SUPERIOR COURT OF JUSTICE IN THE MATTER OF THE … · 10/6/2016 · Adam Erlich Tel: 416-645-6560...
49
Court File No. CV-16-11541-00CL ONTARIO SUPERIOR COURT OF JUSTICE (COMMERCIAL LIST) IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, R.S.C. 1985, C. C-36, AS AMENDED AND IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF URBANCORP CUMBERLAND 2 GP INC., URBANCORP CUMBERLAND 2 L.P., BOSVEST INC., EDGE ON TRIANGLE PARK INC., AND EDGE RESIDENTIAL INC. September 29, 2016 APPLICATION RECORD BENNETT JONES LLP 3400 One First Canadian Place Toronto, ON M5X 1A4 Fax: 416.863.1716 S. Richard Orzy (LSUC#: 231811) Tel: 416.777.5737 Raj Sahni (LSUC#: 42942U) Tel: 416.777.4804 Lawyers for the Cumberland Group
Transcript of SUPERIOR COURT OF JUSTICE IN THE MATTER OF THE … · 10/6/2016 · Adam Erlich Tel: 416-645-6560...
Court File No. CV-16-11541-00CL
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, R.S.C. 1985, C. C-36, AS AMENDED
AND IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF URBANCORP CUMBERLAND 2 GP INC., URBANCORP CUMBERLAND 2 L.P., BOSVEST INC., EDGE ON TRIANGLE PARK INC., AND EDGE RESIDENTIAL INC.
September 29, 2016
APPLICATION RECORD
BENNETT JONES LLP 3400 One First Canadian Place Toronto, ON M5X 1A4 Fax: 416.863.1716
S. Richard Orzy (LSUC#: 231811) Tel: 416.777.5737
Raj Sahni (LSUC#: 42942U) Tel: 416.777.4804
Lawyers for the Cumberland Group
SERVICE LIST
WEIRFOULDS LLP Barristers & Solicitors The TD Bank Tower, Suite 4100 66 Wellington Street West, Toronto, ON M5K 1B7
·. Edmond E.B. Lamek Tel: 416-947-5042 Email: [email protected]
Danny M. Nunes Tel: 416-6196293 Email: [email protected]
. Lawyers for the Urbancorp CCAA Entities
THE FULLER LANDAU GROUP INC. 151 Bloor Street West, 12th Floor Toronto, ON M5S 1S4
Gary Abrahamson Tel: 416-645-6524 Fax: 416-645-6501 Email [email protected]
Adam Erlich Tel: 416-645-6560 Fax: 416-645-6501 Email: [email protected]
Proposal Trustee and Proposed Monitor
WSLEGAL \07 6274\00001\16904300v I
GOODMANS LLP Bay Adelaide Centre 333 Bay Street, Suite 3400 Toronto, ON M5H 2S7
Joe Latham Tel: 416-597-4211 Email: [email protected]
Jason Wadden Tel: 416.597.5165 Email: [email protected]
Lawyers for Reznik, Paz, Neva Trustees Ltd., in its capacity as the Trustee for the Debenture Holders (Series A) and Adv. Guy Gissin, in his capacity as the Israeli Functionary of Urbancorp. Inc.
GOLDMAN SLOAN NASH & HABER (GSNH)LLP 480 University A venue, Suite 1600 Toronto, ON MSG 1 V2
Mario Forte Tel: 416-597-6477 Fax: 416-597-3370
. Email: [email protected]
Robert J. Drake Tel: 416-597-5014 Fax: 416-597-3370 Email: [email protected]
Lawyers for the Proposal Trustee and Proposed Monitor
2
BENNETTJONESLLP CHAITONS LLP 3400 One First Canadian Place 5000 Yonge Street, 1 oth Floor P.O. Box 130 Toronto, ON M2N 7E9 Toronto, ON M5X 1A4
Harvey Chaiton S. Richard Orzy Tel: 416-218-1129 Tel: 416-777-573 7 Email: [email protected] Email: [email protected]
Lawyers for BMO Raj Sahni Tel: 416-863-1200 Email: [email protected]
Jonathan G. Bell Tel: 416-777-6511 Email: [email protected]
Lawyers for the Cumberland Group and Alan Sas kin
TORYSLLP ROBINS APPLEBY LLP 79 Wellington Street West, 30th Floor 120 Adelaide Street West, Suite 2600 Box 270, TD South Tower Toronto, ON M5H 1 Tl Toronto, ON M5K 1N2
Leor Margulies Scott A. Bomhof Tel: 416-360-3372 Tel: 416-865-73 70 Email: [email protected] Email: [email protected]
Dominique Michaud Lawyers for First Capital Realty Tel: 416-360-3795
Email: [email protected]
Lawyers for Terra Firma Capital Corporation
WSLEGAL\076274\0000 I \16904300v I
BANK OF MONTREAL First Canadian Place 18th Floor
' 100 King Street West Toronto ON MSX lAl
Greg Fedoryn Tel: 416-643-1623 Email: [email protected]
Amit Walia Tel: 416-643-2474 Email: [email protected]
DEPARTMENT OF JUSTICE Ontario Regional Office The Exchange Tower, Box 36 130 King Street West Toronto, ON MSX 1K6
Fozia Chaudary Tel: 416-9S2-7722 Email: [email protected]
Lawyers for the Department of Justice
TORYSLLP 79 Wellington Street West, 30th Floor Box 270, TD South Tower Toronto, ON MSK 1N2
Adam M. Slavens Tel: 416-86S-7333 Email: [email protected]
Lawyers for Tarion Warranty Corporation
WSLEGAL\076274\00001 \16904300vl
GOWLING WLG (CANADA) LLP 1 First Canadian Place, 100 King Street West Suite 1600 Toronto, Ontario MSX 1 GS
Clifton Prophet Tel: 416-862-4340 Email: [email protected]
Lilly Wong Tel: 416-369-4630 Email: [email protected]
Lawyers for CIBC and CIBC Mortgage Inc.
MINISTRY OF FINANCE 777 Bay Street, 11th Floor Toronto, ON MSG 2C8
Kevin O'Hara Tel: 416-327-8463 Email: [email protected]
Lawyers for the Ministry of Finance
HARRIS SHEAFFER LLP Yonge Corporate Centre 4100 Yonge Street, Suite 610 Toronto, ON M2P 2BS
Barry Rotenberg Tel: 416-2S0-3699 Email: brotenberg@harris-sheaff er. com
3
4
ROSENSTEIN LAW P.C. MILLER WASTE SOLUTIONS GROUP 5255 Yonge Street, Suite 1300 INC. Toronto, ON M2N 6P4 73 Brydon Drive
Toronto, ON M9W 4N3 Jonathan Rosenstein Tel: 416-639-2123 Jason Tower Email: [email protected] Email: j ason. [email protected]
Lawyers for Aviva Insurance Company of Rob Spinopoli Canada Email: [email protected]
FIRM CAPITAL MORTGAGE FUND INC. MVL LEASING LIMITED 163 Cartwright Ave. 1064 South Service Rd. E. Toronto, ON M6A 1V5 Oakville, ON L6J 2X7 Fax: 416-635-1713 Fax: 905-901-3825
Email: [email protected]
MVL FINANCIAL SERVICES LIMITED CANADIAN MORTGAGE SERVICING 1064 South Service Rd. E. CORPORATION Oakville, ON L6J 2X7 20 Adelaide Street E., Suite 900 Fax: 905-901-3825 Toronto, ON MSC 2T6
Fax: 416-867-1303 Email: adam@}mvl.ca
CANADIAN IMPERIAL BANK OF TEPLITSKY, COLSON LLP COMMERCE Barristers 595 Bay Street, 5th Floor 70 Bond Street, Suite 200 Toronto, ON MSG 2C2
James M. Wortzman Catherine Allen Tel: 416-365-9320 Email: [email protected] Email: [email protected]
Lawyers for Atrium Mortgage Investment Corporation
WSLEGAL\076274\0000 I \l 6904300vl
5
LAURENTIAN BANK OF CANADA HENDRICK AND MAIN 1981, av. McGill College, bur. 1675 DEVELOPMENTS INC.
