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Court File Number 25-81252 Court Court of Queen's Bench of Alberta Judicial Centre Calgary in the Matter of the Bankruptcy A

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Court File Number 25-81252 Court Court of Queen's Bench of Alberta Judicial Centre Calgary in the Matter of the Bankruptcy A COURT FILE NUMBER 25-81252 COURT COURT OF QUEEN’S BENCH OF ALBERTA JUDICIAL CENTRE CALGARY IN THE MATTER OF THE BANKRUPTCY AND INSOLVENCY ACT, RSC 1985, c B-3, AS AMENDED AND IN THE MATTER OF THE BANKRUPTCY OF TRAKOPOLIS IoT CORP. AND IN THE MATTER OF THE BANKRUPTCY OF TRAKOPOLIS SaaS CORP. APPLICANT ESW HOLDINGS INC. RESPONDENT THE TRUSTEE IN BANKRUPTCY of the ESTATE OF TRAKOPOLIS IOT CORP. and the ESTATE OF TRAKOPOLIS SAAS CORP. PARTY FILING THIS THE TRUSTEE IN BANKRUPTCY of the ESTATE OF DOCUMENT TRAKOPOLIS IOT CORP. and the ESTATE OF TRAKOPOLIS SAAS CORP. DOCUMENT BRIEF OF LAW AND ARGUMENT OPPOSING THE APPEALS OF ESW HOLDINGS INC. FROM NOTICES OF DISALLOWANCE ADDRESS FOR Torys LLP SERVICE AND 4600 Eighth Avenue Place East CONTACT 525 - Eighth Ave SW INFORMATION OF Calgary, AB T2P 1G1 PARTY FILING THIS DOCUMENT Attention: Kyle Kashuba / Mihai Tomos Telephone: + 1 403.776.3744 / +1 403.776.3796 Fax: +1 403.776.3800 Email: [email protected] / [email protected] File No. 39108-2005 1 TABLE OF CONTENTS PART I – OVERVIEW ............................................................................................................2 PART II - FACTS ....................................................................................................................3 PART III – ISSUES .................................................................................................................4 PART IV – LAW AND ARGUMENT .....................................................................................5 A. The ESW Claim is an Equity Claim ............................................................................5 B. The SaaS Guarantee is not enforceable in respect of the ESW SaaS Claim ................ 10 PART V – RELIEF SOUGHT ............................................................................................... 13 TABLE OF AUTHORITIES ................................................................................................. 14 2 PART I – OVERVIEW 1. Alvarez & Marsal Canada Inc., in its capacity as licensed insolvency trustee (and not in its personal or corporate capacity) is the trustee in bankruptcy (the “Trustee”) of the estate of Trakopolis IoT Corp. (“Trak IoT”) and the estate of Trakopolis SaaS Corp. (“Trak SaaS”). 2. ESW Holdings Inc. (“ESW”), a creditor of Trak IoT and Trak SaaS, submitted to the Trustee a Proof of Claim against Trak IoT (the “ESW IoT Claim”) and a Proof of Claim against Trak SaaS (“ESW SaaS Claim” and, together with the ESW IoT Claim, the “ESW Claim”), with respect to a warrant to purchase shares issued to ESW by Trak IoT (the “Warrant”). The Warrant was issued in connection with a loan agreement between ESW and Trak IoT. 3. ESW is claiming the sum of USD $600,000 against Trak IoT pursuant to the Warrant and is seeking the same amount against Trak SaaS pursuant to a guarantee granted by Trak SaaS with respect to the indebtedness of Trak IoT owing to ESW (the “SaaS Guarantee”). ESW is taking the position that the ESW Claim is a debt claim, as opposed to an equity claim, for the purpose of priority and distribution of dividends under the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (the “BIA”). Following a sale transaction that occurred in the BIA proposal proceedings of Trak IoT and Trak SaaS, ESW was repaid their secured debt owing pursuant to the ARLA (as defined below) in full (i.e. inclusive of interest and costs). They have reserved their rights with respect to the certain additional claims for other amounts that they claim to be owed under the Warrant. 4. Pursuant to Notices of Disallowance issued by the Trustee on March 29, 2020 with respect to each of the ESW IoT Claim and the ESW SaaS Claim (together, the “Notices of Disallowance”), the Trustee rejected: (a) the ESW IoT Claim on the basis that it is an equity claim pursuant to s. 140.1 of the BIA and the applicable definitions included therein; and (b) the ESW SaaS Claim on the basis that (i) it is an equity claim pursuant to s. 140.1 of the BIA and the applicable definitions therein, and (ii) the SaaS Guarantee is 3 invalid and, as such, there are no grounds for ESW to seek against Trak SaaS the repayment of any indebtedness owing by Trak IoT to ESW. 5. ESW is appealing the Trustee’s Notices of Disallowance. The Trustee is seeking an Order dismissing ESW’s appeal and upholding each Notice of Disallowance. 6. The Trustee’s position is based on the unambiguous wording of the BIA, which explicitly states that (i) an “equity claim” is a claim that is in respect of an equity interest, and (ii) an “equity interest” includes a warrant to acquire a share in a corporation. Further, the Trustee submits that the SaaS Guarantee is not enforceable in respect of the ESW SaaS Claim based on the express wording of the ARLA (as defined below) and an Acknowledgment entered in relation thereto. 