NOTICE TO DEFENDANTS

Transcription

1 CANADA ) PROVINCE OF SASKATCHEWAN ) Q.B.G. No of 2012 IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF THE RECEIVERSHIP OF BIG SKY FARMS INC., BIG SKY FARMS I LIMITED PARTNERSHIP, BIG SKY FARMS II LIMITED PARTNERSHIP, BIG SKY FARMS III LIMITED PARTNERSHIP, BIG SKY FARMS IV LIMITED PARTNERSHIP, BIG SKY FARMS V LIMITED PARTNERSHIP, BIG SKY FARMS VI LIMITED PARTNERSHIP, BIG SKY FARMS VII LIMITED PARTNERSHIP, BIG SKY FARMS VIII LIMITED PARTNERSHIP, BIG SKY FARMS IX LIMITED PARTNERSHIP, BIG SKY FARMS SERVICES LIMITED PARTNERSHIP AND BIG SKY MANAGEMENT CONSULTING CORP. PURSUANT TO SECTION 243 OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, c. B-3, AS AMENDED, SECTION 65(1) OF THE QUEEN S BENCH ACT, 1998, S.S. 1998, c. Q-1.01, AS AMENDED, AND SECTION 64(8) OF THE PERSONAL PROPERTY SECURITY ACT, 1993, S.S. 1993, c. P-6.2, AS AMENDED BETWEEN: THE BANK OF NOVA SCOTIA AND: PLAINTIFF BIG SKY FARMS INC., BIG SKY FARMS I LIMITED PARTNERSHIP, BIG SKY FARMS II LIMITED PARTNERSHIP, BIG SKY FARMS III LIMITED PARTNERSHIP, BIG SKY FARMS IV LIMITED PARTNERSHIP, BIG SKY FARMS V LIMITED PARTNERSHIP, BIG SKY FARMS VI LIMITED PARTNERSHIP, BIG SKY FARMS VII LIMITED PARTNERSHIP, BIG SKY FARMS VIII LIMITED PARTNERSHIP, BIG SKY FARMS IX LIMITED PARTNERSHIP, BIG SKY FARMS SERVICES LIMITED PARTNERSHIP AND BIG SKY MANAGEMENT CONSULTING CORP. DEFENDANTS NOTICE TO DEFENDANTS (1) The Plaintiff may enter judgment in accordance with this Statement of Claim or such judgment as may be granted pursuant to the Rules of Court unless: within twenty (20) days if you were served in Saskatchewan within thirty (30) days if you were served in Canada or in the United States of America

2 - 2 - within forty (40) days if you were served outside of Canada and the United States of America (excluding the day of service) you serve a Statement of Defence on the Plaintiff and file a copy hereof in the office of the Local Registrar of the court for the judicial centre above named. (2) In many cases a Defendant may have the trial of the action held at the judicial centre other than the one at which his Statement of Claim is issued. Every Defendant should consult his lawyer as to his rights. (3) This Statement of Claim is to be served within six (6) months from the date on which it is issued. (4) This Statement of Claim is issued at the above-named judicial centre the day of September, A.D (L.S.) (Deputy) Local Registrar

3 - 3 - CLAIM 1. The Plaintiff, THE BANK OF NOVA SCOTIA ( BNS ), is a chartered bank continued pursuant to the Bank Act (Canada), with a branch located in the City of Saskatoon, Saskatchewan. BNS has commenced this action in its capacity as administrative agent (the Agent ) for a syndicate of lenders consisting of itself, Bank of Montreal, National Bank of Canada and Farm Credit Canada (the Lenders ). 2. The Defendant, BIG SKY FARMS INC. ( BSFI ), is a corporation incorporated pursuant to the laws of Saskatchewan with its registered office located at Saskatoon, Saskatchewan. 3. The Defendants, BIG SKY FARMS I LIMITED PARTNERSHIP, BIG SKY FARMS II LIMITED PARTNERSHIP, BIG SKY FARMS III LIMITED PARTNERSHIP, BIG SKY FARMS IV LIMITED PARTNERSHIP, BIG SKY FARMS V LIMITED PARTNERSHIP, BIG SKY FARMS VI LIMITED PARTNERSHIP, BIG SKY FARMS VII LIMITED PARTNERSHIP, BIG SKY FARMS VIII LIMITED PARTNERSHIP, BIG SKY FARMS IX LIMITED PARTNERSHIP and BIG SKY FARMS MANAGEMENT SERVICES LIMITED PARTNERSHIP (collectively, the BSF LPs ) are limited partnerships formed under the laws of Saskatchewan with their registered address of business in Humboldt, Saskatchewan. 4. The Defendant, BIG SKY MANAGEMENT CONSULTING CORP. ( BSMCC ), is a corporation incorporated pursuant to the laws of Saskatchewan with its registered office located at Saskatoon, Saskatchewan. 5. BSFI, the BSF LPs and BSMCC are referred to collectively herein as the Debtors. Credit Advanced by the Lenders to the Debtors 6. The Lenders extended credit to BSFI in the original principal amount of $86,608, pursuant to a Fourth Amended and Restated Credit Agreement dated as of 19 March 2010