; Montreal (Quebec) H3A 3K3 85 Hanna Ave., Suite 400
Toronto, ON M6K 3S3 Alexandre LeBlanc Tel: 416-504-4114 Tel: 514-284-4500 x 2145 Fax: 416-941-1655 Email: alexandre.leblanc2@,banquelaurentienne.ca
BANK OF MONTREAL, AS FIRST CAPITAL 1071 CORPORATION ADMINISTRATIVE AGENT 85 Hannah Ave., Suite 400 First Canadian Place, 11th Floor Toronto, ON M6K 3S3 Toronto, ON MSX lAl Tel: 416-504-4114
Fax: 416-941-1655
LOOPSTRA NIXON LLP TORKIN MANES LLP 135 Queens Plate Drive, Suite 600 151 Yonge Street, Suite 1500 Toronto, ON M9W 6V7 Toronto, ON MSC 2W7
: Alison Kuchinsky Kayla Kwinter : Tel: 416-746-4710 x271 Tel: 416-777-5420
Email: [email protected] Email: [email protected]
Lawyers for 207875 Ontario Limited carrying Lawyers for MDF Mechanical Limited • on business as Canadian Rental Centres
DICKINSON WRIGHT LLP CITY OF TORONTO 199 Bay St., Suite 2200 Legal Services Toronto, ON MSL 1 G4 55 John Street, 26th Floor
Toronto, ON MSV 3C6 David P. Preger Tel: 416-646-4606 Christopher P. Henderson Email: [email protected] Email: [email protected]
Lawyers for Downing Street Financial Inc.
WSLEGAL\076274\00001\l6904300vl
6
FINE&DEO LEVINE SHERKIN BOUSSIDAN 3100 Steeles Ave. W, Suite 300 23 Lesmill Road, #300 Vaughan, ON L4K 3Rl Toronto, ON M3B 3P6
Tel: 90S-760-1800 Kevin Sherkin Fax: 90S-760-00SO Tel: 416-224-2400
Email: [email protected] Lawyers for Toronto Standard Condominium Corporation No. 2448. Lawyers for Dolvin Mechanical Contractors
Ltd.
. TERRA FIRMA CAPITAL FIRST CAPITAL REALTY INC . CORPORATION 8S Hannah Ave., Suite 400 22 St. Clair A venue East, Suite 200 Toronto, ON M6K 3S3 Toronto, ON M4T 2SS Tel: 416-S04-4114
Fax: 416-941-16SS Glenn Watchorn President Email: [email protected]
FIRST CAPITAL (S.C.) CORPORATION TERRA FIRMA CAPITAL 8S Hannah Ave., Suite 400 CORPORATION Toronto, ON M6K 3S3 SOOO Yonge Street, Suite l S02 Tel: 416-S04-4114 Toronto, ON M2N 7E9 Fax: 416-941-16SS
Glenn Watchorn President Email: [email protected]
TERRA FIRMA CAPITAL TERRA FIRMA REAL TY CORPORATION CORPORATION 1 Toronto Street, Suite 700 1 Toronto Street, Suite 700 Toronto, ON MSC 2V6 Toronto, ON MSC 2V6
Glenn Watchorn Glenn Watchorn President President Email: [email protected] Email: [email protected]
WSLEGAL\076274\00001 \16904300vl
7
GOODMANS LLP MILLER THOMSON Bay Adelaide Centre 600-60 Columbia Way 333 Bay Street, Suite 3400 Markham, ON L3R OC9 Toronto, ON M5H 2S7
Cara Shamess Mark Dunn Tel: 905-415-6464 Tel: 416-849-6895 Email: [email protected] Email: [email protected]
Lawyers for Mid-Northern Lawyers for Toronto Media Arts Cluster
McMILLAN LLP OFFICE OF THE SUPERINTENDENT Brookfield Place, Suite 4400 OF BANKRUPTCY 181 Bay Street 25 St. Clair A venue E, 61h Floor Toronto, ON M5J 2T3 Toronto, ON M4T 1M2
Paul Avis Julie Fay Tel: 416-865-7006 Senior Bankruptcy Analyst Email: [email protected] Tel: 416-973-6442
Fax:416-973-7440 Lawyers for REC and ENS E-mail: [email protected]
BLAKE, CASSELS & GRAYDON LLP DRUDI ALEXIOU KUCHAR LLP 199 Bay Street, Suite 4000 7050 Weston Rd. Commerce Court West Suite 610 Toronto ON M5L 1A9 Vaughan, ON L4L 807
Steven J. Weisz Marco Drudi Tel: 416-863-2616 Tel: 905-850-6116 Email: [email protected] Email: [email protected]
Lawyers for Laurentian Bank of Canada Lawyers for Paramount Structures Ltd.
WSLEGAL\076274\00001 \16904300v I
8
TORYSLLP ALVAREZ & MARSAL CANADA INC. 79 Wellington Street W. 200 Bay Street, Suite 2900 Suite 3000 Toronto, ON M5J 211 Toronto, ON M5K 1N2
Tony Zaspalis Scott Bomhof Tel: 416-847-5171 Tel: 416-865-7370 Email: [email protected] Email: [email protected]
Amanda Favot Crawford Smith Tel: 416-847-5163 Tel: 416-865-8209 Email: [email protected] Email: [email protected]
Ryan Gruneir Lawyers for First Captial (King Liberty - Tel: 416-847-5151 Retail) Corporation, King Liberty North Email: [email protected] Corporation, and First Capital (S. C.) Corporation Construction Receiver over Urbancorp
(Leslieville) Developments Inc., Urbancorp (I'he Beach) Developments Inc., and Urbancorp (Riverdale) Developments Inc.
A. FARBER & PARTNERS INC. DELZOTTO ZORZI LLP 150 York Street, Suite 1600, 4810 Dufferin Street, Suite D Toronto, ON, M5H 3S5 Toronto, ON M3H 5S8
Hylton Levy, CPA, CA, CIRP, LIT Robert W. Calderwood Tel: 416-496-3070 Tel.: 416-665-5555 Email: [email protected] E-mail: [email protected]
Financial Advisor for Adv. Guy Gissin, in his Sabrina Adamski capacity as the Israeli Functionary of Tel.: 416-665-5555 Urbancorp. Inc. E-mail: [email protected]
Lawyers for Furkin Construction Inc. and GMF Consulting Inc.
WSLEGAL\076274\00001 \16904300v I
9
CASSELS BROCK & BLACKWELL LLP DAV AD INVESTMENTS INC. 40 King St. West, Suite 2100 113 lA Leslie Street, Suite 500, Toronto, ON M5H 3C2 Toronto, Ontario, M3C 3L8 Attention: Mark St. Cyr
David Walerstein Mark St. Cry Email: [email protected] Tel: 416-869-5462 Email: [email protected] DIP Lender
Lawyers for Case Realty
FASKEN MARTINEAU DUMOULIN LLP 333 Bay Street, Suite 2400 Toronto, ON M5H 2T6
Nora Kharouba Tel: 416-865-5163 Email: [email protected]
Lawyers for HomeLife Landmark Realty Inc.
