SCHEDULE "H"
Court File No.:
ONTARIO SUPERIOR COURT OF JUSTICE
IN BANKRUPTCY
COMMERCIAL LIST
IN THE MATTER OF THE BANKRUPTCY AND
INSOLVENCY ACT, R.S.C. 1985, C. B-3, as amended
AND IN THE MATTER OF GALAVU ENTERTAINMENT INC.,
THE HONOURABLE ) , THE DAY
)
JUSTICE ) OF SEPTEMBER, 1999
B E T W E E N:
CANADIAN IMPERIAL BANK OF COMMERCE
Applicant
- and -
GALAVU ENTERTAINMENT INC.
Respondent
O R D E R
THIS APPLICATION, made by Canadian Imperial Bank of Commerce, for,
inter alia, an order appointing Arthur Andersen Inc. as Interim Receiver of the
assets, property and undertaking of GalaVu Entertainment Inc. (the "Company")
pursuant to s.47 of the Bankruptcy and Insolvency Act ("BIA") was heard this day
at 393 University Avenue, Toronto, Ontario.
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ON READING the Notice of Application herein, the affidavit of
Jennifer Logan-Klassen sworn September 10, 1999 and the affidavit of Gerry
Soucie sworn September 10, 1999, and on hearing the submissions of counsel for
the Applicant and the Company.
Confirmation of Service
1. THIS COURT ORDERS that the time for and necessity of service of the Notice of
Application and the Application Record herein is hereby abridged, that this
Application is properly returnable before the Court, that all parties entitled
to notice of this Application have been duly served with Notice of this
Application, and that further service thereof is hereby dispensed with.
Appointment and Powers
2. THIS COURT ORDERS that Arthur Andersen Inc. ("Interim Receiver"), having an
office in the City of Toronto, in the Municipality of Metropolitan Toronto, be
and it is hereby appointed Interim Receiver under section 47(1) of the BIA with
full control and power over all aspects of the assets, property and undertaking
of the Company (the "Property") and with authority to receive, protect, dispose
of and sell the Property or any part thereof, and to act at once until further
order of this Court.
3. THIS COURT ORDERS that the Company and its past and present directors,
officers, employees, servants, shareholders, lawyers (subject to issues of
privilege), accountants, consultants, agents and any and all other persons
having notice of this order, deliver the Property to the Interim Receiver
together with all books, documents, contracts, papers and records of every
nature and kind whatsoever relating to the Property and the obligations and
liabilities of the Company, and further that such persons grant to the Interim
Receiver full access to and use of accounting, data processing and computer
facilities relating thereto, provided that such
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persons shall be required to deliver up copies of such material to the Interim
Receiver only upon payment of their fair and reasonable cost of making such
copies.
4. THIS COURT ORDERS that without limiting the generality of paragraph 2 above,
and without requiring the Interim Receiver to do so, the Interim Receiver shall
be at liberty:
(a) to take possession and control of the Property and to carry on the
business of the Company;
(b) to take such steps to receive, protect, dispose of and sell the
Property as deemed appropriate by the Interim Receiver;
(c) to make arrangements with such agents, assistants and employees as
the Interim Receiver may consider necessary or desirable to secure
their assistance in the exercise of the Interim Receiver's powers
and the performance of its duties hereunder;
(d) to institute and prosecute all suits, proceedings, and actions in
and before the Courts and administrative bodies, and any and all
arbitration proceedings as may in its judgment be necessary for the
proper protection, preservation, disposition or sale of the Property
and likewise to defend all suits, proceedings, arbitration
proceedings and actions instituted against it as the Interim
Receiver and to appear in and conduct the prosecution and defence of
any suits, proceedings, arbitrations and actions now pending in any
Court or administrative body or before any arbitrator against the
Company relating to the Property including such appeals as the
Interim Receiver shall deem proper and advisable in respect of any
order,
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decision, or judgment pronounced in any such suits, proceedings,
arbitrations or actions;
(e) to receive and collect all monies now or hereafter owing to the
Company and to enforce all security held by the Company in respect
thereof;
