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Ontario Superior Court of Justice (Commercial List) Court File No. ____________ 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 AND ARRANGEMENT OF CLINE MINING CORPORATION, NEW ELK COAL COMPANY LLC AND NORTH CENTRAL ENERGY COMPANY Applicants BOOK OF AUTHORITIES OF THE APPLICANTS (Claims Procedure Order and Meetings Order) GOODMANS LLP Suite 3400, 333 Bay Street Toronto, ON M5H 2S7 Robert J. Chadwick (LSUC#: 35165K) Logan Willis (LSUC#: 53894K) Bradley Wiffen (LSUC# 64279L) Tel: (416) 979-2211 Fax: (416) 979-1234 Lawyers for the Applicants INDEX TAB 1. Re SkyLink Aviation Inc., 2013 ONSC 1500 (Ont. Sup. Ct. J. [Commercial List]) 2. Nova Metal Products Inc. v. Comiskey (Trustee of) (1990), 1 O.R. (3d) 289, 1 C.B.R. (3d) 101 (Ont. C.A.) 3. ScoZinc Ltd., Re, 2009 NSSC 163, 55 C.B.R. (5th) 205 4. Norcen Energy Resources Ltd. v. Oakwood Petroleums Ltd. (1988), 72 C.B.R. (N.S.) 20, [1988] A.J. N. 1226 (Alta. Q.B.) 5. SemCanada Crude Co., Re, 2009 ABQB 490, 57 C.B.R. (5th) 205 6. Stelco Inc, Re. (2005), 78 O.R. (3d) 241, 15 C.B.R. (5th) 307 (Ont. C.A.) 7. Re Canadian Airlines Corp. (2000), 19 C.B.R. (4th) 12 (Alta. Q.B.), leave to appeal dismissed (2000), 19 C.B.R. (4th) 33 (Alta. C.A.) 8. ATB Financial v Metcalfe & Mansfield Alternative Investments II Corp. (2008), 43 C.B.R. (5th) 269, 47 B.L.R. (4th) 74 (Ont. Sup. Ct. J. [Commercial List]), aff’d (2008), 45 C.B.R. (5th) 163 (Ont. C.A.) 9. Re Canadian Airlines Corp. (Re), 2000 ABQB 442, 20 C.B.R. (4th) 1 10. Re SkyLink Aviation Inc., Claims Procedure Order granted March 8, 2013 (Ont. Sup. Ct. J. [Commercial List]) 11. Re Canwest Global Communications Corp. et al., Restated Consolidated Plan of Compromise, Arrangement and Reorganization dated as of June 23, 2010 (sanctioned by Ont. Sup. Ct. J. (Commercial List) on July 28, 2010) 12. Re Teleglobe Inc., Plan of Compromise or Arrangement dated as of January 26, 2005 (sanctioned by the Ont. Sup. Ct. J. (Commercial List) on Feb. 8, 2005) SkyLink Aviation Inc., Re, 2013 ONSC 1500, 2013 CarswellOnt 2785 2013 ONSC 1500, 2013 CarswellOnt 2785, 226 A.C.W.S. (3d) 641 2013 ONSC 1500 Ontario Superior Court of Justice [Commercial List] SkyLink Aviation Inc., Re 2013 CarswellOnt 2785, 2013 ONSC 1500, 226 A.C.W.S. (3d) 641 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 and Arrangement of Skylink Aviation Inc. Applicant Morawetz J. Heard: March 8, 2013 Judgment: March 12, 2013 Docket: CV-13-1003300CL Counsel: Robert Chadwick, Logan Willis for Applicant S.R. Orzy, Sean H. Zweig for Noteholders M.P. Gottlieb for Proposed Monitor, Duff & Phelps Canada Restructuring Inc. C. Prophet for Royal Bank of Canada R.S. Kukulowicz for Directors and Officers Subject: Insolvency; Civil Practice and Procedure Headnote Bankruptcy and insolvency --- Companies' Creditors Arrangement Act — Arrangements — Approval by court — "Fair and reasonable" Debtors were related companies providing global aviation transportation and logistics services — Any disruption to debtors' ability to provide either core services or ancillary life-supporting functions could put safety and security of deployed personnel at risk — Debtors experienced financial challenge — Consensual going-concern recapitalization transaction was developed for implementation pursuant to plan of compromise and arrangement under Companies' Creditors Arrangement Act — Debtors brought application for protection under Act — Application granted — It was appropriate to authorize certain pre-filing payments to be made — Granting of various charges including debtor-in- possession lenders' charge was appropriate — It was appropriate to appoint monitor as foreign representative of debtors — Postponement of annual shareholders' meeting was reasonable — Sealing order was granted for certain financial information — Claims procedure order and meetings order were granted in order to effectuate recapitalization on expeditious basis since proposed restructuring appeared to have achieved significant support. Table of Authorities Cases considered by Morawetz J.: Sierra Club of Canada v. Canada (Minister of Finance) (2002), 287 N.R. 203, (sub nom. Atomic Energy of Canada Ltd. v. Sierra Club of Canada) 18 C.P.R. (4th) 1, 44 C.E.L.R. (N.S.) 161, (sub nom. Atomic Energy of Canada Ltd. v. Sierra Club of Canada) 211 D.L.R. (4th) 193, 223 F.T.R. 137 (note), 20 C.P.C. (5th) 1, 40 Admin. L.R. (3d) 1, 2002 SCC 41, 2002 CarswellNat 822, 2002 CarswellNat 823, (sub nom. Atomic Energy of Canada Ltd. v. Sierra Club of Canada) 93 C.R.R. (2d) 219, [2002] 2 S.C.R. 522 (S.C.C.) — followed Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 1 SkyLink Aviation Inc., Re, 2013 ONSC 1500, 2013 CarswellOnt 2785 2013 ONSC 1500, 2013 CarswellOnt 2785, 226 A.C.W.S. (3d) 641 Statutes considered: Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36 Generally — referred to APPLICATION by debtors for protection. Morawetz J.: 1 SkyLink Aviation Inc. ("SkyLink Aviation", the "Company" or the "Applicant"), together with the SkyLink Subsidiaries (collectively, "SkyLink"), is a provider of global aviation transportation and logistics services (the "SkyLink Business"). SkyLink specializes in providing non-combatant aviation services and supporting activities in conflict-associated regions around the world. The customers who rely on SkyLink's services include governmental agencies, intergovernmental agencies, commercial organizations and humanitarian relief organizations. 