WSLEGAL\076274\00001 \16904300vl
Index
Tab
1
2
A
B
c
D
E
F
G
H
I
Court File No. CV-16-11541-00CL
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, R.S.C. 1985, C. C-36, AS AMENDED
AND IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF U:RBANCORP CUMBERLAND 2 GP INC., URBANCORP CUMBERLAND 2 L.P., BOSVEST INC., EDGE ON TRIANGLE PARK INC., AND EDGE RESIDENTIAL INC.
NOTICE OF APPLICATION
Index
Document
Notice of Application
Affidavit of Alan Saskin sworn September 29, 2016
Organizational chart
Affidavit of Alan Saskin, sworn May 20, 2016 without exhibits
Edge Order dated May 26, 2016 without exhibits
Affidavit of Alan Saskin, sworn June 10, 2016
Cumberland 2 Order dated June 15, 2016
Order dated July 11, 2016
Order dated August 24, 2016
Approval and Vesting Order dated August 24, 2016
Consent to act as Monitor
Tab Document
J Third Report (without appendices) dated August 18, 2016
K Commitment Letter dated July 15, 2016
3 Draft Initial Order
TAB1
1 l v - I"° - I I s Lf J - oa Cl
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
Court File No.:
IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, R.S.C. 1985, C. C-36, AS AMENDED
/'':(;\:\s'r1t.::, ... , AND IN THE MATTER OF A PLAN OF COMPROMISE OR /':,_1;, "\ARRANGEMENT OF URBANCORP CUMBERLAND 2 GP
/,. i , .\INC., URBANCORP CUMBERLAND 2 L.P., BOSVEST INC., i' ~ · ;·;!EDGE ON TRIANGLE PARK INC., AND EDGE ·.· .')RESIDENTIAL INC.
, . I
, 'I >J};;,1 , •. C:,::,: .·.
NOTICE OF APPLICATION
TO THE RESPONDENT(S):
A LEGAL PROCEEDING HAS BEEN COMMENCED by the Applicants. The claim made by the Applicants appears on the following page.
THIS APPLICATION will come on for a hearing before a Judge presiding over the Commercial List on Thursday, October 6, 2016 at 10:00 a.m., at 330 University Avenue, 8th Floor, Toronto, Ontario.
IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the Application or to be served with any documents in the 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 Applicants' lawyer or, where the Applicants do not have a lawyer, serve it on the Applicants, 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 Applicants' lawyer or, where the Applicants do not have a lawyer, serve it on the Applicants, and file it, with proof of service, in the court office where the Application is to be heard as soon as possible, but at least two days 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.
- 2 -
Date: September 29, 2016
TO: THE ATTACHED SERVICE LIST
Issued by:
Local Registrar C. Irwin Registrar
Address of 330 University A venue Court Office: 7th Floor
Toronto, Ontario MSG i~ IR~ r '---~
2
- 3 -
APPLICATION
1. THE APPLICANTS, Urbancorp Cumberland 2 GP Inc. ("Cumberland 2 GP"),
Urbancorp Cumberland 2 L.P. ("Cumberland 2 LP"), Bosvest Inc. ("Bosvest"), Edge
Residential Inc. ("Residential"), and Edge on Triangle Park Inc. ("Triangle" and
collectively with Cumberland 2 GP, Cumberland 2 LP, Bosvest, and Residential, the
"Cumberland Group"), make this Application for an Initial Order, substantially in the
fonn attached at Tab 3 of the Application Record, among other things:
(a) abridging the time for service of the Notice of Application and the Application
Record, and declaring that this application is properly returnable on October 6,
2016, and dispensing with further service thereof;
(b) taking up and continuing the proposal proceedings of the Cumberland Group (the
"Proposal Proceedings") commenced under Part III of the Bankruptcy and
Insolvency Act, R.S.C., 1985, c. B-3, as amended (the "BIA"), under the
Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, as amended (the
"CCAA"), and declaring that the BIA proposal provisions shall have no further
application to the Cumberland Group;
( c) granting an Initial Order ("Initial Order") under the CCAA, in respect of the
Cumberland Group;
( d) appointing The Fuller Landau Group Inc. ("Fuller Landau") as Monitor (the
"Monitor") with "enhanced" powers as set out in the Initial Order;
( e) authorizing the Cumberland Group, at the direction of the Monitor, to borrow under
the debtor-in-possession facility ("DIP Facility") from Davad Investments Inc.
("Davad" or the "DIP Lender") on the terms and subject to the conditions set out
in the commitment letter dated July 15, 2016, and subject to the Order of
Honourable Mr. Justice Hainey dated August 24, 2016 (the "August 24th Order")
in the Proposal Proceedings, and continuing such DIP Facility in the Cumberland
Group's CCAA proceeding (the "CCAA Proceeding");
3
- 4 -
(f) declaring that the Co-Operation Protocol between the Proposal Trustee and the
Israeli Parentco Officer approved in the Proposal Proceedings will continue to
apply in the CCAA Proceeding as between the Monitor and the Israeli Parentco
Officer;
(g) approving the sales process (the "Sales Process"), as described in the Third Report
of Fuller Landau and approved by the August 24th Order, be taken up and continued
in the CCAA Proceeding, including the entitlement of Fuller Landau to execute and
deliver the vesting certificates contemplated in the Vesting Order of Honourable
Mr. Justice Hainey dated August 24, 2016 (the "Vesting Order") in the Proposal
Proceedings;
(h) authorizing the Monitor to conduct, supervise and direct the Sales Process;
(i) approving the Administrative Charge and the Directors' Charge, and continuing in
the CCAA Proceeding the DIP Lender's Charge granted by the August 24th Order;
and
(j) such further and other relief as counsel may advise and this Honourable Court may
pennit.
2. THE GROUNDS FOR THE APPLICATION ARE:
(a) Cumberland 2 GP and Cumberland 2 LP are indirect subsidiaries ofUrbancorp Inc.
("UCI") which is a real estate development company that has developed,
constructed, and sold numerous residential projects;
(b) UCI is the 100% shareholder of Cumberland 2 GP, which in tum is the general
partner of Cumberland 2 LP. Cumberland 2 LP is the sole shareholder and
beneficial owner of the assets ofBosvest and an indirect shareholder of Residential
and Triangle;
(c) each of the entities in the Cumberland Group have filed a Notice of Intention to
Make a Proposal ("NOi"), naming Fuller Landau as proposal trustee (the "Proposal
Trustee");
4
- 5 -
( d) pursuant to the August 24th Order, the Court, among other things,
(') 1, approved the Sales Process, including the appointment of Brad J. Lamb
Realty Inc. as listing agent under the Sales Process and granted a
prospective vesting order in respect of certain sales contemplated therein;
(ii) approved the DIP Facility from Davad;
(iii) approved the DIP Lender's Charge; and
(iv) extended the time for the Cumberland Group to file a proposal pursuant to
section 50.4(9) of the BIA to and including October 10, 2016;
(e) a broad court-supervised restructuring of the Cumberland Group as a whole is
required to preserve value for stakeholders and to complete the Sales Process;
(f) conversion of the Proposal Proceedings into one CCAA proceeding will provide
administrative efficiencies and additional time, and allow the Cumberland Group
time to streamline restructuring efforts in order to maximize value for stakeholders;
(g) the stay of proceedings under the Proposal Proceedings expires on October 10, 2016
and if a viable proposal is not filed by the entities comprising the Cumberland
Group prior to the expiration of the stay, the entities comprising the Cumberland
Group will likely become bankrupt which will be detrimental to the creditors;
(h) the DIP Facility is required until the Sales Process for the real property is completed
in order to fund ongoing costs and other matters related to the Cumberland Group's
insolvency proceedings;
(i) Fuller Landau has discussed the proposed CCAA Proceeding with Davad and it is
prepared to continue the DIP Facility subject to, among other things, continuance
of the DIP Lender's Charge in the CCAA Proceeding;
(j) Fuller Landau has agreed to be appointed as the Monitor of the Cumberland Group,
pending approval of this Honourable Court;
5
- 6 -
(k) the entities comprising the Cumberland Group are companies to which the CCAA
applies;
(1) such further and other grounds as set out in the Affidavit of Alan Saskin, sworn
September 29, 2016 (the "Saskin Affidavit");
Other Grounds
(m) section 11.6 of the CCAA;
(n) the provisions of the CCAA and the inherent and equitable jurisdiction of this
Honourable Court;
(o) Rules 1.04, 2.01, 2.03, 14.05(1), 14.05(2), 16 and 38 of the Rules of Civil
Procedure, R.R.O. 1990, Reg. 194; and
(p) such further and other grounds as counsel may advise and this Honourable Court
may deem just.