(f) to extend the time for payment of any monies due to the Company with
or without security and to settle or compromise any such
indebtedness;
(g) to apply for any permits, licenses, approvals or permissions as may
be required by any governmental authority;
(h) to take such steps as the Interim Receiver deems necessary or
desirable to preserve and protect the Property including, making
payments to persons having mortgages, charges or encumbrances;
(i) to settle and pay any claims which may be made or brought against
the Company on such terms and in such manner as the Interim Receiver
deems necessary or advisable;
(j) to execute in the name of and on behalf of the Company all necessary
bills of sale, conveyances, deeds and documents of whatsoever nature
which the Interim Receiver considers to be necessary or incidental
to the exercise of the powers granted hereby;
(k) to vote any shares and exercise any rights the Company may have as a
shareholder with resect to any shares included in the Property;
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(l) to make an assignment of all of the Property for the general benefit
of the Company's creditors pursuant to the BIA, and to act as
trustee in bankruptcy of the Company;
(m) to abandon any lease and any ancillary agreements relating to any
leased premises; and
(n) to sell, transfer, or assign, whether on credit, by private tender,
public auction or otherwise, or to lease or mortgage the Property or
any part or parts thereof out of the ordinary course of business,
without compliance with Part V of the Personal Property Security Act
(Ontario) or similar legislation in other Provinces or Territories
in Canada, or any other notice, statutory or otherwise, which a
creditor or other party may be required to issue in order to dispose
of the collateral of a debtor, and the Interim Receiver is hereby
relieved of any obligation to issue any such notices; and
(o) to take any steps, enter into any agreements or incur any
obligations necessary or incidental to the exercise of the aforesaid
powers.
5. THIS COURT ORDERS that the Interim Receiver shall be at liberty to retain
counsel to advise it in connection with any matters associated with its
appointment and the performance by it of its duties and the exercise of its
powers hereunder and pay the fees and disbursements of its counsel.
6. THIS COURT ORDERS that the Interim Receiver may, from time to time, bring
motions before this Court for advice and directions in the exercise of its
powers and the performance of its duties hereunder and may apply to this court
for its discharge at such time as may be appropriate.
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Employees
7. THIS COURT ORDERS that the employment of all persons employed by the Company
is by this order hereby terminated and the Interim Receiver is not the employer
of the employees of the Company and shall not be liable to any of the employees
of the Company for any wages (as "wages" are defined in the Employment Standards
Act (Ontario) or similar legislation in other provinces) including severance
pay, termination pay and vacation pay or any other obligations of the Company to
its employees, except for such wages as the Interim Receiver may specifically
agree to pay. Further, by the granting of this order, the business of the
Company has not been sold and will continue to be the business of the Company
until it is sold in whole or in part by the Interim Receiver or otherwise. In
this paragraph, "sells" includes leases, transfers and any other manner of
disposition, and "sold" and "sale" have corresponding meanings.
8. THIS COURT ORDERS that the Interim Receiver is at liberty to employ such
agents, consultants and individuals to assist in the discharge of its duties and
responsibilities herein, on such terms as the Interim Receiver may in its
discretion deem appropriate, and such employment, engagement or retainer shall
not constitute the Interim Receiver or the Applicant a successor employer to the
Company pursuant to any legislation or at common law with respect to such
employees or otherwise make the Interim Receiver or the Applicant liable to such
employees for any liabilities of the Company to them or expose the Interim
Receiver or the Applicant to liability for such employees arising from or
relating to their previous employment by the Company.
Accounting for Receipts and Disbursements
9. THIS COURT ORDERS that the Interim Receiver shall pass its accounts and shall
pay the balances in its hands as this Court may direct.
