Download - MOTION RECORD - KPMG
BETWEEN:
Court File No. CV-18-603360-00CL
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
THE TORONTO-DOMINION BANK
Applicant
- and-
OXFORD ADV AN CED IMAGING INC.
Respondent
APPLICATION UNDER SECTION 207 OF THE BUSINESS CORPORATIONS ACT, (ONTARIO) R.S.O. 1990, c. B-16, AS AMENDED
DATED: August 23, 2019
TO: SERVICE LIST
41471894_ 1 INATDOCS
MOTION RECORD (returnable August 29, 2019)
DENTONS CANADA LLP Toronto Dominion Centre 77 King St. W., Suite 400 Toronto, Ontario M5K 0Al
Robert Kennedy (LSO # 474070) Tel: (416) 367-6756 Fax: (416) 863-4592 [email protected]
Mark Freake (LSO # 63656H) Tel: (416) 863-4456 [email protected]
Lawyers for KPMG Inc.in its capacity as Court-appointed Sales Officer
Court File No. CV-18-603360-00CL
ONTARIO
BETWEEN:
SUPERIOR COURT OF JUSTICE (COMMERCIAL LIST)
THE TORONTO-DOMINION BANK
- and -
OXFORD ADV AN CED IMAGING INC.
Applicant
Respondent
APPLICATION UNDER SECTION 207 OF THE BUSINESS CORPORATIONS ACT, (ONTARIO) R.S.O. 1990, c. B-16, AS AMENDED
SERVICE LIST (updated as of June 18, 2019)
TO: DENTONS CANADA LLP Toronto Dominion Centre 77 King St. W., Suite 400 Toronto, Ontario M5K 0Al
Robert Kennedy Tel: (416) 367-6756 Fax: (416) 863-4592 [email protected]
Jordan Schultz Tel: 1 (604) 691-6452 j ordan. [email protected]
Mark Freake Tel: ( 416) 863-4456 [email protected]
Lawyers for KP MG Inc. in its capacity as Court-appointed Sales Officer
36343315_7INATDOCS
AND TO:
AND TO:
AND TO:
AIRD & BERLIS LLP Brookfield Place 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9
D. Robb English Tel: (416) 865-4748 Fax: (416) 863-1515 [email protected]
Kyle Plunkett Tel: (416) 865-3406 [email protected]
- 2 -
Lawyers for the Applicant, The Toronto-Dominion Bank
BLAKES, CASSELS & GRAYDON LLP 199 Bay Street, Suite 4000 Commerce Court West Toronto, ON M5L 1A9
Chris Burr Tel: (416) 863-3261 Fax: ( 416) 863-2653 chris. [email protected]
Michael Stevenson Tel: (416) 863-2458 [email protected]
Lawyers for Oxford Advanced Imaging Inc.
STEVENSON WHELTON BARRISTERS 15 Toronto Street, Suite 200 Toronto, ON MSC 2E3
Richard Macklin Tel: (647) 847-3822 Fax: (416) 599-7310 [email protected]
Lawyers for Oxford Advanced Imaging Inc.
36343315_7[NATDOCS
AND TO:
AND TO:
AND TO:
WILSON VUKELICH LLP 60 Columbia Way, 7th Floor Markham, ON L3R 0C9
Andy Ayotte Tel: (905) 944-2960 Fax: (905) 940-8785 [email protected]
Christopher Caruana Tel: (905) 944-2952 [email protected]
- 3 -
Lawyers for Element Fleet Management Corp. (Formerly Element Financial Corporation)
WILSON VUKELICH LLP 60 Columbia Way, 7th Floor Markham, ON L3R 0C9
Ronald McKenna Tel: (905) 944-2400 Fax: (905) 940-8785 [email protected]
Lawyers for Oxford Advanced Imaging Inc.
FOGLER, RUBINOFF LLP 77 King Street West Suite 3000, P.O. Box 95 TD Centre North Tower Toronto, ON M5K 1G8
Ross W. Francis Tel: ( 416) 941-8802 [email protected]
Milton Davis Tel: (416) 860-6901 [email protected]
Lawyers for Dr. Gordon Cheung, Dr. Davinder Gill, Dr. Deep Chatha
36343315_7INATDOCS
AND TO:
AND TO:
AND TO:
KPMGINC. Bay Adelaide Centre 333 Bay Street, Suite 4600 Toronto, ON M5H 2S5
Anamika Gadia Tel: (416) 777-3842 Fax: (416)303-6231 [email protected]
Neil Blair [email protected]
Michael Levine [email protected]
Court-appointed Sales Officer
- 4 -
SIEMENS HEALTHCARE LIMITED 1577 North Service Road East Oakville, ON L6H OH6
Luc Lavoie [email protected]
Darcy Osborne [email protected]
ADAIR GOLDBLATT BIEBER LLP 95 Wellington Street West, Suite 1830 Toronto, ON M5J 2N7
Simon Bieber Tel: (416) 351-2781 Fax: (647) 689-2059 [email protected]
Nathaniel Read-Ellis Tel: (416) 351 2789 [email protected]
Lawyers for Resolute Medical Corporation D. Kisselgoff Medicine Professional Corporation and A. Shuster Medicine Professional Corporation
36343315_7INATDOCS
AND TO:
AND TO:
AND TO:
AND TO:
- 5 -
MORRISON BROWN SOSNOVITCH LLP 1 Toronto Street, Suite 910 P.O Box 28 Toronto, ON MSC 2V6
Laila Parvez Tel: (416) 368-0600 [email protected]
Lawyers for 2659428 Ontario Inc.
CANADA REVENUE AGENCY c/o Department of Justice Ontario Regional Office The Exchange Tower, Box 36 130 King Street West, Suite 3400 Toronto, ON M5X 1K6
Diane Winters Tel: ( 416) 973-3172 Fax: (416) 973-0810 diane. [email protected]
MINISTRY OF FINANCE (ONT ARIO) LEGAL SERVICES BRANCH 11-777 Bay Street Toronto, ON MSG 2C8
Kevin J. O'Hara Tel: (416) 327-8463 Fax: (416)325-1460 [email protected]
MINISTRY OF THE ATTORNEY GENERAL on behalf of the MINISTRY OF HEALTH AND LONG-TERM CARE McMurtry-Scott Building 720 Bay Street, 11th Floor Toronto, ON M7 A 2S9
Whitney Smith Tel: (416) 327-8610 [email protected]
Ananthan Sinnadurai [email protected]
36343315_7INATDOCS
AND TO:
AND TO:
AND TO:
AND TO:
AND TO:
AND TO:
AND TO:
- 6 -
2481668 ONTARIO INC. 1100 Memorial A venue, Suite 324 Thunder Bay, ON P7B 4A3
Dr. Jae K. Kim dr. j [email protected]
2481669 ONTARIO LTD. 10 Kings bridge Garden Circle, Unit 100 Mississauga, ON L5R 3K6
Dr. Gordon Cheung [email protected]
D GILL HOLDING INC. 13 5 5 Outram A venue LaSalle, ON N9J 0B2
Dr. Davinder Gill [email protected]
2464192 ONTARIO INC. 79 Dawlish A venue Toronto, ON M4N 1H2
Dr. Deep Chatha [email protected]
A SHUSTER MEDICINE PROFESSIONAL CORPORATION 201 Kusznier Crescent Thunder Bay, ON P7B 6K4
Dr. Anatoly Shuster [email protected]
D. KISSELGOFF MEDICINE PROFESSIONAL CORPORATION 350 Summerhill Drive Thunder Bay, ON P7B 7B9
Dr. Dmitry David Kisselgoff [email protected]
RESOLUTE MEDICAL CORPORATION 25 Sheppard Avenue West, Suite 1100 Toronto, ON M2N 6S6
Dr. Vladislav Miropolsky vrniropol@yahoo. corn
36343315_7[NA TDOCS
AND TO:
AND TO:
AND TO:
AND TO:
AND TO:
AND TO:
AND TO:
2487507 ONTARIO INC. 50 Claxton Blvd. Toronto, ON M6C 1L8
Eldar Lev-Ary [email protected]
1054020 B.C. LTD. 130-400 Burrard Street Vancouver, BC V6C 3A6
- 7 -
Dr. Harjinder John Singh Bining hj [email protected]
BY THE ESTATE OF MICHAEL ROHRER Denise Rohrer, Executrix 223 Kensington Blvd. Tecumseh, ON N8N 2K8
J. Mark Skipper [email protected]
PETER GEORGE 160 Mill Street Puce BX86 Emeryville, ON NOR 1 CO
VINCENZO NIGRO 6 Well wood A venue Toronto, ON M6C 1G9
DR. JAE K. KIM 1100 Memorial Avenue, Suite 324 Thunder Bay, ON P7B 4A3
DR. GORDON CHEUNG 100-10 Kings bridge Garden Circle Mississauga, ON L5R 3K6
36343315_7JNATDOCS
- 8 -
AND TO: DR. DEEP S. CHATHA 239-4936 Yonge Street Toronto, ON M2N 6S3
AND TO: DR. DA VINDER GILL 48 Mulgrave Street Brampton, ON L6P 3H3
36343315_7INATDOCS
Email List
[email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]
36343315_7[NATDOCS
INDEX
INDEX
Document Tab
Notice of Motion dated August 23, 2019 1
Fourth Report of the Sales Officer dated August 23, 2019 2
Appendix "A": First Report (without appendices) A
Appendix "B": Approval and Vesting Order B
Appendix "C": Second Report (without appendices) C
Appendix "D": Third Report (without appendices) D
Appendix "E": First Distribution Order E
Draft Order 3
41471894_ 1 INATDOCS
TAB 1
Court File No. CV-18-603360-00CL
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
BETWEEN:
THE TORONTO-DOMINION BANK
Applicant
- and-
OXFORD ADV AN CED IMAGING INC.
Respondent
APPLICATION UNDER SECTION 207 OF THE BUSINESS CORPORATIONS ACT, (ONTARIO) R.S.O. 1990, c. B-16, AS AMENDED
NOTICE OF MOTION (returnable August 29, 2019)
KPMG Inc. ("KPMG"), in its capacity as the Court-appointed sales officer (the "Sales
Officer") to carry out a process for the sale of the assets and business of Oxford Advanced
Imaging Inc. ("OAI"), will make a motion to a judge presiding over the Ontario Superior Court
of Justice (Commercial List) (the "Court") on August 29, 2019, at 10:00 a.m., or as soon after
that time as the motion may be heard, at 330 University Avenue, Toronto, Ontario.
PROPOSED METHOD OF HEARING: The motion is to be heard orally.
THE MOTION IS FOR:
1. An Order (the "Claims Procedure Order"), substantially in form attached hereto as
TAB 3 of the Motion Record, for the following relief:
41519785_ 1 INATDOCS
1
- 2 -
(a) abridging the time for service of the Notice of Motion herein, Motion Record and
the Fourth Report of KPMG, in its capacity as Sales Officer, dated August 23,
2019 (the "Fourth Report") so that this Motion is properly returnable on August
29, 2019, and dispensing with further service thereof;
(b) approving and authorizing the Claims Procedure (as defined herein) and
authorizing, directing and empowering the Sales Officer to administer the Claims
Procedure in accordance with the terms of the Claims Procedure Order;
(c) approving the activities of the Sales Officer as set out in the Fourth Report; and
( d) such further and other grounds as counsel may advise and this Honourable Court
may permit;
THE GROUNDS FOR THE MOTION ARE:
1. On application by TD Bank, KPMG was appointed as Sales Officer of OAI by order of
the Court made August 29, 2018 (the "Appointment Order");
2. On November 20, 2018, the Court granted an Approval and Vesting Order (the
"Approval and Vesting Order") which approved, among other things, the asset
purchase agreement dated October 25, 2018, as amended (the "Amended Asset
Purchase Agreement") between the Sales Officer and 2659428 Ontario Inc. (the
"Purchaser"), and the transaction as set out therein (the "Transaction");
3. The Transaction closed on May 30, 2019. The Sales Officer filed the Sales Officer's
Certificate pursuant to the Amended Asset Purchase Agreement and the Approval and
Vesting Order on May 31, 2019, confirming that the Transaction has closed and the Sales
Officer has received the purchase price in accordance with the Amended Asset Purchase
Agreement consisting of $26,250,000 for the purchase of the Property and $18,108.05
representing certain security deposits previously paid by OAI in respect of commercial
leases that were reimbursed by the Purchaser (collectively, the "Sale Proceeds");
4. On June 18, 2019, the Sales Officer obtained an Order (the "First Distribution Order"),
among other things, authorizing and approving the Sales Officer to make a distribution
41519785_ 1 INA TDOCS
2
- 3 -
from the proceeds of the closing of the Transaction to TD Bank and ECN Financial Inc.
("ECN") in full and final satisfaction of the indebtedness owing by OAI to each of TD
Bank and ECN and to KPMG Corporate Finance Inc. and Blake, Cassels & Graydon LLP
for the fees and disbursements incurred by OAI prior to the making of the Appointment
Order;
5. Following the distributions made pursuant to the First Distribution Order, there remains a
surplus in the Sale Proceeds (the "Remaining Proceeds");
6. Pursuant to paragraphs 16 and 17 of the Appointment Order, all proceedings, rights and
remedies against OAI were stayed and suspended except with the written consent of the
Sales Officer or leave of the Court (the "Stay");
7. The Sales Officer is aware of certain persons asserting a claim against OAI or an interest
in the Remaining Funds, and believes that there may be other creditors of which it is not
presently aware, each of which has been affected by the Stay;
8. The Sales Officer is of the view that there are three options for dealing with the
Remaining Funds and the claims of all creditors against OAI or relating to the Remaining
Funds:
(a) pay the Remaining Funds into Court without any prior determination of claims;
(b) pay the Remaining Funds to OAI without any prior determination of claims; or
( c) authorize and direct the Sales Officer to administer a claims procedure with
enhanced powers to determine and settle all claims against OAI and/or in respect
of the Remaining Funds, subject to Court supervision and approval (the "Claims
Procedure"). Under this option, the Sales Officer would continue to hold the
Remaining Funds pending further Order of the Court;
9. Having considered and canvassed each of these options with OAI's stakeholders, the
Sales Officer is of the view that the Claims Procedure is the option most likely to result in
a fair, timely and transparent resolution of all Claims against OAI and in respect of the
Remaining Funds;
41519785_ 1 INATDOCS
3
- 4 -
10. The Claims Procedure will provide the benefit of having an impartial Court-appointed
officer determine and settle claims affected by the Stay, subject to Court supervision and
approval;
11. The Sales Officer is already familiar with OAI's books and records and is able to
administer the Claims Procedure on an expedited basis;
12. The Sales Officer is of the view that it is just, appropriate and in the best interests of OAI
and its stakeholders to establish the Claims Procedure on the terms set out in the Claims
Procedure order;
13. Such further and other grounds as counsel may advise and this Honourable Court may
permit.
THE FOLLOWING DOCUMENTARY EVIDENCE WILL BE USED AT THE
HEARING OF THE MOTION:
1. The Fourth Report of the Sales Officer; and
2. Such further and other material as counsel may advise and this Honourable Court may
permit.
DATED: August 23, 2019
TO: SERVICE LIST
41519785_ 1 \NATDOCS
DENTONS CANADA LLP Toronto Dominion Centre 77 King St. W., Suite 400 Toronto, Ontario M5K 0Al
Robert Kennedy (LSO # 474070) Tel: (416) 367-6756 Fax: ( 416) 863-4592 [email protected]
Mark Freake (LSO # 63656H) Tel: (416) 863-4456 [email protected]
Lawyers for KP MG Inc. in its capacity as Court-appointed Sales Officer
4
THE TORONTO-DOMINION BANK
Applicant
41519785_ 1 iNATDOCS
- and-
Court File No: CV-18-603360-00CL
OXFORD ADV AN CED IMAGING INC.
Res.12_ondent
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
PROCEEDING COMMENCED AT TORONTO
NOTICE OF MOTION (returnable August 29, 2019)
DENTONS CANADA LLP Toronto Dominion Centre 77 King St. W., Suite 400 Toronto, Ontario M5K 0Al
Robert Kennedy (LSO # 474070) Tel: (416) 367-6756 Fax: (416) 863-4592 [email protected]
Mark Freake (LSO # 63656H) Tel: (416) 863-4456 [email protected]
Lawyers for KP MG Inc. in its capacity as Courtappointed Sales Officer
0,
TAB2
Court File No. CV-18-603360-00CL
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
IN THE MATTER OF THE WINDING UP OF OXFORD ADV AN CED IMAGING INC.
APPLICATION UNDER SECTION 207 OF THE BUSINESS CORPORATIONS ACT, R.S.O. 1990, c. B.16
FOURTH REPORT OF KPMG INC. in its capacity as SALES OFFICER OF OXFORD ADV AN CED IMAGING INC.
August 23, 2019
41470170_3INATDOCS
6
- 2 -7
TABLE OF CONTENTS
I. INTRODUCTION AND SUMMARY OF PROCEEDINGS ................................ 4
II. PURPOSE OF THIS FOURTH REPORT ...................................................... 5
III. UPDATE ON FIRST DISTRIBUTION AND POST-CLOSING MATTERS ............. 6
IV. CLAIMS PROCEDURE ORDER ................................................................ 7
V. CONCLUSION ..................................................................................... 12
41470170_3INATDOCS
- 3 -
LIST OF APPENDICES
Appendix A- First Report (without appendices)
Appendix B - Approval and Vesting Order
Appendix C- Second Report (without appendices)
Appendix D -Third Report (without appendices)
Appendix E- First Distribution Order
41470170_3INATDOCS
8
- 4 -
I. INTRODUCTION AND SUMMARY OF PROCEEDINGS
1. The Toronto-Dominion Bank ("TD Bank") filed an application (the "Application") before
the Ontario Superior Court of Justice (Commercial List) (the "Court") for interim relief
pursuant to sections 207 and 209 of the Business Corporations Act, (Ontario) for among
other things, an order for the sale of the assets and business of Oxford Advanced Imaging
Inc. ("OAI") and for the appointment of KPMG Inc. ("KPMG") as sales officer of OAI
(the "Sales Officer").
2. The Application was heard on August 29, 2018 and KPMG was appointed Sales Officer
pursuant to an Order (the "Appointment Order") which, among other things, authorized
and directed the Sales Officer carry out a process (the "Sales Process") for the sale of the
assets and business of OAI (the "Property").
3. The Property consisted of all the assets, undertakings and properties acquired for, or used
in relation to, OAI's diagnostic imaging clinics. The operations of OAI consisted of two
clinics, one is located in Mississauga, Ontario and the other one is located in Ajax, Ontario.
4. The Sales Officer issued its first report to the Court on November 12, 2018 (the "First
Report"). A copy of the First Report (without appendices) is attached as Appendix "A"
herein. As detailed in the First Report, the Sales Officer brought a motion returnable on
November 20, 2018 seeking an Approval and Vesting Order (the "Approval and Vesting
Order") approving: (a) the sale transaction (the "Transaction") contemplated by an asset
purchase agreement between the Sales Officer and 2659428 Ontario Inc. (the
"Purchaser") dated October 25, 2018 (the "Asset Purchase Agreement"), as amended by
an amending agreement dated November 19, 2018 (the "First Amendment") and a second
amending agreement dated April 23, 2019 (the "Second Amendment", and together with
the Purchase Agreement and First Amendment, the "Amended Asset Purchase
Agreement") and vesting in the Purchaser, OAI's right, title and interest in and to the
assets described in the Amended Asset Purchase Agreement; and (b) the Sales Officer's
activities as set forth in the First Report.