4 - 4 - (as amended and supplemented, the Credit Agreement ). Lenders under the Credit Agreement. BNS is the Agent for the 7. The credit facilities originally extended by the Lenders to BSFI under the Credit Agreement have been amended, supplemented and partially repaid over time. As at 6 September 2012, the credit facilities consisted of: (a) an Operating Eligible Loan in the principal amount of $7,000,000.00, with accrued and unpaid interest of $15,061.48, which interest has and will continue to accrue after 6 September 2012 at the prime rate of interest plus 2.25% per annum; (b) a pre-existing Credit B in the principal amount of $3,119,225.67, with accrued and unpaid interest of $11,505.32, which interest has and will continue to accrue after 6 September 2012 at the prime rate of interest plus 4.0% per annum and plus payment in kind interest at a rate of 2.0% per annum; (c) a Term Eligible Loan #1 in the principal amount of $29,104,719.76, with accrued and unpaid interest of $56,883.50, which interest has and will continue to accrue after 6 September 2012 at the prime rate of interest plus 1.75% per annum; and (d) a Term Eligible Loan #2 in the principal amount of $29,366,217.83, with accrued and unpaid interest of $105,717.99, which interest has and will continue to accrue after 6 September 2012 at the prime rate of interest plus 3.75% per annum and plus payment in kind interest at a rate of 2.0% per annum. 8. BSFI has agreed to pay additional interest of 2.0% per annum on each of the credit facilities extended under the Credit Agreement upon and after an event of default. 9. BSFI has also agreed to pay all of the costs and expenses of the Agent and the Lenders under or in connection with the Credit Agreement.

5 Each of the credit facilities extended to BSFI under the Credit Agreement are now payable on demand. 11. All of the obligations of BSFI to the Lenders and the Agent have been guaranteed by the BSF LPs pursuant to an Omnibus Guarantee and Indemnity dated 22 March 2010 and by BSMCC pursuant to a Guarantee and Indemnity dated 22 March 2010 (together, the Guarantees ). 12. To secure repayment of all of their obligations under the Credit Agreement and the Guarantees, the Debtors have granted security to the Agent and the Lenders over all of their present and after acquired real and personal property pursuant to an Omnibus General Security Agreement dated 22 March 2010, a General Security Agreement dated 22 March 2010 and a Security Agreement (US) dated 22 March 2010, as well as certain real property Charge/Mortgages (collectively, the Security ). Default by the Debtors 13. During the period from 21 December 2011 to 30 April 2012, the Debtors defaulted on a number of their covenants under the Credit Agreement, including: (a) breaches of the Senior Leverage Ratio financial covenant; (b) breaches of the Debt Service Coverage Ratio financial covenant; (c) breaches of the Current Ratio financial covenant; (d) breaches of the minimum cumulative EBITDA financial covenant; and (e) the failure to pay the full principal amount owing under the Operating Eligible Loan and Credit B.

6 On 28 June 2012, the Agent delivered to the Debtors a formal demand for payment of all outstanding obligations of the Debtors to the Agent and the Lenders, but each of the Debtors has failed, refused or neglected and continues to fail, refuse or neglect to pay its respective indebtedness to the Agent. 15. On 28 June 2012, the Agent, Lenders and Debtors entered into a Forbearance Agreement (the Forbearance Agreement ) pursuant to which the Agent agreed to forbear from exercising its rights under the Security for a period of time to facilitate efforts by the Debtors to conduct an orderly sale of their assets and business. 16. Events of default under the Forbearance Agreement have occurred, including but not limited to the failure to meet certain milestones established in section 5 of that agreement. 17. On 7 September 2012, the Agent delivered to the Debtors a letter terminating the forbearance period and renewing its formal demand for payment of all outstanding obligations of the Debtors to the Agent and the Lenders, but each of the Debtors has failed, refused or neglected and continues to fail, refuse or neglect to pay its respective indebtedness to the Agent. 18. WHEREFORE the Plaintiff, THE BANK OF NOVA SCOTIA, claims the following items of relief as against the Defendant, BIG SKY FARMS INC.: (a) a declaration as to the amounts owing to the Agent and the Lenders by BSFI, together with interest; (b) pursuant to section 243(1) of the Bankruptcy and Insolvency Act (Canada), the appointment of a Receiver, without security, of all of the assets, undertakings and properties of BSFI acquired for, or used in relation to the business carried on by BSFI, including all proceeds thereof, with authority to take possession of, manage, operate, sell and realize upon the business and undertaking of BSFI and to enter onto any lands or premises of BSFI;