6
- 7 -
3. THE FOLLOWING DOCUMENTARY EVIDENCE WILL BE USED AT THE
HEARING OF THE APPLICATION;
(a) the Saskin Affidavit, together with the exhibits thereto;
(b) the Consent of Fuller Landau to act as Monitor;
(c) Fourth Report of Proposal Trustee; and
( d) such further and other evidence as counsel may advise and this Honourable Court
may permit.
DATED: September 29, 2016 BENNETT JONES LLP 3400 One First Canadian Place Toronto, Ontario M5X 1A4 Fax:416.863.1716
S. Richard Orzy (LSUC#: 231811) Tel: 416.777.5737
Raj Sahni (LSUC#: 42942U) Tel: 416.777.4804
Lawyers for the Cumberland Group
7
Co
urt
Fil
eN
o.C
V-/
G-f
/SL/
/-O
o:l
_
IN T
HE
MA
TT
ER
OF
TH
E C
OM
PA
NIE
S' C
RE
DIT
OR
S A
RR
AN
GE
ME
NT
AC
T, R
.S.C
. 19
85, c
. C-3
6, A
S A
ME
ND
ED
AN
D I
N T
HE
MA
TT
ER
. OF
A P
LA
N O
F C
OM
PR
OM
ISE
OR
AR
RA
NG
EM
EN
T O
F U
RB
AN
CO
RP
CU
MB
ER
LA
ND
2 G
P I
NC
.,
UR
BA
N C
OR
P C
UM
BE
RL
AN
D 2
L.P
., B
OS
VE
ST
IN
C.,
ED
GE
ON
TR
IAN
GL
E P
AR
K IN
C.,
AN
D E
DG
E R
ES
IDE
NT
IAL
IN
C.
ON
TA
RIO
S
UP
ER
IOR
CO
UR
T O
F J
US
TIC
E
(CO
MM
ER
CIA
L L
IST
)
Pro
ceed
ing
com
men
ced
at T
oron
to
NO
TIC
E O
F A
PP
LIC
AT
ION
BE
NN
ET
TJO
NE
SL
LP
34
00 O
ne F
irst
Can
adia
n P
lace
T
oron
to, O
ntar
io M
5X 1
A4
Fax
:416
.863
.171
6
S. R
ich
ard
Orz
y (L
SUC
#: 2
3181
1)
Tel
: 41
6.77
7.57
37
Raj
Sah
ni (
LSU
C#:
429
42U
) T
el:
416.
777.
4804
Law
yers
for
the
Cum
berl
and
Gro
up
00
TAB2
Court File No.: CV-16-11541-00CL
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, R.S.C. 1985, C. C-36, AS AMENDED
AND IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF URBANCORP CUMBERLAND 2 GP INC., URBANCORP CUMBERLAND 2 L.P., BOSVEST INC., EDGE ON TRIANGLE PARK INC., AND EDGE RESIDENTIAL INC.
AFFIDAVIT OF ALAN SASKIN (Sworn September 29, 2016)
I, ALAN SASKIN, of the City of Toronto, in the Province of Ontario, MAKE OATH
AND SAY:
1. I am the sole officer, and director of the Applicants, Urbancorp Cumberland 2 GP Inc.
("Cumberland 2 GP"), and Urbancorp Cumberland 2 L.P. ("Cumberland 2 LP") (Cumberland 2
GP and Cumberland 2 LP are collectively referred to as the "Cumberland 2 Companies"). I am
also the sole officer and director of the Applicants, Bosvest Inc. ("Bosvest"), Edge Residential
Inc. ("Residential") and Edge on Triangle Park Inc. ("Triangle") (Bosvest, Residential, and
Triangle are together referred to as the "Edge Companies"), and as such I have personal
knowledge of the matters set out below. Where the source of my information or belief is other
than my own personal knowledge, I have identified the source of that information and I verily
believe the information to be true.
2. Each of Cumberland 2 GP, Cumberland 2 LP, Bosvest, Residential, and Triangle
(collectively referred to as the "Cumberland Group") have filed Notices of Intention to Make a
Proposal ("NOi") under the Bankruptcy and Insolvency Act, RSC 1985, c B-3, as amended (the
"BIA"). The Fuller Landau Group Inc. ("Fuller Landau") was appointed as the proposal trustee
(the "Proposal Trustee") of the Cumberland Group.
9
Page ... 2 10
3. All references to currency in this Affidavit are references to Canadian Dollars, unless
otherwise indicated.
I. RELIEF SOUGHT
4. I am swearing this Affidavit in support of an application by the Applicants for an Order,
among other things,
(a) taking up and continuing the BIA proposal proceedings of the Cumberland Group
under the Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, as
amended (the "CCAA") and the proceeding thereunder (the "CCAA
Proceeding");
(b) granting an Initial Order (the "Initial Order") under the CCAA in respect of the
Cumberland Group;
(c) appointing Fuller Landau as monitor under the CCAA Proceeding with "enhanced"
powers as set out in the Initial Order (the "Monitor");
( d) authorizing the Cumberland Group, at the direction of the Monitor, to borrow
under the debtor-in-possession facility ("DIP Facility") from Davad Investments
Inc. on the terms and subject to the conditions set out in the Commitment Letter (as
hereinafter defined) dated July 15, 2016, and subject to the Order of Honourable
Mr. Justice Hainey dated August 24, 2016 in the BIA proposal proceedings and
continuing such DIP Facility in the CCAA Proceeding;
( e) declaring that the Co-Operation Protocol between the Proposal Trustee and the
Israeli Parentco Officer (as hereinafter defined) approved in the BIA proposal
proceedings will continue to apply in the CCAA Proceeding as between the
Monitor and the Israeli Parentco Officer;
(f) authorizing that the sales process (the "Sales Process") as described in the Third
Report of Fuller Landau, and approved by Order of Honourable Mr. Justice Hainey
dated August 24, 2016 in the proposal proceedings be taken up and continued in
the CCAA Proceeding, including the entitlement of Fuller Landau to execute and
Page ... 3 11
deliver the vesting certificates contemplated in the Vesting Order (as hereinafter
defined);
(g) authorizing the Monitor to conduct, supervise and direct the Sales Process; and
(h) approving the Administrative Charge and the Directors' Charge, and continuing in
the CCAA Proceeding the DIP Lender's Charge granted by the Order of
Honourable Mr. Justice Hainey dated August 24, 2016.
