMMENDATIONS LEGAL_1:

14 Listing of Appendices Appendix A - Interim Order dated August 21, 2014 Appendix B - Interim Receivership Order dated August 27, 2014 Appendix C - Receivership Order dated October 10, 2014 Appendix D - The Honourable Justice Pattillo s Reasons for Judgement dated October 10, 2014 Appendix E - Simplified Corporate Organization Chart Appendix F - Interim Receiver s First Report dated September 18, 2014 (without Appendices) Appendix G - Sale Process Bidding Procedures Appendix H - Stalking Horse APA Appendix I - Form of advertisement of assets offered for sale Appendix J - Receiver s Unaudited Projected Cash Flow for the Period August 27, 2014 to January 31, 2015 Appendix K - Interim Receiver s Statement of Receipts and Disbursements Appendix L - Receiver s Statement of Receipts and Disbursements LEGAL_1: Page 1

15 1.0 INTRODUCTION, TERMS OF REFERENCE AND PURPOSE 1.1 Introduction On August 21, 2014, the Honourable Justice McEwan issued an interim order, attached hereto as Appendix A, appointing KPMG Inc. ( KPMG ) as the Court s Officer (the Interim Court Officer ) on a without prejudice basis, in order to monitor the affairs of Great Lakes Biodiesel Inc. ( GLB ), Einer Canada Inc. ( Einer Canada ) and Bioversel Trading Inc. ( Bioversel Trading, and together with GLB and Einer Canada, the Debtors ) pending the return of the application by Heridge S.a.R.L. ( Heridge ) for the appointment of an interim receiver over the property, assets and undertakings of the Debtors (the Property ) On August 27, 2014, the Court issued an order, attached hereto as Appendix B, appointing KPMG as interim receiver (the Interim Receiver ) over the Property of the Debtors pursuant to section 43(1) of the Bankruptcy & Insolvency Act ( BIA ), pending the return of the application by Heridge (the Receivership Application ) for the appointment of a receiver pursuant to section 243 of the BIA and section 101 of the Courts of Justice Act. The Receivership Application by Heridge was contested by the Debtors on the basis that GLB did not owe a debt obligation to Heridge, notwithstanding that a Debenture was granted by GLB in favour of Heridge dated January 1, 2011 (the Debenture ). The Debenture is secured over all of the personal and real property of GLB and guaranteed on an unsecured basis by Einer Canada and Bioversel Trading On October 10, 2014, the Court granted an Order appointing KPMG as receiver (the Receiver ) over all of the Property of the Debtors (the Receivership Order, attached hereto as Appendix C ). The Honourable Justice Pattillo in his written reasons for the appointment of the Receiver dated October 10, 2014 and attached hereto as Appendix D, found that Heridge did in fact loan US$20,000,000 to GLB and that GLB received such loan amount, and that actual consideration was provided by Heridge to GLB GLB is incorporated under the laws of the province of Ontario. GLB s principal asset is a biodiesel refinery plant located in Welland, Ontario (the Biodiesel Plant ). Einer Canada is incorporated under the laws of the province of Ontario and is a holding company that owns 100% of the shares of Bioversel Trading, which also incorporated under the laws of the province of Ontario A simplified organization chart showing the ownership of and relationship between the Debtors is attached as Appendix E. Page 2

16 1.1.6 This is the Receiver s first report (the First Report ) to the Court and is filed to: Report on KPMG s activities in its capacity as Interim Receiver and Receiver since it filed the Interim Receiver s First Report; Report on and/or seek this Honourable Court s approval of: (i) (ii) (iii) (iv) (v) (vi) The execution by the Receiver of the proposed Stalking Horse APA (as defined herein); The Receiver s proposed process for the sale of the Property of the Debtors (the Sale Process ); The Interim Receiver s Statement of Receipts and Disbursements for the period August 27 to October 9, 2014; The Receiver s Statement of Receipts and Disbursements for the period October 10 to November 10, 2014; The projected cash flows of the Receiver beginning from the week ending November 7, 2014 through to the week ending January 30, 2015; and An increase in the Receiver s borrowings of up to $2.0 million In preparing this report, the Receiver has been provided with, and has relied upon, unaudited financial information, books and records and financial information (collectively, the Information ) prepared by the Debtors and/or their representatives, and discussions with the Debtors management and/or representatives. The Receiver has reviewed the Information for reasonableness, internal consistency and use in the context in which it was provided and in consideration of the nature of evidence provided to this Honourable Court, in relation to the relief being sought herein. However, the Receiver has not audited or otherwise attempted to verify the accuracy or completeness of the Information in a manner that would wholly or partially comply with Canadian Auditing Standards ( CAS ) pursuant to the Chartered Professional Accountants Canada Handbook and, accordingly, the Receiver expresses no opinion or other form of assurance contemplated under the CAS in respect of the Information Some of the information referred to in this First Report consists of forecasts and projections. An examination or review of the financial forecasts and projections, as outlined in the Chartered Professional Accountants Canada Handbook has not been performed. Future oriented financial information referred to in this report was prepared based on the Debtors management and/or representatives estimates and assumptions. Readers are cautioned that since projections are based Page 3