41470170_3INATDOCS
9
- 5 -
5. On November 20, 2018, the Court granted the Approval and Vesting Order. A copy of the
Approval and Vesting Order is attached as Appendix "B" herein.
6. The Sales Officer issued its second report to the Court on April 26, 2019 (the "Second
Report"). A copy of the Second Report (without appendices) is attached as Appendix
"C" herein. As detailed in the Second Report, the Sales Officer brought a motion
returnable on May 2, 2019 seeking an Order approving: (a) the Second Amendment, and
(b) approving the activities of the Sales Officer as set out in the Second Report and
approving the fees and disbursements of the Sales Officer and the Sales Officer's legal
counsel, Dentons Canada LLP ("Dentons"), for the period up to January 30, 2019.
7. The Sales Officer issued its third report to the Court on June 12, 2019 (the "Third
Report"). A copy of the Third Report (without appendices) is attached as Appendix "D"
herein. As detailed in the Third Report, the Transaction closed on May 30, 2019 and the
Sales Officer brought a motion returnable on June 18, 2019 seeking an Order (the "First
Distribution Order"): (a) updating the Court with respect to the closing of the
Transaction; (b) authorizing and approving the Sales Officer to make a distribution from
the proceeds of the closing of the Transaction to TD Bank and ECN Financial Inc. ("ECN")
in full and final satisfaction of the indebtedness owing by OAI to each of TD Bank and
ECN and to KPMG Corporate Finance Inc. ("KPMG CF") and Blake, Cassels & Graydon
LLP ("Blakes") for the fees and disbursements incurred by OAI prior to the making of the
Appointment Order; and ( c) approving the activities of the Sales Officer as set out in the
Third Report and approving the fees and disbursements of the Sales Officer and Dentons
for the period of February 1, 2019 to May 31, 2019.
8. On June 18, 2019, the Court granted the First Distribution Order. A copy of the First
Distribution Order is attached as Appendix "E" herein.
II. PURPOSE OF THIS FOURTH REPORT
9. The purpose of the Sales Officer's fourth report to the Court dated August 23, 2019 (the
"Fourth Report") is to:
41470170_3JNATDOCS
10
- 6 -
(a) update this Honourable Court with respect to the status of distributions made
pursuant to the First Distribution Order;
(b) update this Honourable Court with respect to status of certain post-closing matters
in respect of the conclusion of the Transaction;
( c) provide this Honourable Court with the necessary information to support an Order
(the "Claims Procedure Order"):
(i) approving the activities of the Sales Officer as set out in the Fourth Report;
(ii) approving and authorizing the Claims Procedure (as defined herein); and
(iii) authorizing, directing and empowering the Sales Officer to administer the
Claims Procedure in accordance with the terms of the Claims Procedure
Order.
10. Unless otherwise stated, all monetary amounts contained herein are expressed in Canadian
dollars.
11. The information contained in this Fourth Report has been obtained from the books and
records and other information of OAI. The accuracy and completeness of the financial
information contained herein has not been audited or otherwise verified by the Sales
Officer, and the Sales Officer does not express an opinion or provide any other form of
assurance with respect to the information presented herein or relied upon by the Sales
Officer in preparing this Fourth Report.
12. Future oriented financial information reported or relied on in preparing this Fourth Report
is based on OAI management's assumptions regarding future events; actual results may
vary from forecast and such variations may be material.
III. UPDATE ON FIRST DISTRIBUTION AND POST-CLOSING MATTERS
13. Since the granting of the First Distribution Order, the Sales Officer has:
41470170_3INATDOCS
11
- 7 -
(a) made a distribution to TD Bank in the amount of $9,252,708.44 and to ECN in the
amount of $11,280,690.39, in accordance with the First Distribution Order;
(b) made a distribution to KPMG CF in the amount of $1,041,288.91 and Blakes in the
amount of $425,310.89, in accordance with the First Distribution Order;
( c) continued to work with the Purchaser and its counsel regarding the completion of
the transfer of certain patient data pursuant to the Amended Asset Purchase
Agreement;
(d) finalized the reconciliation of the working capital adjustment to the purchase price
as provided for in the Amended Asset Purchase Agreement. In this regard, the
Sales Officer paid an adjustment in favour of the Purchaser in the amount of
$236,505 on August 7, 2019;
(e) continued discussions with the Ontario Ministry of Health and Long Term Health
regarding any claims they may have against OAI in respect of OAI's terminated
funding agreement, or otherwise; and
(f) held discussions with OAI regarding distribution options m respect of the
Remaining Funds (as defined herein);
IV. CLAIMS PROCEDURE ORDER
14. Capitalized terms not otherwise defined in this section of the Fourth Report are defined in
the proposed Claims Procedure Order attached to the Motion Record of the Sales Officer
dated August 23, 2019 (the "Motion Record") at Tab "3".
15. As detailed in the Third Report, on May 30, 2019, the Sales Officer received the balance
of the purchase price, being $26,250,000 from the Purchaser for the purchase of the
Property, and $18,108.05 representing certain security deposits previously paid by OAI in
respect of commercial leases that were reimbursed by the Purchaser, in accordance with
the Amended Asset Purchase Agreement (collectively, the "Sale Proceeds").
41470170_3INATDOCS
12
- 8 -
16. Following the distributions made pursuant to the First Distribution Order, as set out above,
there remains a surplus in the Sale Proceeds in the amount of approximately $2,995,488.16,
including accrued interest up to August 22, 2019 (the "Remaining Funds").
17. Pursuant to paragraphs 16 and 17 of the Appointment Order, all proceedings, rights and
remedies against OAI or affecting the Property were stayed and suspended, except with the
written consent of the Sales Officer or leave of the Court (the "Stay").
18. The Sales Officer is aware of certain persons (the "Known Creditors") asserting or having
a Claim against OAI or an interest in the Remaining Funds, and believes that there may be
other Creditors of which it is not presently aware of, each of which has been affected by
the Stay.
19. At this time, the Sales Officer is of the view that there are three options for dealing with
the Remaining Funds and the Claims of all Creditors, including Known Creditors, against
OAI or relating to the Remaining Funds:
(a) pay the Remaining Funds into Court without any prior determination of Claims
("Option A");
(b) pay the Remaining Funds to OAI without any prior determination of Claims
("Option B"); or
( c) authorize and direct the Sales Officer to administer a claims procedure to determine
and settle all Claims against OAI and/or in respect of the Remaining Funds, subject
to Court supervision and approval ("Option C" or the "Claims Procedure").
Under this option, the Sales Officer would continue to hold the Remaining Funds
pending further Order of the Court.
20. Having considered and canvassed each of these options with OAI, the Sales Officer is of
the view that Option C represents the most fair, timely and transparent process in terms of
addressing all remaining Claims against OAI and in respect of the Remaining Funds for
the following reasons:
41470170_3INATDOCS
13
- 9 -
(a) Option A may lead to costly and drawn out litigation if the Creditors and OAI are
unable to consensually resolve the Claims. This option would likely also require
additional judicial resources in respect of the determination of unsettled Claims and
payments out of Court. Option A will also lose the benefit of the certainty created
by the proposed Claims Procedure, particularly the proposed Claims Bar Date
which will require parties to file Claims in a timely manner;
(b) Option B will place the onus on OAI to resolve all Claims against it. This option
would also require OAI to consensually resolve the Claims or have such claims
determined through litigation (following a lifting of the Stay). This option provides
less certainty as to timing and cost, particularly if formal litigation is required and
provides less certainty as to the resolution of Claims that were affected by the Stay
imposed by these proceedings. The Sales Officer also has concerns that the
shareholder disagreements which precipitated the Appointment Order1 may
resurface if the Remaining Funds are paid directly to OAI and under the dominion
of one shareholder or shareholder group to the detriment of other equity interests;
and
( c) Option C provides the benefit of having an impartial Court-appointed officer
determine and settle all Claims affected by the Stay, subject to Court supervision
and approval. The Sales Officer is already familiar with OAI's books and records
and is able to administer the Claims Procedure on an expedited basis.
21. The Claims Procedure will not address or determine any claims by current or former
shareholders of OAI as against OAI, or any competing claims to equity among OAI' s
current or former shareholders. In this regard, the Sales Officer proposes that the claims
of current and former shareholders of OAI be deemed Excluded Claims under the Claims
Procedure Order.
1 As set out in the affidavit of Maurice Moffett sworn August 17, 2018 in support of the Appointment Order.
41470170_3INATDOCS
14
- 10 -
Summary of Claims Procedure
22. The Sales Officer proposes a dual-process claims procedure that would entail delivering a
Claim Statement to Known Creditors while simultaneously publishing a general call for
Claims to other potential Creditors.
23. With respect to the Known Creditors, the Sales Officer will:
(a) determine the Claims of Known Creditors based on the books and records of OAI.
In this regard, the Sales Officer has reviewed OAI's accounts payable list and
believes that it is a reasonable summary of OAI's unsecured creditors; and
(b) send the Claims Document Package to each Known Creditor, which will include a
Claim Statement setting out the amount of such Creditor's Claim. If the Creditor
agrees with the Sales Officer's assessment, it need not take any further action. If
the Creditor disagrees with the Sales Officer's assessment it must file a Notice of
Dispute to the Sales Officer prior to the Claims Bar Date.
24. With respect to all other Creditors, the Sales Officer will:
(a) publish the Notice to Creditors in a national newspaper and post a copy of the
Notice to Creditors on its website. The Notice to Creditors will invite Creditors to
submit a Proof of Claim to the Sales Office prior to the Claims Bar Date.
25. The Claims Bar Date will be October 15, 2019 for all Creditors, including Known
Creditors.
26. As soon as practicable following the Claims Bar Date, the Sales Officer will review all
Notices of Dispute and Proofs of Claim and may:
(a) request additional information from a Creditor or from OAI;
(b) request that a Creditor file a revised Proof of Claim or Notice of Dispute;
( c) attempt to resolve and settle any issue arising in respect of a Proof of Claim or
Notice of Dispute;
41470170_3INA TDOCS
15
- 11 -
(d) accept (in whole or in part) the amount of any Claim and notify the Creditor in
writing; and/or
(e) revise or disallow (in whole or in part) the amount of any Claim by delivering a
Notice of Revision or Disallowance to such Creditor.
27. If a Creditor intends to dispute their Claim as set out in a Notice of Revision or
Disallowance, the Creditor must:
(a) notify the Sales Officer in writing of the Objection within fifteen (15) days of
receipt of the Notice of Revision or Disallowance; and
(b) file a Notice of Motion with this Honourable Court for the determination of the
Claim in dispute, with a copy to be sent to the Sales Officer immediately after filing,
which Notice of Motion is to be:
(i) supported by a sworn affidavit setting out the Creditor's basis for disputing
the Notice of Revision or Disallowance; and
(ii) returnable within thirty (30) day of the date on which the Sales Officer
received the Objection.
28. If a Creditor fails to deliver the Objection and/or the Notice of Motion in accordance with
the Claims Procedure Order, the Claim will be deemed accepted at the amount set forth in
the Notice of Revision or Disallowance and the Creditor will:
(a) where the entire Claim is disallowed:
(i) not be entitled to receive any distribution in these proceedings; and
(ii) be forever barred from making or enforcing such Claim against OAI;
(b) where the Claim has been revised:
(i) only be entitled to receive a distribution in an amount proportional to the
revised amount; and
41470170_3INATDOCS
16
- 12 -
(c) be forever barred from making or enforcing any Claim against OAI greater than the
revised amount and the amount of the Claim reduced by the revision will be forever
extinguished.
29. The proposed timeframe for administering the Claims Procedure is summarized as follows:
PROCESS DATE
Sales Officer to Mail Claims Document Not later than five (5) Business Days following Package to Known Creditors the granting of the Claims Procedure Order
Sales Officer to Publish Notice to Creditors in Not later than ten (10) Business Days Newspaper following the granting of the Claims Procedure
Order
Sales Officer to Post Claims Procedure Order, Not later than five (5) Business Days following Motion Record and Claims Package on Sale's the granting of the Claims Procedure Order Officer's Website
Claims Bar Date October 15, 2019
Sales Officer to Deliver Notice of Revision or As soon as practicable following review of Disallowance Proof of Claim or Notice of Dispute, as
applicable
Creditor to Deliver Objection to Sales Officer Within 15 calendar days following receipt by the Creditor of the Notice of Revision or Disallowance
Creditor to Deliver Notice of Motion in respect Returnable within 30 calendar days following of an Objection receipt by the Creditor of the Notice of
Revision or Disallowance, subject to the Court's availability
V. CONCLUSION
30. The Sales Officer submits this Fourth Report to the Court in support of the Sales Officer's
Motion for the relief as set out in the Motion Record and recommends that the Court grant
the Order substantially in the form contained at Tab 3 of the Motion Record approving:
(a) the Claims Procedure; and
41470170_3INATDOCS
17
- 13 -
(b) the activities of the Sales Officer set out in the Fourth Report.
All of which is respectfully submitted at Toronto, Ontario this 23rd day of August, 2019.
KPMG Inc., in its capacity as Court Appointed Sales Officer of Oxford Advanced Imaging Inc. and not in its personal capacity
Per: lJ(( {tfJ,i{ /<JV /!w(uz_: Anamika Gadia Senior Vice President
41470170_3INATDOCS ·
18
TABA
Court File No. CV·18-603360-00CL
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
IN THE MATTER OF THE WINDING UP OF OXFORD ADV AN CED IMAGING INC.
APPLICATION UNDER SECTION 207 OF THE BUSINESS CORPORATIONS ACT, R.S.O. 1990, c, B,16
FIRST REPORT OF KPMG INC. in its capacity as SALES OFFICER OF OXFORD ADV AN CED IMAGING INC.
November 12, 2018
19
20
- 2 -
TABLE OF CONTENTS
I, INTRODUCTION .............................................................................................................. 4
II. PURPOSE OF THIS FIRST REPORT .................................................. , ........................ 4
III. OUTCOME OF THE SALE PROCESS .......... , .............................................................. 5 Prior Marketing Efforts ............................................................................................ , ........... 5 Details Relating to the Sale Process ........ , ............................................................................ 5 The Successful Bid ................... ,, .. , ............... ,, .............................. ,,.,, ........ ,,,., .. , ......... , ........ 9 Sales Officer's View of the Sales Process and the Asset Purchase Agreement ................ 12 Sealing Order .,,,,, ................ ,, ................... ,., .. , ..... , ......... , .. ,, ........... ,., ............................. ,,., .. 13 Discussions with the MoH-Transfer of the IHF Licences .............................................. .13
IV. THE SALES OFFICER'S OTHER ACTIVITIES ....................................................... 14
V. CONCLUSION ................................................................................................................ 15
• 3 ~
LIST OF APPENDICES
Appendix A - Moffett Affidavit
Appendix B - Sale Process Order
Appendix C - Bidding Procedures Letter
Appendix D - Redacted Asset Purchase Agreement between the Purchaser and the Sales Officer
21
-4-
J. INTRODUCTION
1. The Toronto-Dominion Bank ("TD Bank") filed an application (the "Application") before
the Ontario Superior Court of Justice (Commercial List) (the "Court") for interim relief
pursuant to sections 207 and 209 of the Business Corporations Act, (Ontario) for, among
other things, an order for the sale of the assets and business of Oxford Advanced Imaging
Inc. ("OAI") and for the appointment of KPMG Inc. ("KPMG") as Sales Officer (as
defined below). A copy of the affidavit (without exhibits) of Maurice Moffett of TD Bank
sworn August 17, 2018 in support of the Application (the "Moffett Affidavit") is attached
as Appendix "A" herein, the Sales Officer's First Report to the Court dated November 12,
2018 (the "First Report").
2. The Application was heard on August 29, 2018 and on the same date, the Court granted an
Order (the "Sale Process Order") which, among other things, appointed KPMG as the
sales officer (the "Sales Officer") to carry out a process (the "Sale Process") for the sale
of the assets and business of OAI (the "Property"). A copy of the Sale Process Order is
attached as Appendix "B" herein.
3. The Property consists of all the assets, undertakings and properties acquired for, or used in
relation to OAI's diagnostic imaging clinics. The operations of OAI consist of two clinics,
one is located in Mississauga, Ontario and the other one is located in Ajax, Ontario.
4. Capitalized terms not defined herein shall have the meanings set out in the Sale Process
Order.
II. PURPOSE OF TIDS FIRST REPORT
5. The purpose of this First Report is to:
a, Update this Honourable Court with respect to the outcome of the Sale Process;
b. Provide this Honourable Court with the necessary information to support the granting
of an Approval and Vesting Order (the ''Approval and Vesting Order") approving
the sale transaction (the "Transaction") contemplated by an asset purchase agreement
between the Sales Officer and 2659428 Ontario Inc. o/a Greater Niagara Medical
Imaging (the "Purchaser") dated October 25, 2018 (the ''Asset Purchase
22
- 5 -
Agreement") and vesting in the Purchaser, OAI's right, title and interest in and to the
assets described in the Asset Purchase Agreement (the HPurchased Assets"); and
c. Update this Honourable Court with respect to the other activities of the Sales Officer
and request approval of the Sales Officer's activities as set forth in this First Report.
6. Unless otherwise stated, all monetary amounts contained herein are expressed in Canadian
dollars.
7. The information contained in this First Report has been obtained from the books and
records and other information of OAI. The accuracy and completeness of the financial
information contained herein has not been audited or otherwise verified by the Sales
Officer, and the Sales Officer does not express an opinion or provide any other form of
assurance with respect to the information presented herein or relied upon by the Sales
Officer in preparing this First Report.
III. OUTCOME OF THE SALE PROCESS
Prior Marketing Efforts
8. Prior to the Sales Officer's appointment, OAI undertook a sale and marketing process for
the Property, with the assistance ofKPMG Corporate Finance Inc. ("KPMG CF").
9. As part of the prior marketing process, KPMG CF prepared marketing materials including
a comprehensive list of potential interested parties, a teaser letter, a confidential
information memorandum and an electronic data room, in consultation with OAI (the "Pre
Appointmen t Sale Process").
10. Details regarding the Pre-Appointment Sale Process are set out in the Moffett Affidavit.
As set out in that affidavit, KPMG CF implemented a robust sale process; however, the
Pre-Appointment Sale Process failed to complete a transaction for the sale of the Property.
Details Relating to the Sale Process
11. The Sale Process Order empowered and authorized the Sales Officer to:
a. Market any or all of the Property including soliciting offers in respect of the Property
or any part or parts thereof and negotiating such terms and conditions of sale as the
Sales Officer in its sole discretion may deem appropriate;
23
- 6 -
b. Enter into one or more sales agreements on behalf of OAI for all or any part of the
Property, subject to Court approval; and
c. Apply for any vesting order or other orders necessary to convey the Property or any
part of parts thereof to a purchaser or purchasers thereof, free and clear of any liens or
encumbrances affecting such Property.
12. The Sale Process Order authorized and directed the Sales Officer to carry out a Sale Process
for the Property in accordance with the steps and timelines set forth in Schedule "A" to the
Sale Process Order. The Sale Process contemplated the following initial steps and
timelines, subject to any variation by the Sales Officer with the written approval of TD
Bank and ECN Financial Inc. ("ECN"):
a. Preparation of marketing materials - I week from the date of the Sale Process Order;
b. Marketing-3 weeks from the date of the Sale Process Order;
c. Deadline for receipt of offers - 4 to S weeks from the date of the Sale Process Order;
d. Review and negotiation of offers-6 to 7 weeks from the date of the Sale Process Order;
e. Chose successful bidder- 6 to 8 weeks from the date of the Sale Process Order; and
f. Motion to approve sale - as soon as possible following selection of the successful
bidder.
