Excerpt from complaint to the Appeal Panel:
f. the Appeal Panel has chosen to ignore the evidence that the Appeal Panel confirmed was part of the evidentiary record and which evidence proves that there is a genuine issue requiring a trial:
i. the Appeal Panel in the December 05, 2016 Judgment stated:
“[42] ... Birch Mountain did not have the funds available to pay the interest, but Tricap consented to the interest being paid out of a new issue of equity. ... .”;
ii. the Appeal Panel, for unknown reasons, overlooked the following evidence set forth in the July 03, 2008 Birch Mountain email (Extracts of Key Evidence, exhibit 19, which was discussed at length during the oral argument):
“Jim [Reid] responded that we had 30 days to rectify the payment and he was confident we could do it within this time. He [Reid] seemed surprised to read the draft news release that we were waiting their approval to pay the interest. I noted that ComputerShare had the cheque and we had the funds set aside to make the payments. ... .”
iii. the draft press release of July 03, 2008, edited by Brookfield/Tricap, deleted the following sentence, highlighted by strikeout, and thereby created the contrived interest default:
“CALGARY, July 3, 2008 - Birch Mountain Resources Ltd. (“Birch Mountain” or the “Company”) (BMD: TSX and AMEX) announces that is has not made the scheduled June 30, 2008, interest payment to the holders of the Convertible Unsecured Subordinate Debentures. As a consequence it the company being in breach of a single minor loan financial covenant under its senior secured credit facility, the lender, Tricap Partners Ltd. has exercised its rights under the loan agreement to direct Computershare Trust Company not to make the scheduled interest payment until further notice from the lender. Birch Mountain which it is working to rectify the breach and secure the necessary liquidity to make the interest payment., the Company has applied to and is waiting for its secured lender, Tricap Partners Ltd., to authorize release of the interest payment by Computershare Trust Company.”
g. again, the significance of the deletion from the draft press release of July 03, 2008 is that the draft press release is evidentiary proof that Brookfield and Tricap orchestrated the contrived interest default to acquire the Birch Mountain asset valued at $1.6 billion for less than $50 million;
http://www.brookfieldclassaction.com/Letter%20to%20CAA%20Jan%2016%202017.pdf
The "single minor" breach of the financial covenant under the loan agreement was NOT MATERIAL. Brookfield turned it into a MATERIAL event by NOT ALLOWING Birch to pay the interest payment for the unsecured debenture and thus began the rapid demise of Birch Mountain and the $1.6B asset falling into Brookfield's hands.