A. My role in these CCAA proceedings
5. Having consulted with Fuller Landau, in its capacity as Proposal Trustee under the
Cumberland Group's BIA proposal proceedings, I believe that a single consolidated CCAA
proceeding in respect of the Cumberland Group, overseen and substantially conducted by Fuller
Landau as Monitor, will allow the Cumberland Group the greatest opportunity to pursue the
available restructuring and value maximizing alternatives, continue the court-supervised Sales
Process, and continue on-going negotiations with third-parties and other stakeholders in order to
maximize value for all stakeholders.
6. Because I am currently the only officer and director of each of Cumberland 2 GP,
Cumberland 2 LP, Bosvest, Residential, and Triangle, and Fuller Landau was granted enhanced
powers as Proposal Trustee pursuant to the Order of Justice Newbould made on June 15, 2016, I
am of the view that Fuller Landau should be appointed as Monitor of the Cumberland Group
under the Initial Order with similar enhanced powers that would enable and authorize the Monitor
to make all material decisions in respect of the operation of the business and the conduct of the
Sales Process and other negotiations, in consultation with stakeholders, in place of the board of
directors (and management) of Cumberland 2 GP, Cumberland 2 LP, Bosvest, Residential, and
Triangle. In a further effort to build stakeholder confidence in this restructuring process, I have
agreed to limit my role in these restructuring proceedings in deference to the Monitor's proposed
enhanced role, just as I have previously done in connection with the BIA proposal proceedings. I
will remain available to the Monitor throughout the CCAA Proceeding as a consultant and an
information resource, but I will have no decision making power with respect to the business of the
Page .. .4 12
Cumberland Group or the conduct of any sale process, or the transactions or plans ultimately
brought by the Monitor before the Court for approval.
II. INTRODUCTION
7. The Cumberland 2 Companies are indirect subsidiaries of Urbancorp Inc. ("UCI"). UCI is
a real estate development company that has developed, constructed, and sold numerous residential
projects. UCI is the 100% shareholder of Cumberland 2 GP, which in turn is the general partner of
Cumberland 2 LP.
8. Cumberland 2 LP is the sole shareholder and beneficial owner of the assets of Bosvest and
an indirect shareholder of Residential and Triangle. A copy of UCI's basic organizational chart
showing the Edge Companies and their relationship to UCI is attached hereto as Exhibit "A".
9. On April 29, 2016, each ofBosvest, Residential and Triangle filed NOis with the Office of
the Superintendent of Bankruptcy Canada. Fuller Landau was named as proposal trustee under
those NOis. Background information with respect to the proposal proceedings of the Edge
Companies is contained in my affidavit sworn May 20, 2016 (the "First Sask.in Affidavit"). A
copy of the First Saskin Affidavit (without exhibits) is attached hereto as Exhibit "B".
10. On May 18, 2016, the Court issued the following Orders in respect of UCI and certain of
its subsidiaries, excluding the Cumberland Group:
(a) an Initial Recognition Order (Foreign Main Proceeding), recognizing proceedings
(the "Israeli Proceedings") commenced in the District Court of Tel Aviv-Yafo,
Israel (the "Israeli Court") on April 25, 2016 as the foreign main proceeding in
respect of UCI pursuant to Part IV of the CCAA and recognizing Guy Gissin, the
Functionary Officer and foreign representative of UCI appointed by the Israeli
Court as the "Foreign Representative";
(b) a Supplemental Order (Foreign Main Proceeding), which inter alia, appointed
KSV Kofman Inc. ("KSV") as the "Information Officer" of the Court in respect
of the Israeli Proceedings and set out the powers of the Information Officer; and
Page ... 5 13
( c) an Initial Order pursuant to the CCAA in respect of most of the direct and indirect
subsidiaries of UCI (the "UCI CCAA Companies"), but not including any of the
entities in the Cumberland Group. Pursuant to the CCAA Initial Order, KSV was
appointed as monitor in respect of the UCI CCAA Companies with enhanced
powers to oversee and manage the business and operations of the UCI CCAA
Companies, and a protocol was approved for cooperation between KSV and the
Foreign Representative.
11. As noted above, the entities comprising the Cumberland Group are not debtors in either
the aforementioned UCI Companies' CCAA proceedings or the Israeli Proceedings. The NOI
proceedings in respect of the Cumberland Group have been kept separate from the CCAA
proceedings in respect of UCI's other subsidiaries as the Cumberland Group is dealing primarily
with claims of direct trade creditors and construction lien claimants as opposed to the Israeli
bondholder claims and other claims being dealt with by UCI and the UCI CCAA Companies.
However, since UCI is the parent of the Cumberland Group and there are intercompany claims
between UCI, some of the UCI CCAA Companies and the entities in the Cumberland Group,
Fuller Landau has kept Canadian counsel for the UCI Foreign Representative and KSV, in its
capacity as monitor of the UCI CCAA Companies, apprised of the Cumberland Group's NOi
proceedings and has consulted with them in connection with their respective interests in the
Cumberland Group.
12. On May 20, 2016, each of Cumberland 2 LP and Cumberland 2 GP filed NOis, naming
Fuller Landau as proposal trustee.
13. On May 26, 2016, the Court granted an Order (the "May 26th Order"), among other
things:
(a) administratively consolidating the proposal proceedings of Bosvest, Residential
and Triangle under one joint title of proceedings and one estate and court file
number: 31-2117551;
(b) granting an Administrative Charge in favour of Fuller Landau, counsel to Fuller
Landau, and counsel for Bosvest, Residential and Triangle;
Page ... 6 14
( c) authorizing Fuller Landau to open and manage bank accounts for Bosvest,
Residential and Triangle; and
( d) extending the time within which a proposal must be filed by Bosvest, Residential
and Triangle with the Official Receiver to and including July 12, 2015.
A copy of the May 26th Order is attached hereto as Exhibit "C".
14. On June 15, 2016, the Court granted an Order (the "June 15th Order"), among other
things,
(a) administratively consolidating the proposal proceedings of the Edge Companies
and the Cumberland 2 Companies;
(b) ordering that the Administrative Charge extends to the Property of the Cumberland
2 Companies;
( c) approving the "Protocol for Co-Operation Among Canadian Court Officer and
Israeli Functionary" dated June 8, 2016 (the "Co-operation Protocol");
( d) granting certain additional powers to Fuller Landau with respect to the Edge
Companies and their property, to assist in the management and administration
thereof;
( e) directing Harris Sheaffer LLP to release approximately $2. 7 million, held in its
trust accounts relating to realty taxes owed to the City of Toronto, to Fuller
Landau; and
(f) extending the time for filing a proposal by the Cumberland 2 Companies until July
12, 2016.
Background information with respect to the proposal proceedings of the Cumberland 2
Companies is contained in my affidavit sworn June 10, 2016 (the "Second Saskin Affidavit"). A
copy of the Second Saskin Affidavit (without exhibits) is attached hereto as Exhibit "D". A copy
of the June 15th Order is attached hereto as Exhibit "E".
Page ... 7 15
15. On July 11, 2016, the Court granted an Order (the "July 11th Order") extending the time
for filing a proposal by the Cumberland Group until August 26, 2016. A copy of the July 11th
Order is attached hereto as Exhibit "F".
16. On August 24, 2016, the Court granted an Order (the "August 24th Order"), among other
things,
(a) approving the Sales Process, including the engagement of Brad J. Lamb Realty Inc.