No party appeared in Court to object to the Sale Process.
13. Following the granting of the Sales Process Order, the Sales Officer immediately
commenced its efforts to implement the Sale Process. The Sales Officer reviewed and
updated the list of potential interested strategic and financial parties that had been prepared
by KPMG CF as part of the Pre-Appointment Sale Process and sought the input of TD
Bank, ECN and the shareholders of OAI (the "Shareholders") on additional parties that
should be approached.
14. The Sales Officer prepared an outreach email which included an overview of the Sale
Process and the Property (the "Sales Teaser"), and attached a form of Non-Disclosure
Agreement (the "NDA") to be executed by parties interested in participating in the Sale
Process.
24
-7-
15. The Sales Officer also worked to update the confidential information memorandum (the
"CIM") and the previously developed electronic data room (the "Data Room)l) with
updated financial and other information.
16. The Sales Officer's counsel, Dentons Canada LLP (HDentons"), prepared a template asset
purchase agreement, which was included in the Data Room.
17. Beginning on September 7, 2018, the Sales Officer sent out the Sales Teaser and NDA to
approximately I 69 parties by email. The Sales Officer also published an advertisement in
the Globe and Mail regarding the Sale Process.
18. 68 parties expressed an interest in participating in the Sale Process and provided the Sales
Officer with an executed NDA. The interested parties that executed an NDA and who the
Sales Officer determined had a reasonable prospect of completing a transaction were
deemed a qualified bidder (a "Qualified Bidder"), All 68 parties were deemed to be
Qualified Bidders and the Qualified Bidders were provided with the CIM and a letter (the
''Bidding Procedures Letter") acknowledging receipt of the executed NDA and setting
out the timing and procedures for conducting due diligence and submitting a final binding
bid (a "Bid"). Qualified Bidders were granted access to the Data Room, upon request. A
copy of the Bidding Procedures Letter is attached as Appendix "C" herein.
19. The Bidding Procedures Letter established a deadline for receipt of Bids on or before 5:00
pm (Eastern Time) on October 15 1 2018 (the "Bid Deadline").
20. The Bidding Procedures Letter set out the requirements for submission of a Bid. A Bid
had to be delivered prior to the Bid bead line and had to include, amongst other things, the
following:
a. A blackline asset purchase agreement, without conceptual comments, against the
template asset purchase agreement provided in the Data Room;
b. An irrevocable offer letter that addresses and confonns to the guidelines set out in
Appendix 2 of the Bidding Procedures Letter;
c. · Confirmation, including supporting documents satisfactory to the Sales Officer, of a
financial commitment for all required funding or financing;
25
• 8 -
d. The Application for Consent to Transfer a Licence (a form produced by the Ministry
of Health and Long-Term Care (the ''MoH")) with Part II of the form duly completed
in its entirety and executed by the Qualified Bidder for each of the Independent Health
Facilities Licences (the "IHF Licences").
e. The Bid must be accompanied by a refundable deposit (the "Deposit11) in the form of a
wire transfer, payable to the Sales Officer, in trust, in an amount equal to 10% of the
total consideration in the Bid;
f. No conditions based upon:
L the outcome of unperformed due diligence by the Qualified Bidder;
ii. obtaining financing; and/or
iii. any other approvals including regulatory approvals, other than approvals
required from the MoH; and
g. Evidence of authorization and approval from the Qualified Bidder1s board of directors
(or comparable governing body).
The Bidding Procedures Letter indicates that the Sales Officer may waive compliance with
any one or more of the requirements set out above.
21. The Sales Officer received seven Bids by the Bid Deadline (collectively, the "Bids"). Five
of these Bids included an asset purchase agreement, in a form consistent with the template
asset purchase agreement, and satisfied some or all of the bid requirements set out in the
Bidding Procedures Letter. Two Bids were in the form of a letter with an indication of
interest and did not include an asset purchase agreement or any of the other requirements.
A summary of the Bids will be provided to the Court as Confidential Appendix "1" (the
"Bid Summary").
22. Following the Bid Deadline, the Sales Officer and Dentons reviewed and evaluated the
Bids. In reviewing the Bids, the Sales Officer considered a number of factors including,
compliance with the Bidding Procedures Letter, the financial and contractual terms of the
Bid and the certainty of consummating the proposed transaction including the likelihood
of obtaining consent from the MoH to transfer the IHF Licences.
26
- 9 -
23. On or about October 25, 2018, following the review of the Bids and negotiations with the
leading Qualified Bidder, the Saies Officer seiected a winning bid (the "Successful Bid").
The Successful Bid was detennined to be the Bid submitted by the Purchaser (the
"Successful Bidder"). The Successful Bid was the only Bid that complied with all of the
requirements set out in the Bidding Procedures Letter.
24. After selection of the Successful Bid, the Sales Officer notified the other Qualified Bidders
that they were not the Successful Bidder and requested wire transfer instructions to return
the Deposits provided by those Qualified Bidders. Upon receipt of the wire transfer
instructions, the Sales Officer returned the Deposits of Qualified Bidders that were not
selected as the Successful Bidder.
The Successful Bid
25. Capitalized terms not defined in this section of the First Report shall have the meaning
ascribed to them in the Asset Purchase Agreement.
26. The Sales Officer and the Purchaser finalized the terms of the Successful Bid and executed
the Asset Purchase Agreement on October 25, 2018. A copy of the Asset Purchase
Agreement redacted to remove commercially sensitive terms is attached as Appendix "D"
herein. An unredacted copy of the Asset Purchase Agreement is Confidential Appendix
"2", which will be filed with the Court separately.
27. The shareholders of the Purchaser are Dr. Keyur Shah ("Shah") and Dr. Nirav Patel
("Patel"). Shah and Patel are the sole shareholders, directors and managing principals of
GNMI Inc. GNMI Inc. or its related entities hold 16 IHF licences and operate eleven IHF
diagnostic imaging clinics in good standing throughout Ontario and have successfully
acquired other clinics and obtained consent from the MoH for the related IHF license
transfers. Shah and Patel are both licenced in the area of diagnostic radiology and have the
necessary qualifications for computed tomography (CT) and magnetic resonance imaging
(MRI).
28. The principal terms of the Asset Purchase Agreement are set out below, however, an
interested person should review the Asset Purchase Agreement in its entirety. The
27
- 10 -
Purchaser will acquire on an "as is, where is basis", the following assets related to the
Business:
a. All diagnostic medical equipment and other tangible property;
b. All medical supplies;
c. All Accounts Receivables;
d, The IHF Licenses;
e. The Premises Leases;
f. The Assigned Contracts;
g. The goodwill of the Business;
h. All pre-paid expenses and deposits related to the Purchased Assets (other than deposits
paid to suppliers of OAI);
i. The Software; and
j. The Books and Records.
29. The Excluded Assets are as follows:
a, Cash and cash equivalents;
b. Any rights of OAI to tax refunds or credits;
c. The Excluded Contracts:
d. The shares and other interests or capital of OAI;
e, The tax records and insurance policies of OAI;
f. Any claim of OAI to reimbursement under any insurance policy:
g. Books and Records not pertaining to the Purchased Assets;
h, Any funds or deposits held by suppliers or any other person on behalf of OAI;
i. The Licensed software;
j. The Business Name; and
k. All amounts owing from related parties to OAI.
28
- 11 -
30. Assumed Liabilities are as follows:
a. All Liabilities relating to Employees;
b. Current Liabilities;
c. All Liabilities arising from or in connection with the Assigned Contracts, including any
Cure Costs;
d. All Liabilities arising from any tax, levy, penalty or cost that the Purchaser is
responsible for pursuant to the Asset Purchase Agreement; and
e. All Liabilities relating to or arising from the Purchased Assets under Environmental
Laws.
31. The Purchase Price is being satisfied by the Purchaser as follows:
a. Payment of a Deposit in the amount of 10% of the Base Purchase Price which has been
paid to the Sales Officer and is being held by the Sales Officer in accordance with the
Bidding Procedures Letter;
b. Payment of the remainder of the Base Purchase Price (representing 90% of the Base
Purchase Price) by wire transfer at the Time of Closing of immediately available funds
to an account specified by the Sales Officer;
c. By the Purchaser assuming the Assumed Liabilities; and
d. Payment of any Working Capital Adjustment required pursuant to section 2.05 of the
Asset Purchase Agreement.
32. With respect to the Employees of OAI, the Purchaser will, among other things:
a. Prior to the Closing Date, offer to employ all of the Employees who are employed by
OAI in the Business, on substantially the same terms and conditions of employment as
are in effect on the date of the Asset Purchase Agreement; and
b. Effective the opening of business on the Closing Date, assume responsibility, statutory
and otherwise, for the rights, obligations and Liabilities relating to or arising out of the
employment of the Employees and will recognize all past service of the Employees
with OAI for all purposes.
29
- 12 -
33. The Asset Purchase Agreement contemplates a Closing Date that is the earlier of:
a. Five Business Days following the date of the receipt of an Unconditional Consent by
the Purchaser;
b. Five Business Days following the waiver of the conditions pursuant to section 5.03 of
the Asset Purchase Agreement; and
c. Thirty Business Days following the date of receipt of a Conditional Consent by the
Purchaser; or
d. Such other date as may be agreed to between the parties,
Sales Officer's View of the Sales Process and the Asset Purchase Agreement
34. The Sales Officer is of the view that the Sale Process was conducted in a commercially
reasonable manner and that the market was extensively canvassed where competitors,
investors and industry participants were solicited.
35. There was significant interest expressed in acquiring the Property, as evidenced by the
number ofNDAs signed, and Bids submitted pursuant to the Sale Process (as outlined in
the confidential Bid Summary).
36. All reasonable requests for information and meetings with respect to the Sale Process were
satisfied.
37, The Asset Purchase Agreement and the purchase price contained therein represents the
highest and best offer for the Property.
38. · The Sales Officer is of the view that the Transaction is beneficial to OAI's stakeholders as
a whole, as it maximizes value for the Property.
39. Based on the foregoing, the Sales Officer recommends to the Court that the Approval and
Vesting Order should be granted for the following reasons:
a. The Sales Officer is of the view thatthe Transaction represents the highest recovery for
the stakeholders as a whole;
b,' The Purchaser currently operates in the diagnostic imaging clinic industry and has the
reputation to support a transfer of the !HF Licenses by the MoH;
30
- 13 -
c. TD Bank and ECN were consulted and kept apprised of the Sale Process and TD Bank
supports the Transaction; and
d. It is a condition to the closing of the Transaction that the Approval and Vesting Order
be granted.
Sealing Order
40. As set out in the Moffett Affidavit, the financial difficulty of OAI was caused in part by
irreconcilable conflicts among the Shareholders. Given this background, and to prevent
those conflicts from influencing or impeding the Sales Process, none of the Shareholders
were provided with any confidential bidding information throughout the Sales Process.
This was also required in the event that any one or more Shareholder was to participate in
the Sale Process, in any capacity. In that regard, the Sales Officer enquired with the
Shareholders whether they would be participating in the Sale Process and the Sales Officer
did not receive any formal response to its enquiry.
41. The Sales Officer is seeking the approval of the Transaction and the Asset Purchase
Agreement. In the event that the Court does not grant the Approval and Vesting Order or
the Transaction does not close, the Sales Officer is of the view that efforts to re-market the
Property or continue with the Sales Process would be impaired if the Bid Summary or the
commercially sensitive terms of the Asset Purchase Agreement are made public, or
disclosed to the Shareholders, at this time. Accordingly, the Sales Officer is of the view
that it is appropriate for the Bid Summary and the Asset Purchase Agreement to remain
confidential until such time as the Transaction closes.
42. The Sales Officer requests an order sealing the Bid Summary and the unredacted Asset
Purchase Agreement.
Discussions with the MoH - Transfer of the IHF Licences
43. The Sale Process Order empowered and authorized the Sales Officer to engage with,·meet
and communicate and consult with representatives of the MoH, independently from OAI
and other affected parties, with respect to all matters concerning or relating to the IHF
Licences. Following its appointment, the Sales Officer and Dentons contacted
31
- 14 •
representatives of the MoH to discuss the Sale Process and related matters. Since that time,
the Sales Officer and Dentorts have had a number of telephone calls and email
correspondence with representatives of the MoH.
44. Following receipt of the Bids, the Sales Officer and Dentons had a call with representatives
of the MoH regarding the next steps in the process for obtaining consent from the MoH for
the transfer of the IHF Licences. The MoH advised on that call that the Sales Officer and
the Purchaser could submit the Application for Consent to Transfer a Licence prior to
obtaining the Approval and Vesting Order. Accordingly, the Sales Officer prepared the
required application materials and submitted those to the MoH on October 29, 2018.
lV. SALES OFFICER'S OTHER ACTIVITIES
-45. In addition to implementing the Sales Process, the Sale Process Order empowered and
authorized the Sales Officer to review and monitor the cash receipts and disbursements of
OAI.
46. Following its appointment, the Sales Officer established a protocol with OAI for the review
of receipts and disbursements on a weekly basis. On a weekly basis, OAI provides the
Sales Officer with a list of proposed disbursements and related supporting documentation
for the Sales Officer's review prior to those disbursements being issued. OAI also provides
the Sales Officer with the details of the actual receipts an~ disbursements for ~he prior
week.
47. All disbursements made by OAI since the Sales Officer's appointment have been in
compliance with the terms of the Sale Process Order including paragraph 22 of the Sale
Process Order which prohibits OAI from making any payments on account of shareholder
loans or advance loans to any of the Shareholders, any corporation or entity associated with
any of the Shareholders, or any related third parties until such time as the indebtedness of
OAI to ID Bank and to ECN have been paid in full. The only payments made to
Shareholders since the Sales Officer's appointment relate to fees payable to the
Shareholders for professional services rendered in accordance with usual and customary
rates and terrris which is specifically provided for in paragraph 22 of the Sale Process Order,
32
- 15 -
48. The Sales Officer has been providing weekly updates to TD Bank and ECN on matters
relating to the Sale Process and to the projected and actual cash flows ofOAI. In addition,
the Sales Officer has provided certain infonnation to the Shareholders, as deemed
appropriate by the Sales Officer, in relation to the status of the Sale Process.
V. CONCLUSION
49. The Sales Officer submits this First Report to the Court in support of the Sales Officer's
Motion for the relief as set out in the Motion Record and recommends that the Court grant
the Approval and Vesting Order substantially in the form contained at Tab 3 of the Motion
Record approving the Transaction contemplated by the Asset Purchase Agreement and
vesting in the Purchaser OAI's right, title and interest in and to the Purchased Assets.
All of which is respectfully submitted at Toronto, Ontario this 12th day of November, 2018.
KPMG Inc., in its capacity as Court Appointed Sales Officer of Oxford Advanced Imaging Inc. and not in its personal capacity
Per: Anamika Gadia Senior Vice-President
33
THE TORONTO-DOMINION BANK - and-
Applicant
Court File No: CV-18-603360-00CL
OXFORD ADV AN CED IMAGING INC.
Respondent
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIS1)
PROCEEDING COMMENCED AT TORONTO
FIRST REPORT OF KPMG INC. IN ITS CAP A CITY AS SALES OFFICER OF OXFORD ADV AN CED
IMAGING INC.
DENTONSCANADALLP 77 King Street West, Suite 400 Toronto-Dominion Centre Toronto, ON M5K 0Al
Robert J. Kennedy (LSO # 474070) Tel: (416) 367-6756 Fax: (416)863-4592 [email protected]
Jordan Schultz (LSBC # 508066) Tel: 1 (604) 691-6452 [email protected]
Lawyers for KP MG Inc., in its capacity as Courtappointed Sales Officer
u) ~
TABB
THE HONOURABLE MR.
JUSTICE HAINEY
BETWEEN:
Court File No. CV-18-603360-00CL
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
)
)
)
TUESDAY, THE 20th
DAY OF NOVEMBER, 2018
THE TORONTO-DOMINION BANK
Applicant
- and-
OXFORD ADV AN CED IMAGING INC.
Respondent
APPLICATION UNDER SECTION 207 OF THE BUSINESS CORPORATIONS ACT, (ONTARIO) R.S.O. 1990, c. B-16, AS AMENDED
APPROVAL AND VESTING ORDER
THIS MOTION, made by KPMG Inc., in its capacity as Court appointed sales officer
(the "Sales Officer"), for an order approving the sale transaction (the "Transaction")
contemplated by an asset purchase agreement (the "Asset Purchase Agreement") between the
Sales Officer and 2659428 Ontario Inc. (the "Purchaser") dated October 25, 2018, and vesting
in the Purchaser all of Oxford Advanced Imaging Inc. 's ("OAI) right, title, benefit and interest in
and to the purchased assets described in the Asset Purchase Agreement (the "Purchased
Assets"), was heard this day at 330 University Avenue, Toronto, Ontario.
36363794_8INA TDOCS
35
- 2 -
ON READING the First Report of the Sales Officer dated November 12, 2018 (the
"First Report"), and on hearing the submissions of counsel for the Sales Officer, the
Respondent, the Purchaser, and any such other counsel as were present, no one appearing for any
other person on the service list, although properly served as appears from the affidavit of
Amanda Campbell sworn November 12, 2018, filed:
1. THIS COURT ORDERS that capitalized terms used and not otherwise defined herein,
shall have the meanings ascribed to them in the Asset Purchase Agreement.
2. THIS COURT ORDERS AND DECLARES that the Transaction is hereby approved,
and the execution of the Asset Purchase Agreement by the Sales Officer is hereby authorized and
approved, with such minor amendments as the Sales Officer may deem necessary. The Sales
Officer is hereby authorized and directed to take such additional steps and execute such
additional documents as may be necessary or desirable for the completion of the Transaction and
for the conveyance of the Purchased Assets to the Purchaser.
3. THIS COURT ORDERS AND DECLARES that upon the delivery of a Sales Officer's
certificate to the Purchaser, substantially in the form attached as Schedule A hereto (the "Sales
Officer's Certificate"), all of OAI's right, title, benefit and interest in and to the Purchased
Assets described in the Asset Purchase Agreement shall vest absolutely in the Purchaser, free
and clear of and from any and all security interests (whether contractual, statutory, or otherwise),
hypothecs, mortgages, trusts or deemed trusts (whether contractual, statutory, or otherwise),
liens, executions, levies, charges, or other financial or monetary claims, whether or not they have
attached or been perfected, registered or filed and whether secured, unsecured or otherwise
(collectively, the "Claims") including, without limiting the generality of the foregoing: (i) any
encumbrances or charges created by the Order of Madam Justice Conway dated August 29,
2018; (ii) all charges, security interests or claims evidenced by registrations pursuant to the
Personal Property Security Act (Ontario) or any other personal property registry system,
including those Claims listed on Schedule B hereto (all of which are collectively referred to as
the "Encumbrances", which term shall not include the permitted encumbrances listed on
Schedule C) and, for greater certainty, this Court orders that all of the Encumbrances affecting
or relating to the Purchased Assets are hereby expunged and discharged as against the Purchased
Assets.
36363794_81 NATDOCS
36
- 3 -
4. THIS COURT ORDERS that for the purposes of determining the nature and priority of
Claims, the net proceeds from the sale of the Purchased Assets shall stand in the place and stead
of the Purchased Assets, and that from and after the delivery of the Sales Officer's Certificate all
Claims and Encumbrances shall attach to the net proceeds from the sale of the Purchased Assets
with the same priority as they had with respect to the Purchased Assets immediately prior to the
sale, as if the Purchased Assets had not been sold and remained in the possession or control of
the person having that possession or control immediately prior to the sale.