17 upon assumptions about future events and conditions that are not ascertainable, the actual results will vary from the projections, even if the assumptions materialize, and the variations could be significant The information contained in this report is not intended to be relied upon by any prospective purchaser or investor in any transaction with the Receiver All references to monetary amounts in this First Report are in Canadian dollars unless otherwise specified. Page 4

18 2.0 INTERIM RECEIVER S ACTIVITIES 2.1 Ongoing Monitoring The Interim Receiver s First Report details KPMG s activities in its capacity as Court Officer and Interim Receiver beginning from the date of each respective appointment to September 18, Between September 18, 2014 and the date of the Receivership Order, the Interim Receiver continued its preservation and monitoring activities of the Debtors, including: a) Maintaining security coverage at the Biodiesel Plant and GLB s head office; b) Continuing the engagement of TWD Technologies ( TWD ), an independent engineering consulting firm, to assist with monitoring the operation of the Biodiesel Plant; c) Reviewing, approving and issuing payments to GLB s contractors and suppliers for services and supplies provided during the Interim Receivership; d) Arranging an extension of GLB s insurance coverage, as discussed more fully below; and e) Responding to inquiries from creditors regarding the status of the Debtors and the consequences of the Interim Receivership The Interim Receiver s First Report (without Appendices) is attached hereto as Appendix F. 2.2 Insurance GLB maintained comprehensive business and liability insurance coverage on the Biodiesel Plant with a renewal date of October 11, As the policy was expiring during the Interim Receivership period, and it was unknown at this time whether a receiver would be appointed, the Interim Receiver arranged for a 90-day extension of GLB s current insurance coverage. In the Interim Receiver s view, this extension provided an appropriate coverage period if a receiver was appointed or, if a receiver was not appointed, to ensure that GLB would be able to negotiate a full renewal or obtain alternative coverage thereafter To obtain the extension, the Interim Receiver was required to agree to a non-refundable extension of coverage for a 90-day term at a total cost of approximately $91,000 which was paid by the Receiver. The insurance coverage expires on January 10, The Receiver is advised by its Page 5

19 insurance broker that the incumbent insurer may extend coverage on substantially the same terms if required beyond that date. Page 6

20 3.0 RECEIVER S ACTIVITIES 3.1 Introduction The following sets out the Receiver s primary activities to date since the issuance of the Receivership Order. 3.2 Management, Employees and Contractors Following its appointment, the Receiver met individually with certain head office employees and employee contractors of GLB. Pursuant to section 17 of the Receivership Order, on October 13, 2014, the Receiver, on behalf of the Debtors, terminated three head office employees. On November 7, 2014 the CFO was terminated by the Receiver, on behalf of the Debtors. Prior to the termination of the CFO, the employment of the CFO was continued in order to complete the Debtors financial records and compile due diligence information required by the Receiver for the Sale Process. The CFO remains available to assist the Receiver as needed and will be compensated on an hourly basis. Pursuant to its powers under section 4(c) of the Receivership Order, on October 13, 2014 the Receiver advised three independent contractor arrangements that their services will no longer be needed. On October 29, 2014, the Receiver advised a fourth independent contractor that their services would no longer be needed The Receiver notes that 16 employees continue to be employed by the Debtors at the Biodiesel Plant. These employees are trained and qualified in the plant s operations and are necessary to ensure that the Debtors meet the minimum number of employees required in order to safely maintain the Biodiesel Plant in its idled state None of the Debtors employees or former employees have any unpaid priority wage claims. 3.3 Record Retention and Office Move Following its appointment, the Receiver directed GLB staff and representatives of Bioversel Trading and Einer Canada to update the Debtors records and prepare tax and other statutory filings to the Receivership Date. The Receiver also worked with GLB staff to compile records and information that would be required by potential purchasers to complete their diligence. Lastly, the Receiver took possession of the books and records and implemented the necessary protections to maintain the security of the Debtors computer systems. Page 7