("BL") as listing agent under the Sales Process and granting a prospective vesting
order in respect of certain sales contemplated therein;
(b) approving the DIP Facility from Davad Investments Inc. ("Davad" or the "DIP
Lender");
(c) approving the DIP Lender's Charge;
( d) approving the activities of Fuller Landau;
(e) approving the fees and disbursements of Fuller Landau and its counsel; and
(f) extending the time for the Cumberland Group to file a proposal pursuant to section
50.4(9) of the BIA to and including October 10, 2016.
A copy of the August 24th Order is attached hereto as Exhibit "G".
17. Also on August 24, 2016, the Court issued an Approval and Vesting Order (the "Vesting
Order") in respect of the sale of one or more Vacant Units (as defined in the Vesting Order). A
copy of the Vesting Order is attached hereto as Exhibit "H".
18. After a comprehensive review of the current operations of the Cumberland Group with
Fuller Landau as Proposal Trustee, I am of the view that a broad court-supervised restructuring of
the Cumberland Group as a whole is required in order to preserve the most value for stakeholders
and complete the Sales Process. I believe that a CCAA proceeding is the appropriate forum for
effecting such a restructuring, particularly since it will provide the Monitor with the additional
time needed to complete the Sales Process and address claims and other matters to maximize
Page ... 8 16
recoveries for creditors and other stakeholders. Fuller Landau has provided its consent to act as
Monitor of the Cumberland Group and its signed consent is attached hereto as Exhibit "I".
III. OVERVIEW OF THE CUMBERLAND GROUP
A. Cumberland 2 GP
19. Cumberland 2 GP is an indirect subsidiary of UCL As previously noted, UCI is a 100%
shareholder of Cumberland 2 GP, which in tum is the general partner of Cumberland 2 LP
(discussed below). As at the date of Cumberland 2 GP's NOI filing, Cumberland 2 GP had
creditors who were owed $3 7 .9 million according to its books and records.
B. Cumberland 2 LP
20. Cumberland 2 LP is the sole shareholder and beneficial owner of the assets of Bosvest and
an indirect shareholder of Residential and Triangle. As at the date of Cumberland 2 LP's NOI
filing, Cumberland 2 LP had creditors who were owed approximately $37.9 million according to
its books and records.
C. Bosvest
21. Bosvest was incorporated on December 31, 2004 and is a holding company which
currently owns 100% of the shares of Triangle and Residential. In 2010, Bosvest, entered into a
co-tenancy agreement with 994697 Ontario Inc. (an arms-length entity) to construct the Edge
Triangle project (the "Edge Triangle Project") and held a 66.67% interest in Triangle. On June
22, 2015, the co-tenancy agreement was terminated and the remaining unsold units in the project
were divided between the partners.
22. At the time of Bosvest's NOI filing, Bosvest's assets consisted of its investment in
Triangle and certain limited accounts receivable. As at the date of Bostvest's NOI filing,
according to Bosvest's books and records, it owed $5,412,303.12, comprising of intercompany
indebtedness to various Urbancorp Group entities and a secured loan to Terra Firma Capital
Corporation in the amount of $486,292.07.
Page ... 9 17
D. Triangle
23. Triangle was incorporated on February 9, 2010 and was the developer of the Edge
Triangle Project which is a mixed-use project consisting of rental and development portions. The
Edge Triangle Project consists of two towers of 21 and 22 stories built on top of a 7 story podium
with a total above grade buildable floor area of 690,678 sq. ft, consisting of 666 residential units,
38,958 sq. ft. of office space, and commercial space with a total area of 3,700 sq. ft. Construction
was substantially completed in May, 2015.
24. At the time of Triangle's NOI filing, Triangle owned 5 residential condominium units, 5
retail condominium units, and the 38,958 sq. ft. of office space, the latter being subject to section
37 Planning Act and related agreements with the City of Toronto.
25. At the time of Triangle's NOI filing, Triangle's assets consisted of the real estate assets set
out in the paragraph above and also included an amount due from Residential related to the
transferred condominium units (as described below), amounts that were held in trust by Harris
Sheaffer LLP (the Edge Companies' real estate counsel), a loan receivable from the Edge
Triangle Project condominium corporation, and amounts due from other Urbancorp Group
entities. As at the date of Triangle's NOI filing, according to Triangle's books and records it
owed $27,532,415.09 comprising of amounts due to trade creditors including lien claimants,
government agencies, real estate brokers, and significant intercompany indebtedness to various
Urbancorp Group entities.
E. Residential
26. Residential was incorporated on April 10, 2015 and owns 32 condominum units that were
transferred to Residential from Triangle on or about July 2015. At the time of Residential's NOI
filing, 19 units were being rented and the remaining 13 units were vacant with limited
construction remaining on certain units (i.e. installation of appliances, countertops, etc.).
27. Residential's assets consist of the real estate assets set out in the paragraph above and
amounts due from other Urbancorp Group entities. As at the date of the NOI filing, according to
Residential's books and records it owed $7,203,299.88 which is comprised of amounts due to
trade creditors and government agencies, lien claimants, and intercompany indebtedness to
Page ... 10 18
vanous Urbancorp Group entities including to Edge Triangle in respect of the transferred
condominium units. It was intended that units held by Residential would be entirely for rental
purposes generating what was effectively investment income.
IV. SALES PROCESS
28. Between July 8, 2016 and July 11, 2016, Fuller Landau in its capacity as Proposal Trustee,
solicited proposals from 13 real estate brokers regarding a sales process in respect of the retail and
residential condominium units, parking spots, and lockers legally owned by Triangle and
Residential.
29. As part of this solicitation process, the Proposal Trustee set a bid deadline of July 15, and
12 of the 13 brokers submitted proposals. The Proposal Trustee, with input from the Israeli
Functionary and the Cumberland Group, selected six realtors to meet with the Proposal Trustee
and the Cumberland Group to discuss their proposals.
30. After holding discussions and/or meetings with the six realtors, the Proposal Trustee and
Management selected the proposal of BL dated August 2, 2016, subject to the approval of this
Court.
31. BL's recommended sale process is to divide the condominium units into three categories:
(a) Parcel A: 23 leased residential condominium units including certain of the parking
spaces and lockers that are to be sold as a bulk package;
(b) Parcel B: 5 retail condominium units, two of which are subject to lease agreements,
that are to be sold as a bulk package; and
(c) Parcel C: 14 vacant residential condominium units including certain of the parking
spaces and lockers that are to be sold on an individual unit basis.
BL's proposed sale process was detailed in the Third Report to the Court of Fuller Landau
dated August 18, 2016 (the "Third Report"). A copy of the Third Report (without appendices) is
attached hereto as Exhibit "J".
Page ... 11 19
32. The Sales Process was approved by the Court in the August 24th Order. The Court also
approved a Sale Agreement that was to be used for the Vacant Units and issued the Vesting Order
to allow the Proposal Trustee to close certain transactions.
V. DIP FACILITY
33. Fuller Landau in its capacity as Proposal Trustee of the Cumberland Group advised the
Court in its Second Report that on June 27, 2016 that it had commenced a DIP solicitation
process. The DIP Facility was required until the Sales Process for the real property commenced
under the NOI proceedings was completed in order to fund ongoing operating costs for payroll
and overhead, consultant fees, Tarion related warranty repairs or settlements, including
completion or repairs to common elements, the payment of professional fees and other matters
related to the insolvency proceedings of the Cumberland Group.
34. In the August 24th Order, the Court approved the DIP Facility between the Cumberland
Group and Davad subject to the terms and conditions set forth in the commitment letter (the
"Commitment Letter") dated July 15, 2016. The terms of the DIP Facility between the
Cumberland Group and Davad were summarized in the Third Report. A copy of the Commitment
Letter is attached hereto as Exhibit "K".