5. THIS COURT authorizes and directs the Sales Officer and/ or its solicitors or its agents
to file one or more financing change statements to amend and / or discharge the PPSA
registrations set forth in Schedule B, as may be required.
6. THIS COURT ORDERS that, pursuant to clause 7(3)(c) of the Canada Personal
Information Protection and Electronic Documents Act, the Sales Officer is authorized and
permitted to disclose and transfer to the Purchaser all human resources and payroll information
in OAI's records pertaining to OAI's past and current employees. The Purchaser shall maintain
and protect the privacy of such information and shall be entitled to use the personal information
provided to it in a manner which is in all material respects identical to the prior use of such
information by OAI.
7. THIS COURT ORDERS that, notwithstanding:
(a) the pendency of these proceedings;
(b) any applications for a bankruptcy order now or hereafter issued pursuant to the
Bankruptcy and Insolvency Act (Canada) in respect of OAI and any bankruptcy
order issued pursuant to any such applications; and
( c) any assignment in bankruptcy made in respect of OAI;
the vesting of the Purchased Assets in the Purchaser pursuant to this Order shall be binding on
any trustee in bankruptcy that may be appointed in respect of OAI and shall not be void or
voidable by creditors of OAI, nor shall it constitute nor be deemed to be a fraudulent preference,
assignment, :fraudulent conveyance, transfer at undervalue, or other reviewable transaction under
the Bankruptcy and Insolvency Act (Canada) or any other applicable federal or provincial
36363794_8jNA TDOCS
37
- 4 -
legislation, nor shall it constitute oppressive or unfairly prejudicial conduct pursuant to any
applicable federal or provincial legislation.
8. TIDS COURT HEREBY REQUESTS the aid and recognition of any court, tribunal,
regulatory or administrative body having jurisdiction in Canada or in the United States to give
effect to this Order and to assist the Sales Officer and its agents in carrying out the terms of this
Order. All courts, tribunals, regulatory and administrative bodies are hereby respectfully
requested to make such orders and to provide such assistance to the Sales Officer, as an officer of
this Court, as may be necessary or desirable to give effect to this Order or to assist the Sales
Officer and its agents in carrying out the terms of this Order.
SEALING
9. THIS COURT ORDERS that Confidential Appendix "1" and Confidential Appendix
"2" to the First Report, shall be sealed, kept confidential and not form part of the public record,
but shall be placed separate and apart from all other contents of the Court file, in a sealed
envelope attached to a notice that sets out the title of these proceedings and a statement that the
contents are subject to a sealing order up and until the earlier of the filing of the Sales Officer's
Certificate, or upon further order of the Court.
APPROVAL OF ACTIVITIES
10. THIS COURT ORDERS that the activities of the Sales Officer, as set out in the First
Report, are hereby approved.
36363794_8iNA TDOCS
ENTERED AT i INSCRIT A TORONTO ON/BOOK N-0: LE I DANS LE REGISTAE NO:
NOV 2 0 2018
PER I PAR: f Y'1
38
SCHEDULE "A" Form of Sales Officer's Certificate
Court File No. CV-18-603360-00CL
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
THE HONOURABLE JUSTICE ) )
DAY, THE[_] DAY OF [_], 2018
BETWEEN:
THE TORONTO-DOMINION BANK
Applicant
and
OXFORD ADVANCED IMAGING INC.
Respondent
APPLICATION UNDER SECTION 207 OF THE BUSINESS CORPORATIONS ACT, (ONTARIO) R.S.O.1990, c. B-16, AS AMENDED
SALES OFFICER'S CERTIFICATE
RECITALS
A. Pursuant to an Order of the Honourable Madrun Justice Conway of the Ontario Superior
Court of Justice (the "Court") dated August 29, 2018, KPMG Inc. was appointed as sales officer
(the "Sales Officer") of the assets, undertakings and properties of Oxford Advanced Imaging
Inc. ("OAI").
B. Pursuant to an Order of the Court dated November 20, 2018, the Court approved the
agreement of purchase and sale made as of October 25, 2018 (the "Asset Purchase
Agreement") between the Sales Officer and 2659428 Ontario Inc. (the "Purchaser"), and
provided for the vesting in the Purchaser of all of OAI's right, title and interest in and to the
36363794_BINA TDOCS
39
-2-
Purchased Assets, which vesting is to be effective with respect to the Purchased Assets upon the
delivery by the Sales Officer to the Purchaser of a certificate confirming: (i) the payment by the
Purchaser of the Purchase Price for the Purchased Assets, (ii) that the conditions to closing as set
out in the Asset Purchase Agreement have been satisfied or waived by the Sales Officer and the
Purchaser, and (iii) the Transaction has been completed to the satisfaction of the Sales Officer.
C. Unless otherwise indicated herein, terms with initial capitals have the meanings set out in
the Asset Purchase Agreement.
THE SALES OFFICER CERTIFIES the following:
1. The Purchaser has paid and the Sales Officer has received the Purchase Price for the
Purchased Assets payable on the Closing Date pursuant to the Asset Purchase Agreement;
2. The conditions to closing as set out in the Asset Purchase Agreement have been satisfied
or waived by the Sales Officer and the Purchaser, respectively; and
3. The Transaction has been completed to the satisfaction of the Sales Officer.
THIS CERTIFICATE was delivered by the Sales Officer at ___ [TIME] on __ _
[DATE].
36363794_81 NATDOCS
KPMG Inc., in its capacity as Court appointed Sales Officer, and not in its personal capacity
Per: Name: Title:
40
SCHEDULE "B" PPSA Registrations
Personal Property Security Act (Ontario) financing statement registrations:
(a) File Number 708223428 (The Toronto-Dominion Bank);
(b) File Number 708897141 (Element Financial Corporation);
(c) File Number 709149492 (Element Financial Corporation);
(d) File Number 709340265 (The Toronto-Dominion Bank);
(e) File Number 709340283 (The Toronto-Dominion Bank);
(f) File Number 709340301 (The Toronto-Dominion Bank);
36363794_8jNATDOCS
41
Nil
36363 794 _B[ NATDOCS
SCHEDULE "C" Permitted Encumbrances
42
THE TORONTO-DOMINION BANK - and-
Applicant
36363794_8JNATDOCS
Court File No: CV-18-603360-00CL
OXFORD ADV AN CED IMAGING INC.
Respondent
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
PROCEEDING COMMENCED AT TORONTO
APPROVAL AND VESTING ORDER
DENTONS CANADA LLP 77 King Street West, Suite 400 Toronto-Dominion Centre Toronto, ON MSK OAl
Robert J. Kennedy (LSO # 474070) Tel: (416) 367-6756 Fax: (416) 863-4592 [email protected]
Jordan Schultz (LSBC # 508066) Tel: 1 (604) 691-6452 [email protected]
Lawyers for KP MG Inc., in its capacity as Courtappointed Sales Officer
~ w
TABC
Court File No. CV-18-603360-00CL
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
IN THE MATTER OF THE WINDING UP OF OXFORD ADV AN CED IMAGING INC.
APPLICATION UNDER SECTION 207 OF THE BUSINESS CORPORATIONS ACT, R.S.O. 1990, c. B.16
SECOND REPORT OF KPMG INC. in its capacity as SALES OFFICER OF OXFORD ADV AN CED IMAGING INC.
April 26, 2019
39097202_6[NATDOCS
44
- 2 -45
TABLE OF CONTENTS
I. INTRODUCTION AND SUMMARY OF PROCEEDINGS ......................................... 4
II. PURPOSE OF THIS SECOND REPORT ...................................................................... 5
III. UPDATE ON THE STATUS OF THE TRANSACTION ............................................. 5 License Transfer Approval Process ..................................................................................... 6 Pre-Closing and Transition Matters ..................................................................................... 6
IV. AMENDMENTS TO THE ASSET PURCHASE AGREEMENT ................................ 7
V. SALES OFFICER'S OTHER ACTIVITIES .................................................................. 7
VI. APPROVAL OF PROFESSIONAL FEES ...................................................................... 8
VII. CONCLUSION .................................................................................................................. 9
39097202_6INA TDOCS
- 3 -
LIST OF APPENDICES
Appendix A- First Report (without appendices)
Appendix B - Redacted Asset Purchase Agreement
Appendix C - Approval and Vesting Order
Appendix D - Second Amending Agreement
Appendix E-Fee Affidavit of Anamika Gadia ofKPMG sworn April 24, 2019
Appendix F -Fee Affidavit of Robert Kennedy ofDentons sworn April 26, 2019
39097202_6INA TDOCS
46
- 4 -
INTRODUCTION AND SUMMARY OF PROCEEDINGS
1. The Toronto-Dominion Bank ("TD Bank") filed an application (the "Application") before
the Ontario Superior Court of Justice (Commercial List) (the "Court") for interim relief
pursuant to sections 207 and 209 of the Business Corporations Act, (Ontario) for among
other things, an order for the sale of the assets and business of Oxford Advanced Imaging
Inc. ("OAI") and for the appointment of KPMG Inc. ("KPMG") as Sales Officer (as
defined below).
2. The Application was heard on August 29, 2018 and on the same date, the Court granted an
order (the "Sales Process Order") which, among other things, appointed KPMG as the
sales officer (the "Sales Officer") to carry out a process (the "Sales Process") for the sale
of the assets and business of OAI (the "Property").
3. The Property consists of all the assets, undertakings and properties acquired for, or used in
relation to, OAI's diagnostic imaging clinics. The operations of OAI consist of two clinics,
one is located fn Mississauga, Ontario and the other one is located in Ajax, Ontario.
4. The Sales Officer issued its first report to the Court on November 12, 2018 (the "First
Report"). A copy of the First Report is attached as Appendix "A" herein (without
appendices). As detailed in the First Report, the Sales Officer brought a motion returnable
on November 20, 2018 seeking an Approval and Vesting Order (the "Approval and
Vesting Order") approving: (a) the sale transaction (the "Transaction") contemplated by
an asset purchase agreement between the Sales Officer and 2659428 Ontario Inc. o/a
Greater Niagara Medical Imaging (the "Purchaser") dated October 25, 2018, as amended
by an amendment agreement dated November 19, 2018 (collectively, the "Asset Purchase
Agreement") and vesting in the Purchaser, OAI's right, title and interest in and to the
assets described in the Asset Purchase Agreement; and (b) the Sales Officer's activities as
set forth in the First Report. A copy of the redacted Asset Purchase Agreement is attached
as Appendix "B" herein.
5. On November 20, 2018, the Court granted the Approval and Vesting Order. A copy of the
Approval and Vesting Order is attached as Appendix "C" herein.
39097202_6!NATDOCS
47
- 5 -
PURPOSE OF THIS SECOND REPORT
6. The purpose of the Sales Officer's second report dated April 26, 2019 (the "Second
Report") is to:
(a) update this Honourable Court with respect to the status of the Transaction and the
Application for Consent to Transfer a License to be obtained from the Ministry of
Health and Long-Term Care (the "MoH") with respect to OAI's Independent
Health Facility Licences (the "IHF Licenses");
(b) provide this Honourable Court with the details of certain amendments to the Asset
Purchase Agreement (the "Second Amendment");
( c) provide this Honourable Court with the necessary information to support an Order:
(i) approving and authorizing the Second Amendment; and
(ii) approving the activities of the Sales Officer as set out in the Second Report,
and approving the fees and disbursements of the Sales Officer and the Sales
Officer's legal counsel, Dentons Canada LLP ("Dentons"), for the period
up to January 30, 2019.
7. Unless otherwise stated, all monetary amounts contained herein are expressed in Canadian
dollars.
8. The information contained in this Second Report has been obtained from the books and
records and other information of OAI. The accuracy and completeness of the financial
information contained herein has not been audited or otherwise verified by the Sales
Officer, and the Sales Officer does not express an opinion or provide any other form of
assurance with respect to the information presented herein or relied upon by the Sales
Officer in preparing this Second Report.
39097202_6INA TDOCS
48
- 6 -
UPDATE ON THE STATUS OF THE TRANSACTION
9. Since the granting of the Approval and Vesting Order, the Sales Officer has been working
diligently with the Purchaser, the MoH and OAI to close the Transaction. Specifically, the
Sales Officer has been: (a) working with the MoH and the Purchaser through the IHF
License transfer approval process; and (b) working with the Purchaser and OAI through
certain pre-closing and transition matters.
License Transfer Approval Process
10. On November 21, 2018, the Sales Officer received correspondence from the MoH advising
that the Director of Independent Health Facilities had granted a conditional consent (the
"Conditional Consent") to the transfer of OAI's IHF Licences to the Purchaser. The
consent was conditional on: (a) the Purchaser entering into a new funding agreement with
the MoH (the "New Funding Agreement"); (b) the wind-up of OAI's existing funding
agreement (the "Old Funding Agreement"); arid (c) certain other administrative matters
consisting of the submission of registration packages in respect of each IHF License and
payment of the associated registration fee.
11. Shortly after the Conditional Consent was delivered to the Purchaser:
(a) the Purchaser submitted the required registration packages and paid the associated
registration fees to the MoH; and
(b) the Sales Officer commenced regular discussions with the MoH regarding the status
of the license transfer process and in particular, the MoH's timing in delivering the
New Funding Agreement to the Purchaser. In the course of those discussions, the
MoH advised that they were unable to provide any specific timeline with respect to
the delivery of the New Funding Agreement, only that the New Funding Agreement
was going through the MoH's internal review and approval process.
39097202_6jNATDOCS
49
- 7 -
12. On January 28, 2019, the MoH advised the Sales Officer that they had received an internal
approval on the draft form of the New Funding Agreement but were still awaiting a further
internal approval to allow for the delivery of the initial draft of the New Funding
Agreement to the Purchaser for review and comments.
13. On March 18, 2019, the MoH advised the Sales Officer that they had obtained the necessary
approvals to release the draft of the New Funding Agreement to the Purchaser and since
that time, the Purchaser and the MoH have had various discussions regarding the terms of
the New Funding Agreement.
14. The Purchaser has now advised the Sales Officer that the Purchaser and MoH have settled
and finalized the form of the New Funding Agreement.
15. The Sales Officer and MoH are currently addressing the wind-up process for the Old
Funding Agreement. The Sales Officer anticipates finalizing any steps required to wind
up the Old Funding Agreement in the near future.
Pre-Closing and Transition Matters
16. The Sales Officer and its counsel have been working with the Purchaser and its counsel
through the various pre-closing and transition matters, including the assignments of leases
and contracts and the transfer of certain patient data that is required to occur prior to closing
pursuant to the IHF regulations. The Sales Officer continues to liaise with OAI in respect
of these matters, as required.
AMENDMENTS TO THE ASSET PURCHASE AGREEMENT
17. The Closing Date, as defined in the Asset Purchase Agreement, is:
"Closing Date" means the earlier of: (i) five (5) Business Days following the date of the receipt of an Unconditional Consent by the Purchaser, (ii) five (5) Business Days following the waiver of conditions pursuant to section 5.03 of this Agreement, and (iii) thirty (30) Business Days following the date of the receipt of a Conditional Consent by the Purchaser, or such other date as may be agreed to between the parties.
18. As a result of the Conditional Consent being delivered, the Closing Date has lapsed, subject
to the parties agreeing to a later Closing Date.
39097202_6JNATDOCS
50
- 8 -
19. The Sales Officer is of the view that the delay in completing the New Funding Agreement
has been primarily caused by the various internal approvals that were required at the MoH
and as a result, the satisfaction of the conditions contained in the Conditional Consent has
until recently been outside the Purchaser's control.
20. The Sales Officer is therefore of the view that extending the Closing Date to allow the
Transaction to close is appropriate, and still represents the highest and best recovery for
the stakeholders as a whole. Terminating the Asset Purchase Agreement would introduce
uncertainty and delay, as any new purchaser would have to go through the same lengthy
approval process with the MoH.
21. The Sales Officer and the Purchaser have entered into the Second Amendment, which
amends certain terms of the Asset Purchase Agreement. A copy of the Second Amendment
is attached as Appendix "D" to this Second Report. The key terms of the Second
Amendment are as follows:
(a) the definition of "Closing Date" is amended to mean May 30, 2019, or such other
date as may be agreed to between the parties, and certain consequential
amendments arising from that amendment;
(b) a "material breach" by the Purchaser is extended to include undertakings given by
the Purchaser to meet its privacy obligations in relation to patient data being
transferred prior to closing;
( c) the Purchaser is required to deliver an additional deposit (the "Additional
Deposit"), to be held with the initial Deposit on the same terms and conditions
applicable thereto; and
(d) the Second Amendment is conditional upon, inter alia, approval by this Honourable
Court.
22. The Sales Officer is of the view that, in the circumstances, the Transaction will close on or
before May 30, 2019. The Purchaser has also paid the Additional Deposit to the Sales
39097202_6INATDOCS
51
- 9 -
Officer pending approval of the Second Amendment, demonstrating the Purchaser's
commitment to close the Transaction.
SALES OFFICER'S OTHER ACTIVITIES
23. Pursuant to the Sales Process Order, in addition to the activities undertaken by the Sales
Officer in respect of the Transaction described herein, the Sales Officer has continued to
review and monitor the cash receipts and disbursements of OAI.
24. On a weekly basis, OAI continues to provide the Sales Officer with a list of proposed
disbursements and related supporting documentation for the Sales Officer's review prior
to those disbursements being issued. OAI also continues to provide the Sales Officer with
the details of the actual receipts and disbursements for the prior week.
25. All disbursements made by OAI since the date of the First Report have been made in
compliance with the terms of the Sale Process Order including paragraph 22 of the Sale
Process Order which prohibits OAI from making any payments on account of shareholder
loans or advance loans to any of the shareholders, any corporation or entity associated with
any of the shareholders, or any related third parties until such time as the indebtedness of
OAI to TD Bank and to ECN Financial Inc. ("ECN") have been paid in full. The only
payments made to shareholders since the date of the First Report relate to fees payable to
the shareholders for professional services rendered in accordance with the usual and
customary rates and terms which is specifically provided for in paragraph 22 of the Sale
Process Order.
26. Pursuant to paragraph 3(i) of the Sale Process Order, the Sales Officer has been providing
weekly written updates to TD Bank and ECN in respect of the status of the Sale Process
and the Transaction and the Sales Officer's monitoring of the receipts and disbursements
of OAI. The Sales Officer has also provided periodic updates to OAI's counsel on the
status of the Transaction and the related pre-closing matters.
39097202_6INATDOCS
52
- 10 -
APPROVAL OF PROFESSIONAL FEES
27. The Sales Officer and its counsel have maintained detailed records of their professional
fees and costs since the Sales Officer's appointment up to an including January 31, 2019
(the "Fee Period"), as detailed in the Fee Affidavit of Anamika Gadia of KPMG sworn
April 24, 2019 and the Fee Affidavit of Robert Kennedy ofDentons sworn April 26, 2019
(collectively, the "Fee Affidavits"). Copies of the Fee Affidavits are attached as Appendix
"E", and Appendix "F", respectively.
28. Pursuant to paragraph 26 of the Sale Process Order, the Sales Officer and its counsel, shall
be paid their reasonable fees and disbursements and shall pass their accounts before this
Court.
29. The total fees and disbursements (including Harmonized Sales Tax) of the Sales Officer
during the Fee Period amount to $516,439.57. The details of the time spent and the services
provided by the Sales Officer are more particularly described in the Fee Affidavit of
Anamika Gadia.
