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Brief of the Proposal Trustee Filed April 22, 2021

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Brief of the Proposal Trustee Filed April 22, 2021 44003 COURT FILE NUMBER: B201-718482 COURT COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL CENTRE CALGARY COM IN THE MATTER OF THE NOTICE OF April 27, 2021 INTENTION TO MAKE A PROPOSAL Justice Neufeld OF GAIN ENERGY LTD. DOCUMENT: BRIEF ADDRESS FOR SERVICE AND MLT AIKINS LLP CONTACT INFORMATION OF 2100, 222 - 3rd Ave SW PARTY FILING THIS DOCUMENT Calgary, AB T2P 0B4 Telephone: 403.693.5420/4347 Fax: 403.508.4349 Attention: Ryan Zahara/Catrina Webster File: 0026391.00013 24821783 - 2 - TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................ • 3 - II. BACKGROUND ............................................................................................................. - 5 - Ill. ISSUES .......................................................................................................................... - 5 - IV. LAW AND ARGUMENT ................................................................................................. - 5 - The Terms of the Proposal are Reasonable ................................................................... - 7 - The Proposal is Calculated to Benefit the General Body of Creditors ............................. - 8 - The Proposal is Made in Good Faith.............................................. ................................. - 8 - V. RELIEF REQUESTED............................ ........................................................................ - 9 - LIST OF AUTHORITIES ....................................................................................................... - 10 - 24821783 - 3 - I. INTRODUCTION 1. This Brief is submitted on behalf of the Proposal Trustee, KPMG Inc. ("KPMG" or the "Proposal Trustee"), in support of an order (the "Proposal Approval Order") approving and sanctioning a proposal dated March 8, 2021 (the "Proposal") to the creditors of Gain Energy Ltd. ("Gain Energy") pursuant to sections 58 and 59 of the Bankruptcy and Insolvency Act, RSC 1985, c. B-3 ("8/A"). 1 2. Capitalized terms not otherwise definedin this brief have the meaning ascribed to them in the Proposal. 2 3. Pursuant to the terms of the Proposal, the Proposal Trustee estimates that all Affected Creditors will receive full repayment of the indebtedness owed to them by Gain Energy3 and the Proposal contains the following additional terms: (a) the Unaffected Creditors include Secured Claims, Post-Filings Claims, and Cooperating Creditor Claims. The Unaffected Creditors will not receive any consideration or distributions under the Proposal, however, those claims may be resolved through alternate arrangements with Gain Energy;4 (b) within 10 days of the granting of the Proposal Approval Order, Gain Energy shall pay to the Proposal Trustee: (i) funds sufficient to pay in full all Proven Claims of the Affected Creditors under the Proposal; and (ii) funds sufficient to pay all Administrative Fees and Expenses as required pursuant to terms of the Proposal; 5 and (c) the Proposal Trustee shall distribute the funds received from Gain Energy in accordance with the terms of the Proposal on a pro rata basis in the following order: (i) first, in payment of all Proven Claims of the Preferred Claims of Preferred Creditors in accordance with section 136 of the BIA; (ii) second, the balance, if 1 Bankruptcy and Insolvency Act, RSC 1985, c 8-3, at TAB 1. 2 The Proposal is contained at Exhibit A to the Proposal Trustee Report, dated April 19, 2021 (the "Proposal Trustee Report") starting at page 9. 3 Proposal Trustee Report, at para. 12, at page 5. 4 Proposal Trustee Report, Exhibit A, at section 4.7, at page 15. 5 Proposal Trustee Report, ExhibitA, at section 4.5, at page 14. 24821783 - 4 - any, in payment of all Proven Claims of the Affected Creditors; and (iii) third, the balance, if any, will be returned to Gain Energy.6 4. The Proposal Trustee determined that the recovery the Affected Creditors would obtain if the Proposal was accepted and approved would be superior to what they would stand to receive in the event of a bankruptcy of Gain.7 5. The Proposal was accepted by creditors representing 100% in number and 100% in dollar value of those creditors voting at the meeting to consider and vote on the Proposal (the "Creditors' Meeting"), which acceptance satisfied the statutory requirements under the BIA for acceptance of a proposal by creditors. 8 6. The Proposal does not impact the Unaffected Claims, which includes the Cooperating Creditor claims of Gain Energy Services LP and the Post-Filing Claim of the landlord, among others, and none of the Unaffected Creditors will receive any distribution under the Proposal. 9 7. In the event Gain Energy is assigned into bankruptcy, the net proceeds from the liquidation of assets will be distributed to the creditors pursuant to the requirements of the BIA. If Gain Energy were assigned into bankruptcy, the estimated recovery of the Affected Creditors would be approximately 26 cents on the dollar due to higher administration costs, the required distribution to the Cooperating Creditor, and the required distribution to the landlord pursuant to the requirements of the BIA which would greatly reduce the payment to the Affected Creditors rather than the distribution contained in the Proposal which provides for the repayment in full of all Affected Creditors. 