Canada: Update On DIP Financing And Priority Charges

This bulletin is a cross-country update presented by the national Restructuring & Insolvency Group. It discusses the key cases across the country involving debtor-in-possession (DIP) financing, court-ordered charges and other priority claims and disputes in recent Canadian insolvency proceedings.

INTRODUCTION

On June 5, 2012, the Supreme Court of Canada (SCC) heard the appeal from the Court of Appeal for Ontario's decision in Re Indalex. The SCC's decision in the landmark insolvency case is still pending. Departing from earlier case law and overturning the decision of the lower court, the Court of Appeal held that there is a deemed trust under the Pension Benefits Act (Ontario) (PBA) which secures the debtor's obligation to fund a defined benefit (DB) pension plan's wind-up deficiency on the wind-up of the plan. Prior to Re Indalex, it was commonly understood that only the obligation to fund normal course and special payments due or accruing due to the date of wind-up of the plan was secured by the PBA deemed trust.

The Court of Appeal also concluded that, based on its interpretation of the particular facts of that case, the deemed trust had priority over the court-ordered super-priority charge granted in favour of the DIP lender in Indalex's restructuring proceedings under the Companies' Creditors Arrangement Act (Canada) (CCAA). In addition, the Court of Appeal imposed a constructive trust over proceeds of the sale of Indalex's assets in favour of pension beneficiaries and used this equitable remedy to grant the pension beneficiaries priority over the super-priority DIP charge.

Thus, the Court of Appeal's decision in Re Indalex engaged broader questions regarding a DIP lender's ability to rely on the super-priority status of court-ordered charges, even in situations where pension claims were not at issue. Indeed, many commentators have speculated as to whether the uncertainty created by Re Indalex would diminish the appetite of lenders to provide DIP lending to restructuring debtors in Canada. Despite the challenges created by Re Indalex, there is no doubt that DIP lending has continued in the face of those challenges.

A. JUDICIAL TREATMENT OF INDALEX

The following recent cases are examples of the manner in which Indalex has been addressed by courts across Canada.

Re Timminco

Timminco Limited's principal operating entity was its wholly owned subsidiary (collectively, Timminco), a producer and reseller of silicon metal. Timminco sponsored DB pension plans in Quebec and Ontario, both in deficit positions. In January 2012, Timminco brought an application before the Ontario Superior Court of Justice (the Ontario Court) for an initial order granting it protection under the CCAA. The initial order was granted. In a subsequent motion in the CCAA proceedings, Timminco, on notice to the applicable pension authorities, the Quebec pension committee and the unions advocating on behalf of current and retired employees among others, sought orders granting super-priority status to court-ordered charges, including a DIP charge. Timminco sought priority for the court-ordered charges over security interests and encumbrances, including any pension claims or deemed trusts created under the applicable provincial pension statutes. The relief sought was opposed by the unions on behalf of current and retired employees and pension beneficiaries. The unions relied exclusively on the decision in Re Indalex.

The Ontario Court addressed the issues raised in Re Indalex regarding the need to invoke the doctrine of paramountcy to grant priority to court-ordered charges over deemed trusts created under provincial legislation. In dismissing the unions' objections and granting the requested relief, the Ontario Court held that in order to ensure that the objectives of the CCAA were fulfilled, it was necessary and appropriate to invoke the doctrine of paramountcy such that the provisions of the CCAA would override those of the provincial pension legislation. The doctrine of paramountcy provides that to the extent that validly enacted federal legislation, such as the CCAA, comes into conflict with provincial legislation, such as the PBA, the federal legislation governs. The Ontario Court held that, if it did not grant the requested priority for the charges, the objectives of the CCAA would be frustrated. The Ontario Court concluded that, based on the evidence before it, if the professionals, directors, officers, DIP lenders and key employees were not provided with the requested protection, then there was an overwhelming likelihood that the CCAA proceedings would come to an abrupt halt, resulting in the liquidation of the assets of the debtors. In addition, the Ontario Court held that it was unrealistic to expect that any commercially motivated DIP lender would advance funds without receiving a super-priority charge.