30. The total fees and disbursements (including Harmonized Sales Tax) of Dentons during the
Fee Period amount to $234,547.60. The details of the time spent and the services provided
by Dentons are more particularly described in the Fee Affidavit of Robert Kennedy.
31. The Sales Officer has reviewed the accounts of its counsel and believes that the accounts
of the Sales Officer and Dentons are reasonable in the circumstances and respectfully
requests that the Court approve the Sales Officer's fees and disbursements and those of its
counsel.
CONCLUSION
32. The Sales Officer submits this Second Report to the Court in support of the Sales Officer's
Motion for the relief as set out in the Motion Record and recommends that the Court grant
the Order substantially in the form contained at Tab 3 of the Motion Record approving: (a)
the Second Amendment; (b) the fees and disbursements of the Sales Officer and its counsel
39097202_6jNATDOCS
53
- 11 -
for the period up to January 31, 2019; and ( c) the activities of the Sales Officer from the
date of the First Report.
All of which is respectfully submitted at Toronto, Ontario this 26th day of April, 2019.
KPMG Inc., in its capacity as Court Appointed Sales Officer of Oxford Advanced Imaging Inc. and not in its personal capacity
Per: t,2/! cu,iJ h ,/ad,!£.
Anamika Gadia Senior Vice President
39097202_6INA TDOCS
54
THE TORONTO-DOMINION BANK - and-
Applicant
Court File No: CV-18-603360-00CL
OXFORD ADVANCED IMAGING INC.
Respondent
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
PROCEEDING COMMENCED AT TORONTO
SECOND REPORT OF KPMG INC. IN ITS CAPACITY AS SALES OFFICER OF OXFORD
ADVANCED IMAGING INC.
DENTONS CANADA LLP 77 King Street West, Suite 400 Toronto-Dominion Centre Toronto, ON M5K 0Al
Robert J. Kennedy (LSO # 474070) Tel: (416) 367-6756 Fax: ( 416) 863-4592 [email protected]
Jordan Schultz (LSBC # 508066) Tel: 1 (604) 691-6452 [email protected]
Lawyers for KPMG Inc., in its capacity as Courtappointed Sales Officer
01 01
TABD
Court File No. CV-18-603360-00CL
ONTARIO
SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
IN THE MATTER OF THE WINDING UP OF
OXFORD ADVANCED IMAGING INC.
APPLICATION UNDER SECTION 207 OF THE
BUSINESS CORPORATIONS ACT, R.S.O. 1990, c. B.16
THIRD REPORT OF KPMG INC. in its capacity as
SALES OFFICER OF OXFORD ADVANCED IMAGING INC.
June 12, 2019
56
57 - 2 -
TABLE OF CONTENTS
Page
I. INTRODUCTION AND SUMMARY OF PROCEEDINGS ........................................... 4
II. PURPOSE OF THIS THIRD REPORT ............................................................................ 5
III. UPDATE ON THE CLOSING OF THE TRANSACTION ............................................. 6
License Transfer Approval Process ............................................................................................ 7
Closing and Transition Matters .................................................................................................. 7
IV. SECURITY OPINIONS ...................................................................................................... 8
TD Bank ..................................................................................................................................... 8
ECN ............................................................................................................................................ 9
V. DISTRIBUTION TO SECURED CREDITORS .............................................................. 9
VI. FEES SUBJECT TO THE ADVISORY CHARGE AND RESIDUAL SALE PROCEEDS ........................................................................................................................ 10
VII. SALES OFFICER'S OTHER ACTIVITIES .................................................................. 11
VIII. APPROVAL OF PROFESSIONAL FEES ...................................................................... 12
IX. CONCLUSION .................................................................................................................. 13
- 3 -
LIST OF APPENDICES
Appendix A - First Report (without appendices)
Appendix B - Amended Asset Purchase Agreement
Appendix C- Approval and Vesting Order
Appendix D - Second Report (without appendices)
Appendix E - TD Bank Payout Statement
Appendix F - ECN Payout Statement
Appendix G- KPMG CF Invoice Summary
Appendix H - Blakes Invoice Summary
Appendix I- Fee Affidavit of Anamika Gadia ofKPMG sworn June 11, 2019
Appendix J - Fee Affidavit of Robert Kennedy of Dentons sworn June 11, 2019
58
----------------------------------··---. ----··· ... ·---·····-··--------·-···· -- ---~
- 4 -
I. INTRODUCTION AND SUMMARY OF PROCEEDINGS
1. The Toronto-Dominion Bank ("TD Bank") filed an application (the "Application") before
the Ontario Superior Court of Justice (Commercial List) (the "Court") for interim relief
pursuant to sections 207 and 209 of the Business Corporations Act, (Ontario) for among
other things, an order for the sale of the assets and business of Oxford Advanced Imaging
Inc. ("OAI") and for the appointment of KPMG Inc. ("KPMG") as sales officer of OAI
(the "Sales Officer").
2. The Application was heard on August 29, 2018 and KPMG was appointed Sales Officer
pursuant to an Order (the "Appointment Order") which, among other things, authorized
and directed the Sales Officer carry out a process (the "Sales Process") for the sale of the
assets and business of OAI (the "Property").
3. The Property consisted of all the assets, undertakings and properties acquired for, or used
in relation to, OAI's diagnostic imaging clinics. The operations of OAI consisted of two
clinics, one is located in Mississauga, Ontario and the other one is located in Ajax, Ontario.
4. The Sales Officer issued its first report to the Court on November 12, 2018 (the "First
Report"). A copy of the First Report (without appendices) is attached as Appendix "A"
herein. As detailed in the First Report, the Sales Officer brought a motion returnable on
November 20, 2018 seeking an Approval and Vesting Order (the "Approval and Vesting
Order") approving: (a) the sale transaction (the "Transaction") contemplated by an asset
purchase agreement between the Sales Officer and 2659428 Ontario Inc. (the
"Purchaser") dated October 25, 2018 (the "Asset Purchase Agreement"), as amended by
an amending agreement dated November 19, 2018 (the "First Amendment") and a second
amending agreement dated April 23, 2019 (the "Second Amendment", and together with
the Purchase Agreement and First Amendment, the "Amended Asset Purchase
Agreement") and vesting in the Purchaser, OAI's right, title and interest in and to the
assets described in the Amended Asset Purchase Agreement; and (b) the Sales Officer's
activities as set forth in the First Report. A copy of the Amended Asset Purchase
Agreement is attached as Appendix "B" herein.
59
-·----------- ---------· - - . ·-· ·--·----------------·-·------------------·------··· . ---
- 5 -
5. On November 20, 2018, the Court granted the Approval and Vesting Order. A copy of the
Approval and Vesting Order is attached as Appendix "C" herein.
6. The Sales Officer issued its second report to the Court on April 26, 2019 (the "Second
Report"). A copy of the Second Report (without appendices) is attached as Appendix
"D" herein. As detailed in the Second Report, the Sales Officer brought a motion
returnable on May 2, 2019 seeking an Order approving: (a) the Second Amendment, and
(b) approving the activities of the Sales Officer as set out in the Second Report and
approving the fees and disbursements of the Sales Officer and the Sales Officer's legal
counsel, Dentons Canada LLP ("Den tons"), for the period up to January 30, 2019.
7. Capitalized terms not defined herein shall have the meanings set out in the Appointment
Order.
II. PURPOSE OF THIS THIRD REPORT
8. The purpose of the Sales Officer's third report dated June 12, 2019 (the "Third Report")
is to:
(a) Update the Court with respect to the closing of the Transaction;
(b) Provide the Court with the necessary information to support an Order (the "First
Distribution Order") authorizing and approving the Sales Officer to make a
distribution from the Sales Proceeds (as defined herein) as follows:
(i) A distribution by the Sales Officer to TD Bank to repay TD Bank in full and
final satisfaction of the indebtedness owing by OAI to TD Bank (the "TD
Bank Distribution"); and
(ii) A distribution by the Sales Officer to ECN Financial Inc. ("ECN") to repay
ECN in full and final satisfaction of the indebtedness owing by OAI to ECN
(the "ECN Distribution");
(c) Provide the Court with details regarding the fees and disbursements incurred by
KPMG Corporate Finance Inc. ("KPMG CF") and Blake, Cassels & Graydon LLP
60
III.
. 6.
("Blakes") prior to the granting of the Appointment Order in relation to the
previous solicitation process for the sale of the Property, which fees are secured by
the Advisory Charge; and
(d) Provide the Court with the necessary information to support an Order approving
the activities of the Sales Officer as set out in the Third Report and approving the
fees of the Sales Officer and Dentons for the period of February 1, 2019 to May 31,
2019.
9. Unless otherwise stated, all monetary amounts.contained herein are expressed in Canadian
dollars.
10. The information contained in this Third Report has been obtained from the books and
records and other information of OAI. The accuracy and completeness of the financial
information contained herein has not been audited or otherwise verified by the Sales
Officer, and the Sales Officer does not express an opinion or provide any other form of
assurance with respect to the information presented herein or relied upon by the Sales
Officer in preparing this Third Report.
11. Future oriented financial information reported or relied on in preparing this Third Report
is based on OAJ management's assumptions regarding future events; actual results may
vary from forecast and such variations may be material.
12.
UPDATE ON THE CLOSING OF THE TRANSACTION
Since the date of the Second Report, the Sales Officer worked diligently with the Purchaser,
the Ministry of Health and Long-Term Care (the "MoH"), and OAI to close the
Transaction. Specifically, the Sales Officer: (a) worked with the MoH and the Purchaser
through the transfer approval process in respect of OAI's Independent Health Facility
Licences (the "IHF Licenses") and (b) worked with the Purchaser and OAI through
numerous pre-closing and transition matters. The Transaction closed on May 30, 2019.
61
-7-
License Transfer Approval Process
13. As discussed in the Second Report, the license transfer approval process was subject to a
number of conditions including the MoH and the Purchaser entering into a new funding
agreement (the "New Funding Agreement") and termination of OAl's existing funding
agreement with the MoH (the "Old Funding Agreement"). As of the date of the Second
Report, the Sales Officer had been advised by the Purchaser that the Purchaser and MoH
had settled and finalized the form of the New Funding Agreement.
14. Following the issuance of the Second Report, the Sales Officer and its counsel continued
to hold discussions with the MoH and the Purchaser regarding the status of the New
Funding Agreement and the license transfer process. On May 14, 2019, the Sales Officer
received a letter from the MoH advising that the Old Funding Agreement would be
terminated on May 30, 2019 (the target closing date), subject to the Sales Officer waiving
the 90-day termination notice period contained in the Old Funding Agreement (the "Notice
Period").
15. The Sales Officer provided the MoH with the written waiver with respect to the Notice
Period on or about May 2 7, 2019.
16. On May 27, 2019, the MoH advised the Sales Officer that all of the conditions associated
with the license transfer process had been satisfied and that the license transfer would be
completed and effective for May 31, 2019.
17. In the same correspondence, the MoH further advised that a financial reconciliation of
funds paid to OAI in respect to the IHF Licences was being undertaken by the MoH and
would be provided to the Sales Officer following the closing of the Transaction (the "OAI
Funding Reconciliation").
Closing and Transition Matters
18. The Sales Officer and its counsel also continued working with the Purchaser and its counsel
through the various pre-closing and transition matters, including the assignments of leases
and contracts and the transfer of certain patient data that was required to occur prior to
62
-8-
closing pursuant to the IHF regulations (the "Data Migration"). The Sales Officer and its
counsel completed all of the required pre-closing and closing matters in order to close the
Transaction on May 30, 2019 (the "Closing Date").
19. The Sales Officer received the balance of the purchase price on the Closing Date. In
summary, the Sales Officer received $26,250,000 from the Purchaser for the purchase of
the Property and $18, I 08.05 representing certain security deposits previously paid by OAI
in respect of commercial leases that were reimbursed by the Purchaser, in accordance with
the Amended Asset Purchase Agreement (collectively, the "Sale Proceeds"). On May 31,
2019, the Sales Officer filed the Sales Officer's certificate with the Court.
20. Currently, the Sales Officer continues to work with the Purchaser and OAI on certain post~
closing matters, including the continued Data Migration and the reconciliation of working
capital adjustments to the purchase price as provided for in the Amended Asset Purchase
Agreement (the "Working Capital Adjustment"). The Sales Officer notes that the
purchase price (and as a result, the Sale Proceeds) held by the Sales Officer will adjust
based on the outcome of the Working Capital Adjustment.
IV. SECURITY OPINIONS
TD Bank
21. The Sales Officer obtained a security opinion from Dentons with respect to the TD Bank
security documentation (the "TD Bank Security Opinion") and, subject to the customary
qualifications and assumptions contained therein, the TD Bank Security Opinion opines
that: (a) the security held by TD Bank is valid and legally enforceable against OAI, and (b)
TD Bank has a perfected security interest in the Property.
22. Subject to the customary assumptions and qualifications contained in the TD Bank Security
Opinion, Dentons has opined that the TD Bank security documents:
(a) constitute legal, valid and binding security interests in favour of TD Bank in the
Property;
------------------------------------···--····
63
V.
ECN
-9-
(b) are sufficient to secure the payment and performance of the obligations secured
thereby; and
(c) are properly registered and perfected in the applicable jurisdiction.
23. The Sales Officer obtained a security opinion from its counsel with respect to the ECN
security documentation (the 11ECN Security Opinion") and, subject to the customary
qualifications and assumptions contained therein, the ECN Security Opinion opines that:
(i) the security held by ECN is valid and legally enforceable against OAI, and (ii) ECN has
a perfected security interest in the Property.
24. Subject to the customary assumptions and qualifications contained in the ECN Security
Opinion, Sales Officer's counsel has opined that the ECN security documents:
(a)
(b)
(c)
constitute legal, valid and binding security interests in favour of ECN in the
Property;
are sufficient to secure the payment and performance of the obligations secured
thereby; and
are properly registered and perfected in the applicable jurisdiction.
DISTRIBUTION TO SECURED CREDITORS
25. Pursuant to paragraphs 3(f) and 23 of the Appointment Order, the Sales Officer is seeking
the First Distribution Order in order to authorize and approve the TD Bank Distribution
and the ECN Distribution.
26. According to a payout statement received from TD Bank, the amount of $9,416,220.22 is
due and owing to TD Bank as of June IO, 2019, together with accruing interest and
expenses (the "TD Bank Indebtedness"). The Sales Officer notes that a further advance
to OAI from TD Bank in the amount of approximately $71,000 will occur on or about June
64
, •• -.·--··-··-···- ·---- ---·---. -·-· ---·--·---------· --~~a.o·c~~-~--~~~~-------------------~
- 10 -
14, 2019 in order to fund a final payroll to employees of OAI following the closing of the
Transaction. A copy of the TD Bank payout statement is attached as Appendix "E" herein.
27. According to a payout statement received from ECN, the amount of $11,268,000.63 is due
and owing to ECN as of June 10, 2019, together with accruing interest and expenses (the
"ECN Indebtedness"). A copy of the ECN payout statement is attached as Appendix "F"
herein.
28. There are sufficient Sale Proceeds to fund the TD Bank Distribution and ECN Distribution.
The proposed distributions will further limit interest charges accruing on the TD Bank
Indebtedness and the ECN Indebtedness.
VI. FEES SUBJECT TO THE ADVISORY CHARGE AND RESIDUAL SALE
PROCEEDS
29. Pursuant to paragraph 27 of the Appointment Order, KPMG CF and Blakes are entitled to
an Advisory Charge as security for such fees and disbursements relating to the solicitation
process for the sale of Property incurred by OAI prior to the making of the Appointment
Order. The Advisory Charge forms a third charge upon the Property and the Sale Proceeds
thereof, in priority to all security interests, trusts, liens, charges and encumbrances,
statutory or otherwise, but subsequent and subordinate to the Sale Process Borrowings
Charge, the Sales Officer's Charge and the security interests of TD Bank and ECN.
30. The fees and disbursements (including Harmonized Sales Tax) of KPMG CF and Blakes
incurred by OAI prior to the making of the Appointment Order total $1,041,288.91 (the
"KPMG CF Fees") and $446,463.92 (the "Blakes Fees"), respectively. A copy of the
KPMG CF invoice summary is attached as Appendix "G" herein. A copy of the Blakes
invoice summary is attached as Appendix "H" herein.
3 I. Pursuant to the Appointment Order and the Advisory Charge, the Sales Officer is proposing
and seeking an authorization and approval for distributions from the Sales Proceeds on
account of the KPMG CF Fees (the "KPMG CF Distribution") and Blakes Fees (the
"Blakes Distribution"), following the completion of the TD Bank Distribution and ECN
Distribution.
65
....... --------- . ------------------------------------ ------------------------- ----- . ----- --------------------------- ------- ----
- I 1 -
32. The Sales Officer is reasonably satisfied that there will remain sufficient Sale Proceeds
following the completion to the TD Bank Distribution, ECN Distribution, KPMG CF
Distribution and Blakes Distribution (collectively, the "Distributions") to support the
Sales Officer's Charge.
33. The Sales Officer is currently assessing the most effective and reasonable method with
respect to dealing with the residual Sale Proceeds following the Distributions (the
"Residual Proceeds"). As noted above, the MoH has indicated that it will be initiating the
OAI Funding Reconciliation and there may be priority claims (i.e. Canada Revenue
Agency) or other claims to the Residual Proceeds including those of OAI and its
shareholders, and the stakeholders and interested parties in the Court ordered Sales Process.
VII. SALES OFFICER'S OTHER ACTIVITIES
34. . Pursuant to the Appointment Order, in addition to the activities undertaken by the Sales
Officer in respect of the Transaction described herein, the Sales Officer has continued to
review and monitor the cash receipts and disbursements of OAI.
35. On a weekly basis, OAI continues to provide the Sales Officer with a list of proposed
disbursements and related supporting documentation for the Sales Officer's review prior
to those disbursements being issued. OAI also continues to provide the Sales Officer with
the details of the actual receipts and disbursements for the prior week.
36. All disbursements made by OAI since the date of the Second Report have been made in
compliance with the terms of the Appointment Order including paragraph 22 of the
Appointment Order which prohibits OAI from making any payments on account of
shareholder loans or advance loans to any of the shareholders, any corporation or entity
associated with any of the shareholders, or any related third parties until such time as the
indebtedness of OAI to TD Bank and to ECN have been paid in full, The only payments
made to shareholders since the date of the Second Report relate to fees payable to the
shareholders for professional services rendered in accordance with the usual and customary
rates and terms which is specifically provided for in paragraph 22 of the Appointment
Order.
66
VIII.
37. Pursuant to paragraph 3(i) of the Appointment Order, the Sales Officer has been providing
weekly written updates to TD Bank and ECN in respect of the status of the Sale Process
and the Transaction and the Sales Officer's monitoring of the receipts and disbursements
of OAI. The Sales Officer has also provided periodic updates to OAI's counsel on the
status of the Transaction and the related pre-closing matters.
38.
APPROVAL OF PROFESSIONAL FEES
The Sales Officer and its counsel have maintained detailed records of their professional
time and costs since February 1, 2019 up to an including May 31, 2019 (the "Fee Period"),
as detailed in the Fee Affidavit of Anamika Gadia of KPMG sworn June 11, 2019 and the
Fee Affidavit of Robert Kennedy of Den tons sworn June 11, 2019 ( collectively, the "Fee
Affidavits"). Copies of the Fee Affidavits are attached as Appendix "I", and Appendix
"J", respectively.
39. Pursuant to paragraph 26 of the Appointment Order, the Sales Officer and its counsel, shall
be paid their reasonable fees and disbursements and shall pass their accounts before this
Court.