21 3.3.2 The Receiver determined that it would not require GLB s leased head office premises located at 77 Bloor Street West in Toronto, Ontario, beyond October 31, 2014 and wrote the landlord on October 20, 2014 to advise that the Receiver would pay rent for October and vacate the premises on October 31, On that date, the Receiver and GLB staff moved all of the Debtors records to the Receiver s office and the Debtors head office computers and related assets were moved to the Biodiesel Plant Following the Interim Receiver s appointment, a director of Bioversel Trading and representative of Einer Canada, Mr. Arie Mazur ( Mazur ), delivered to GLB s head office, the physical records in respect of Einer Canada and Bioversel Trading that were in Mazur s possession. However, the Receiver has been unable to locate any records in respect of Bioversel Trading or Einer Canada for the period. Mazur advised the Receiver that all of the records in respect of these entities and that were in his possession had been delivered to the Receiver. Notwithstanding the absence of these records, the Receiver understands that activity was conducted by these entities as Bioversel Trading s 2012 internal financial statements show over $13 million of revenue in that year and Einer Canada entered into a $3 million lending agreement with Meridian Credit Union in June The Receiver advised the Debtors counsel of the missing records and requested that they inquire of their client as to the whereabouts of the missing records for the years 2010 to 2014 for these entities. Counsel to the Debtors advised the Receiver that such inquiries were repeatedly made of his clients and he is advised that they have provided all of the records related to Bioversel Trading and Einer Canada that are in their possession. 3.4 Office Furniture Realizations The Receiver invited proposals from four auctioneers to outright purchase the office furniture and equipment at the head office of the Debtors. Two auctioneers submitted written offers. In addition, the landlord made an offer to purchase the office furniture for $12,000 plus HST, which was the highest of the offers received. Accordingly, the Receiver accepted the landlord s offer and anticipates concluding the sale in the week ending November 21, Rail Cars GLB leased 25 rail cars under a sub-lease agreement with Dyno-Nobel at a cost of approximately $39,000 per month. Management advised the Interim Receiver that GLB required the rail cars once production resumed (i.e. if Heridge s application for a receiver was unsuccessful). Accordingly, Page 8

22 the Interim Receiver approved a payment to Dyno-Nobel in respect of the Interim Receivership period (an amount funded through the issuance of Receiver s certificates) Following its appointment, the Receiver consulted with Heridge with respect to terminating the rail car lease with Dyno Nobel and returning the rail cars in order to decrease the overall costs of maintaining the Biodiesel Plant. As the Receiver does not intend to resume production and ship biodiesel and the lease contract was not considered to have value to a prospective purchaser, the Receiver, in consultation with Heridge, terminated the sub-lease on November 5, Demand Letters The Debtors financial statements report amounts due to the Debtors from individuals (e.g. current/former shareholders, employees, directors and/or officers) or related entities of the Debtors (the Related Party Receivables ). The books and records of the Debtors indicate that the Related Party Receivables total approximately $10 million. On November 7, 2014, the Receiver issued letters to all such related parties demanding that they issue payment of outstanding amounts to the Receiver. To date the Receiver has not realized any collections in respect of the aforementioned amounts due. 3.7 Heridge Security Opinion At the request of the Receiver, Osler has reviewed the Debenture held by Heridge over the assets of GLB in Ontario, which includes personal property security and a mortgage registered on the Welland real property (the Land ) upon which the Biodiesel Plant is located (collectively, the GLB Assets ). Osler has verbally advised the Receiver that, in their view, Heridge has a validly perfected security interest and properly registered mortgage over the GLB Assets, subject to standard qualifications. Copies of the opinions will be provided to the Court upon request and to any interested party requesting a copy of same who confirms certain matters to the Receiver, including matters relating to privilege, reliance, liability to such party and disclosure The Debenture was not registered on the Land prior to the commencement of these Receivership proceedings. Pursuant to section 13 of the Receivership Order, nothing shall prevent the filing of any registration to preserve or perfect a security interest or prevent the registration for a claim for a lien. Accordingly, following the commencement of these Receivership proceedings, on November 11, 2014, Heridge registered the Debenture over the Land. Page 9