The unions sought leave from the Court of Appeal for Ontario to appeal the decision of the Ontario Court. In July 2012, leave to appeal was denied. The Court of Appeal affirmed a CCAA court's authority to grant priority over pension claims and to invoke the doctrine of paramountcy where the application of provincial legislation would frustrate the debtor's ability to restructure and avoid bankruptcy.

First Leaside

Following the Ontario Court's decision in Re Timminco, in Re First Leaside, the Ontario Court also had the opportunity to consider the issue of paramountcy and the appropriateness of granting priority charges in favour of professionals and officers and directors in a CCAA proceeding where the debtor was not a sponsor of any pension plan.

First Leaside Wealth Management Inc. and certain related parties (collectively, First Leaside) held assets primarily in commercial real estate, retirement residences and residential apartments, and provided investment and wealth management services. First Leaside sought and obtained CCAA protection in February 2012. The initial order granting protection was opposed by certain mortgagees and construction lien claimants. These creditors also opposed the granting of certain super-priority charges.

In dismissing the objections raised by these creditors, the Ontario Court cautioned against the application of Re Indalex to cases not involving pension claims, and remarked that it was difficult to see how constitutional issues of paramountcy arise in CCAA proceedings involving ordinary secured creditors. The Ontario Court expressed the view that, while in the normal course provincial legislation establishes the priority of secured claims against a debtor, when the debtor becomes insolvent, Parliament has the authority to establish the priority of secured claims for an insolvent company. Therefore, it was not required in the circumstances for the Ontario Court to invoke paramountcy and find that the purpose of the CCAA would be frustrated without priority charges (although, if a finding was necessary, the Ontario Court held that such priority charges were, in fact, necessary and appropriate to ensure that the objectives of the CCAA would not be frustrated).

On the appropriateness of the charges sought – an Administration Charge to secure payment of professional fees and a Directors and Officers Charge to secure the indemnity to directors and officers granted by the debtor – the Ontario Court, citing Timminco, held that professionals and lenders rely on the court-ordered charges in providing services and advancing funds and would likely not do so in the absence of the protection provided by the priority charges. The Ontario Court observed that the issue of priority of court-ordered charges should be addressed and finalized at the commencement of a CCAA proceeding.

Re Blutip

In Re Blutip in February 2012, which, like Re First Leaside, did not involve pension claims, the Ontario Court (citing Timminco and First Leaside) found that the value of establishing priorities at the outset of the proceeding, in order to promote stability and certainty, have equal application in receivership proceedings. Issues of paramountcy were not raised in this case.

Re White Birch

White Birch Paper Company and certain of its related entities (collectively, White Birch), constituted one of the largest paper manufacturers in North America. White Birch filed for and obtained court protection under the CCAA before the Quebec Superior Court (the Quebec Court) in February 2010, and thereafter obtained a super-priority charge to secure DIP financing. The initial order required White Birch to continue to pay current contributions to the DB pension plan it sponsored. However, White Birch was ordered not to make any special payments or "past service cost contributions" as they are known in Quebec. In October 2011, as a result of the Court of Appeal for Ontario's decision in Re Indalex, White Birch's union and groups of retired employees brought motions before the Quebec Court seeking a declaration that the obligations to make past service cost contributions had super-priority over a DIP charge and other super-priority charges granted by the initial order.

In its decision issued in April 2012, the Quebec Court refused to apply Re Indalex. Although the Quebec Court's decision was based on distinctions between Quebec civil law and common law, the Quebec Court also held that even if Quebec provincial pension legislation had the same legal effect as its counterpart in Ontario, the Quebec Court would have denied the motion for the reasons cited in the decision in Re Timminco; that is, the doctrine of paramountcy could be invoked. The Quebec Court found that the only alternative to a priority DIP charge was bankruptcy, in which there was "no chance" of a substantial recovery on the past service cost contributions at issue.