40. The fees and disbursements (including Harmonized Sales Tax) of the Sales Officer during
the Fee Period total $143,424.06. The details of the time spent and the services provided
by the Sales Officer are more particularly described in the Fee Affidavit of Anamika Gadia.
41. The fees and disbursements (including Harmonized Sales Tax) ofDentons during the Fee.
Period total $181,660.57. The details of the time spent and the services provided by
Dentons are more particularly described in the Fee Affidavit of Robert Kennedy.
42. The Sales Officer has reviewed the accounts of its counsel and believes that the accounts
of the Sales Officer and Dentons are reasonable in the circumstances and respectfully
requests that the Court approve the Sales Officer's fees and disbursements and those of its
counsel.
67
IX.
43.
• 13 -
CONCLUSION
The Sales Officer submits this Third Report to the Court in support of the Sales Officer's
Motion for the relief as set out in the Motion Record and recommends that the Court grant
the following relief:
(a) An Order substantially in the form contained at Tab 3 of the Motion Record: (a)
authorizing and directing the Sales Officer to complete the TD Bank Distribution
and ECN Distribution, (b) authorizing and directing the Sales Officer to complete
the KPMG CF Distribution and Blakes Distribution pursuant to the Advisory
Charge, and (c) approving the activities of the Sales Officer as set out in the Third
Report and approving the fees of the Sales Officer and Dentons for the period
February 1, 2019 to May 31, 2019;
All of which is respectfully submitted at Toronto, Ontario this 12th day of June, 2019.
Per:
KPMG Inc., in its capacity as Court Appointed Sales Officer of Oxford Advanced Imaging Inc. and not in its personal capacity
Anamika Gadia Senior Vice President
68
THE TORONTO-DOMINION BANK
Applicant
- and-
Court File No: CV-18-603360-00CL
OXFORD ADVANCED IMAGING INC.
Respondent
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
PROCEEDING COMMENCED AT TORONTO
THIRD REPORT OF KPMG INC. in its capacity as SALES OFFICER OF OXFORD ADV AN CED
IMAGING INC.
DENTONSCANADALLP Toronto Dominion Centre 77 King St. W ., Suite 400 Toronto, Ontario M5K 0Al
Robert Kennedy (LSO # 474070) Tel: (416)367-6756 Fax: (416) 863-4592 [email protected]
Jordan Schultz (LSBC # 508066) Tel: 1 (604) 691-6452 [email protected]
Mark Freake (LSO # 63656H) Tel: (416) 863-4456 [email protected]
Lawyers for KPMG Inc.in its capacity as Court-appointed Sales Officer
0) (0
JUSTICE ( o iv w t\y
BETWEEN:
Court File No. CV-18-603360-00CL
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
)
)
)
THE TORONTO-DOMINION BANK
- and -
TUESDAY, THE 18th DAY
OF JUNE, 2019
Applicant
OXFORD ADV AN CED IMAGING INC.
Respondent
APPLICATION UNDER SECTION 207 OF THE BUSINESS CORPORA TIO NS ACT, (ONTARIO) R.S.0.1990, c. B-16, AS AMENDED
ORDER (Distribution Order)
THIS MOTION, made by KPMG Inc. ("KPMG") in its capacity as the Court-appointed
sales officer (the "Sales Officer") appointed pursuant to the appointment order granted by the
Court on August 29, 2018 (the "Appointment Order"), for an order,
(a) approving and authorizing a distribution by the Sales Officer to The Toronto
Dominion Bank (the "TD Bank") from the sale proceeds generated from the
closing of the Court approved transaction between the Sales Officer and 2659428
Ontario Inc. pursuant to an asset purchase agreement dated October 25, 2018, as
amended (the "Sale Proceeds"), as set out in the Third Report (as defined herein);
40177663_ 4INATDOCS
70
- 2 -
(b) approving and authorizing a distribution by the Sales Officer to ECN Financial
Inc. ("ECN") from the Sale Proceeds, as set out in the Third Report;
(c) approving and authorizing a distribution by the Sales Officer to KPMG Corporate
Finance Inc. ("KPMG CF") from the Sale Proceeds, on account of fees and
disbursements incurred by Oxford Advanced Imaging Inc. ("OAI") prior to the
Appointment Order, which are secured pursuant to the Advisory Charge (as
defined in the Appointment Order);
( d) approving and authorizing a distribution by the Sales Officer to Blake, Cassels &
Graydon LLP ("Blakes") from the Sale Proceeds, on account of fees and
disbursements incurred by OAI which are secured pursuant to the Advisory
Charge;
( e) approving the activities of the Sales Officer, together with the fees and
disbursements of the Sales Officer and its legal counsel, Dentons Canada LLP
("Dentons"), as set out in the Third Report of KPMG, in its capacity as Sales
Officer, dated June 12, 2019 (the Third Report"); and
(f) such further and other grounds as counsel may advise and this Honourable Court
may permit;
was heard this day at 330 University Avenue, Toronto, Ontario.
ON READING the Motion Record of the Sales Officer dated June 12, 2019 and the
Third Report, and on hearing the submissions of counsel for the Sales Officer, and any such
other counsel as were present, no one appearing for any other person on the service list, although
properly served as appears from the Affidavit of Amanda Campbell sworn June 12, 2019, filed:
SERVICE
1. THIS COURT ORDERS that the time for service of the notice of motion and the
motion record is hereby abridged and validated so that this motion is properly returnable today
and hereby dispenses with further service thereof.
40177663_4INATDOCS
71
- 3 -
DISTRIBUTIONS
2. THIS COURT ORD:ERS that the Sales Officer is authorized and directed to make a
distribution from the Sale Proceeds in an amount sufficient to repay TD Bank in full and final
satisfaction of all amount~ owing by OAI to the TD Bank, as set out in the Third Report.
3. THIS COURT ORDERS that the Sales Officer is authorized and directed to make a
distribution from the Sale Proceeds in an amount sufficient to repay ECN in full and final
satisfaction of all amounts owing by OAI to ECN, as set out in the Third Report.
4. THIS COURT ORDERS that the Sales Officer is authorized and directed to make a
distribution from the Sale Proceeds in the amount of $1,041,288.91 to KPMG CF, representing
the fees and disbursements secured pursuant to the Advisory Charge.
5. THIS COURT ORDERS that the Sales Officer is authorized and directed to make a
distribution from the Sale Proceeds in the amount of $425,310.89 to Blakes, representing the fees
and disbursements secured pursuant to the Advisory Charge.
RECEIVER'S ACTIVITIES
6. THIS COURT ORDERS that the Third Report and the activities of the Sales Officer as
set out in the Third Report, are hereby approved
7. THIS COURT ORDERS that the fees and disbursements of the Sales Officer and
Dentons, as set out in the Third Report and the Fee Affidavit of Anamika Gadia sworn June 11,
2019 and the Fee Affidavit of Robert Kennedy sworn June 11, 2019, are hereby approved.
40177663_ 4INATDOCS
SUPERIOR COURT OF JUIT'ICE ENTERED
JV~ 1 $ ~fl1~
COUR SUPERIEURE DE JUSTICE ENTRE
72
THE TORONTO-DOJ\.1INION BANK - and-
AoQlicant
40177663_ 4jNATDOCS
Court File No: CV-18-603360-00CL
OXFORD ADV AN CED IMAGING INC.
Respondent
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
PROCEEDING COMMENCED AT TORONTO
ORDER (Distribution Order)
DENTONS CANADA LLP Toronto Dominion Centre 77 King St. W., Suite 400 Toronto, Ontario M5K OAI
Robert Kennedy (LSO # 474070) Tel: (416) 367-6756 Fax: (416) 863-4592 [email protected]
Jordan Schultz (LSBC # 508066) Tel: 1 (604) 691-6452 [email protected]
Mark Freake (LSO # 63656H) Tel: (416) 863-4456 [email protected]
Lawyers for KPMG Inc.in its capacity as Court-appointed Sales Officer
-...J (,.)
TABE
Court File No. CV-18-603360-00CL
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
THE HONOURABLE M~~f\M
JUSTICE C oi-JW-Ay
)
)
)
BETWEEN:
THE TORONTO-DOMINION BANK
- and-
TUESDAY, THE 18th DAY
OF JUNE, 2019
Applicant
OXFORD ADV AN CED IMAGING INC.
Respondent
APPLICATION UNDER SECTION 207 OF THE BUSINESS CORPORATIONS ACT, (ONTARIO) R.S.O. 1990, c. B-16, AS AMENDED
ORDER (Distribution Order)
THIS MOTION, made by KPMG Inc. ("KPMG") in its capacity as the Court-appointed
sales officer (the "Sales Officer") appointed pursuant to the appointment order granted by the
Court on August 29, 2018 (the "Appointment Order"), for an order,
(a) approving and authorizing a distribution by the Sales Officer to The Toronto
Dominion Bank (the "TD Bank") from the sale proceeds generated from the
closing of the Court approved transaction between the Sales Officer and 2659428
Ontario Inc. pursuant to an asset purchase agreement dated October 25, 2018, as
amended (the "Sale Proceeds"), as set out in the Third Report (as defined herein);
40177663_ 4INATDOCS
74
- 2 -
(b) approving and authorizing a distribution by the Sales Officer to ECN Financial
Inc. ("ECN") from the Sale Proceeds, as set out in the Third Report;
(c) approving and authorizing a distribution by the Sales Officer to KPMG Corporate
Finance Inc. ("KPMG CF") from the Sale Proceeds, on account of fees and
disbursements incurred by Oxford Advanced Imaging Inc. ("OAI") prior to the
Appointment Order, which are secured pursuant to the Advisory Charge (as
defined in the Appointment Order);
( d) approving and authorizing a distribution by the Sales Officer to Blake, Cassels &
Graydon LLP ("Blakes") from the Sale Proceeds, on account of fees and
disbursements incurred by OAI which are secured pursuant to the Advisory
Charge;
(e) approving the activities of the Sales Officer, together with the fees and
disbursements of the Sales Officer and its legal counsel, Dentons Canada LLP
("Dentons"), as set out in the Third Report of KPMG, in its capacity as Sales
Officer, dated June 12, 2019 (the Third Report"); and
(f) such further and other grounds as counsel may advise and this Honourable Court
may permit;
was heard this day at 330 University Avenue, Toronto, Ontario.
ON READING the Motion Record of the Sales Officer dated June 12, 2019 and the
Third Report, and on hearing the submissions of counsel for the Sales Officer, and any such
other counsel as were present, no one appearing for any other person on the service list, although
properly served as appears from the Affidavit of Amanda Campbell sworn June 12, 2019, filed:
SERVICE
1. THIS COURT ORDERS that the time for service of the notice of motion and the
motion record is hereby abridged and validated so that this motion is properly returnable today
and hereby dispenses with further service thereof.
40177663_ 4INATDOCS
75
- 3 -
DISTRIBUTIONS
2. THIS COURT ORDERS that the Sales Officer is authorized and directed to make a
distribution from the Sale Proceeds in an amount sufficient to repay TD Bank in full and final
satisfaction of all amounts owing by OAI to the TD Bank, as set out in the Third Report.
3. THIS COURT ORDERS that the Sales Officer is authorized and directed to make a
distribution from the Sale Proceeds in an amount sufficient to repay ECN in full and final
satisfaction of all amounts owing by OAI to ECN, as set out in the Third Report.
4. THIS COURT ORDERS that the Sales Officer is authorized and directed to make a
distribution from the Sale Proceeds in the amount of $1,041,288.91 to KPMG CF, representing
the fees and disbursements secured pursuant to the Advisory Charge.
5. THIS COURT ORDERS that the Sales Officer is authorized and directed to make a
distribution from the Sale Proceeds in the amount of $425,310.89 to Blakes, representing the fees
and disbursements secured pursuant to the Advisory Charge.
RECEIVER'S ACTIVITIES
6. THIS COURT ORDERS that the Third Report and the activities of the Sales Officer as
set out in the Third Report, are hereby approved
7. THIS COURT ORDERS that the fees and disbursements of the Sales Officer and
Dentons, as set out in the Third Report and the Fee Affidavit of Anamika Gadia sworn June 11,
2019 and the Fee Affidavit of Robert Kennedy sworn June 11, 2019, are hereby approved.
40177663_ 4INATDOCS
SUPERIOR COURT OF JUSTICE ENTERED
JV~ 1 $ 201~
COUR SUPERIEURE DE JUSTIGE ENTRE
76
THE TORONTO-DO1'.1INION BANK - and-
Ao.:p_licant
40177663_ 4INATDOCS
Court File No: CV-18-603360-00CL
OXFORD ADV AN CED IMAGING INC.
Respondent
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
PROCEEDING COMMENCED AT TORONTO
ORDER (Distribution Order)
DENTONS CANADA LLP Toronto Dominion Centre 77 King St. W., Suite 400 Toronto, Ontario M5K OAl
Robert Kennedy (LSO # 474070) Tel: (416) 367-6756 Fax: (416) 863-4592 [email protected]
Jordan Schultz (LSBC # 508066) Tel: 1 (604) 691-6452 [email protected]
Mark Freake (LSO # 63656H) Tel: (416) 863-4456 [email protected]
Lawyers for KP MG Inc. in its capacity as Court-appointed Sales Officer
-.....i -.....i
THE TORONTO-DOMINION BANK
Applicant
41471894_1 INATDOCS
- and-
Court File No: CV-18-603360-00CL
OXFORD ADVANCED IMAGING INC.
Respondent
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
PROCEEDING COMMENCED AT TORONTO
FOURTH REPORT OF KPMG INC. IN ITS CAPACITY AS SALES OFFICER OF OXFORD
ADVANCE IMAGING INC.
DENTONS CANADA LLP Toronto Dominion Centre 77 King St. W., Suite 400 Toronto, Ontario M5K 0Al
Robert Kennedy (LSO # 474070) Tel: (416) 367-6756 Fax: (416) 863-4592 [email protected]
Mark Freake (LSO # 63656H) Tel: (416) 863-4456 [email protected]
Lawyers for KPMG Inc.in its capacity as Courtappointed Sales Officer
-...J 00
TAB3
THE HONOURABLE
JUSTICE
BETWEEN:
Court File No. CV-18-603360-00CL
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
)
)
)
THURSDAY, THE 29th DAY
OF AUGUST, 2019
THE TORONTO-DOMINION BANK
Applicant
- and-
OXFORD ADV AN CED IMAGING INC.
Respondent
APPLICATION UNDER SECTION 207 OF THE BUSINESS CORPORATIONS ACT, (ONTARIO) R.S.O. 1990, c. B-16, AS AMENDED
CLAIMS PROCEDURE ORDER
THIS MOTION, made by KPMG Inc., in its capacity as the court-appointed sales
officer (in such capacity, the "Sales Officer") of the Respondent, Oxford Advanced Imaging Inc.
("OAI"), appointed pursuant to the appointment order granted by this Court on August 29, 2018
(the "Appointment Order"), for an order,
(a) approving the activities of the Sales Officer as set out in the Fourth Report of the
Sales Officer dated August 23, 2019 (the Fourth Report");
(b) approving and authorizing the Claims Procedure (as defined herein) and
authorizing, directing and empowering the Sales Officer to implement and carry
41470190_6INATDOCS
79
-2-
out the Claims Procedure in accordance with the terms of this order (the "Claims
Procedure Order"); and
( c) such further and other grounds as counsel may advise and this Honourable Court
may permit;
was heard this day at 330 University Avenue, Toronto, Ontario.
ON READING the Motion Record of the Sales Officer dated August 23, 2019, including
the Fourth Report, and on hearing the submissions of counsel for the Sales Officer, and any such
other counsel as were present, no one appearing for any other person on the service list, although
properly served as appears from the Affidavit of Amanda Campbell sworn August 23, 2019,
filed:
SERVICE
1. THIS COURT ORDERS that the time for service and notice of this Motion is abridged
and validated such that this Motion is properly returnable today, without further service or notice
thereof.
SALES OFFICER'S ACTIVITIES
2. THIS COURT ORDERS that the Fourth Report and the activities described therein are
hereby approved.
INTERPRETATION
3. THIS COURT ORDERS that, for the purposes of this Claims Procedure Order, in
addition to terms defined elsewhere herein, the following terms shall have the following
meanings:
(a) "Assessments" means Claims of Her Majesty the Queen in Right of Canada or of
any Province or Territory or Municipality or any other taxation authority in any
Canadian or foreign jurisdiction, including, without limitation, amounts which
may arise or have arisen under any notice of assessment, notice of reassessment,
41470190_6jNATDOCS
80
- 3 -
notice of objection, notice of appeal, audit, investigation, demand or similar
request from any taxation authority;
(b) "Business Day" means a day, other than a Saturday or a Sunday, on which banks
are generally open for business in Toronto, Ontario;
(c) "Claim" means any right or claim of any Person against OAI, whether or not
asserted, in connection with any indebtedness, liability or obligation of any kind
of OAI, whether or not such right or claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured, unsecured, perfected, unperfected, present, future, known,
unknown, by guarantee, by surety or otherwise, and whether or not such right is
executory or anticipatory in nature, including any Assessment and any Funding
Reconciliation Claim, and any right or ability of any Person to advance a claim
for contribution or indemnity or otherwise with respect to any matter, action,
cause or chose in action, whether existing at present or commenced in the future,
and any other claims that would be claims provable in bankruptcy had OAI made
an assignment in bankruptcy as of the date hereof (each, a "Claim", and
collectively, the "Claims");
( d) "Claim Document Package" means a document package that contains a copy of
the Instruction Letter, the Notice to Creditors, a Claim Statement and Notice of
Dispute (in respect of a Claim Document Package delivered to a Known
Creditor), and Instruction Letter and Proof of Claim (in respect of a Claim
Document Package delivered to a Creditor other than a Known Creditor), and
such other materials as the Sales Officer may consider appropriate or desirable;
( e) "Claim Statement" means a Claim Statement, substantially in the form attached
hereto as Schedule "D";
(f) "Claims Bar Date" means 5:00 p.m. on October 15, 2019, or such other date as
may be ordered by the Court;
41470190_6INATDOCS
81
- 4 -
(g) "Claims Procedure" means the procedures set out in this Order for identifying
and determining Claims against OAI;
(h) "Court" means the Ontario Superior Court of Justice (Commercial List);
(i) "Creditor" means any Person having or asserting a Claim;
G) "Excluded Claim" means any Claim that may be asserted by a current or
previous shareholder of OAI;
(k) "Funding Reconciliation Claim" means any claim by the MoH in respect of any
funding agreement(s) entered into the between OAI and the MoH, ·or otherwise;
(1) "Instruction Letter" means the instruction letter to Creditors, substantially in the
form attached as Schedule "A" hereto, regarding completion by Creditors of the
Proof of Claim and the Notice of Dispute;
(m) "Known Claim" has the meaning set forth m paragraph 18 of this Claims
Procedure Order;
(n) "Known Creditors" means with respect to OAI:
(i) those Creditors that the books and records of OAI disclose were owed
monies by OAI, where such monies remain unpaid in full or in part as of
the date hereof;
(ii) any Person who commenced a legal proceeding against OAI in respect of
a Claim; and
(iii) any other Creditor of whom the Sales Officer has knowledge as at the date
of this Claims Procedure Order and for. whom the Sales Officer has a
current address or other contact information;
( o) "MoH" means the Ontario Ministry of Health and Long-Term Care;
41470190_6INATDOCS
82
- 5 -
(p) "Notice of Dispute" means a notice, substantially in the form attached hereto as
Schedule "E";
(q) "Notice of Revision or Disallowance" means a notice, substantially in the form
attached hereto as Schedule "F";
(r) "Notice to Creditors" means the notice to Creditors for publication, substantially
in the form attached as Schedule "B" hereto;
(s) "Person" means, without limitation, any individual, firm, corporation, limited or
unlimited liability company, general or limited partnership, association, trust,
unincorporated organization, joint venture, government authority or any agency,
regulatory body, officer or instrumentality thereof or any other entity, wherever
situate or domiciled, and whether or not having legal status and whether acting on
their own or in a representative capacity;
(t) "Proof of Claim" means a Proof of Claim, substantially in the form attached
hereto as Schedule "C";
(u) "Proven Claim" means the amount of a Claim of a Creditor as finally determined
in accordance with this Claims Procedure Order.