23 3.8 Cash in Bioversel Trading s Bank Accounts Bioversel Trading currently has a bank account with Meridian Credit Union Limited ( Meridian ), which account has a balance of approximately $2.1M (the Bioversel Trading Cash ). As described in the Interim Receiver s First Report, these funds were received during the Interim Receivership period on account of corporate income tax refunds previously filed by Bioversel Trading. Meridian is currently holding these funds in a frozen account Meridian extended an operating line to Einer Canada pursuant to a credit agreement dated May 30, 2012 (the Credit Agreement ) in the principal amount of $3,000,000 with interest at the prime rate plus 1.50%. Currently, approximately $960,000 remains outstanding and owing to Meridian under the Credit Agreement. The obligations under the Credit Agreement were secured over all of the Property of Einer Canada and were guaranteed on a secured basis over the GLB Assets and all of the Property of Bioversel Trading Osler has reviewed the security granted by the Debtors in favour of Meridian and has verbally advised the Receiver that Osler is of the view that Meridian has good, valid, and enforceable security over the Property of the Debtors. Copies of the opinions will be provided to the Court upon request and to any interested party requesting a copy of same who confirms certain matters to the Receiver, including matters relating to privilege, reliance, liability to such party and disclosure. Page 10

24 4.0 ASSETS AND LIABILITIES OF THE DEBTORS 4.1 Assets The Debtors assets principally consists of: a) GLB s ownership interest in the Biodiesel Plant, which includes the Land, a biodiesel refinery, related production equipment and a small office building; b) The Bioversel Trading Cash; c) The Related Party Receivables; and d) Other potential assets, including choses in action of the Debtors as well as the permits and licenses issued to the Debtors As noted in the Interim Receiver s First Report, the Biodiesel Plant is maintained by the Receiver, in consultation with TWD, in an idled state such that the plant and onsite chemicals and inventory are maintained in a manner that will more effectively permit the plant to resume operations on relatively short notice. 4.2 Liabilities The Receiver s understanding of the Debtors liabilities as at the date of the Receivership Order is summarized in the table below. Detailed amounts for each of the Debtors are presented separately below. Claims GLB Einer Canada Bioversel Trading Secured $ 23,039,808 $ 960,000 $ 960,000 Unsecured 7,959,396 21,631,111 17,657,682 Contingent 28,994,000 2,779,500 2,779,500 Total $ 59,993,204 $ 25,370,611 $ 21,397,182 Page 11

25 Great Lakes Biodiesel Inc. Summary of secured, unsecured and contingent liabilities As at October 10, 2014 Secured Obligations Creditor Currency Amount F/X Rate C$ Amount Notes Heridge Sarl USD $ 11,504, $ 12,540,256 -Confirmed by Justice Patillo on October 10, Consists of Principal US$20M less repayments US$10.7M plus interest $US2.2M, secured over the GLB assets Heridge Sarl CDN $ 1,185, $ 1,185,464 -Enforcement expenses related to the Debenture Debt Reneos Limited CDN $ 6,811, $ 6,811,921 -Registration occurred in June Reneos is a related company that controls GLB Quantum Murray CDN $ 1,100, $ 1,100,000 -Construction lien claim registered on the Land in the amount presented as filed Conestogo Electircal CDN $ 261, $ 261,567 -Construction lien claim registered on the Land in the amount presented as filed City of Welland CDN $ 180, $ 180,000 -Unpaid property taxes registered as a charge on the Land Meridian Credit Union CDN $ 960, $ 960,600 -The debt is secured over all of the Property of the debtors including the Land Total Secured Obligations $ 23,039,808 Unsecured Obligations Creditor Currency Amount F/X Rate C$ Amount Notes Trade creditors - 3rd party CDN $ 2,621, $ 2,621,000 All appear to be third party Atlantic Coast Renewables (ACR) CDN $ 4,796, $ 4,796,183 Relates to advances for future sales. ACR is a related entity to GLB. GLB also has a receivable due to it from ACR in respect of Blender's Tax Credits generated from ACR's sale of Biodeisel to 3rd party customers in the US Einer Energy Sarl CDN $ 542, $ 542,213 Einer Energy Sarl is related to GLB through common ownership Total Unsecured Obligations $ 7,959,396 Total Secured & $ 30,999,204 Unsecured Obligations Contingent Claims Creditor Currency F/X Rate C$ Amount Notes East Guardian SPC ("EG") USD $ 23,000, $ 25,070,000 $30 million advanced, GLB repaid to $21 million + $2 million of accrued interest according to EG materials. Amount as claimed by EG in materials filed in Court Massive Dynamic Industry Limited USD $ 3,600, $ 3,924,000 GLB guarantee of funds advanced to Orense by Massive Dynamic Total Contingent Claims $ 28,994,000 Note: Other than what is discussed herein, the Receiver has not validated any of the above listed creditor claims As noted above, Osler has verbally opined to the Receiver that Heridge has a validly perfected security interest over the GLB Assets. The Receiver notes that Heridge has advised that it first registered its security interest on March 29, 2011 and that its security interest was improperly de- Page 12