10The Proposal Trustee has confirmed that the Proposal is advantageous to Gain Energy's creditors and has recommended that the Court approve the Proposal and grant the Proposal Approval Order.11 6 Proposal Trustee Report, at Exhibit A, at section 4.2, at page 14. 7 Proposal Trustee Report, at para. 12, at page 5. 8 Proposal Trustee Report, at Exhibit D, at page 37. 9 Proposal Trustee Report, at Exhibit A, at sections 1.1, 2.1, and 4.7 at pages 9, 10, 11, 12, 13, and 15. 10 Proposal Trustee Report, at Exhibit D, at page 35 and para. 12, at page 5. 11 Proposal Trustee Report, at para. 12, at page 5. 24821783 -5- 8. If the Proposal is approved by the Court then the outcome is that Gain would exit the proceedings and would not have any further debts or liabilities for amounts that arose prior to March 8, 2021. Gain would continue to have obligations under any agreements that were not disclaimed through the proceeding and that did not have any defaults associated with them. II. BACKGROUND 9. On March 8, 2021, Gain Energy filed a Division I Proposal pursuant to the BIA and KPMG was appointed as the Proposal Trustee of Gain Energy. 10. On March 15, 2021, KPMG provided Gain Energy's known creditors with notice of the Creditors' Meeting to be held on March 29, 2021.12 11. On March 29, 2021, the Creditors' Meeting was held and the Proposal was accepted by the required majority of Gain Energy's creditors.13 12. On March 30, 2021, KPMG issued a Notice of Hearing of Application for Court Approval of Proposal advising Gain Energy's known creditors that an Application would be heard on April 27, 2021 requesting that the Court grant the Proposal Approval Order. III. ISSUES 13. The sole issue to be determined in the application is whether this Honourable Court should grant the Proposal Approval Order pursuant to section 59 of the BIA. IV. LAW AND ARGUMENT 14. Pursuant to section 54(2) of the BIA, a proposal is deemed to be accepted by the creditors if it has achieved the requisite "double majority" vote at a duly constituted meeting of creditors.14 At the Creditors' Meeting, the Proposal was accepted by the requisite majority of Gain Energy's creditors (i.e. 100% in number and 100% in dollar value).15 12 Proposal Trustee Report, at para. 2, at page 1 and Exhibit C1, at page 27. 13 Proposal Trustee Report, at para. 5, at page 1 and Exhibit D, at pages 36-37 14 BIA, section 54(2)(d), at TAB 1. 15 Proposal Trustee Report, at Exhibit D, at page 37. 24821783 -6- 15. Section 58 of the BIA provides that, on acceptance of the Proposal by Gain Energy's creditors, the Proposal Trustee was to: (a) schedule this hearing within five days; (b) give at least 15 days' notice of this hearing in the prescribed form to Gain Energy's creditors and the Official Receiver; (c) send a report in the prescribed form to the Official Receiver at least 10 days before this hearing; and (d) file such report with the Court two days before this hearing.16 16. The Proposal Trustee has complied with all statutory requirements that must be satisfied before a proposal is approved, including the requirements set out in section 58 of the BIA, described above.17 17. Section 59(2) of the BIA requires that the Court refuse to approve a proposal accepted by a debtor's creditors where its terms are not reasonable or are not calculated to benefit the general body of creditors.18 18. Courts have held that in order to satisfy section 59(2) of the BIA, the following three- pronged test must be satisfied: (a) the proposal must be reasonable; (b) the proposal must be calculated to benefit the general body of creditors; and (c) the proposal must be made in good faith.19 19. The first two factors are expressly set out in s. 59(2) of the BIA while the last factor has 16 BIA, section 58, at TAB 1. 17 Proposal Trustee Report, at Exhibit D, at page 37 and the March 30, 2021 Notice of Hearing. 18 BIA, 59(2), at TAB 1. 19 Kitchener Frame, Re, 2012 ONSC 234 ("Kitchener Frame"), at para. 19, at TAB 2; Wasaya Airways Limited Partnership, Re, 2016 ONSC 5600 ("Wasaya"), at para. 37, at TAB 3. 24821783 - 7 - been implied by this Court as an exercise of its equitable jurisdiction.20 20. In considering the foregoing factors, courts have generally taken into account the interests of the debtor, the interests of the creditors and the interests of the public at large in the integrity of the bankruptcy system.21 21. In doing so, courts have accorded substantial deference to both the majority vote of creditors at a meeting of creditors and the recommendation of the proposal trustee.22 22. If a large majority of creditors (i.e., substantially in excess of the statutory majority) have voted for acceptance of a proposal, it will take strong reasons for a court to substitute its judgment for that of the creditors.23 23.
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