Poseidon Concepts Corp., Poseidon Concepts Ltd., Poseidon Concepts Limited Partnership and Poseidon Concepts Inc.

CCAA Filing

Page last updated November 6, 2014

This page is for information purposes only and you should consult your professional adviser if you have any questions or are uncertain as to your rights or obligations.

On April 9, 2013, Poseidon Concepts Corp, Poseidon Concepts Ltd., Poseidon Concepts Limited Partnership and Poseidon Concepts Inc. (collectively the “Applicants” or the “Companies”) applied for and received an order (the “Initial Order”) for protection pursuant to the Companies’ Creditors Arrangement Act (“CCAA”), R.S.C.1985, c.C-36 from the Court of Queen’s Bench of Alberta, Calgary Division, which includes, among other things, a stay of proceedings against the Companies, approval of a sales process for the Companies and the appointment of PricewaterhouseCoopers Inc. as monitor of the Applicants.

The Initial Order, among other things,:

  1. approved an interim financing facility, in the amount of $6,000,000, with Century Services LP (the “Interim Lender”) and granted a priority charge (the “Interim Lender’s Charge”) over the Property of the Applicants to secure repayment of the amounts borrowed by the Applicants under the facility;
  2. granted a priority charge over the Property of the Applicants, in the amount of $1,000,000 to secure the fees and disbursements of the Monitor , counsel to the Monitor and the Applicants’ counsel (the “Administration Charge”);
  3. granted a priority charge over the Property, in the amount of $1,000,000, in order to protect the Applicants’ directors and officers from certain potential liabilities (the “Directors’ Charge”);
  4. approved the New Key Employee Retention Plan, as described in the Originating Application.

In accordance with section 23.(1)(ii)(b) of the CCAA and the Initial Order, a notice was mailed on April 12, 2013, to all known creditors of the Companies with amounts owed of more than $1,000.00.

Notice to the Creditors dated April 12, 2013
Creditors Over $1,000 Listing
Company’s Letter to the Creditors dated April 9, 2013

Status of File as at November 6, 2014

On November 4, 2014, the Court issued an order approving the Claims Procedure for Canadian and non-U.S. creditors of Poseidon. In accordance with the Claims Process Order;

  • The claims process is limited to Canadian and non-U.S./international creditors;
  • The Claims Bar Date is set at 5:00 p.m. (MST), December 17, 2014 (the “Claims Bar Date”).
  • After reviewing the claims received by the Claims Bar Date, the Monitor will issue a notice of acceptance, revision or disallowance of the relevant claims received, by no later than January 14, 2015;
  • Claimants who wish to dispute the notice of revision or disallowance must do so within 10 business days of receipt of the notice of revision or disallowance; and
  • The Monitor will file and serve an application by no later than February 11, 2015 for a determination of all unresolved, disputed claims.

The Court also issued an order extending the stay of proceedings in this matter up to and including February 27, 2015.

Status of File as at November 4, 2014

On October 30, 2014, the Monitor filed its Twentieth Report to advise the Court of the following:

  1. The status of the Mediation Process (as defined in the Monitor’s reports);
  2. The status of the U.S. Claims Process and ongoing settlement discussions between the Lending Syndicate and the U.S. lien claimants;
  3. The status of the CCAA Claims Process and the Monitor’s request for a revised claims process;
  4. The claim of Rugged Tanks & Fabrication; and
  5. The Monitor’s request for an extension of the stay of proceedings to February 27, 2015.

On November 4, 2014, a motion will be heard for:

  1. An Order further extending the stay of proceedings up to and including February 27, 2015;
  2. A Claims Process Order requiring the submissions and adjudication of claims; and
  3. An Order releasing Rugged Tanks & Fabrications Ltd. From certain obligations related to tanks that remain in its possession.

Status of File as at October 31, 2014

On October 28, 2014, the Court issued an order extending the stay of proceedings in this matter up to and including November 4, 2014.