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10. THIS COURT ORDERS the Interim Receiver's remuneration and any expenses which
may be properly made or incurred by the Interim Receiver in connection with the
exercise of its powers and the performance of its duties hereunder (including
any fees and disbursements of its counsel, on a solicitor and his own client
scale) shall be allowed to the Interim Receiver in the passing of its accounts
and, except as otherwise provided in this Order, shall form a charge on the
Property ranking in priority to all existing charges and encumbrances on the
Property, in favour of the Applicant and all subsequent secured creditors, but
subject to the rights of secured creditors having priority over the charges of
the Applicant, if any.
11. THIS COURT ORDERS that the costs of the Applicant in the preparation of this
Application, in the commencement of this Application and up to and inclusive of
the hearing of this Application and the entry of this order, be assessed as
between a solicitor and his own client, and be paid by the Interim Receiver as
part of its expenses.
12. THIS COURT ORDERS that the Interim Receiver shall be at liberty, from time
to time, to pay costs and other expenses relating to the Property, including its
own remuneration and disbursements, from monies in its hands. Any amounts so
applied against the Interim Receiver's remuneration and expenses shall
constitute advances against the amounts allowed on the passing of the Interim
Receiver's accounts.
Stay of Proceedings
13. THIS COURT ORDERS that no suits, actions, applications or administrative
proceedings, self-help remedies, or any other acts, proceedings, rights or
private remedies including, without limitation:
(a) any right of distraint or termination of any lease;
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(b) any right of termination of any contract of insurance for the
Property or any portion thereof or in which the Company is a named
or an unnamed insured or from which the Company may derive a
benefit;
(c) any right of termination, acceleration, suspension, modification,
cancellation or alteration of any arrangement or agreement, whether
written or oral, to which the Company is a party or in which the
Company has an interest, whether as principal, agent, nominee or
assignee, or pertaining to the Property, including, without
limitation, any security agreement, mortgage, contract, letter of
credit, guarantee, management agreement, lease, shareholders'
agreement, operating agreement, license, service agreement,
agreement of purchase and sale, supply agreement for the supply of
goods or services to or by the Company, insurance contract, warranty
service contract, distribution agreement, or conditional sales
contract;
(d) any right of distress or repossession, in relation to amounts due or
accruing due or in respect thereof;
(e) any right or entitlement to any construction, repair, storage or
other lien relating to the Property or its proceeds;
(f) any right to issue a petition pursuant to the BIA;
shall be taken, commenced, continued or asserted against the Interim Receiver,
the Company or the Property by any creditors, customers, clients, suppliers,
contractors, lenders, landlords (including, without limitation, equipment
lessors and lessors of real property), sub-landlords, tenants, sub-tenants,
licensors, licensees, governments of any nation, province, state or municipality
or any other entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government in Canada or elsewhere
and any corporation or other entity owned or controlled by or which is the agent
of any of the foregoing,
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or by any other person, firm, corporation or entity wherever situate or
domiciled (collectively, "Persons" and, individually, "Person"), without the
specific written consent of the Interim Receiver or leave of this Court first
being obtained on seven days notice to the Interim Receiver.
14. THIS COURT ORDERS that all Persons with notice of this order be and they are
hereby enjoined from disturbing or interfering with the use by the Interim
Receiver of utility services presently used by the Company in connection with
the Property, including the furnishing of gas, heat, electricity, water, and
telephone (including telephone, facsimile or other communications services at
the present numbers used by the Company) in respect of any of the Property and
the providers of such utilities are hereby enjoined from cutting off, or
discontinuing or altering any such services without the specific written consent
of the Interim Receiver or the leave of this Court first being obtained on seven
days notice to the Interim Receiver, subject to the obligation of the Company or
Interim Receiver to pay for such utilities or services provided to the Company
or the Receiver, subsequent to the actual occupation by the Interim Receiver of
the Premises to which such utilities or services are supplied, but not arrears.