GENERAL PROVISIONS
4. THIS COURT ORDERS that all references to time herein shall mean Toronto Time and
any reference to an event occurring on a Business Day shall mean prior to 5 :00 p.m. on such
Business Day unless otherwise indicated herein.
5. THIS COURT ORDERS that the Claims Procedure and the forms of Instruction Letter,
Notice to Creditors, Claim Statement, Proof of Claim, Notice of Dispute and Notice of Revision
or Disallowance are hereby approved. Notwithstanding the foregoing, the Sales Officer may,
from time to time, make non-substantive changes to the forms as the Sales Officer, in its sole
discretion, may consider necessary or desirable.
41470190_6INATDOCS
83
- 6 -
6. THIS COURT ORDERS that the Sales Officer is hereby authorized to use reasonable
discretion as to the adequacy of compliance with respect to the manner in which forms delivered
hereunder are completed and executed, and may waive strict compliance with the requirements
of this Claims Procedure Order as to completion, execution and submission of such forms and to
request any further documentation from a Creditor that the Sales Officer may require.
7. THIS COURT ORDERS that all Claims shall be denominated in Canadian dollars. Any
Claims denominated in a foreign currency shall be converted to Canadian dollars at the Bank of
Canada daily average exchange rate on the Claims Bar Date.
8. THIS COURT ORDERS that there shall be no presumption of validity or deeming of
the amount due in respect of amounts claimed in any Assessment or Funding Reconciliation
Claim.
9. THIS COURT ORDERS that copies of all forms delivered hereunder, as applicable,
shall be maintained by the Sales Officer.
10. THIS COURT ORDERS that no Claim shall be determined, and no payment shall be
made by OAI in respect of any Claim, except in accordance with this Claims Procedure Order
and the Claims Procedure set out herein.
11. THIS COURT ORDERS that this Claims Procedure Order shall not affect Excluded
Claims.
ROLE OF THE SALES OFFICER
12. THIS COURT ORDERS that the Sales Officer, in addition to its prescribed rights,
duties, responsibilities and obligations under the Appointment Order, shall administer the Claims
Procedure provided for herein and is hereby directed and empowered to take such other actions
and fulfill such other roles as are contemplated by this Claims Procedure Order.
13. THIS COURT ORDERS that the Sales Officer shall (i) have all protections afforded to
it by the Appointment Order, the Business Corporations Act (Ontario), any Orders of the Court
in these proceedings and other applicable law in connection with its activities in respect of this
Claims Procedure Order; and (ii) incur no liability or obligation as a result of carrying out the
41470190_6INATDOCS
84
- 7 -
provisions of this Claims Procedure Order, other than in respect of gross negligence or wilful
misconduct.
14. THIS COURT ORDERS that OAI and its employees, agents and representatives and
any other Person given notice of this Claims Procedure Order shall fully cooperate with the Sales
Officer in the exercise of its powers and the discharge of its duties and obligations under this
Claims Procedure Order.
NOTICE TO CREDITORS
15. THIS COURT ORDERS that:
(a) the Sales Officer shall, not later than five (5) Business Days following the
granting of the Claims Procedure Order, deliver on behalf of OAI to each of the
Known Creditors a copy of the Claim Document Package;
(b) the Sales Officer shall, not later than ten (10) Business Days following the
granting of the Claims Procedure Order, cause to be published the Notice to
Creditors in the The Globe and Mail (National Edition);
(c) the Sales Officer shall, not later than five (5) Business Days following the
granting of the Claims Procedure Order, post a copy of this Claims Procedure
Order, the Sales Officer's Motion Record in respect of this Claims Procedure
Order and the Claim Document Package on its website at www.kpmg.com/ca/oai;
and
( d) the Sales Officer shall deliver as soon as reasonably possible following receipt of
a request therefor, a copy of the Claim Document Package to any Person claiming
to be a Creditor and requesting such material in writing.
16. THIS COURT ORDERS that the Sales Officer shall be entitled to rely on the accuracy
and completeness of the information obtained from the books and records of OAI regarding the
Known Creditors and the review of the Proof( s) of Claim. For greater certainty, the Sales Officer
shall have no liability in respect of the information provided to it or otherwise obtained by it
41470190_6INATDOCS
85
- 8 -
regarding the Known Creditors and shall not be required to conduct any independent inquiry
and/or investigation with respect to that information.
PROOFS OF CLAIM
17. THIS COURT ORDERS that subject to paragraphs 18 to 22 below, to be effective,
every Creditor asserting a Claim against OAI shall set out its aggregate Claim in a Proof of
Claim, including supporting documentation, and deliver that Proof of Claim to the Sales Officer
so that it is actually received by the Sales Officer by no later than the Claims Bar Date.
CLAIM STATEMENT
18. THIS COURT ORDERS that the Sales Officer may deliver a Claim Statement to a
Known Creditor by including such Claim Statement in the Claim Document Package delivered
to such Known Creditor pursuant to paragraph 15. Such Claim Statement shall be in substantially
the form attached hereto as Schedule "D" and shall specify the amount of such Known
Creditor's Claim as determined by the Sales Officer based on the books and records of OAI (the
"Known Claim").
19. THIS COURT ORDERS that any Creditor who does not dispute the amount of the
Known Claim set forth in the Claim Statement delivered to such Creditor is not required to take
any further action and the Claim of such Creditor shall, subject to paragraph 21, be deemed to be
the Known Claim.
20. THIS COURT ORDERS that any Creditor who wishes to dispute the amount of the
Known Claim set forth in the Claim Statement delivered to such Creditor or to assert an
additional Claim in relation to OAI other than the Known Claim shall be required to deliver a
Notice of Dispute to the Sales Officer so that it is actually received by the Sales Officer by no
later than the Claims Bar Date.
21. THIS COURT ORDERS that if, after the date on which a Claim Statement is initially
delivered to a Creditor, the Sales Officer determines that it is appropriate to change the amount
of the Known Claim set forth in such Claim Statement, the Sales Officer shall cause an amended
Claim Statement (an "Amended Claim Statement") to be delivered to such Creditor, which
41470190_6INATDOCS
86
- 9 -
Amended Claim Statement and the revised Known Claim specified therein shall thereafter
supersede any previous Claim Statement delivered to such Creditor. If the Creditor wishes to
dispute the amount of the Known Claim set forth in the Amended Claim Statement, such
Creditor shall be required to deliver a Notice of Dispute so that it is actually received by the
Sales Officer on or before the Claims Bar Date.
22. THIS COURT ORDERS that any Creditor that does not deliver a Notice of Dispute in
respect of a Claim Statement or an Amended Claim Statement, if applicable, pursuant to
paragraphs 20 and 21, as applicable, shall be forever barred from disputing the amount of the
Known Claim set forth in the Claim Statement or Amended Claim Statement, as applicable, and
any Claim of a different nature or in excess of the amount specified in the Claim Statement or
Amended Claim Statement, as applicable, shall be forever barred and extinguished.
CLAIMS BARRED
23. THIS COURT ORDERS that, subject to paragraphs 18 to 22, any Person, including the
MoH, that does not deliver a Proof of Claim in respect of a Claim in the manner required by this
Claims Procedure Order such that it is actually received by the Sales Officer on or before the
Claims Bar Date:
(a) shall not be entitled to receive any distribution in respect of such Claim; and
(b) shall be forever barred from making or enforcing such Claim against OAI and
such Claim shall be hereby extinguished without any further act or notification.
SET OFF
24. THIS COURT ORDERS that nothing in this Claims Procedure Order shall affect any
right of set-off which OAI may have against any Creditor.
TRANSFER OF CLAIMS
25. THIS COURT ORDERS that if the holder of a Claim transfers or assigns the whole of
such Claim to another Person, the Sales Officer shall not be obligated to give notice or otherwise
deal with the transferee or assignee of such Claim in respect thereof unless and until written
41470190_6INATDOCS
87
- 10 -
notice of such transfer or assignment, together with satisfactory evidence of such transfer or
assignment, has been received by Sales Officer and the Sales Officer has provided written
confirmation acknowledging the transfer or assignment of such Claim, and thereafter such
transferee or assignee shall for the purposes hereof constitute the "Creditor" in respect of such
Claim. Any such transferee or assignee of a Claim shall be bound by any notices given or steps
taken in respect of such Claim in accordance with this Claims Procedure Order prior to receiving
written confirmation by the Sales Officer acknowledging such assignment or transfer. After the
Sales Officer has delivered a written confirmation acknowledging the notice of the transfer or
assignment of a Claim, the Sales Officer shall thereafter be required only to deal with the
transferee or assignee and not the original holder of the Claim. A transferee or assignee of a
Claim takes the Claim subject to any rights of set-off to which OAI may be entitled with respect
to such Claim. For greater certainty, a transferee or assignee of a Claim is not entitled to set-off,
apply, merge, consolidate or combine any Claims assigned or transferred to it against or on
account or in reduction of any amounts owing by such Person to OAI. Reference to transfer in
this Claims Procedure Order includes a transfer or assignment whether absolute or intended as
security.
26. THIS COURT ORDERS that if a Creditor or any subsequent holder of a Claim, who in
any such case has previously been acknowledged by the Sales Officer as the holder of the Claim,
transfers or assigns the whole of such Claim to more than one Person or part of such Claim to
another Person, such transfers or assignments shall not create separate Claims and such Claims
shall continue to constitute and be dealt with as a single Claim notwithstanding such transfers or
assignments. The Sales Officer shall not, in each case, be required to recognize or acknowledge
any such transfers or assignments and shall be entitled to give notices to and to otherwise deal
with such Claim only as a whole and then only to and with the Person last holding such Claim,
provided such Creditor may, by notice in writing delivered to the Sales Officer, direct that
subsequent dealings in respect of such Claim, but only as a whole, shall be dealt with by a
specified Person and in such event, such Person shall be bound by any notices given or steps
taken in respect of such Claim with such Creditor or in accordance with the provisions of this
Claims Procedure Order.
41470190_6INATDOCS
88
- 11 -
DETERMINATION OF CLAIMS
27. THIS COURT ORDERS that, subject to the terms of this Claims Procedure Order, the
Sales Officer shall review all Proofs of Claim and Notices of Dispute of Claim and may:
(a) request additional information from a Creditor and / or OAI to assist with such
review and assessment;
(b) request that a Creditor file a revised Proof of Claim or Notice of Dispute;
( c) attempt to resolve and settle any issue arising in a Proof of Claim, Claim
Statement, Amended Claim Statement or Notice of Dispute in respect of a Claim;
( d) accept (in whole or in part) the amount of any Claim and notify the Creditor in
writing; and
(e) revise or disallow (in whole or in part) the amount of any Claim by delivering a
Notice of Revision or Disallowance to such Creditor.
28. THIS COURT ORDERS that where a Claim has been accepted by the Sales Officer,
such Claim shall constitute a Proven Claim.
29. THIS COURT ORDERS that if a Creditor intends to dispute its Claim as set out in a
Notice of Revision or Disallowance, the Creditor shall:
(a) notify the Sales Officer of the objection in writing (setting out the grounds for the
objection) by registered mail, courier, facsimile or email (in PDF format) within
fifteen (15) days of receipt of a Notice of Revision or Disallowance (the
"Objection"); and
(b) file a notice of motion with this Court for the determination of the Claim in
dispute (the "Notice of Motion"), with a copy to be sent to the Sales Officer
immediately after filing.
41470190_6INATDOCS
89
- 12 -
30. THIS COURT ORDERS that the Notice of Motion shall be:
(a) supported by a sworn affidavit setting out the Creditor's basis for disputing the
Notice of Revision or Disallowance; and
(b) returnable within thirty (30) days of the date on which the Sales Officer received
the Objection.
31. THIS COURT ORDERS that if a Creditor fails to deliver the Objection and/or the
Notice of Motion in accordance with paragraphs 29 and 30 herein, the Claim shall be deemed
accepted at the amount set forth in the Notice of Revision or Disallowance and the Creditor will:
(a) where the entire Claim is disallowed:
(i) not be entitled to receive any distribution in these proceedings; and
(ii) be forever barred from making or enforcing such Claim against OAI;
(b) where the Claim has been revised:
(i) only be entitled to receive a distribution in an amount proportional to the
revised amount; and
(ii) be forever barred from making or enforcing any Claim against OAI
greater than the revised amount and the amount of the Claim reduced by
the revision will be forever extinguished.
SERVICE AND NOTICE
32. THIS COURT ORDERS that the Sales Officer may, unless otherwise specified by this
Claims Procedure Order, serve and deliver or cause to be served and delivered the Claim
Document Package, any letters, notices or other documents to Creditors or any other interested
Person by forwarding true copies thereof by prepaid ordinary mail, courier, personal delivery,
facsimile transmission or email to such Persons or their counsel (including counsel of record in
any ongoing litigation) at the physical or electronic address, as applicable, last shown on the
books and records of OAI or set out in such Creditor's Proof of Claim or Notice of Dispute, if
41470190_6INATDOCS
90
- 13 -
one has been filed. Any such service and delivery shall be deemed to have been received: (i) if
sent by ordinary mail, on the third Business Day after mailing within Canada, and the fifth
Business Day after mailing internationally; (ii) if sent by courier or personal delivery, on the next
Business Day following dispatch; and (iii) if delivered by facsimile transmission or email by
5:00 p.m. on a Business Day, on such Business Day and if delivered after 5:00 p.m. or other than
on a Business Day, on the following Business Day.
33. THIS COURT ORDERS that any notice or communication required to be provided or
delivered by a Creditor to the Sales Officer under this Claims Procedure Order shall be in writing
in substantially the form, if any, provided for in this Claims Procedure Order and will be
sufficiently given only if delivered by prepaid registered mail, courier, personal delivery or email
addressed to:
KPMG Inc., in its capacity as Sales Officer
of Oxford Advanced Imaging Inc.
Bay Adelaide Centre
333 Bay Street, Suite 4600
Toronto, ON MSH 2S5
Attention: Sven Dedic
Email: [email protected]
Any such notice or communication delivered by a Creditor shall be deemed to be received upon
actual receipt thereof before 5:00 p.m. on a Business Day or if delivered outside of normal
business hours, the next Business Day.
34. THIS COURT ORDERS that the publication of the Notice to Creditors and the mailing
of the Claim Document Packages as set out in this Claims Procedure Order shall constitute good
and sufficient notice to Creditors of the Claims Bar Date and the other deadlines and procedures
set forth herein, and that no other form of notice or service need be given or made on any Person,
and no other document or material need be served on any Person in respect of the claims
procedure described herein.
41470190_6INATDOCS
91
- 14 -
35. THIS COURT ORDERS that in the event that this Claims Procedure Order is
subsequently amended by further Order of the Court, the Sales Officer shall serve notice of such
amendment on the Service List in these proceedings and the Sales Officer shall post such further
Order on the Sales Officer's website and such posting shall constitute adequate notice to all
Persons of such amended Claims Procedure Order.
GENERAL
36. THIS COURT ORDERS that the Sales Officer may from time to time apply to this
Court to amend, vary, supplement or replace this Claims Procedure Order or for advice and
directions concerning the discharge of their respective powers and duties under this Claims
Procedure Order or the interpretation or application of this Claims Procedure Order.
37. THIS COURT HEREBY REQUESTS the aid and recognition of any court, tribunal,
regulatory or administrative body having jurisdiction in Canada or outside Canada to give effect
to this Claims Procedure Order and to assist the Sales Officer and its agents in carrying out the
terms of this Claims Procedure Order. All courts, tribunals, regulatory and administrative bodies
are hereby respectfully requested to make such orders and to provide such assistance to the Sales
Officer, as an officer of this Court, as may be necessary or desirable to give effect to this Claims
Procedure Order, to grant representative status to the Sales Officer in any foreign proceeding, or
to assist the Sales Officer and its agents in carrying out the terms of this Claims Procedure Order.
38. THIS COURT ORDERS that this Claims Procedure Order and all of its provisions are
effective as of 12:01 a.m. Toronto Time on the date of this Claims Procedure Order.
41470190_6INATDOCS
92
41470190_6INATDOCS
SCHEDULE "A" Instruction Letter
93
A.
INSTRUCTION LETTER FOR THE CLAIMS PROCEDURE OF OXFORD ADVANCED IMAGING INC.
CLAIMS PROCEDURE
By Order of the Ontario Superior Court of Justice (Commercial List) made August 29, 2019 (the "Claims Procedure Order"), KPMG Inc. (the "Sales Officer"), in its capacity as courtappointed sales officer of Oxford Advanced Imaging Inc. (the "Company"), has been authorized to conduct a claims procedure (the "Claims Procedure") with respect to claims against the Company in accordance with the terms of the Claims Procedure Order.
Unless otherwise defined, all capitalized terms used herein shall have the meanings given to those terms in the Claims Procedure Order.
The Claims Procedure Order, the Claim Document Package, additional Proofs of Claim and related materials may be accessed from the Sales Officer's website at www.kpmg.com/ca/oai.
This letter provides instructions for responding to or completing the Proof of Claim or a Notice of Dispute. Reference should be made to the Claims Procedure Order for a complete description of the Claims Procedure.
The Claims Procedure is intended for any Person with any Claims of any kind or nature whatsoever against the Company, whether liquidated, unliquidated, contingent or otherwise. Please review the enclosed material for the complete definitions of a "Claim" to which the Claims Procedure applies.
All notices and enquiries with respect to the Claims Procedure should be addressed to:
KPMG Inc., in its capacity as Sales Officer of Oxford Advanced Imaging Inc. Bay Adelaide Centre 333 Bay Street, Suite 4600 Toronto, ON M5H 2S5
Attention: Sven Dedic Email: [email protected]
B. FOR CREDITORS WHO RECEIVE A CLAIM STATEMENT
Certain Known Creditors of the Company will receive a Claim Statement from the Sales Officer specifying the amount of such Creditor's Claim as determined by the Sales Officer based on the books and records of the Company (the "Known Claim").
41470190_6INATDOCS
94
- 2 -
If you receive a Claim Statement and you do not dispute the amount of the Known Claim, you are not required to take any further action or to file a Proof of Claim with the Sales Officer in the Claims Procedure Order.
If you wish to dispute the amount of the Known Claim set forth in the Claim Statement or to assert an additional Claim in relation to the Applicant other than the Known Claim, you are required to deliver a Notice of Dispute to the Sales Officer so that it is received by the Sales Officer before 5:00 p.m. (Toronto Time) on October 15, 2019 (the "Claims Bar Date").