Further, the Quebec Court commented that Re Indalex was inconsistent with the decision of the SCC in Re Century Services Inc. The Quebec Court interpreted that case to stand for the proposition, among other things, that the only deemed trusts that are valid under the CCAA are those specifically mentioned under section 37 of the CCAA (which do not include priorities for pension deficits and past service cost contributions), and not those created by myriad provincial legislation.

Re Catalyst Paper Corporation

Catalyst Paper Corporation and certain related parties (collectively, Catalyst) is a producer of printing paper, newsprint and pulp. Catalyst sought and obtained CCAA protection in January 2012. The initial order issued by the Supreme Court of British Columbia (the BC Court) granting CCAA protection to Catalyst authorized and directed Catalyst to make all normal cost contributions to DB and defined contribution pension plans administered by Catalyst. Prior to the proceedings, Catalyst entered into a letter agreement with the British Columbia Superintendent of Pensions which permitted Catalyst to fund solvency deficiencies in the DB pension plans over a seven-year period, instead of the five-year period required under the British Columbia Pension Benefits Standards Act. The letter agreement provided that the extension would be rescinded if Catalyst filed for protection under the CCAA.

The parties entered into a court-approved settlement with the Superintendent of Pensions and counsel for certain pension claimants. The settlement compromised a claim advanced pursuant to the letter agreement. The settlement agreement, and the payments to be made thereunder, were consented to by Catalyst's DIP lender.

In order to deal with the issues raised in Re Indalex, an order was granted by the BC Court granting priority to the DIP charge over deemed trusts and claims for breaches of fiduciary duty on notice to, among others, various pension parties, including any employee, former employee, and any spouse or designated beneficiary of an employee or former employee, who is entitled to a benefit under the plans administered by Catalyst.

Subsequent to approval of the settlement, in February 2012, the Catalyst Salaried Employees and Pensioners Committee brought an application seeking an order allowing it to make representations on behalf of all Canadian employed or resident persons. As part of their submissions, counsel took issue with the priority of the various CCAA charges over the deemed trusts and claims for breaches of fiduciary duty. The BC Court declined to reopen the issue of priority, finding that the priority granted would permit Catalyst to remain in business on a stable and sustainable financial foundation for the benefit of all stakeholders including pension beneficiaries.

B. OTHER RECENT DIP FINANCING CASES

In addition to the cases discussed above, which considered Re Indalex, other recent decisions which considered DIP financing and other priority charges provide further guidance into the appropriate scope and terms of DIP financing in CCAA cases.

Re Crystallex – Scope of Interim Financing

Crystallex International Corporation (Crystallex) is a Canadian mining company, whose principal asset, an undeveloped gold deposit in Venezuela, had been expropriated by the Venezuelan government. As a result of the expropriation, Crystallex commenced an arbitration proceeding against the Venezuelan government seeking US$3.4-billion in damages. The arbitration is expected to be concluded in November 2012 and the arbitration claim is the only significant asset of Crystallex.

In December 2011, Crystallex obtained CCAA protection from the Ontario Court. Crystallex also sought authority to conduct a DIP auction to secure DIP financing which would provide it sufficient liquidity to, among other things, fund the balance of the arbitration proceedings. A group of noteholders opposed the proposed bidding procedures for the DIP auction on the basis that Crystallex was inappropriately seeking financing in excess of amounts required in advance of when a compromise or plan of arrangement could be made to creditors. After the DIP auction was approved over the noteholders' objections, a group comprising 77% of the noteholders submitted a bid to provide the DIP financing.

Crystallex rejected the bid from the noteholder group on the basis that the amount and term was insufficient and instead sought approval of a DIP facility from another creditor (Tenor). Substantially all of the creditors of Crystallex opposed the approval of the Tenor DIP facility. In particular, the noteholders objected to the amount and term of the Tenor DIP facility, arguing that the repayment date of December 31, 2016 was several years following the anticipated conclusion of the arbitration and would likely stretch beyond the end of the CCAA proceedings. Accordingly, it was submitted that the Tenor DIP facility did not represent "interim financing" as contemplated under the CCAA (the term DIP financing is not used in the CCAA; only the ability to approve interim financing is referred to).