26 registered in June Heridge s security interest was re-registered by its counsel in August The Receiver understands that Heridge intends to bring a motion to the Court for an Order clarifying the date of its registration of its security interest In addition to amounts loaned to GLB under the Debenture, Heridge is the lender to the Receiver in these Receivership proceedings. Pursuant to the Receivership Order, the Receiver is authorized to borrow funds (the Receivership Debt ) in the maximum principal amount of $1.5 million to fund the Receivership proceedings. To date, the Receiver has borrowed and issued receiver certificates totalling $1.5 million to fund the disbursements of the Interim Receiver and Receiver. As discussed below, the Receiver is seeking to increase the Receivership Debt by up to $2.0 million which, if approved, could increase the Receivership Debt to up to $3.5 million The Receiver understands that Reneos is a controlling shareholder of GLB. Reneos debt arose pursuant to a settlement agreement between Orense Investments Limited ( Orense ), Reneos and GLB dated April 4, 2014 whereby Orense consented to the transfer by GLB of Orense s debt to Reneos and Orense forgave the debt due to it from GLB. Page 13

27 Einer Canada Inc. Summary of secured, unsecured and contingent liabilities As at October 10, 2014 Secured Obligations Creditor Currency Amount F/X Rate C$ Amount Notes Meridian Credit Union CDN $ 960, $ 960,600 -The debt is secured over all of the Property of the debtors including the Land Total Secured Obligations $ 960,600 Unsecured Obligations Creditor Currency Amount F/X Rate C$ Amount Notes Heridge Sarl USD $ 11,504, $ 12,540,256 -Unsecured guarantee of GLB's obligations pursuant to the Debenture Heridge Sarl CDN $ 1,185, $ 1,185,464 -Unsecured guarantee of GLB's obligations pursuant to the Debenture Trade creditors CDN $ 370, $ 370,195 All appear to be non-related third party trade payables Trade creditors USD $ 189, $ 206,238 All appear to be non-related third party trade payables Bioversel Trading Inc. CDN $ 2,357, $ 2,357,455 Einer Canada is the 100% shareholder of Bioversel Trading Sergey Akulov CDN $ 4,814, $ 4,814,029 Former officer and director of Einer Canada Great Lakes Biodiesel CDN $ 78, $ 78,820 Per Einer Canada finanical statements Praveen Investing Inc. CDN $ 78, $ 78,654 Praveen is controlled by Mazur Kazunaygas Trading AG (formerly Vector Energy AG) USD $ 71,000, $ 71,000,000 Judgement creditor Total Unsecured $ 92,631,111 Obligations Total Secured & $ 93,591,711 Unsecured Obligations Contingent Claims Creditor Currency Amount F/X Rate C$ Amount Notes Petro Diamond Inc. USD $ 2,550, $ 2,779,500 Judgement against Einer Canada, Verdeo, Bioversel Trading Inc., and Mazur by Superior Court of California dated April 14, 2014 Total Contingent Claims $ 2,779,500 Note: Other than what is discussed herein, the Receiver has not validated any of the above listed creditor claims. Page 14

