Insolvency Issues in the Retail Space

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1 Insolvency Issues in the Retail Space By David Ullmann Minden Gross LLP Linda Galessiere McLean and Kerr LLP February 2, 2016 Ontario Bar Association s INSTITUTE Insolvency Law for Uncertain Economic Times

2 Signs of Trouble Options for Landlords The failure of retail businesses are a fact of life for most landlords Often tenants merely hands over the keys without warning Sometimes, the tenant gives signals that something is coming Attempts to renegotiate leases to close certain stores Posts losses in public filings and cuts staffing Is party to a US chain that is experiencing difficulty Fails to make rent payment 02/02/2016 2

3 Signs of Trouble Options for Landlords What can a landlord do in these situations? Terminate the lease (if the tenant is in breach of the lease) Force strict compliance with lease which might lead to a mutual termination Procure tenant s consent to amends of the lease that will favour the landlord if an insolvency proceeding is commenced Agree to orderly wind down in exchange for special treatment either before or during upcoming insolvency process 02/02/2016 3

4 Initial Filing Issues Types of Filings Assuming the landlord or tenant is not able to terminate or renegotiate the lease to address financial difficulties, there are four paths a formal insolvency may take: Bankruptcy Proposal under the Bankruptcy and Insolvency Act Receivership Companies Creditors Arrangement Act (the CCAA ) 02/02/2016 4

5 Initial Filing Issues The initial momentum in an insolvency proceeding is with the debtor/tenant. It has had time to plan, strategize and assess its goals. Often a debtor/tenant s goals are different from those of its creditors and landlord In every case, there are procedural opportunities where expert counsel can assist to improve the position of either a landlord or the tenant. The use of the comeback clause in receivership and CCAA to import protective provisions Creditors meeting in bankruptcy; substituting the trustee Termination and disclaiming of leases Sale of inventory and real property leases 02/02/2016 5

6 What s the Plan - Bankruptcy In a bankruptcy: The tenant is no longer the decision maker. All decisions are made by the trustee in bankruptcy The trustee has 90 days to decide what he wants to do with the lease If the Trustee does not occupy the premises, the trustee does not have to pay rent If the trustee does occupy the premises, the trustee is personally liable for the rent 02/02/2016 6

7 What s the Plan - Bankruptcy If the trustee disclaims the lease, the landlord has a priority claim for 3 months arrears of rent and 3 months of accelerated rent (if provided for in the lease) (certain limitations apply). There will be the opportunity to file a proof of claim form to participate in the liquidation proceeds on a pro rata basis Lease can be assigned by order of the court over the landlord s objection 02/02/2016 7

8 What s the Plan - Bankruptcy Factors to be considered by the court for the forced assignment of leases to a party that agrees to the assignment: whether the trustee has approved the proposed assignment; whether the person to whom the rights and obligations are to be assigned would be able to perform the obligations; and whether it would be appropriate to assign the rights and obligations to that person. All arrears of rent must be paid as a term of the assignment 02/02/2016 8

9 What s the Plan - Proposal If the tenant wants to restructure their business, they can file a proposal in bankruptcy. This grants a stay of proceedings to prevent creditors (including landlords) from taking steps The tenant makes a proposal to its creditors If it is approved by 50% in number plus 66 2/3% in value, the proposal passes 02/02/2016 9

10 What s the Plan - Proposal If it fails, there is a bankruptcy During a proposal process, the tenant remains in control and is obliged to pay rent going forward. Arrears of rent need not be paid, other than as offered in the proposal (i.e. some point in the future) Rules are all spelled out in the BIA Mexx and Jacob each filed proposals to restructure their business 02/02/

11 What s the Plan - Receiverships A receivership involves the appointment of a receiver (usually by the court) at the request of a creditor or creditors (and rarely at the request of the company itself and or its shareholders) The receiver exercises a certain degree of control over the business of the tenant It may operate the business or it may not. It is obliged to pay rent if it is in occupation It may not assign the leases over the objection of the landlord Its powers are set out in the order appointing the receiver. Rarely used 02/02/

12 What s the Plan - CCAA The CCAA is the preferred restructuring method used for large restructurings of retail businesses Target Canada is currently using the CCAA to liquidated and cease operations It is widely speculated (and argued in certain court materials) that the Target CCAA is really a bankruptcy in sheep s clothing. However, the CCAA provides more flexibility, thus was more appealing to Target 02/02/

13 What s the Plan - CCAA Initial order issues to consider for landlords Third party stay co-tenancy issue Assignment without consent a real risk in CCAA. Test is effectively the same as in a bankruptcy Watch for sale process or restructuring provisions which presuppose leases can be assigned without consent Target - Treatment of guarantees or releases of related parties was an issue 02/02/