The noteholders also objected to: the additional compensation to be received by Tenor equal to 35% of the net proceeds of any arbitral award (subject to certain conditions); the governance rights in favour of Tenor which would continue after Crystallex exited from CCAA protection; and, Tenor's approval rights to certain terms of any plan of arrangement or compromise put to creditors of Crystallex in the CCAA proceedings. The noteholders argued that these terms of the Tenor DIP facility represented a plan of arrangement or compromise in and of themselves which had not been approved by creditors of Crystallex. The noteholders argued that the Tenor DIP facility was beyond the scope of interim financing that the Ontario Court had the authority to approve under the CCAA.

The Ontario Court rejected the arguments of the noteholders. The Ontario Court found that the length of time during which a debtor is expected to be subject to CCAA proceedings is not a determinative factor in approving DIP financing under the CCAA. Instead, the Ontario Court found that the Tenor DIP facility would enhance the prospects of a viable compromise or arrangement, notwithstanding the added complexity that the consent rights would introduce.

The Court of Appeal for Ontario affirmed the lower court's decision, holding that while the primary purpose of section 11.2 of the CCAA is to secure interim financing required by the debtor while it is expected to be subject to proceedings under the CCAA, a further purpose is to enhance the prospects of a successful plan of compromise or arrangement and continuation of the debtor company. The Court of Appeal found that, although the Tenor DIP facility represented at least, in part, exit financing, it furthered the remedial purpose of the CCAA, and the granting of the order should be affirmed on that basis.

Great Basin Gold – Availability of New Collateral

Great Basin Gold Ltd. (GBGL) is a Canadian publicly traded international mining company which, through its subsidiaries, operates or holds title to gold mining assets in South Africa (Burnstone) and Nevada (Hollister). Following the commencement of business rescue proceedings in South Africa by the Burnstone subsidiaries, in late September 2012, GBGL commenced proceedings under the CCAA before the BC Court. On the initial hearing, which was conducted ex parte, GBGL obtained approval of DIP financing, secured by a DIP charge.

Prior to the CCAA proceedings, the Hollister and Burnstone subsidiaries had been financed under separate credit facilities (with the DIP lenders participating in both facilities) which were secured by separate collateral packages that were not cross-collateralized between the Hollister and Burnstone assets.

On a comeback hearing on notice to other key stakeholders, an ad hoc group of GBGL's senior unsecured debentureholders (the Debentureholders), objected to the approval of the DIP financing, and sought to substitute it with their own DIP financing proposal. The Debentureholders objected (1) to the requirement under the DIP financing, in consideration for the forbearance of the DIP lenders against the Hollister assets, that a Hollister subsidiary provide a secured guarantee of the existing Burnstone obligations (the Hollister Guarantee), which could be called upon in the event that the proceeds derived from the sale or restructuring of the Burnstone subsidiaries were insufficient to pay out the existing Burnstone obligations; and (2) that, as a condition of the DIP, a Burnstone subsidiary was required to enter into an advisory agreement with the DIP lenders, as advisers, under which the DIP lenders would earn an advisory fee upon the sale of the Burnstone assets (the Advisory Fee).

The Debentureholders asserted that the effect of the Hollister Guarantee represented a potential transfer of value to the existing GBGL lenders to the detriment of the Debentureholders and other unsecured creditors of GBGL, and that it offended section 11.2(1) of the CCAA, which prohibits a DIP charge from securing an obligation existing before the order is made. The Debentureholders also objected that the Advisory Fee was a disguised interest expense that, when taken together with the other interest and fees payable to the DIP lenders, constituted a criminal rate of interest contrary to the Criminal Code. The Debentureholders argued that the Debentureholders' DIP proposal was superior to the approved DIP because, among other things, the Debentureholders' proposal did not require a Hollister guarantee or an advisory relationship and payment of related fees.

In affirming its approval of the DIP financing, the BC Court held that the factors in section 11.2(4) of the CCAA governing approval of DIP financing should be applied in contested DIP circumstances to decide who should be the DIP lender and the terms on which the DIP financing should be provided.