15. THIS COURT ORDERS that, notwithstanding any provision hereof, all Persons
having arrangements or agreements, whether written or oral, with the Company,
are hereby restrained from accelerating, terminating, suspending, modifying,
determining or cancelling such arrangements or agreements, notwithstanding any
provisions therein contained to the contrary, without the prior written consent
of the Interim Receiver or leave of this Court first being obtained on seven
days notice to the Interim Receiver. All such Persons shall continue to perform
and observe the terms, conditions and provisions contained in such agreements on
their part to be performed or observed. Without limiting the generality of the
foregoing, all Persons be and they are restrained until further Order of this
Court from terminating, suspending, modifying, cancelling, disturbing or
otherwise interfering in any way with the present or future occupation by the
Company or the Interim Receiver or its licensees or assigns, of any premises
leased, subleased or occupied by the Company, and the landlords of premises
leased or subleased by the Company are hereby specifically restrained from
taking any steps to terminate any lease,
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sublease, occupancy or other agreement to which the Company is a party, whether
by notice of termination or otherwise, or to terminate any ancillary agreements
or arrangements, without the prior written consent of the Interim Receiver or
leave of this Court, subject to the obligation of the Interim Receiver to pay
occupation rent for the period commencing with the date of this Order for leased
premises actually occupied by the Interim Receiver, but not arrears, in
accordance with the terms of the particular lease for such premises, or at the
option of the Interim Receiver in advance on the first (1st) and fifteenth
(15th) day of the month in equal instalments, or as otherwise may be negotiated
by the Interim Receiver from time to time. If any such occupation rent for any
such leased premises remains outstanding for more than fifteen (15) days after
writtn notice of non-payment has been given by the relevant landlord by
telecopier to the Interim Receiver, the stay of proceedings with respect to such
premises shall cease to have effect.
Borrowing Powers
16. THIS COURT ORDERS that the Interim Receiver shall be at liberty and is
hereby empowered to borrow monies from Canadian Imperial Bank of Commerce
without personal liability from time to time as it may consider necessary, not
to exceed $500,000 in principal amount in the aggregate, at such rate or rates
of interest as it deems advisable and for such period or periods as it may be
able to arrange, for the purpose of exercising its powers and performing its
duties. The Interim Receiver is authorized to pledge, assign or give security or
securities on any of the Property and/or its proceeds which shall be subject to
the priority of the Applicant's security, the rights of the secured creditors
ranking in priority to the Applicant, and to the charge in favour of the Interim
Receiver granted in this Order.
17. THIS COURT ORDERS that the monies authorized to be borrowed by this Order
shall be evidenced by a certificate or certificates substantially in the form of
the draft certificate attached as Schedule "A" to this Order and shall be in the
nature of revolving credit which the Interim Receiver may pay off or re-borrow
within the limits of the authority hereby conferred.
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18. THIS COURT ORDERS that all monies from time to time borrowed by the Interim
Receiver pursuant to this Order or to any further Order of this Honourable Court
and all Receiver's certificates representing the same or any other part thereof
shall rank pari passu unless the holders of such certificates agree otherwise.
19. THIS COURT ORDERS that any security granted by the Interim Receiver in
connection with its borrowings shall not be enforced without leave of this
Honourable Court first being obtained.
Environmental
20. THIS COURT ORDERS AND DECLARES that the Interim Receiver is not an owner of
any property or assets for any purpose including the purposes of Environmental
Legislation as defined below. "Environmental Legislation" is any legislation for
the protection of the environment including, without limitation, the Canadian
Environmental Protection Act, R.S.C. 1985, c.16 (4th Supp.), the Environmental
Protection Act, R.S.O. 1990, c. E-19, the Ontario Water Resources Act, R.S.O.
1990, c. O-40, the Occupational Health and Safety Act, R.S.O. 1990, c. O-1, the
regulations thereunder or any other statute, regulation or rule of law or equity
under any federal, provincial or other jurisdiction whatsoever.