35. Fuller Landau has discussed the proposed CCAA Proceeding with Davad and it is
prepared to continue the DIP Facility in the CCAA Proceeding, subject to approval by the Court
and the requested continuance of the DIP Lender's Charge.
VI. THE APPLICANTS MEET THE CCAA STATUTORY REQUIREMENTS
36. Each of the Applicants is a "company" to which the CCAA applies as they are each
incorporated pursuant to the OBCA. The Applicants have claims against them in the aggregate in
excess of $5 million. Each of the Applicants is insolvent as it is subject to NOI proceedings and is
unable to meet its obligations generally as they come due.
Page ... 12 20
VII. RELIEF BEING SOUGHT
A. Continuance of NOi proceedings under the CCAA
37. As noted herein, the entities within the Cumberland Group have commenced the NOI
proceedings in order to maintain the status quo and preserve value for their respective
stakeholders. The conversion from the five (5) separate NOI proceedings into one CCAA
proceeding will provide administrative efficiencies and additional time, and allow the
Cumberland Group to streamline their restructuring efforts. A CCAA proceeding will also afford
a stable and yet flexible framework within which to restructure the Cumberland Group in order to
maximize value for their respective stakeholders. As the NOI proceedings have already been
administratively consolidated pursuant to the June 15th Order, there will be no prejudice to any
party from their continued administration on a consolidated basis under the CCAA.
B. Stay of Proceedings
38. The Cumberland Group requires a stay of proceedings in order to preserve the status quo
and bring stability to the business operations, and to implement a broad based restructuring
strategy. In the interim, current and potential actions and other enforcement steps against the
Cumberland Group and its assets and property need to be stayed so that the Cumberland Group,
its stakeholders, with the assistance of Fuller Landau, can focus on a restructuring plan that will
preserve and maximize value for stakeholders.
39. The current stay of proceedings under the NOI proceedings expires on October 10, 2016,
which does not provide the Cumberland Group and the Proposal Trustee sufficient time to
complete the Sales Process and address claims and other matters in the proposal proceedings to be
able to formulate proposals to their creditors. I am advised by counsel that if a viable proposal is
not filed by the entities comprising the Cumberland Group by October 10, 2016, then the entities
comprising the Cumberland Group will likely become bankrupt. If that happens, it will be to the
detriment of the creditors of the entities comprising the Cumberland Group. By continuing the
proceedings under the CCAA, the Cumberland Group and the Monitor will have additional time,
which is needed to complete these matters for the benefit of creditors and other stakeholders.
Page ... 13 21
C. Sales Process
40. As previously discussed, the Court approved the Sales Process in the August 24th Order.
The Court also authorized and directed the Proposal Trustee and the listing agent to perform their
obligations under and in accordance with the Sales Process and to take such further steps as they
consider necessary or desirable in carrying out the Sales Process.
41. As detailed in the Third Report, the Proposal Trustee had requested that the Sales Process
be approved for the following reasons:
(a) the Sales Process timelines for divesting the Real Property allow BL to obtain
maximum exposure and provides sufficient time for due diligence;
(b) the Sales Process strategy of offering for sale individual units and a bulk offering
of the Leased Units and the Retail Units increases the number of potentially
interested parties to include end users and investors with the goal of maximizing
realizations; and
( c) the Sales Process is an efficient and cost-effective strategy for running the sale of
the Real Property and avoiding the requirement for the Proposal Trustee to attend
in Court for approval to close each Transaction and thereby reduce professional
fees associated therewith.
42. For the reasons outlined above, the Applicants request that Fuller Landau, in its capacity
as Monitor and on behalf of the Cumberland Group, be authorized to continue the Sales Process,
perform its obligations under and in accordance with the Sales Process, and continue to execute
and deliver vesting certificates in its capacity as Proposal Trustee pursuant to the Vesting Order.
D. DIP Lender's Charge
43. As previously discussed, the DIP Facility is required until the Sales Process for the real
property is completed in order to fund ongoing operating costs and other matters related to the
insolvency proceedings of the Cumberland Group. The Court had granted the DIP Lender the
benefit of the DIP Lender's Charge in the August 24th Order. The Applicants request that the DIP
Lender's Charge granted by the Court in the August 24th Order be continued in the CCAA
Page ... 14 22
proceedings of the Cumberland Group. The granting of the DIP Lender's Charge by the Court is
required by the DIP Lender to continue the DIP Facility in the CCAA Proceeding with the same
scope and priority as set out in the August 24th Order.
E. Administration Charge
44. It is contemplated that the proposed Monitor, counsel to the proposed Monitor, and
counsel to the Cumberland Group would be granted a Court-ordered charge on the assets,
property and undertakings of each of the Cumberland Group up to the maximum amount of
$250,000 (the "Administration Charge") with respect to their respective fees and disbursements,
incurred at standard rates and charges. I am of the view that the Administration Charge is fair and
reasonable in the circumstances.
45. The nature of the Cumberland Group's business and operations requires the expertise,
knowledge and continuing participation of the proposed beneficiaries of the Administration
Charge in order to complete a successful restructuring. The professionals that are to be
beneficiaries of the Administration Charge have contributed, and continue to contribute, to the
restructuring of the Cumberland Group. I believe that the Administration Charge is necessary to
ensure their continued participation.
F. Directors' Charge
46. Notwithstanding my proposed reduced role in the day-to-day operations of the
Cumberland Group, I will remain as the sole director of each of Cumberland 2 GP, Cumberland 2
LP, Bosvest, Triangle and Residential. I believe I have specialized knowledge and relationships
with the Cumberland Group's suppliers, employees, major joint venture partners, and other
stakeholders, as well as knowledge gained throughout the growth of the Urbancorp Group that
cannot be replicated or easily replaced.
4 7. As the sole remaining director of the Cumberland 2 GP, Cumberland 2 LP, Bosvest,
Triangle and Residential, I believe that it is equitable on account of the risk for potential personal
liability that the Initial Order provides for a charge on the assets of the Cumberland Group
ranking behind the Administration Charge and the DIP Lender's Charge, as security for the
Cumberland Group's indemnification obligations for the potential obligations and liabilities I may
Page ... 15 23
incur during the pendency of these proceedings. It is proposed that a directors' charge in the
amount of $150,000 (the "Directors' Charge") be granted by the Court over all of the
Cumberland Group's assets and property.
48. At this time, there is no existing D&O insurance policy in place that would cover directors
and officers of any of the Cumberland Group, and, as such, it is even more important that I be
provided with the benefit of the Directors' Charge.
G. Priority of proposed charges
49. It is proposed that the priorities of the Charges (as defined below) be as follows:
(a) First-Administration Charge;
(b) Second - DIP Lender's Charge; and
( c) Third - Directors' Charge;
(collectively, the "Charges").
VIII. CONCLUSION
50. For the reasons set out herein, I believe that it is just and equitable, and in the best interests
of all stakeholders of the Cumberland Group, that the Initial Order be granted and that Fuller
Landau is appointed as Monitor under the CCAA with the powers described herein and as
contemplated in the form of Initial Order attached at Tab 3 of the Application Record.
SWORN BEFORE ME at the ) City of Toronto, in the Province of ) Ontario, this 29th day of September, 2016. )
c" 1C?70 - ~ ~ ~~~~~~~~~~~~~~~ ) A commissioner for Taking Affidavits, ) etc.
Cou
rt F
ile
No.