14 Liquidation issues In any insolvency of a retail space where the business does not intend to genuinely restructure, there will be a need to liquidate inventory There is often a court order in such circumstances to govern the actions of the liquidator. Common issues include: Agents what is their role Sale Guidelines what can be sold and how 02/02/

15 Liquidation issues Duty to abide by the lease the sale cannot override lease issues, such as signage Access how much access will the agent have and when Priorities who governs areas of conflict between the lease and the order Claims against agents are they immune from claims for damage or negligence? 02/02/

16 Liquidation Sale Guidelines Key Sale Guideline points include: Sale to be in accordance with lease Sunset date No or limited augmentation Restatement of fundamental lease terms Use of signage inside and out Duty to clean the premises and repair damage Who owns the fixtures and can they be sold Dispute resolution mechanism 02/02/

17 What s the Plan - CCAA What does the proposal/plan include? Is there leverage? The first offer is seldom the best offer available Should landlords have their own class or other special treatment? Should the claims of landlords be valued using a formula? This is permitted in the BIA Proposal but query if applicable in CCAAplans 02/02/

18 Lessons from Target Guarantees and Side Deals Don t give a quick release Read the release documents you are being asked to assign on the assignment of your lease you may still have a claim even if your lease is assigned! Claim against everyone if there are multiple entities under restructuring, claim against them all Fixtures vs Tenant Improvements read the lease and know what is yours and what is not Analyze the debt structure Is there a lease back structure or other structure being used by the tenant which removes value or creates inter-company claims 02/02/

19 Lessons from Target Guarantees and Side Deals Claim for everything Don t forget to claim for re-demising costs, tax arrears, HST on rent, and even the possibility that new tenant may not fully mitigate your loss You can get a windfall you can get a windfall if there will be a payment in the plan and a new tenant has already been found Co-Tenancy Is the tenant liable for other damages you will suffer due to set offs claimed by other tenants under co-tenancy or minimum occupancy clauses? 02/02/

20 Lessons from Target Guarantees and Side Deals Previous tenants still on the hook? - If the lease was assigned to your tenant, might the original tenant still be on the hook? RioCan example You can use pressure in the insolvency process to gain a benefit. RioCan made a deal with parent company which was preferable to what the insolvency process had offered. 02/02/

21 Lessons from Target Guarantees and Side Deals Recent Target ruling reaffirms sanctity of Court Orders Having a guarantee from the parent or solvent related party has always been the best way to protect against the insolvency of the tenant will this remain the case? No matter how manifestly solvent the company is (i.e. Target) getting a guarantee is wise. 02/02/

22 Thank You David T. Ullmann Partner Minden Gross LLP T: E: David Ullmann has a multifaceted practice focused primarily on Commercial Insolvency and Restructurings and Media, Technology and Intellectual Property matters. He also has a unique specialty in dealing with issues arising from the restructuring of companies where the central assets are intellectual property or technology, such as in the restructurings of Nortel or Canwest. David is both a barrister and a solicitor, equally comfortable to appear in court making arguments or in boardrooms negotiating deals and developing strategy. David is well known to the Bench of the Commercial List of the Ontario Superior Court where he appears regularly on Insolvency matters. He has also appeared before the Federal Court in connection with copyright, trademarks and technology disputes. Beyond dealing with technology companies, David has also been involved in insolvencies in the construction, steel, real estate, food services, and mining industries, among others. David is an avid speaker and writer, publishing and presenting often on issues related to insolvency and intellectual property law. He has spoken and presented several times at the Annual Review of Insolvency Law Conference. David is an executive member of the Ontario Bar Association Insolvency Section and is an Executive member of the National Insolvency Section of the Canadian Bar Association. David is often quoted as an expert on insolvency matters in the media in such sources as The Globe and Mail and The New York Times. 02/02/

23 Thank You Linda Galessiere Partner McLean Kerr LLP T: E: Linda Galessiere is a member of the Litigation practice group at McLean & Kerr LLP. Her practice focuses primarily on corporate commercial litigation, property leasing disputes, and retail bankruptcy and insolvency matters. Linda regularly appears before the Ontario Commercial Court in retail bankruptcy and insolvency proceedings representing landlord interests. She has represented landlords in connection with every major retail insolvency proceedings during the past 8 years including: Athletes World, Cotton Ginny, Hoop/Disney Stores, Mariposa Stores, InterTAN/Circuit City, Blockbuster, Eddie Bauer, Jacob, Linens 'N Things, Petcetera, Please Mum, Priszm (KFC), Sterling Shoes, Costa Blanca/Urban Behavior, Bargain Shop, Eddie Bauer, Movie Gallery, Mexx, Bombay, Mobilicity, Target, Comark, Sherson Group (Nine West), and Laura. 02/02/