Status of File as at October 24, 2014

On October 24, 2014, the Monitor filed its Nineteenth Report to advise the Court of the following:

  1. The Monitor intends to apply to extend the stay of proceedings until February 27, 2015;
  2. The Lending Syndicate, who is Poseidon’s primary secured creditor, supports an extension to the stay of proceedings;
  3. One party has requested additional time to make submissions with respect to this application; and
  4. The Monitor intends to file a more extensive report setting out the nature of its activity over the past several months, including the fact that it has in its opinion proceed in good faith and that Poseidon continues to have a reasonable prospect of success in putting forward a Plan.

A motion will be heard on October 28, 2014.

Status of File as at June 6, 2014

Further to the order of the court dated May 27, 2014, amendments to the Claims Process order may be required. As a result implementation of the Claims Process has been postponed at this time. The Monitor anticipates appearing before the Court shortly to resolve the matter.

Status of File as at May 28, 2014

On May 27, 2014, the Court issued an order (the “Claims Process Order”) approving the Monitor’s proposed CCAA Claims Process. Also on May 27, 2014, the Court issued an order discharging the Directors’ charge and Administration charge as set out in the Initial Order and giving the Monitor leave to distribute $102,000.00 to the Lending Syndicate for the purposes of settling the Canadian Lien Claims. The Court also approved they stay of proceedings extension to October 31, 2014.

Status of File as at May 27, 2014

On May 26, 2014, the Monitor filed its Eighteenth Report to Court to advise the Court of the Monitor’s views on:

  1. The status of the mediation process;
  2. The results of the Canadian Possessory Lien Claims Process;
  3. The status of the U.S. Claims Process and ongoing settlement discussions between the Lending Syndicate and 10 U.S. lien claimants;
  4. A proposed CCAA Claims Process;
  5. A proposed discharge of the Directors’ Charge and Interim Financing Charge; and
  6. The Monitor’s request for an extension of the Stay of Proceedings to October 31, 2014.

A motion will be heard on May 27, 2014.

Status of File as at January 21, 2014

The motion scheduled for January 22, 2014 has been adjourned sine die by consent.

Status of File as at December 13, 2013

The motion scheduled to be heard on December 13, 2013 at 10:00a.m. has been adjourned and will now be held on January 22, 2014 at 10:00a.m.

Status of File as at December 6, 2013

On December 5, 2013, the Applicants made an application for:

  1. an Order disallowing the claims of Drift Production Services Ltd. (“Drift”) and Trident Oilfield Services Ltd. (“Trident”) in whole or in part; and
  2. an Order directing the release to Rockwater Energy Solutions Inc. of any equipment that continues to be held by either Drift or Trident.

A motion will be heard on December 13, 2013.

Status of File as at October 16, 2013

On October 11, 2013, the Court issued an order that the Class Action Plaintiffs, the Lending Syndicate, the Monitor, the Poseidon Defendants and any other Eligible Person shall participate in a mediation to address any claims, rights, obligations, or disputes resulting from, relating to, or with respect to the preparation, review, audit and restatement of Poseidon’s financial statements and any other related matters. The Court also approved the stay of proceedings extension to May 30, 2014.

Status of File as at October 15, 2013

On October 15, 2013, the Monitor filed its Seventeenth Report to Court to advise the Court on the Monitor’s views on:

  1. the requested extension of the Stay of Proceedings until May 30, 2014; and
  2. the Company’s revised cash flow forecast in support of the application for an extension of the Stay of Proceedings to May 30, 2014.

Status of File as at October 10, 2013

On October 9, 2013, the Applicants filed an application for an order further extending the stay of proceedings to May 30, 2014 and approval of a Mediation Order.

Status of File as at October 1, 2013

On September 30, 2013, the Court issued orders approving the expansion of the Monitor’s powers and the extension of the stay of proceedings to October 11, 2013.

Status of File as at September 27, 2013

On September 26, 2013, the Monitor filed its Sixteenth Report to the Court to advise the Court on the Monitor’s view of:

  1. The requested extension of the stay of proceedings to October 11, 2013; and
  2. The requested expansion of the powers of the Monitor.

A motion will be heard on September 27, 2013.