If a completed Notice of Dispute in respect of a Known Claim is not received by the Sales Officer by the Claims Bar Date, the Creditor shall be forever barred from disputing the amount of the Known Claim and any Claim of a different nature or in excess of the amount specified in the Known Claim shall be forever barred and extinguished. IF A NOTICE OF DISPUTE IS NOT RECEIVED BY THE SALES OFFICER WITHIN THE PRESCRIBED TIME PERIOD, THE CLAIM AS SET OUT IN THE CLAIM STATEMENT WILL BE DEEMED TO BE THE CLAIM OF THE CREDITOR AND WILL BE FINAL AND BINDING ON THE CREDITOR FOR ALL PURPOSES.
Where a Creditor sends a Notice of Dispute to the Sales Officer, the Sales Officer will review the Notice of Dispute and, as soon as reasonably practicable, provide to the Creditor a response in writing by registered mail, courier service, facsimile or email as to whether the Claim set out in the Notice of Dispute is accepted, disputed in whole, or disputed in part. Where the Claim is disputed in whole or in part, the Sales Officer will issue a Notice of Revision or Disallowance indicating the reasons for the dispute.
The Claims Procedure Order further provides that where a Creditor objects to a Notice of Revision or Disallowance, the Creditor must notify the Sales Officer of the objection in writing by registered mail, courier service, facsimile or email within fifteen (15) days of receipt of the Notice of Revision or Disallowance. The Sales Officer's contact information is below:
KPMG Inc., in its capacity as Sales Officer of Oxford Advanced Imaging Inc. Bay Adelaide Centre 333 Bay Street, Suite 4600 Toronto, ON M5H 2S5
Attention: Sven Dedic Email: [email protected]
The Creditor shall immediately thereafter serve on the Sales Officer, a Notice of Motion, filed at the Court and made returnable within thirty (30) days after the Creditor gave its notice of objection, for the determination of the claim in dispute. The Notice of Motion is to be supported by a sworn affidavit setting out the reasons for the dispute.
C. FOR CREDITORS SUBMITTING A PROOF OF CLAIM
Unless you are a Known Creditor, if you believe that you have a Claim against the Company, you must file a Proof of Claim with the Sales Officer.
41470190_6JNATDOCS
95
- 3 -
All Proofs of Claim must be received by the Sales Officer by the Claims Bar Date.
PROOFS OF CLAIM MUST BE RECEIVED BY THE CLAIMS BAR DATE OR THE APPLICABLE CLAIM WILL BE FOREVER BARRED AND EXTINGUISHED. If you are required to file a Proof of Claim pursuant to the Claims Procedure but do not file a Proof of Claim in respect of a Claim by the Claims Bar Date you shall not be entitled to participate in any distribution in respect of such Claim.
Additional Proof of Claim forms can be obtained by contacting the Sales Officer at the telephone numbers and address indicated above and providing particulars as to your name, address and facsimile number or email mail address. Additional Proofs of Claim and related materials may be accessed from the Sales Officer's web site at www.kpmg.com/ca/oai.
Where a Creditor sends a Proof of Claim, the Sales Officer will review the Proof of Claim and, as soon as reasonably practicable, provide to the Creditor a response in writing by registered mail, courier service, facsimile or email as to whether the Claim set out in the Proof of Claim is accepted, disputed in whole, or disputed in part. Where the Claim is disputed in whole or in part, the Sales Officer will issue a Notice of Revision or Disallowance indicating the reasons for the dispute.
The Claims Procedure Order further provides that where a Creditor objects to a Notice of Revision or Disallowance, the Creditor must notify the Sales Officer of the objection in writing by registered mail, courier service, facsimile or email within fifteen (15) days of receipt of the Notice of Revision or Disallowance. The Sales Officer's contact information is below:
KPMG Inc., in its capacity as Sales Officer of Oxford Advanced Imaging Inc. Bay Adelaide Centre 333 Bay Street, Suite 4600 Toronto, ON MSH 2S5
Attention: Sven Dedic Email: [email protected]
The Creditor shall immediately thereafter serve on the Sales Officer, a Notice of Motion, filed at the Court and made returnable within thirty (30) days after the Creditor gave its notice of objection, for the determination of the claim in dispute. The Notice of Motion is to be supported by a sworn affidavit setting out the reasons for the dispute.
DATED at Toronto, Ontario this __ day of _____ , 2019.
KPMG Inc;, in its capacity as Sales Officer of Oxford Advanced Imaging Inc.
41470190_6INATDOCS
96
41470190_6jNATDOCS
SCHEDULE "B" Notice to Creditors
97
Notice to Creditors
RE: Notice of Call for Claims, Claims Procedure and Claims Bar Date
NOTICE IS HEREBY GIVEN THAT, by Order of the Ontario Superior Court of Justice (Commercial List) made August 29, 2019 (the "Claims Procedure Order"), KPMG Inc., in its capacity as court-appointed sales officer (the "Sales Officer") of Oxford Advanced Imaging Inc. (the "Company"), has been authorized to conduct a claims procedure with respect to claims against the Company in accordance with the terms of the Claims Procedure Order.
All persons, save and except for Known Creditors (as defined below), wishing to assert a Claim against the Company must file a Proof of Claim with the Sales Officer. THE CLAIMS BAR DATE is 5:00 p.m. (Toronto Time) on October 15, 2019. Proofs of Claim must be filed with the Sales Officer on or before the Claims Bar Date.
PROOFS OF CLAIM MUST BE RECEIVED BY THE SALES OFFICER BY THE CLAIMS BAR DATE OR THE CLAIM WILL BE FOREVER BARRED AND EXTINGUISHED. If you are required to file a Proof of Claim pursuant to the Claims Procedure but do not file a Proof of Claim in respect of a Claim by the Claims Bar Date, you shall not be entitled to participate in any distribution in respect of any such Claim.
Creditors that have already been identified by the Sales Officer and have received a Claim Statement from the Sales Officer ("Known Creditors") need not submit a Proof of Claim. Instructions regarding the Claims of Known Creditors are enclosed with the Claim Statement delivered to each Known Creditor.
The Claims Procedure Order, the Claim Document Package, additional Proofs of Claim and related materials, including the Sales Officer's contact information, may be accessed from the Sales Officer's website at www.kpmg.com/ca/oai, or by emailing the Sales Officer at [email protected].
DATED at Toronto, Ontario this __ day of _____ , 2019.
KPMG Inc., in its capacity as Sales Officer of Oxford Advanced Imaging Inc.
41470190_6INATDOCS
98
99
SCHEDULE "C" Proof of Claim Against Oxford Advanced Imaging Inc.
41470190_6INATDOCS
PROOF OF CLAIM AGAINST OXFORD ADV AN CED IMAGING INC. (hereinafter referred to as the "Company")
Please read the enclosed Instruction Letter carefully prior to completing this Proof of Claim. Defined terms not defined within this Proof of Claim form shall have the meaning ascribed thereto in the Claims Procedure Order dated August 29, 2019.
A. Particulars of Creditor
1. Full Legal Name of Creditor: __________ (the "Creditor") (Full legal name should be the name of the original Creditor, regardless of whether an assignment of a Claim has been made.)
2. Full Mailing Address of the Creditor (the original Creditor, not the Assignee):
3. Telephone Number:
Facsimile Number: -------------------------Attention (Contact Person): _____________________ _
4. Has the Claim been sold, transferred or assigned by the Creditor to another party?
Yes: [_]
No: [_]
B. Particulars of Assignee(s) (If any):
1. Full Legal Name of Assignee(s): ___________ (If a portion of the Claim has been assigned, insert full legal name of assignee(s) of the Claim. If there is more than one assignee, please attach a separate sheet with the required information.)
2. Full Mailing Address of Assignee(s): _________________ _
3. Telephone Number of Assignee(s):
4. Facsimile Number of Assignee(s):
5. Attention (Contact Person):
41470190_6INATDOCS
100
- 2 -
C. Proof of Claim:
I, _______________ (name of individual Creditor or Representative of
Corporate Creditor), of (City, Province or State) do hereby certify:
(a) that I
[_] am the Creditor; OR
[_] am _________________ (state position or title) of (name of Corporate Creditor)
(b) that I have knowledge of all the circumstances connected with the Claim referred to below;
( c) the Creditor asserts its Claim against the Company;
(d) The amount of the Creditor's Claim is
$ ______ _
D. Particulars of Claim:
Other than as already set out herein, the particulars of the Claim is attached.
(Provide full particulars of the Claim and supporting documentation, including amount, description of transaction(s) or agreement(s) giving rise to the Claim, name of any guarantor(s) which has guaranteed the Claim, particulars and copies of any security and amount of Claim allocated thereto, date and number of all invoices, particulars of all credits, discounts, etc. claimed)
E. Filing of Claims:
The Sales Officer must receive this Proof of Claim before 5 :00 p.m. (Toronto Time) on October 15, 2019 (the "Claims Bar Date").
FAILURE TO FILE YOUR PROOF OF CLAIM ON OR BEFORE THE CLAIMS BAR DATE WILL RESULT IN YOUR CLAIM BEING BARRED AND EXTINGUISHED FOREVER, AND YOU WILL BE PROHIBITED FROM MAKING OR ENFORCING A CLAIM AGAINST THE COMPANY IN RESPECT OF SUCH CLAIM.
41470190_6INATDOCS
101
- 3 -
This Proof of Claim must be delivered to the Sales Officer by registered mail, personal delivery, email (in PDF format), courier or facsimile at the following addresses:
The Sales Officer:
KPMG Inc., in its capacity as Sales Officer of Oxford Advanced Imaging Inc. Bay Adelaide Centre 333 Bay Street, Suite 4600 Toronto, ON M5H 2S5
Attention: Sven Dedic Email: [email protected]
DATE:
Witness Signature
41470190_6INATDOCS
Per:
Name:
Title:
NAME OF CREDITOR:
(Please Print)
102
41470190_6INATDOCS
SCHEDULE "D" Claim Statement
103
CLAIM STATEMENT
Oxford Advanced Imaging Inc. (the "Company")
Claim Reference Number: [Insert Claim Reference Number]
To: [Insert Name of Known Creditor] (the
"Creditor")
[Insert Address of Known Creditor]
This Claim Statement is delivered to the Creditor, as a Known Creditor of Oxford Advanced Imaging Inc. (the "Company"), pursuant to the Order of the Ontario Superior Court of Justice (Commercial List) dated August 29, 2019 (the "Claims Procedure Order"). Pursuant to the Claims Procedure Order, the Court-appointed Sales Officer of the Company, the KPMG Inc. (the "Sales Officer"), has been directed to assist the Company in conducting a claims procedure with respect to claims against the Company in accordance with the terms of the Claims Procedure Order. Unless otherwise defined, all capitalized terms used herein have the meanings given to those terms in the Claims Procedure Order.
According to the books, records and other relevant information in the possession of the Company, the Claim of the Creditor is set out in the table below (the "Known Claim"):
Amount of Claim
[Insert amount of Claim]
Amount is in Canadian dollars [ or foreign currency]. Claims in a currency other than Canadian dollars will be converted to Canadian dollars at the Bank of Canada daily average exchange rate for the Claims Bar Date (as defined below).
If the Known Claim listed herein accurately reflects the Claim that the Creditor has in respect of the Company, you are not required to take any further action or to file a Proof of Claim with the Sales Officer in the Claims Procedure Order.
If the Creditor wishes to dispute the amount of the Known Claim or to assert an additional Claim in relation to the Applicant other than the Known Claim, the Creditor must complete the enclosed Notice of Dispute and deliver it to the Sales Officer such that it is received by the Sales Officer by no later than 5:00 p.m. (Toronto time) on October 15, 2019 (the "Claims Bar Date").
41470190_6INATDOCS
104
-2-
If a completed Notice of Dispute in respect of the Known Claim is not received by the Sales Officer by the Claims Bar Date, the Creditor shall be forever barred from disputing the amount of the Known Claim and any Claim of a different nature or in excess of the amount specified in the Known Claim shall be forever barred and extinguished. IF A NOTICE OF DISPUTE IS NOT RECEIVED BY THE SALES OFFICER WITHIN THE PRESCRIBED TIME PERIOD, THE CLAIM AS SET OUT IN THE CLAIM STATEMENT WILL BE DEEMED TO BE THE CLAIM OF THE CREDITOR AND WILL BE FINAL AND BINDING ON THE CREDITOR FOR ALL PURPOSES.
Creditors requiring further information or Claim documentation, or who wish to submit a Notice of Dispute, may contact the Sales Officer at the following address:
KPMG Inc., in its capacity as Sales Officer of Oxford Advanced Imaging Inc. Bay Adelaide Centre 333 Bay Street, Suite 4600 Toronto, ON M5H 2S5
Attention: Sven Dedic Email: [email protected]
Dated at ______ this ____ day of _____ , 2019.
41470190_6INATDOCS
105
41470190_6INATDOCS
SCHEDULE "E" Notice of Dispute
106
NOTICE OF DISPUTE
Oxford Advanced Imaging Inc. (the "Company")
Capitalized terms not defined herein have the meanings given to them in the Order of the Ontario Superior Court of Justice dated August 29, 2019 (the "Claims Procedure Order") or the Claim Statement.
I. PARTICULARS OF CREDITOR
Claim Reference Number: [Insert Claim Reference Number listed on Claim Statement] (the "Claim Statement").
Full Legal Name of Creditor
Full Mailing Address of Creditor
Telephone Number:
Email Address
Attention (Contact Person)
Have you acquired this Claim by assignment?
Yes: D No: D (if yes, attach documents evidencing assignment)
If Yes, Full Legal Name of Original Creditor( s):
II. DISPUTE OF CLAIM SET OUT IN CLAIM STATEMENT
The Creditor hereby disputes the amount of the Known Claim set out in the Claim Statement and asserts the Claim(s) as set out in the following table:
41470190_6JNATDOCS
107
-2-
Amount of Claim
Claim [Insert amount of Asserted by Claim] Creditor
III. REASONS FOR DISPUTE
Provide full particulars below as to the basis for the Creditor's dispute of the Known Claim as set out in the Claim Statement and provide supporting documentation. This includes, without limitation, amounts, description of transaction(s) or agreement(s) giving rise to the Claim, the date and number of all invoices and supporting documentation, and particulars of all credits, discounts, rebates and similar items claimed. The particulars provided must support the value of the Claim as stated by the Creditor in the table above.
Dated at ____ this ____ day of _______ , 2019
DATE: NAME OF CREDITOR:
Witness Signature
Per:
Name:
Title:
(Please Print)
41470190_6INA TDOCS
108
- 3 -
This Notice of Dispute MUST be delivered to the Sales Officer at the below address such that it is received by the Sales Officer by no later than 5:00 p.m. (Toronto time) on October 15, 2019 (the "Claims Bar Date"):
KPMG Inc., in its capacity as Sales Officer of Oxford Advanced Imaging Inc. Bay Adelaide Centre 333 Bay Street, Suite 4600 Toronto, ON M5H 2S5
Attention: Sven Dedic Email: [email protected]
If a completed Notice of Dispute in respect of the Known Claim is not received by the Sales Officer by the Claims Bar Date, the Creditor shall be forever barred from disputing the amount of the Known Claim and any Claim of a different nature or in excess of the amount specified in the Known Claim shall be forever barred and extinguished. IF A NOTICE OF DISPUTE IS NOT RECEIVED BY THE SALES OFFICER WITHIN THE PRESCRIBED TIME PERIOD, THE CLAIM AS SET OUT IN THE CLAIM STATEMENT WILL BE DEEMED TO BE THE CLAIM OF THE CREDITOR AND WILL BE FINAL AND BINDING ON THE CREDITOR FOR ALL PURPOSES.
41470190_6INATDOCS
109
110
SCHEDULE "F"
Notice of Revision or Disallowance
41470190_6INATDOCS
NOTICE OF REVISION OR DISALLOW ANCE
Oxford Advanced Imaging Inc. (the "Company")
TO: _______ (the "Creditor")
DATE:
KPMG Inc., in its capacity as court-appointed sales officer (the "Sales Officer") of the Company, has reviewed the Proof of Claim [or Notice of Dispute] in respect of the above-named Creditor, and has assessed the Proof of Claim [ or Notice of Dispute] in accordance with the order of the Ontario Superior Court of Justice (Commercial List) (the "Court") issued on August 29, 2019 (the "Claims Procedure Order").
All capitalized terms not defined herein have the meaning given to them in the Claims Procedure Order.
The Sales Officer has reviewed your Proof of Claim [ or Notice of Dispute] in accordance with the Claims Procedure Order, and the Sales Officer has revised or disallowed your Proof of Claim [or Notice of Dispute], for the following reason(s):
Subject to further dispute by you in accordance with the Claims Procedure Order, your Proof of Claim will be allowed as follows:
Name of Creditor Claim Amount Revised Amount per Proof of of Claim Claim [ or Claim Statement]
$ $
IF YOU WISH TO DISPUTE THE REVISION OR DISALLOWANCE OF YOUR CLAIM AS SET FORTH HEREIN YOU MUST TAKE THE STEPS OUTLINED BELOW
41470190_6INATDOCS
111
- 2 -
The Claims Procedure Order provides that if you disagree with the revision or disallowance of your claim as set forth herein, you must:
1. notify the Sales Officer of the objection in writing (setting out the grounds for the objection) by registered mail, courier, facsimile or email (in PDF format) within fifteen (15) days of receipt of the Notice of Revision or Disallowance (the "Objection"); and
2. file a notice of motion with the Court, with copies to be sent to the Sales Officer immediately after filing, with such motion to be:
1. supported by a sworn affidavit setting out the basis for disputing this Notice of Revision or Disallowance; and
11. made returnable within thirty (30) calendar days of the date on which the Sales Officer receives your Objection.
If you do not dispute the revision or disallowance of your Proof of Claim [ or Notice of Dispute] in accordance with the above instructions and the Claims Procedure Order, the amount of your Claim will deemed to be accepted, and the Claim shall be determined to be as set out in this Notice of Revision or Disallowance.
If you have any questions or concerns regarding the above claims procedure, please contact the Sales Officer directly.
DATED the __ day of ______ , 2019
KPMG Inc., in its capacity as Sales Officer of Oxford Advanced Imaging Inc.
Per: -----------
41470190_6INA TDOCS
112
THE TORONTO-DOMINION BANK
Applicant
41470190_6INATDOCS
- and-
Court File No: CV-18-603360-00CL
OXFORD ADV AN CED IMAGING INC.
Res1?_ondent
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
PROCEEDING COMMENCED AT TORONTO
CLAIMS PROCEDURE ORDER
DENTONSCANADALLP 77 King Street West, Suite 400 Toronto-Dominion Centre Toronto, ON M5K 0Al
Robert J. Kennedy (LSO #474070) Tel: (416) 367-6756 Fax: (416) 863-4592 [email protected]
Mark A. Freake (LSO #63656H) Tel: (416) 863-4456 [email protected]
Lawyers for KPMG Inc.in its capacity as Court-appointed Sales Officer
~
~
(.,.)
THE TORONTO-DOMINION BANK
Applicant
41471894_ 1INATDOCS
- and-
Court File No: CV-18-603360-00CL
OXFORD ADVANCED IMAGING INC.
--~---- Respondent
ONTARIO SUPERIOR COURT OF JUSTICE
(COMMERCIAL LIST)
PROCEEDING COMMENCED AT TORONTO ---
MOTION RECORD (returnable August 29, 2019)
DENTONS CANADA LLP Toronto Dominion Centre 77 King St. W., Suite 400 Toronto, Ontario M5K 0Al
Robert Kennedy (LSO # 474070) Tel: (416) 367-6756 Fax: ( 416) 863-4592 [email protected]
Mark Freake (LSO # 63656H) Tel: (416) 863-4456 [email protected]
Lawyers for KPMG Inc.in its capacity as Courtappointed Sales Qf/icer