7. The Trustee is not taking any particular issue with ESW’s request to have this Honourable Court consider the evidence contained in the Affidavit of Neeraj Gupta, sworn on April 22, 2020. This additional evidence, which has been compiled to further bolster ESW’s claims, contains new allegations and position-based comments that the Trustee does not support or agree with. PART II - FACTS 8. ESW, as lender, Trak IoT, as borrower, and Trak SaaS, as guarantor, entered into a Loan and Security Agreement dated November 15, 2018 (the “LSA”). The SaaS Guarantee, pursuant to which Trak SaaS guaranteed the obligations of Trak IoT to ESW, was executed in connection with the LSA. 9. Subsequently, ESW, as lender, Trak SaaS, as borrower, Trak IoT and Trakopolis USA Corp., as guarantors, entered into an Amended and Restated Loan Agreement dated November 27, 2018 (the “ARLA”), which contains an “entire agreement clause”. The relevant provisions of the ARLA are reproduced in Part IV below. 10. In connection with the ARLA, ESW, as lender, Trak SaaS, as borrower and obligor, and Trak IoT, as obligor, entered into an Acknowledgment dated November 27, 2018 (the 4 “Acknowledgment”), pursuant to which Trak SaaS and Trak IoT agreed that certain documents remained in full force and effect notwithstanding the ARLA and the “entire agreement clause” entered therein. 11. Following a sale transaction that occurred in the BIA proposal proceedings of Trak IoT and Trak SaaS, ESW was repaid their secured debt owing pursuant to the ARLA (as defined below) in full (i.e. inclusive of interest and costs). 12. On February 12, 2020, ESW submitted the ESW Claim to the Trustee, pursuing payment of the amounts owing under the Warrant. 13. On March 29, 2020 the Trustee issued the Notices of Disallowance. 14. ESW did not include the Acknowledgment in the ESW Claim. Rather, ESW included this document in the Affidavit of Neeraj Gupta sworn April 22, 2020 that was provided to the Trustee along with ESW’s Notice of Appeal. PART III – ISSUES 15. The Trustee does not oppose ESW’s request that this Court consider the Supplemental Evidence (as such term is defined in ESW’s Brief). The Trustee also does not take a position on whether the appeal should be heard de novo or as a hybrid appeal. 16. In the event that this Honourable Court decides to hear ESW’s appeal as a hybrid appeal, the Trustee agrees that the applicable standard of review is correctness. 17. Based on the foregoing, the Trustee submits that the following issues are disputed and must be determined by this Honourable Court: (a) is the ESW Claim a debt claim or an equity claim for the purposes of priority and distribution under the BIA?; and (b) if the ESW SaaS Claim is a debt claim, is the SaaS Guarantee enforceable with respect to the ESW SaaS Claim? 5 PART IV – LAW AND ARGUMENT A. The ESW Claim is an Equity Claim (i) Statutory Provisions 18. The ESW Claim is subject to s. 140.1 of the BIA, which states that “A creditor is not entitled to a dividend in respect of an equity claim until all claims that are not equity claims have been satisfied.” 19. The relevant definitions are set out in section 2 of the BIA: equity claim means a claim that is in respect of an equity interest, including a claim for, among others, (a) a dividend or similar payment, (b) a return of capital, (c) a redemption or retraction obligation, (d) a monetary loss resulting from the ownership, purchase or sale of an equity interest or from the rescission, or, in Quebec, the annulment, of a purchase or sale of an equity interest, or (e) contribution or indemnity in respect of a claim referred to in any of paragraphs (a) to (d); equity interest means (a) in the case of a corporation other than an income trust, a share in the corporation — or a warrant or option or another right to acquire a share in the corporation — other than one that is derived from a convertible debt, and (b) in the case of an income trust, a unit in the income trust — or a warrant or option or another right to acquire a unit in the income trust — other than one that is derived from a convertible debt; 20. Parliament enacted the foregoing provisions in September 2009 pursuant to substantial amendments to the BIA. Similar amendments were enacted in respect of the Companies’ Creditors Arrangement Act, RSC 1985, c C-36 (the “CCAA”). The definitions of “equity claim” and “equity interest” in the BIA and the CCAA are identical.1 21. The words “in respect of” have been held by the Supreme Court of Canada to be words of the broadest scope that convey some connection between two subject matters.2 1 Section 2 of the BIA. [TAB A]; Section 2(1) of the CCAA. TAB [B] 2 Nowegijick v. The Queen, [1983] 1 S.C.R. 29 at para 30. [TAB C] 6 (ii) Common Law 22. In Sino-Forest,3 the claim at issue was an equity claim pursuant to subsections (d) and (e) of s.
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