Status of File as at September 23, 2013

On September 18, 2013, the Monitor filed a motion with the United States Bankruptcy Court District of Colorado seeking an order pursuant to Section 542(e) of the Bankruptcy Code requiring Smart Computers & Consulting, LLC to turn over to the Monitor and the PC Debtors certain electronic records in its possession.

On September 16, 2013, the Monitor filed a motion with the United States Bankruptcy Court for the District of Colorado for an order that would allow the PC Debtors to make an interim distribution from certain Sale Proceeds and Net Cash Operating Proceeds in the amount of $15,496,000 to the Lending Syndicate.

Status of File as at September 12, 2013

On September 12, 2013, the Court of Queen’s Bench of Alberta approved a Possessory Lien Claims Process Procedure Order (the “Claims Order”) establishing a possessory lien claims process for those Canadian creditors who may be asserting a possessory lien pursuant to the Alberta Possessory Liens Act, RSA 2000, c.P-19, or a similar act in other jurisdictions. Pursuant to the Claims Order, the claims bar date is set at 5:00 p.m. (Mountain time), October 17, 2013 (the “Claims Bar Date”). Please be advised that, in accordance with the Claims Order:

  • the claims process is limited to those creditors who are claiming a possessory lien;
  • the Claims Bar Date is set at 5:00 p.m. (Mountain time), the 17th of October, 2013;
  • Proofs of claim must be received by the Monitor by the Claims Bar Date;
  • After reviewing the claims received, the Monitor, in consultation with the Company, will issue a notice of acceptance, revision or disallowance of the relevant claims received, by no later than November 6, 2013;
  • Claimants who wish to dispute the notice of revision or disallowance of their claim by the Monitor must do so within 10 business days of receipt of the notice of revision or disallowance; and
  • the Monitor will file and serve an application by no later than December 5, 2013 for a determination of all unresolved, disputed possessory lien claims.

On the same day the Court issued an order extending the stay of proceedings to September 27, 2013 and approving a further distribution to the Lending Syndicate.

The application to extend the stay period to January 31, 2014 and the application to expand the Monitor’s powers was adjourned to September 27, 2013. All parties, including the Monitor, agreed that it would be beneficial to adjourn these applications in order to allow time for certain parties with certain actual or proposed actions against the Company and its directors to reach a mediation agreement/protocol on or before September 27, 2013.

Status of File as at September 11, 2013

On September 10, 2013, the Monitor filed its Fourteenth Report to the Court to advise the Court on the Monitor’s views on the Company’s revised cash flow forecast in support of the application for an extension of the Stay of Proceedings to January 31, 2014.

Status of File as at September 10, 2013

On September 6, 2013, the Monitor filed its Thirteenth Report to the Court to advise the Court on the following:

  1. The completion of the sale of the Edson property;
  2. The Company’s actual cash flow for the period April 9 to September 1, 2013;
  3. The status of the post-closing sale adjustment negotiations between Rockwater Energy Solutions Inc. and the Company;
  4. The status of the claims process initiated in the U.S.;
  5. The Monitor’s request for approval of a Possessory Lien Claims Process for Canadian creditors of Poseidon;
  6. The Monitor’s request for approval of a second interim distribution to the Lending Syndicate;
  7. The Monitor’s view on the application for an extension of the Stay of Proceedings to January 31, 2014; and,
  8. The Monitor’s request for the proposed expansion of the Monitor’s powers.

A motion will be heard on September 12, 2013.

Status of File as at September 3, 2013

On August 30, 2013, the Monitor filed its Twelfth Report to the Court to provide the Court with the Monitor’s views on the application of Rugged Tanks and Fabrication to be heard on September 3, 2013.

Status of File as at August 19, 2013

On August 16, 2013, the Court granted a Sale Approval and Vesting Order approving the Poseidon PSA and vesting the Purchased Property in the Purchaser. The Court also granted a Restricted Court Access Order in respect of the Confidential Eleventh Report of the Monitor.