28 Bioversel Trading Inc. Summary of secured, unsecured and contingent liabilities As at October 10, 2014 Secured Obligations Creditor Currency Amount F/X Rate C$ Amount Notes Meridian Credit Union CDN $ 960, $ 960,600 Obligation under a Credit Agreement Total Secured Obligations $ 960,600 Unsecured Obligations Creditor Currency Amount F/X Rate C$ Amount Notes Heridge Sarl USD $ 11,504, $ 12,540,256 -Unsecured guarantee of GLB's obligations pursuant to the Debenture Heridge Sarl CDN $ 1,185, $ 1,185,464 -Unsecured guarantee of GLB's obligations pursuant to the Debenture Trade creditors CDN $ 330, $ 330,847 All appear to be third party Praveen Investing Inc. USD $ 1,500, $ 1,635,000 Praveen is controlled by Mazur Roadhouse Enterprises USD $ 750, $ 817,500 Roadhouse is controlled by Mazur Inc. Einer Energy Sarl CDN $ 134, $ 134,101 Einer Energy Sarl owned by Orense Orense CDN $ 1,014, $ 1,014, % owner of Einer Canada and Bioversel Trading, indirect owner of GLB through Reneos Kazunaygas Trading AG (formerly Vector Energy AG) USD $ 71,000, $ 77,390,000 Judgement creditor Total Unsecured $ 95,047,682 Obligations Total Secured & $ 96,008,282 Unsecured Obligations Contingent Claims Creditor Currency Amount F/X Rate C$ Amount Notes Petro Diamond Inc. USD $ 2,550, $ 2,779,500 Judgement against ECI, Verdeo, Bioversel Trading Inc., and Mazur by Superior Court of California dated April 14, 2014 Total Contingent Claims $ 2,779,500 Note: Other than what is discussed herein, the Receiver has not validated any of the above listed creditor claims. Page 15

29 5.0 STALKING HORSE APA AND RECEIVER S PROPOSED MARKETING AND SALE PROCESS 5.1 The Stalking Horse Asset Purchase Agreement The Receiver, Heridge, and their respective counsel have negotiated the terms and provisions of the Stalking Horse APA, a summary of which is as follows. All terms not otherwise defined herein shall have their meanings defined in the Stalking Horse APA. Heridge will acquire substantially all of the assets of the Debtors. The Purchased Assets are divided into three categories: o o o The Purchased Land which consists of the Land, the Building and any Fixed Assets; The Purchased Equipment which includes all of the removable assets in or around the Biodiesel Plant; and The Remaining Assets which consist of, inter alia, the Bioversel Trading Cash, any Assumed Contracts, Intellectual Property and Accounts Receivable. (collectively, the Stalking Horse Assets ). The Stalking Horse APA is in the form of a credit bit for each of the categories of the Stalking Horse Assets. The Purchase Price for the three categories of assets will be satisfied in the following manner: o For the Purchased Land, by a credit bid by the Stalking Horse Bidder of $1,000,000 of the outstanding Receivership Debt. The Receivership Debt as of the date hereof consists of $1,500,000, representing the aggregate outstanding principal amount borrowed by KPMG to date (in its capacity as Interim Receiver and Receiver pursuant to the Interim Receivership Order and the Receivership Order, respectively) which is secured by the Receiver s Borrowings Charge (as defined in the Receivership Order), being a first priority charge over all of the Property; Page 16

30 o o For the Purchased Equipment, by a credit bid by the Stalking Horse Bidder of the sum of (i) US$11,500,000 million which represents substantially all of the debt outstanding under the Debenture, plus (ii) CDN$1,185,000 which represents substantially all of the allowable costs and expenses and other losses incurred in respect of the Debenture and the enforcement of Heridge s rights thereunder (the Debenture Debt ), which Debenture Debt is secured over all of the personal property of GLB; and For the Remaining Assets, a credit bid by the Stalking Horse Bidder of: (a) the lesser of (i) $1,500,000 of the Receivership Debt; and (ii) the balance of the Receivership Debt at the deadline to submit bids under the Bidding Procedures (the Bidding Deadline ) net of the credit bid amount for the Purchased Land of $1,000,000 (as described above). At the Bidding Deadline, the remaining amount of the Receivership Debt is expected to be approximately $1.5 million (i.e. $500,000 left over after deduction of the Purchased Land from the $1.5 million that has been advanced to the Receiver to date plus further projected borrowings expected to be advanced prior to the Bidding Deadline of approximately $1,000,000); and (b) The assumption of the Assumed Liabilities. As described below, the Receiver intends to seek approval from the Court to increase the principal amount of borrowings by the Receiver by up to $2,000,000 to fund these Receivership proceedings. Accordingly, as at November 24, 2014, and provided the Court grants approval of such increase, the total Receivership Debt amount available to the Receiver to fund these Receivership proceedings will be up to $3,500,000. Heridge will assume certain liabilities, including liabilities arising from and after the Closing Time in respect of the Stalking Horse Assets. Subject to the comments noted below, the Receiver notes that the terms of the Stalking Horse APA are generally consistent with standard insolvency transactions, including that the transaction is to be completed on an as is, where is basis with only basic representations and warranties. Page 17