21. THIS COURT ORDERS that the Interim Receiver shall not be deemed to have
taken possession of any real property owned or leased by the Company, for any
purpose including the purposes of Environmental Legislation, by reason only of
the Interim Receiver's action in entering upon any such property for the purpose
of obtaining access to the books and records of the Company.
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Sale of Assets
22. THIS COURT ORDERS that the Interim Receiver is authorized and directed to
accept the offer to purchase dated September 10, 1999 executed by 1373224
Ontario Limited in the form attached as Exhibit "D" to the Affidavit of Jennifer
Logan-Klassen sworn September 10, 1999 (the "Offer") filed, and the sale of the
assets of the Company by the Interim Receiver, on the terms and conditions
contained in such Offer, is hereby approved.
23. THIS COURT ORDERS that the Interim Receiver is authorized and directed to
complete the transactions contemplated in the Offer, to execute and deliver any
transfers, assignments, bills of sale, documents or instruments and agreements
contemplated therein or as may be appropriate or necessary to complete the sale
of the Purchased Assets as therein defined to 1373224 Ontario Limited (the
"Transfer Documents"). Furthermore, the Interim Receiver shall be deemed to be
the Vendor for all purposes thereunder.
24. THIS COURT ORDERS that effective on delivery by the Interim Receiver of the
Transfer Documents to 1373224 Ontario Limited, and upon the terms and conditions
set out in the Offer, all estate, right, title, interest, and benefit of the
Interim Receiver and the Company, if any, in and to the Purchased Assets as
therein defined shall vest in 1373224 Ontario Limited free and clear of all
liens, charges, encumbrances, mortgages, security interests, executions, trusts,
deemed trusts, levies, taxes, options, agreements, assignments, claims and
rights whatsoever, (including any or all of the foregoing created by or pursuant
to any orders made in these proceedings), other than the Permitted Encumbrances,
as defined in the Offer, and this Court hereby declares that the transactions
contemplated by the Offer are exempt from the provisions of the Bulk Sales Act
(Ontario) or any similar legislation in any other province or territory of
Canada.
25. THIS COURT ORDERS that the vesting of the Purchased Assets in 1373224
Ontario Limited as provided herein is without prejudice to the claims of the
Applicant, and any
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other creditors of the Company to the net proceeds of the sale of the Purchased
Assets received by the Interim Receiver pursuant to the Offer, and all liens,
charges, encumbrances, mortgages and security interests in the Purchased Assets,
other than the Permitted Encumbrances as defined in the Offer, shall continue in
the net proceeds received by the Interim Receiver pursuant to the Offer, in the
same priority as they had with respect to the Purchased Assets, subject to the
priority provision of paragraph 10 hereof with respect to the charge in favour
of the Interim Receiver.
Miscellaneous
26. THIS COURT ORDERS that the liability of the Interim Receiver which it may
incur as a result of its appointment or as a result of the performance of its
duties hereunder, save and except gross negligence, shall be limited in the
aggregate to the proceeds realized in cash from the disposition of the Property
or part thereof after the remuneration and disbursements of the Interim Receiver
and any costs or obligations incurred by the Interim Receiver or by any other
person in connection with the performance of its duties hereunder have been
repaid.
27. THIS COURT HEREBY seeks and requests the aid and recognition of any Court or
administrative body in any Province of Canada, any Canadian Federal Court or
administrative body and any federal or state Court or administrative body in the
United States of America or elsewhere to assist the Interim Receiver and its
agents to carry out the terms of this order including the making of such vesting
orders as may be requisite or desirable to complete the disposition of such of
the Property as may be within the jurisdiction of such courts or administrative
bodies, in addition to the provisions of s. 188 of the BIA. The Interim Receiver
shall be at liberty and is hereby authorized and empowered to apply, without
notice to the Company, as it may consider necessary or desirable to any other
Courts or administrative bodies, whether in Canada, the United States or
elsewhere, for orders recognizing the appointment of the Interim Receiver in
such other jurisdictions. All Courts and administrative bodies of all such
jurisdictions are hereby respectfully requested to make such orders and provide
such assistance
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to the Interim Receiver, as an officer of the Court as they may deem necessary
or appropriate for the purposes for which the Interim Receiver was appointed.