Status of File as at August 12, 2013

On August 9, 2013, the Monitor filed its Tenth Report to provide the Court with comments regarding the following:

  1. The status of the sale to Rockwater Energy Solutions Inc.;
  2. The status of the interim distribution to the Lending Syndicate;
  3. A claims process initiated in the U.S.;
  4. The status of the Company’s operations;
  5. The Company’s actual cash flow for the period April 9 to August 4, 2013;
  6. The status of the distribution of the New KERP Incentive Pool to the employees and Total Water Management and the Transaction Fee to Ernst & Young Orenda Corporate Finance Inc.; and
  7. The Monitor’s recommendation for approval of a proposed sale of the Company’s real property located in Edson, Alberta.

A motion will be heard on August 16, 2013 for the granting of a Restricted Court Access Order in respect of the Confidential Eleventh Report of the Monitor to be filed in support of the application exhibiting certain agreements and documents between the Applicants and Dacam Holdings Ltd., governing the sale of certain of the Applicants’ property to the Purchaser and the granting of an Oder approving the Poseidon PSA and vesting the Purchased Property in the Purchaser.

Status of File as at August 6, 2013

On July 26, 2013, the United States Bankruptcy Court issued an Order that the bar date of August 22, 2013, for filing proofs of claim shall not apply to claims asserted by Class Members that form or could form the subject matter of the litigation described in the Canadian Class Actions. On the same day, an Order was issued approving an interim distribution to the Lending Syndicate.

Status of File as at July 4, 2013

On July 3, 2013, the Monitor filed a motion with the United States Bankruptcy Court seeking recognition of the Canadian Court’s distribution Order authorizing an interim distribution in the amount of $31,403,000 to the Lending Syndicate. The objection deadline to oppose the motion or object to the requested relief is Wednesday, July 24, 2013.

Status of File as at July 3, 2013

On July 3, 2013, the Court approved an Order authorizing Poseidon to distribute $4,000,000 to the Lending Syndicate and authorizing the Monitor to distribute the sum of $27,403,000 to the Lending Syndicate provided that the Monitor withholds amounts to satisfy the potential claims.

Status of File as at July 2, 2013

On June 28, 2013, the Canadian Court approved an Order to extend the stay of proceedings up to and including September 12, 2013 and gave the Class Action Plaintiffs leave to apply to lift the stay of proceedings prior to September 12, 2013, to allow the class actions to proceed.

Status of File as at June 28, 2013

On June 27, 2013, the United States Bankruptcy Court issued an Order granting the Applicant’s motion to set a bar date of August 22, 2013 for filing proofs of claim.

The motion to extend the Stay of Proceedings and the motion for an interim distribution order were adjourned due to the flooding in Calgary and will be heard on June 28, 2013 and July 3, 2013 respectively.

Status of File as at June 24, 2013

On June 21, 2013, the Monitor prepared its Ninth Report to the Court to inform the Court of:

  1. The status of the data preservation activities;
  2. The status of the Company’s operations;
  3. The Company’s actual cash flow for the period April 9 to June 16, 2013;
  4. The Monitor’s view on the cash flow forecast for the period from June 24 to September 14, 2013; and,
  5. The Monitor’s view on the Company’s application for an extension of the Stay of Proceedings to September 12, 2013.

Status of File as at June 21, 2013

On June 20, 2013, the Monitor prepared its Eight Report to the Court to:

  1. Inform the Court of the Monitor’s review of the security granted by Poseidon to the Toronto Dominion Bank, agent for a syndicate of lenders comprising of HSBC Bank Canada, the Bank of Nova Scotia, National Bank of Canada and the Toronto Dominion Bank (collectively referred to as the “Lending syndicate”); and,
  2. Seek Court approval for an interim distribution to the Lending Syndicate of a portion of the sales proceeds currently being held by the Monitor from the sale of the Company’s assets to Rockwater Energy solutions Inc.

A motion will be heard on June 25, 2013.

Status of File as at June 20, 2013

On June 19, 2013, the US Bankruptcy court issued an order approving the sale of assets to Rockwater Energy Solutions Inc.

On June 25, 2013, the Applicants will seek an order further extending the stay of proceedings to September 12, 2013.

Status of File as at June 6, 2013

On June 6, 2013, the Monitor filed its Seventh Report to the Court informing the Court of an agreement entered into between Poseidon and Rockwater Energy Solutions Inc. (“Rockwater”) dated June 5, 2013 (the “Side Letter Agreement”), and attaching a copy of the asset purchase agreement (“APA”) with Rockwater.