31 The Closing Date is to be as soon as practicable following satisfaction or waiver of all conditions to Closing. The Stalking Horse APA contemplates that February 27, 2014 would be the Termination Date, being the date on which the Stalking Horse APA could be terminated should the transaction not close prior to such date. The Stalking Horse APA is subject to certain conditions, the following of which are the only material conditions precedent to the transaction: o o o Heridge being selected as the Successful Bid in accordance with the Bidding Procedures discussed below; A Phase 1 environmental site assessment shall have been completed and the Stalking Horse Bidder shall be satisfied with such Phase 1 assessment and any remedial work that is required to be completed in connection therewith; and The Purchaser shall have confirmed that title to the Land is good and marketable and insurable and free from all Encumbrances except for Permitted Encumbrances, and the Purchaser shall be otherwise satisfied with its investigation of title to the Land and with regard to work orders and notices of deficiency or non-compliance. 5.2 Proposed Sale Process and Bidding Procedures The Receiver and its counsel developed the Sale Process. Among other things, the Sale Process includes bidding procedures (the Bidding Procedures ) which incorporates a stalking horse bid (the Stalking Horse Bid ) from Heridge (the Stalking Horse Bidder ) and the ability of the Receiver to conduct an auction (the Auction ) if qualified and competitive bids are received. The Bidding Procedures are attached hereto as Appendix G The Receiver has negotiated and executed an Asset Purchase Agreement ( APA ) with the Stalking Horse Bidder ( Stalking Horse APA ), which is attached hereto as Appendix H. The Bidding Procedures and the key terms of the Stalking Horse APA are described below. Page 18

32 5.3 Bidding Procedures The key aspects of the Bidding Procedures are summarized in the table below. All capitalized terms not otherwise defined in this section have the meanings ascribed to them in the Bidding Procedures. Term / Event Description Property offered for sale Purchased Land; Purchased Equipment; and Remaining Assets. Solicitation The Receiver will prepare a list of potential bidders for the Stalking Horse Assets, which will include strategic and financial parties who may be interested in acquiring the Stalking Horse Assets. The Receiver shall advertise the acquisition opportunity in the Globe and Mail (National Edition). The Receiver will also place the advertisement on Biodiesel Magazine s website ( a leading biodiesel industry publication and website. A form of the advertisement is attached hereto as Appendix I. The Receiver will prepare a teaser letter notifying potential bidders of the existence of the Sale Process and invite them to make an offer to acquire the Stalking Horse Assets. Attached to the teaser letter will be a form of confidentiality agreement (the CA ). Due Diligence Upon execution of the CA, potential bidders will be provided with an opportunity to commence due diligence, including reviewing information in an online data room established by the Receiver. Bidding Deadline Material Bid Requirements Potential bidders will be provided with a copy of the Stalking Horse APA. Potential bidders will be required to submit any bids in the form of the Stalking Horse APA. No later than 10:00 a.m. (Toronto time) January 7, Minimum Consideration Aggregate consideration of a bid(s) for all of the Stalking Horse Assets must be at least $500,000 greater than the total consideration provided for in the Stalking Horse APA. However if a Bidder is bidding only for a part of the Stalking Horse Assets, such Bid shall not be subject to the Minimum Purchase Price. Deposit Refundable deposit equal to at least 10% of the total purchase price contemplated by the Bid. Closing Date No later than February 27, Break Fee There is no entitlement for a break fee or an expense reimbursement. Page 19