CV
-16-
1154
1-00
CL
AN
D I
N T
HE
MA
TT
ER
OF
A P
LA
N O
F C
OM
PR
OM
ISE
OR
AR
RA
NG
EM
EN
T O
F U
RB
AN
CO
RP
CU
MB
ER
LA
ND
2 G
P IN
C.,
UR
BA
N C
OR
P C
UM
BE
RL
AN
D 2
L.P
., B
OS
VE
ST
IN
C.,
ED
GE
ON
TR
IAN
GL
E P
AR
K IN
C.,
AN
D E
DG
E R
ES
IDE
NT
IAL
INC
.
ON
TA
RIO
S
UP
ER
IOR
CO
UR
T O
F J
US
TIC
E
(CO
MM
ER
CIA
L L
IST
)
Pro
ceed
ings
com
men
ced
at T
oron
to
AF
FID
AV
IT O
F A
LA
N S
AS
KIN
(Sw
orn
Sep
tem
ber 2
9, 2
016)
BE
NN
ET
T J
ON
ES
LL
P
3400
One
Fir
st C
anad
ian
Pla
ce
Tor
onto
, O
N M
5X I
A4
Fax
: 416
.863
.171
6
S. R
ich
ard
Orz
y (
LS
UC
#: 2
3181
1)
Tel
: 41
6.77
7.57
37
Raj
Sah
ni (
LS
UC
#: 4
2942
U)
Tel
: 41
6. 7
77.4
804
Law
yers
for
the
Cum
berl
and
Gro
up
N ...
TABA
THIS IS EXHIBIT "A" REFERRED TO IN THE
AFFIDAVIT OF
ALANSASKIN
SWORN
THE 29™ DAY OF SEPTEMBER, 2016
A Commissiom:r for taking affidavits, etc.
25
ID -. "
26
,. . 27
UR
B.A
NC
OR
P IN
C.. P
arl:
2
U.rl:
ra:o
.oorp
i:
mnb
erl:
md.
2 J:
ric.
1-00
%
1.\)(
)0.A
i
W..a
ttam
;y
~J:ric.
Dow
nsv.
iew
Ro
me'.
rnc.
Dow
nsv.
ieW
P
n:ije
ct
U:rb
ancm
p Re
aJ:l;y
Ql I
nc.
Url
iana
n:p
Jnve
stx:
D In
c.
N
00
TABB
THIS IS EXHIBIT "B" REFERRED TO IN THE
AFFIDAVIT OF
ALANSASKIN
SWORN
THE 29TH DAY OF SEPTEMBER, 2016
A Commissioner for taking affidavits, etc.
29
..... bNTA..'Rto SUPERIOitCOiJRT.QFJUSTICE
(C@i\1MER.CIA.L' LIST) . ['IN 'ifa:NkRUP.rcY]
Court Flle No. 31-2117551 CourtFHe No. 31"2111.5~4 Court File No. 31-2117564 · Court File No. 31-2117602
IN TH.E MATTER OF, Tf!B NOTICES OF INTENT~QN TO MAKE A PROPOSAL OF BOSVEST INC., EDGE RESIDENTIAL lNC., BOGE ON TRIANGLE-PARK JNC., and ALAN SASK.IN
'I_.,, ' . ,, •. r ..•••• ···i • ... i'
AFFIDAVIT OF ALAN SASKIN (Swor1i' May 20, 2016)
(On ·Motion for ExtensiOn :of Time to File Proposals)
I, ALAN SASK.IN, of the City of Toronto, in the Province of Ontario, MAKE OATH
AND SAY AS FOLLOWS:
1. I am the sole officer and director of Bosvest Inc. ("Bosvest"), Edge Residential Inc.
("Residential'') and Edge on Triangle Park Inc. ("Triangle") (Bosvest, Residential and Triangle
are collectively referred to as the "Edge Companies"). Each of the Edge Companies and I have
filed Notices of Intention to Make a Proposal ("NO Is") under the Bankruptcy .and Insolvency Act,
R.S.C. ·1985t c. B-3, as amended (the "BIA',) in wspect of which the orders requested in the
within motion are sought and as such, I have knowledge of the matters set out below.
WSLEOAL\075736\0000 I\ l 3626500v2
30
Page ... 2
Overview
2. The Edge Companies are indirect subsidiaries of Ul'bancorp Inc. ("UCI"), which is the
100% shareholder of Urbancorp Cumberland 2 GP Inc. ("Cumberland 2 GP"), which in turn is
the general partner of Urbancorp Cumberland 2 LP (''Cumberland 2 LP''), which is the sole
shareholder and beneficial owner of the assets of Bosvest and an indirect shareholder of
Residential and Triangle. Cumberland 2 LP is also the sole shareholder of Westside Gallery Lofts
hie. ("West"lide Gallery"), The Edge Companies, Cumberland 2 GP, Cumberland 2 LP and
Westside Gallery ru:e collectively referred to herein as the "Cumberland 2 Group". A copy of
the UCI's basic organizational chart showing the Cumberland 2 Group and their relationship to
UCI is attached hereto as Exhibit 11A".
3. On May 18, 2016, the Ontario Superior Court of Justice (Co1nmercial List) (the
"Ontario Court") issued the following Orders in respect of UCI and certain of its subsidiaries,
excluding the Cumberland 2 Group:
.... ·-.~·· an Initial Recognition Order (Foreign Main Proceeding), recognizing ;proceedings
(the "Israeli Proceedings") commenced in the District Court of Tel Aviv-Yafo,
Israel (the "Israeli Court11) on April 25, 2016 as the foreign main proceeding in
respect of UCI pursuant to Part IV of the Companies' Creditors Arrangement Act
("CCAA11) and recognizing Guy Gissin, the Functionary Officer and foreign
representative of UCI appointed by the Israeli Court as the "Foreign
Representative" ;
b, a Supplemental Order (Foreign Main Proceeding), which inter alia, appointed
WSLBOAL\075736\00001\13626500v2
31
Page ... 3
KSV Kofman Ille. (u:KsV'') ·as· the ·"Information O(ficer" of the Ontario Court"in
respect of the Israeli Proceedings and set out the powers of the Information
Officer; and
,c·,. an Initial Order pursuant to the CCAA (the "CCAA Initial ·Order") in respect ()f
most of the direct and indirect subsidiaries of UCI (the "CCAA Companies"), btjt
not including any of the companies in the Cumberland 2 Group. Pursuant to the
CCAA Initial Order, KSV was appointed as monitor (the "Monitor") in respect of
the CCAA Companies with enhanced powers to oversee and manage the business
and operations of the CCAA Companies, and a protocol was approved for
cooperation between the Monitor and the Foreign Representative.
Copies -of the aforementioned Orders are attached as Exhibit "B" (Initial Recognition
Order), Exhibit "C" (Supplemental Oi:'der (Foreign Main Proceeding) and Exhibit "D" (CCAA
Initial Order).
4. As noted above, the Cumberland 2 Group is not a debtor in either the aforementioned
CCAA proceedings or the Israeli Proceedings. On April 29, 2016, each of the Edge Companies
and I filed NOis with the Office of the Superintendent of Bankruptcy Canada, with The Fuller
Landau Group Inc. ("FL") as ,proposal trustee (the "Proposal Trustee"). The NOI proceedings in
respect of the Edge Companies have been kept separate from the CCAA proceedings 1n respect of
UCI's other subsidiaries as the Edge Companies are dealing primarily with claims of direct trade
creditors and construction lien claimants as opposed to the Israeli bondholder claims and other
claims being dealt with by UCI and the CCAA Companies. However, since UCI is the parent of
the Cumberland 2 Group , and there are intercompany claims between some of the CCAA
WSLBOAL\075736\00001\13626500v2
32