The Monitor also delivered to the Court its Confidential Sixth Report, containing the Bid Summary and a copy of the APA.

On June 6, 2013, the Court granted the following orders:

  1. The Sale Approval and Vesting Order, which approved the APA between the Purchaser and Poseidon, including the purchase and sale of the Purchased Assets and the Real Property Option;
  2. The Rental Agreement Approval order, which approved the Side Letter Agreement to the May 24, 2013 APA between Poseidon and the Purchaser; and,
  3. The Restricted Court Access Order, which declared the Monitor’s Confidential Sixth Report be marked “Sealed Pursuant to Court Order” and shall be treated as confidential, sealed and not form part of the public record.

Status of File as at June 4, 2013

On May 31, 2013, the Court approved an order that appointed the Class Action Plaintiffs as representatives of Class Members in the insolvency proceedings (both as defined in the May 31, 2013 Order) and appointed Jensen Shawa Solomon Duguid Hawkes LLP, Siskinds LLP, Siskinds, Demeules, S.E.N.C.R.L., and Paliare Roland Rosenberg Rothstein LLP as counsel for the Class Members in the insolvency proceedings. On the same day, the Court approved an order allowing legal counsel for the Class Action Plaintiffs access to the contents of the Poseidon dataroom.

The Monitor has filed a motion in the US Bankruptcy Court requesting an order approving the sale of the assets and an order to shorten the notice period for its Sale Approval Motion. A hearing has been scheduled for June 18, 2013.

Status of File as at May 30, 2013

On May 29, 2013, the Monitor filed its Fifth Report to the Court to inform the Court of the following:

  1. The monitor’s activities since the Monitor’s Second Report;
  2. The status of the Company’s operations;
  3. The status of the proceedings in the US Bankruptcy Court;
  4. The status of the data preservation activities;
  5. The Company’s actual cash flow for the period April 9 to May 26, 2013; and
  6. The results of the Solicitation Process and the Monitor’s recommendation for the acceptance of an offer from Rockwater Energy Solutions Inc.

On June 6, 2013, the Applicants will apply for a Court order:

  1. Granting a Restricted Court Access Order in respect of the Confidential Report of the Monitor to be filed in support of this Application exhibiting certain agreements and documents between the Applicants and Rockwater Energy Solutions, Inc., MWS Tanks, LLC and Rockwater Energy Solutions Canada, Inc. (collectively the “Purchaser”) governing the sale of certain of the assets to the Purchaser; and
  2. Granting an Order approving the Poseidon APA and vesting the Purchased Assets in the Purchaser.

Status of File as at May 29, 2013

On May 28, 2013, the Monitor filed its Fourth Report to the Court to provide the Court with the Monitor’s views on the hearing set for May 30 and 31, 2013, in respect of the Class Actions.

Status of File as at May 24, 2013

On May 23, 2013, the Court issued an order approving the Settlement Agreement between Poseidon and DryAir 2000 Inc.

Status of File as at May 23, 2013

On May 22, 2013, the Monitor filed its Third Report in support of the Company’s application with respect to a negotiated settlement with DryAir 2000 Inc.

On May 15, 2013, the US Court approved an Order granting recognition as a foreign main proceeding and related relief pursuant to Section 1521 of the Bankruptcy Code.

Status of File as at May 22, 2013

On May 10, 2013, the US Court issued an order granting the Monitor’s Omnibus motion for an order

  1. Authorizing sale of assets free and clear of liens, claims and interests;
  2. Authorizing the Debtor to employ Ernst & Young Orenda Corporate Finance Inc. as financial advisor; and
  3. Approving procedures for sale of assets.

On May 23, 2013, the Applicants will apply for an Order approving the Settlement Agreement between Poseidon and DryAir 2000 Inc./DryAir Inc.