33 Term / Event Description Qualified Bidder The Receiver shall review all Bids and shall determine, in its reasonable judgment, those Bidders, if any, that are qualified to participate in the Auction ( Qualified Bidders ). Bidders shall be determined to be Qualified Bidders by the Receiver in accordance with section 6 and section 7 of the Bidding Procedures. The Stalking Horse Bidder and the Stalking Horse Bid are deemed to be a Qualified Bidder and Qualified Bid, respectively. The Stalking Horse Bidder shall be permitted to credit bid any additional outstanding Receivership Debt that may be owing to it at the Auction, if one is held. Auction There will be no Auction if the Receiver determines that there are no Qualified Bids other than the Stalking Horse Bid. The Receiver will then proceed to seek approval of and authority to consummate the Stalking Horse APA and transactions contemplated therein at the Sale Motion. If the Receiver determines that there is at least one Qualified Bid, or one or more bids that are not overlapping and that when combined provide the Minimum Purchase Price (referred to in the Bidding Procedures as an Aggregated Bid), in addition to the Stalking Horse Bid, then the Receiver will conduct an Auction. The Auction is to be held on or before January 14, 2015 at 10:00 a.m. at the office of the Receiver s counsel. The Receiver shall determine which Qualified Bid or Aggregated Bid constitutes the Opening Bid for the first round of bidding based on the Bid assessment criteria in section 8(d) of the Bidding Procedures. Overbids after the Opening Bid must be made in increments of at least $100,000. Following the Auction, the Receiver will seek to obtain the Court s approval of the Successful Bid(s) by January 28, 2015 so that closing can occur on or before February 27, In preparing the Receiver s marketing program to potential purchasers of the Stalking Horse Assets, the Receiver requested and received input from Heridge, GLB s CFO, and members of KPMG s Corporate Finance practice. The Receiver has identified 56 potential purchasers (48 strategic and eight financial) that will be contacted should this Honourable Court approve the Sales Process As mentioned above, the Purchase Price for the Remaining Assets under the Stalking Horse APA is the lesser of: (i) $1,500,000 of the Receivership Debt; and (ii) the balance of the Receivership Debt at Bidding Deadline, less the credit bid amount of $1,000,000 for the Purchased Land. Until the Bidding Deadline it will be uncertain as to how much Receivership Debt will be outstanding at Page 20

34 such time. In order to assist potential bidders in ascertaining their intended Purchase Price for the Remaining Assets, the Receiver, three days prior to the Bid Deadline, will post in the data room established by the Receiver, the amount of the Receivership Debt that is outstanding at that time as well as the Purchase Price that will be payable by the Stalking Horse Bidder in respect of the Remaining Assets In carrying out the Sale Process, none of the details of the Sale Process that would not otherwise be made available to other prospective purchasers will be disclosed by the Receiver to the Stalking Horse Bidder or its legal counsel, including the identity and number of parties participating in the Sale Process. 5.4 Observations in Respect of the Sale Process and the Stalking Horse APA The proposed Sale Process and Bidding Procedures suggest a 45-day period to market the assets to prospective buyers. In the Receiver s view, this timeline is sufficient to allow interested parties to perform diligence and to submit offers. The Receiver does not have sufficient funding to support the receivership during a lengthy sale process. In addition, as the Stalking Horse Assets primarily consist of the Biodiesel Plant which is in an idled state, it is the Receiver s view that forty five days is a sufficient amount of time for prospective purchasers to conduct due diligence on the Stalking Horse Assets The Receiver is of the view that the proposed Sale Process exposes the Debtors assets to the market for a reasonable time, is transparent, and is designed to obtain the highest and best value for the Debtors assets given the stated timeline and available funding In analyzing the reasonableness of the Stalking Horse APA and in order to prepare for the Sale Process, the Receiver has commissioned the following: a) Real Estate Appraisal the Receiver retained American Appraisal Canada, Inc. to provide an updated appraisal of the equipment and Land on an orderly and forced liquidation value basis, which appraisal appraised the Land at less than the value being bid for the Land by the Stalking Horse Bidder; and b) Net Minimum Guarantee Offers ( NMG ) the Receiver contacted several liquidators in order to obtain NMG offers for the assets of GLB. Once received, these NMG offers will be compared to offers in the Sale Process to determine if such offers will be accepted or rejected and the Biodiesel Plant assets sold to a liquidator. Page 21