DEALING WITH THE LEASE: Dealing with Insolvent Parties LEXPERT Conference Toronto, Ontario November 25, 2009

Insolvent Parties (Statutes) A.CREDITOR PROTECTION STATUTES Companies Creditors’ Arrangement Act Bankruptcy and Insolvency Act

Insolvent Parties (Receivership) B. RECEIVERSHIP Private Court

Insolvent Parties (Impact on Landlord) C. IMMEDIATE IMPACT ON LANDLORD Events of Default Under Lease The Stay Payment of Rent

Insolvent Parties (Impact on Landlord) Use of Premises Assignment of Lease Damage to Premises

Insolvent Parties (Restructuring versus Bankruptcy) D. RESTRUCTURING VERSUS BANKRUPTCY Impact on Landlord Repudiation Formula Assignment of Lease Over Landlord Objection

Insolvent Parties (Claims Process) E. THE CLAIMS PROCESS BIA – Repudiation of Lease Section 65.2(4) – BIA: Right of Disclaimer Section 136 – BIA: Landlord’s Priority for Payment

Insolvent Parties (Claims Process) Limits on the Quantum of a Landlord’s Claim CCAA – Repudiation of Lease Section 32 – CCAA: Right of Disclaimer

Insolvent Parties (Claims Process) Section 32(7) – CCAA: Quantum of Provable Claim Limits on the Quantum of a Landlord’s Claim Disclaimer of Lease – Effects on a Landlord’s PPSA Security

Insolvent Parties (Claims Process) Classes of Creditors Requirement to Mitigate Completing the Proof of Claim

Insolvent Parties (Bankruptcy) F. BANKRUPTCY AND THE CUMMER- YONGE RULE Rights of Landlord’s Under Guarantees Rights of Landlord’s Under Letters of Credit Recent Developments

Insolvent Parties (Chattels & Fixtures) G. CHATTELS AND FIXTURES Determining the Date of Termination Transfer of Title to Landlord Effect of Vesting Orders

Insolvent Parties (Abandoned Assets) H. DEALING WITH ABANDONED ASSETS Tenant Assets Leased Assets

Insolvent Parties (Preparing for Worst) I. BEING PROACTIVE – PREPARING FOR THE WORST Responding to Warning Signs Taking the Initiative

Insolvent Parties (Preparing for Worst) Third Party Indemnities / Security or Letters of Credit Self-Help Remedies (doing it all wrong for the right result) TMI Adjustment (a hidden gem)