Status of File as at May 9, 2013

On May 8, 2013, the Court approved an order to amend the Initial Order:

  • Extending the stay of proceedings to June 28, 2013;
  • Amending the New Key Employee Retention Plan to removing any cap on the Eligible Employees’ incentive pool; and
  • Extending the dates and milestones as set out in Schedule Z of the Originating Application to the dates and milestones set out in Schedule A to the May 8, 2013 order.

On May 8, 2013, the Court ordered that the motion of the Class Action Plaintiffs is adjourned and to be heard on a date to be set no later than May 31, 2013.

Status of File as at May 7, 2013

On May 7, 2013, the Monitor filed its Second Report to Court to inform the Court of the following:

  1. The Monitor’s activities since the Monitor’s First Report;
  2. The status of the Company’s operations;
  3. The status of the proceedings in the US Bankruptcy Court;
  4. The status of the class action lawsuits;
  5. The status of the Monitor’s data preservation activities;
  6. The status of regulatory actions by the Alberta Securities Commission and Securities and Exchange Commission;
  7. The Company’s actual cash flow for the period April 9 to May 5, 2013;
  8. The status of the Solicitation Process and revised timelines being requested;
  9. The Monitor’s comments on revisions to the KERP program;
  10. The Monitor’s view on the cash flow forecast for the period from May 6 to June 28, 2013; and
  11. The Monitor’s view on the company’s application for an extension of the Stay of Proceedings to July 9, 2013.

Status of File as at May 6, 2013

On May 8, 2013, the Applicants will make an application to the Court for an order:

  1. Extending the stay of proceedings to July 9, 2013;
  2. Amending the CCAA Initial Order as follows:
    1. amending the New Key Employee Retention Plan (“New KERP”) as described in paragraphs 49 through 51 of the Originating Application by removing any cap on the Eligible Employees’ incentive pool by deleting the words “(up to an amount equal to their entitlement from April 9, 2013 onward under the Old KERP)” from paragraph 51(b) in the Originating Application;
    2. confirming that Ernst & Young Orenda Corporate Finance Inc. (“EYO”) is protected from any claims or liability with respect to its performance of obligations under the Solicitation Process;
    3. the various dates and milestones for the Solicitation Process as set out in Schedule Z to the Originating Application be amended and extended, nunc pro tunc, to the dates and milestones set out in Schedule A of this application.

Status of File as at May 1, 2013

On April 26, 2013, the US Court issued a Preliminary Injunction Order against any one commencing or continuing any legal proceeding against the Company.

On April 30, 2013, the Canadian Court issued an order and declared New Wave Energy Services Group Ltd. is to be a Qualified Bidder for the purposes of the Solicitation Process.

Status of File as at April 19, 2013

On April 18, 2013, the Monitor filed its First Report to the Court to advise the Court of the Monitor’s activities to date, the Company’s Chapter 15 proceedings and provide the Court with the Monitor’s comments on the reasonableness of the Company’s initial cash flow forecast pursuant to section 23 (1) (b) of the CCAA.

Status of File as at April 16, 2013

On April 15, 2013, the Monitor obtained an order from the United States Bankruptcy Court District of Colorado (the “US Court”) directing the joint administration of the proceedings commenced pursuant to section 1515 of title 11 of the United States Code (the “Bankruptcy Code”) with respect to Poseidon Concepts Corp., Poseidon Concepts Ltd., Poseidon Concepts Limited Partnership, and Poseidon Concepts Inc. (the “Chapter 15 Cases”).

The US Court has approved an order granting a motion for an expedited hearing on an application for an order to show cause with temporary restraining order and preliminary injunctive relief. The Monitor has filed a motion requesting the following relief:

  • Recognition of the Canadian Proceeding as a foreign main proceeding pursuant to sections 1515 and 1517 of the Bankruptcy Code;
  • Granting the relief afforded under Section 1520 of the Bankruptcy Code;
  • Granting further additional relief as authorized by Section 1521 of the Bankruptcy Code; and
  • Otherwise granting comity to and giving full force and effect to the Canadian Proceeding.

The motion will be heard on April 25, 2013.


This Web site will be updated as information becomes available.

For more information, please contact: Sara de Verneuil, Telephone: +1 888 339 3225, Fax: +1 416 814 3219, or via Email.