The BC Court found in this case that the DIP lenders' proposal was the only viable financing option given GBGL's urgent need for funds and the failure of the Debentureholders to demonstrate that they would be able to provide such funding in the time-frame required. The BC Court found no violation of section 11.2(1), as the DIP Charge granted in the initial order did not secure the Hollister Guarantee. Also of consideration was the fact that the alternative DIP offered by the Debentureholders required the Hollister subsidiaries to become applicants in the CCAA proceedings for purposes of obtaining recognition of their proposed DIP financing in a U.S. Chapter 15 proceeding. The BC Court found that the Hollister subsidiaries had no assets and no business in Canada, and therefore could not be added as applicants to the proceedings, and as such the competing DIP proposal was not viable.

The BC Court relied on the recommendation of the board of directors of GBGL and the recommendations of the court-appointed Monitor in affirming the DIP approval.

The BC Court acknowledged that the statutory test required it to consider whether any creditor would be materially prejudiced as a result of the DIP charge, but found that the prejudice to the Debentureholders as a result of the Hollister Guarantee was speculative, as the Hollister Guarantee would not be called upon in a situation where the Burnstone assets were sufficient to pay out the existing Burnstone lenders.

The BC Court declined to decide the criminal rate of interest argument, leaving it open to be reargued on any distribution of proceeds of realization once sufficient facts were known to enable the BC Court to make a determination.

The Debentureholders were denied leave to appeal the decision of the BC Court by the Court of Appeal. An application to have the leave decision reviewed by a three-member panel of the Court of Appeal was filed and is currently pending, unless dismissed in connection with the completion of a court-approved settlement.

Northstar – Environmental Claims

Northstar Aerospace, Inc. and certain related entities (collectively, Northstar) manufactured component parts for the military and commercial aerospace markets in Canada and the U.S. Northstar sought and obtained protection under the CCAA in June 2012 before the Ontario Court. Northstar obtained DIP financing concurrently with the issuance of the initial order. The DIP financing was provided by Northstar's existing pre-filing lenders in order to fund the costs associated with operating the business pending the completion of a going-concern sale. The DIP loan agreement required repayment of the DIP loan immediately upon closing of the sale transaction, with the balance to be used to pay pre-filing debt owed to the lenders (subject to reserves for priority charges and post-filing payables).

The Ontario Ministry of the Environment (the MOE) became an active participant in the CCAA proceedings due to its claims in respect of historical environmental contamination at a dormant Cambridge, Ontario site owned by Northstar at which there were ongoing remediation efforts. Section 11.8(8) of the CCAA grants a first-ranking priority charge against the contaminated property to secure the costs of claims by the MOE for remediation costs of such contaminated property.

Northstar sought approval of a transaction for the purchase of substantially all of its assets other than the contaminated site, leaving the site and the associated environmental obligations to be dealt with in an expected subsequent bankruptcy. The MOE sought a declaration from the Ontario Court that an order issued by the MOE directing Northstar to remediate the Cambridge site was a "regulatory" order within the meaning of the CCAA and thus was not subject to the stay of proceedings provided for in the initial order.

The MOE also contested the sale approval and, in the alternative, requested that no proceeds of sale of other property be distributed pending further motions and submissions with respect to the MOE's entitlement to such proceeds. The DIP lenders responded by moving for a distribution of proceeds immediately upon closing with respect to amounts owing under both the DIP and pre-filing lending facilities.

In July 2012, the Ontario Court dismissed the MOE's motion to have the director's order declared a regulatory order and approved the sale of Northstar's assets. The Ontario Court also authorized and directed the Monitor to distribute proceeds to the DIP lenders immediately upon closing and approved the distribution of proceeds with respect to the pre-filing lending facility. The MOE sought leave to appeal. The MOE further challenged repayment of the DIP and the pre-filing loan facility by bringing an emergency motion before a single judge of the Ontario Court of Appeal to stay the distribution order pending final determination of the MOE's appeal.