7 - 7 - (c) pursuant to section 65(1) of The Queen s Bench Act, 1998 (Saskatchewan) and section 64(8) of The Personal Property Security Act, 1993 (Saskatchewan), the appointment of a Receiver, without security, of all of the inventory, accounts receivable, choses in action and intangibles of BSFI acquired for, or used in relation to the business carried on by BSFI, including all proceeds thereof, with authority to take possession of, manage, operate, sell and realize upon the business and undertaking of BSFI and to enter onto any lands or premises of BSFI; (d) judgment against BSFI for the sums found to be due and owing by BSFI to the Agent and the Lenders; (e) costs of the action on a solicitor and his own client basis; and (f) such further and other relief as counsel may request and this Honourable Court may allow. 19. WHEREFORE the Plaintiff, THE BANK OF NOVA SCOTIA, claims the following items of relief as against each of the Defendants, BIG SKY FARMS I LIMITED PARTNERSHIP, BIG SKY FARMS II LIMITED PARTNERSHIP, BIG SKY FARMS III LIMITED PARTNERSHIP, BIG SKY FARMS IV LIMITED PARTNERSHIP, BIG SKY FARMS V LIMITED PARTNERSHIP, BIG SKY FARMS VI LIMITED PARTNERSHIP, BIG SKY FARMS VII LIMITED PARTNERSHIP, BIG SKY FARMS VIII LIMITED PARTNERSHIP, BIG SKY FARMS IX LIMITED PARTNERSHIP and BIG SKY FARMS MANAGEMENT SERVICES LIMITED PARTNERSHIP: (a) a declaration as to the amounts owing to the Agent and the Lenders by each of the BSF LPs, together with interest; (b) pursuant to section 243(1) of the Bankruptcy and Insolvency Act (Canada), the appointment of a Receiver, without security, of all of the assets, undertakings and

8 - 8 - properties of each of the BSF LPs acquired for, or used in relation to the business carried on by each of the BSF LPs, including all proceeds thereof, with authority to take possession of, manage, operate, sell and realize upon the business and undertaking of each of the BSF LPs and to enter onto any lands or premises of any of the BSF LPs; (c) pursuant to section 65(1) of The Queen s Bench Act, 1998 (Saskatchewan) and section 64(8) of The Personal Property Security Act, 1993 (Saskatchewan), the appointment of a Receiver, without security, of all of the inventory, accounts receivable, choses in action and intangibles of each of the BSF LPs acquired for, or used in relation to the business carried on by each of the BSF LPs, including all proceeds thereof, with authority to take possession of, manage, operate, sell and realize upon the business and undertaking of each of the BSF LPs and to enter onto any lands or premises of any of the BSF LPs; (d) judgment against each of the BSF LPs for the sums found to be due and owing by each of the BSF LPs to the Agent and the Lenders; (e) costs of the action on a solicitor and his own client basis; and (f) such further and other relief as counsel may request and this Honourable Court may allow. 20. WHEREFORE the Plaintiff, THE BANK OF NOVA SCOTIA, claims the following items of relief as against the Defendant, BIG SKY MANAGEMENT CONSULTING CORP.: (a) a declaration as to the amounts owing to the Agent and the Lenders by BSMCC, together with interest; (b) pursuant to section 243(1) of the Bankruptcy and Insolvency Act (Canada), the appointment of a Receiver, without security, of all of the assets, undertakings and

9 - 9 - properties of BSMCC acquired for, or used in relation to the business carried on by BSMCC, including all proceeds thereof, with authority to take possession of, manage, operate, sell and realize upon the business and undertaking of BSMCC and to enter onto any lands or premises of BSMCC; (c) pursuant to section 65(1) of The Queen s Bench Act, 1998 (Saskatchewan) and section 64(8) of The Personal Property Security Act, 1993 (Saskatchewan), the appointment of a Receiver, without security, of all of the inventory, accounts receivable, choses in action and intangibles of BSMCC acquired for, or used in relation to the business carried on by BSMCC, including all proceeds thereof, with authority to take possession of, manage, operate, sell and realize upon the business and undertaking of BSMCC and to enter onto any lands or premises of BSMCC; (d) judgment against BSMCC for the sums found to be due and owing by BSMCC to the Agent and the Lenders; (e) costs of the action on a solicitor and his own client basis; and (f) such further and other relief as counsel may request and this Honourable Court may allow. DATED at Saskatoon, Saskatchewan, this day of September, ROBERTSON STROMBERG LLP Per: Solicitors or the Plaintiff, The Bank of Nova Scotia This Statement of Claim was delivered by: BORDEN LADNER GERVAIS Scotia Plaza

10 King Street West Toronto, ON M5H 3Y4 Lawyer in Charge of File: Michael J. McNaughton Telephone Number: (416) Whose address for service in Saskatchewan is: c/o ROBERTSON STROMBERG LLP st Street East, Suite 600 Saskatoon, Saskatchewan S7K 0B3 Lawyer: M. Kim Anderson Telephone Number: (306) Fax Number: (306)