________________________________________
SCHEDULE "A"
Amount $ Receiver's Certificate
TO:__________________________
1. This is to certify that the undersigned, Arthur Andersen Inc., as the Interim
Receiver of the assets and property (the "Property") of GalaVu Entertainment
Inc. pursuant to the Order of the Honourable [ ], of the Ontario Superior
Court of Justice dated the [ ] (hereinafter called the "Order"),
acknowledges that as such Interim Receiver it is indebted to the holder of this
Certificate in the sum of ___________ Dollars ($___________) in lawful money of
Canada.
2. The principal sum of ($ ) represented by this Certificate is payable
from the ________, 199_, on demand with interest thereon (both after as well as
before maturity) at the Canadian Imperial Bank of Commerce prime interest rate,
as reported or announced from time to time or failing such reporting or
announcement, at the rate established by it on an unsecured demand loan in the
City of Toronto, Province of Ontario in Canadian dollars to its most
credit-worthy commercial customers, plus two per cent 2% per annum.
3. The principal sum of ($ ) together with interest thereon as aforesaid
is by the terms of the Order, together with the principal sums and interest
thereon of all other Receiver's Certificates issued by the Receiver pursuant to
the Order or to any further Order of the Court, a fixed specific charge on the
Property ranking in priority to all charges and encumbrances on the Property
save and except the charges in favour of Canadian Imperial Bank of Commerce, the
charges in favour of all secured creditors ranking in priority to Canadian
Imperial Bank of Commerce, if any, and the charges in favour of the Interim
Receiver as set out in the Order subject to the right of the Receiver to be
indemnified out of the Property with respect to its liabilities, expenses and
its own remuneration properly incurred.
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4. All sums payable in respect of principal and interest under this Certificate
are payable at the office of Arthur Andersen Inc., Toronto, Ontario.
5. In case default shall be made in payment of interest on this Certificate and
such default shall continue, the principal and any interest thereon of this
Certificate may be declared immediately due and payable by the holder hereof.
This Certificate shall not be enforced without leave of the Court, on motion
made on notice to the Interim Receiver.
6. All liability in respect of the whole or any part of the principal sum for
which this Certificate is issued and for further interest thereon shall at any
time or from time to time be terminated on tender to the holder hereof of the
whole or such part of such principal sum with interest accrued thereon as
aforesaid to the date of such tender.
7. The Receiver does not undertake and 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 at Toronto this day of September, 1999.
ARTHUR ANDERSEN INC.
Interim Receiver of
GalaVu Entertainment Inc.
_________________________________
Court File No.:
ONTARIO SUPERIOR COURT OF JUSTICE
IN BANKRUPTCY
COMMERCIAL LIST
IN THE MATTER OF THE BANKRUPTCY AND
INSOLVENCY ACT, R.S.C. 1985, c. B-3, as amended
AND IN THE MATTER OF GALAVU ENTERTAINMENT INC.
B E T W E E N :
CANADIAN IMPERIAL BANK OF COMMERCE
Applicant
- and -
GALAVU ENTERTAINMENT INC.
Respondent
NOTICE OF APPLICATION
TO THE RESPONDENT
A LEGAL PROCEEDING HAS BEEN COMMENCED by the applicant. The claim
made by the applicant appears on the following page.
THIS APPLICATION will come on for hearing before a judge presiding
over the Commercial List on Monday, September 13, 1999 at 9:30 a.m. or as soon
after that time as the matter can be heard at 393 University Avenue, Toronto,
Ontario.