In August 2012, the Court of Appeal heard and dismissed the MOE's emergency motion for a stay pending appeal, finding that there was no "serious question" to be decided. Notwithstanding that environmental issues in the CCAA context are currently before the Ontario Court of Appeal in the Nortel restructuring and before the SCC in the AbitibiBowater restructuring, the Court of Appeal agreed with the lenders' position in this case – that the MOE's motion to stay the distribution order was, in essence, a priority dispute between a secured creditor and an unsecured creditor. Neither the Nortel case nor the AbitibiBowater case involved distribution motions or claims of secured creditors to proceeds of sale.

Although the CCAA provides that the MOE has priority to proceeds of the contaminated site, the Court of Appeal held that the MOE had no basis to claim any entitlement to the sale proceeds in priority to the lenders, since the proceeds of sale did not relate to the contaminated site. This finding was consistent with an earlier finding of the Court of Appeal in the receivership of General Chemical.

The decision in Northstar with regard to MOE's asserted priorityis subject to a pending leave application before the Court of Appeal.

Hartford Computer – Roll-Up DIP

Hartford Computer Hardware, Inc. (Hartford Computer), a U.S.-based provider of technology products and services with operations in Canada, sought and obtained protection under Chapter 11 of the U.S. Bankruptcy Code in December 2011. The Chapter 11 proceedings were recognized in Canada under Part IV of the CCAA. In January 2012, Hartford Computer brought a motion under section 49 of the CCAA for recognition and implementation of, among other things, a final order of the United States Bankruptcy Court approving a DIP facility. The final U.S. DIP order provided for the application of cash in the possession or control of Hartford Computer on or after the filing date in the Chapter 11 case, against the pre-filing obligations owing to the DIP lender (in its capacity as pre-filing lender).

This is sometimes referred to as a "creeping roll-up" DIP as it allows the lender to apply cash receipts received post-filing to extinguish pre-filing indebtedness, while DIP advances are used to pay post-filing working capital needs. Eventually, the pre-filing indebtedness will be repaid as the DIP loan increases by the corresponding amount of the repaid pre-filing indebtedness. The pre-filing debt is thus "rolled-up" over a period of time into the DIP facility.

Section 11.2 of the CCAA provides that a DIP charge may not secure an obligation that exists before the initial order is made. Commentators have suggested that this provision may prohibit creeping roll-ups in Canada. The issue in Hartford Computer was whether the Ontario Court should apply section 11.2 in recognizing a DIP charge granted by a U.S. court in a foreign main proceeding. While creeping roll-ups had been approved in other Canadian courts, this was the first time the issue had been raised in Ontario. Given the apparent restrictions on roll-up DIPs imposed by section 11.2, the Ontario Court considered whether it should refuse to recognize the order on the basis of the public policy exemption in section 61(2) of the CCAA, which provides, in essence, that a court can refuse to recognize a foreign order if it would be contrary to Canadian public policy.

The Ontario Court granted the order recognizing the U.S. DIP order on the basis that it was satisfied that it was necessary for the protection of the debtor company's interest and that there was no material prejudice to Canadian creditors in granting the order. The Ontario Court declined to refuse the order on the basis of the public policy exemption, holding that the exemption should be interpreted restrictively and found no basis to second guess the decision of the U.S. court.

Hartford Computer is not authority in support of the proposition that creeping roll-ups will be approved in primary CCAA cases in Ontario. It stands only for the proposition that the Ontario Court may approve this funding vehicle in foreign recognition cases if the motion to do so is supported by appropriate evidence, including evidence that Canadian stakeholders will not be materially prejudiced.

CONCLUSION

A review of recent case law on DIP financing, demonstrates that courts across the country are cognizant of the need for restructuring companies to access critical financing in order to avoid an outcome that will be far more prejudicial to stakeholders than the granting of a DIP priority charge. This reasoning – that a request for approval of a priority DIP charge has to be considered in light of the achievable alternatives available to a debtor – resonates in cases, even where pension priorities are not an issue.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.