2 SkyLink is responsible for providing non-combat life-supporting functions to both its own personnel and those of its suppliers and clients in high-risk areas. Any disruption to SkyLink's ability to provide either its core services or its ancillary life- supporting functions to deployed personnel, could put the safety and security of those personnel at risk, including by potentially leaving them without life-supporting services in conflict zones. 3 As set out in the affidavit of Jan Ottens and, as summarized in the comprehensive factum filed by the Applicant, it is apparent that SkyLink Aviation has experienced financial challenges that have necessitated a recapitalization of the company. SkyLink has chosen to do this under the Companies' Creditors Arrangement Act ("CCAA"). 4 At this time, SkyLink Aviation's secured debts significantly exceed the value of the SkyLink Business. SkyLink is in default of its first lien secured credit facility (the "Credit Facility") in favour of the first lien lenders (the "First Lien Lenders") and the Indenture in respect of its senior secured second lien notes (the "Secured Notes"). The indenture trustee in respect of the Secured Notes (the "Trustee") has accelerated all amounts owing under the Secured Notes and has issued a demand for payment by SkyLink Aviation and SkyLink Aviation USA II. 5 After an extended period of extensive negotiations with representatives of the Company's secured creditors regarding a recapitalization of the Company, a consensual going-concern recapitalization transaction (the "Recapitalization") has been developed for implementation pursuant to a plan of compromise and arrangement under the CCAA (the "Plan"). 6 The Applicant takes the position that the Recapitalization is a positive development for the Company and its stakeholders. The Recapitalization involves: (i) the refinancing of the Company's first lien debt; (ii) the cancellation of the Secured Notes in exchange for the issuance by the Company of consideration that includes new common shares and new debt; and (iii) the compromise of certain unsecured liabilities, including the portion of the Noteholders' claims that is to be treated as unsecured under the Plan. 7 The Company also contends that if implemented, the Recapitalization would result in SkyLink Aviation having an improved capital structure, stable working capital liquidity and enhanced flexibility to respond to volatility in the industry. 8 The terms of the Recapitalization are supported by a significant majority of the creditors who have an economic interest in the Company. In particular, the First Lien Lenders have affirmed their support, and the holders of approximately 64% of the value of the outstanding Secured Notes (the "Initial Consenting Noteholders") have signed the Support Agreement pursuant to which they have agreed to support the Recapitalization and to vote in favour of the Plan. Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights reserved. 2 SkyLink Aviation Inc., Re, 2013 ONSC 1500, 2013 CarswellOnt 2785 2013 ONSC 1500, 2013 CarswellOnt 2785, 226 A.C.W.S. (3d) 641 9 The remaining Noteholders will be entitled to sign a joinder to the Support Agreement following the commencement of these proceedings. SkyLink Aviation anticipates that additional Noteholders will execute a joinder to the Support Agreement. 10 It is noted that support of the First Lien Lenders and the Initial Consenting Noteholders is conditional upon the completion of the Recapitalization under the CCAA prior to April 23, 2013. 11 A detailed summary of the salient facts is set out at paragraphs 11-42 of the factum. 12 SkyLink Aviation is a privately held corporation under the laws of Ontario, with a registered head office located in Toronto, Ontario. Its central administrative functions are carried out at its Toronto headquarters. 13 SkyLink Aviation is the direct or indirect parent company of a number of subsidiaries as detailed in the organization chart attached to Mr. Ottens' affidavit. 14 The SkyLink Subsidiaries are non-applicants. However, SkyLink Aviation seeks to have a stay of proceedings under the Initial Order and certain other relief extended to those SkyLink Subsidiaries that are also party to contracts with SkyLink Aviation (the "Subsidiary Counterparties") so as to maintain the stability of the enterprise.
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