IF YOU WISH TO OPPOSE THIS APPLICATION, you or an Ontario lawyer
acting for you must forthwith prepare a notice of appearance in Form 38A
prescribed by the Rules of Civil Procedure, serve it on the applicant's lawyer
or, where the applicant does not have
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a lawyer, serve it on the applicant, and file it, with proof of service, in this
court office, and you or your lawyer must appear at the hearing.
IF YOU WISH TO PRESENT AFFIDAVIT OR OTHER DOCUMENTARY EVIDENCE TO
THE COURT OR TO EXAMINE OR CROSS-EXAMINE WITNESSES ON THE APPLICATION, you or
your lawyer must, in addition to serving your notice of appearance, serve a copy
of the evidence on the applicant's lawyer or, where the applicant does not have
a lawyer, serve it on the applicant, and file it, with proof of service, in the
court office where the application is to be heard as soon as possible, but not
later than 2 p.m. on the day before the hearing.
IF YOU FAIL TO APPEAR AT THE HEARING, JUDGMENT MAY BE GIVEN IN YOUR
ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. If you wish to oppose this
application but are unable to pay legal fees, legal aid may be available to you
by contacting a local Legal Aid office.
Date September 13, 1999 Issued by _____________________________
Local Registrar
Address of court office:
393 University Avenue
Toronto, Ontario
M5G 1E6
TO: GALAVU ENTERTAINMENT INC.
7800 Woodbine Avenue
Suite 300
Markham, Ontario
L3R 2N7
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APPLICATION
1. The applicant makes application for:
(a) an Order appointing Arthur Andersen Inc. as interim receiver (the
"Interim Receiver") of the assets, property and undertaking of the
Respondent, and for other relief as set out in the draft Order
attached as Schedule "A";
(b) an Order authorizing and directing the Interim Receiver to accept
the offer dated September 10, 1999 by 1373224 Ontario Limited (the
"Offer") to purchase certain of the assets, property, and
undertaking of the Respondent (the "Purchased Assets");
(c) an Order vesting all right, title, and interest of the Interim
Receiver and Respondent, if any, in and to the Purchased Assets, in
1373224 free and clear of all claims of the Interim Receiver, the
Respondent, and creditors of the Respondent, other than the
Permitted Encumbrances, as defined in the Offer;
(d) an Order abridging the time and/or dispensing with service of notice
of this Application; and
(e) such further and other relief as may to this Honourable Court seems
just.
2. The grounds for the application are as follows:
(a) the Applicant is GalaVu's largest secured creditor and is owed in
excess of $19,000,000;
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(b) the Applicant has demanded payment by GalaVu of its indebtedness and
has sent a notice to GalaVu under subsection 244(1) of the
Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended (the
"BIA");
(c) all of the assets, property and undertaking of GalaVu are subject to
the security in favour of the Applicant to which the aforesaid
notice relates;
(d) the appointment of the Interim Receiver is necessary for the
protection of the Respondent's estate and the interest of the
Applicant;
(e) the Respondent has engaged in an extensive and lengthy process of
soliciting offers to purchase its assets and negotiating a sale of
its business;
(f) the logical culmination of that process is the acceptance of the
Offer which represents the best available alternative;
(g) the appointment of the Interim Receiver and acceptance of the Offer
will enable the business of GalaVu to be sold as a going concern and
maximize recoveries for all stakeholders;
(h) s. 47 of the BIA; and
(i) such further and other grounds as counsel may advise.
3. The following documentary evidence will be used at the hearing of the
application:
(a) the affidavit of Jennifer Logan-Klassen sworn September 10, 1999,
and the exhibits attached thereto;
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(b) the affidavit of Gerry Soucie sworn September 10, 1999, and the
exhibits attached thereto;
(c) such further and other material as counsel may advise and this
Honourable Court may permit.
Date: September 13, 1999 BLAKE, CASSELS & GRAYDON
Barristers & Solicitors
Box 25, Commerce Court West
Toronto, Ontario
M5L 1A9
Lisa S. Corne
T: (416) 863-3896
F: (416) 863-2653
Solicitors for the Applicant