The Clover on Yonge Inc. and The Clover on Yonge Limited Partnership

CCAA

^{Page last updated: January 27, 2021}

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 June 22, 2020 (the “Filing Date”), The Clover on Yonge Inc. and The Clover on Yonge Limited Partnership, (the “Companies” or the “Applicants”) applied for and received an order (the “Initial Order”) for protection pursuant to the Companies’ Creditors Arrangement Act R.S.C.1985, c.C-36, as amended (“CCAA Proceedings”) from the Ontario Superior Court of Justice Commercial List (the “Court”), authorizing the Applicants’ current restructuring proceedings (the “Receivership Proceedings”) commenced under section 243(1) of the Bankruptcy and Insolvency Act to be transitioned to the CCAA Proceedings (the “Transition”). The Initial Order was amended on June 26, 2020 (the “Amended and Restated Initial Order”). The Amended and Restated Initial Order was further amended on July 22, 2020 (the “Further Amended and Restated Initial Order”) and includes among other things, a stay of proceedings against the Companies, and the appointment of PricewaterhouseCoopers Inc., LIT as monitor of the Applicants (“PwC” or the “Monitor”).

The Further Amended and Restated Initial Order, among other things:

1. Approved a stay of proceedings up to and including October 2, 2020 (“Stay Period”), which applies against the Applicants, their Property and Business (as defined in the Initial Order) and the Monitor;
2. Authorized the Applicants to obtain and borrow pursuant to a term sheet substantially in the form attached as Exhibit “C” to the affidavit of Clifford McCracken sworn on July 8, 2020 (the “First DIP Facility”) up to a maximum of $128,500,000 from a syndicate of financial institution lenders (the “First DIP Lender”);
3. Authorized the Applicants to obtain and borrow under the debtor-in-possession Commitment Letter, dated as of June 24, 2020 (the “Second DIP Facility”) up to a maximum of $35,000,000 from 1252707 B.C. Ltd. (the “Second DIP Lender”);
4. Granted a first ranking charge, which charge shall rank pari passu with the Clover Receiver’s Charge (as defined in the Initial Order), in the amount of $1,000,000 (the “Administration Charge”), over the Property of the Applicants, as security for fees and disbursements of the Monitor, the Monitor’s counsel and the Applicants’ counsel;
5. Granted a second ranking charge, in the amount of $43,300,000 plus interest (the “Clover Receiver’s Borrowing Charge”), which charge represents a portion of the Receiver’s Borrowings Charge (as defined in the Receivership Order, dated March 27, 2020 and that is available on the Receiver’s website at www.pwc.com/ca/haloclover) that is attributable to the Applicants in the CCAA Proceedings;
6. Granted a third ranking charge, in the amount of $128,500,000 in favour of the First DIP Lender (the “First DIP Lender Charge”) as security for the First DIP Facility;
7. Granted a fourth ranking charge, in the amount of $35,000,000 in favour of the Second DIP Lender (the “DIP Lender Charge”) as security for the Second DIP Facility;
8. Granted a fifth ranking charge, in the amount of $100,000 (the “Directors’ Charge”), on the Property of the Companies, as security for the indemnity granted to the Applicants’ directors and officers; and
9. Approved the Transition to occur effective June 30, 2020.

In accordance with section 23 (1)(ii)(b) of the CCAA and the Initial Order, a notice was sent to all of the Applicants’ creditors who are owed $1,000 or more.

Status of File as of January 21, 2021

On January 21, 2021, the Monitor filed its Fifteenth Report with the Court to provide the Court with the Monitor’s views on the Applicants request for the Stay Extension, DIP Amendment and Ancillary Matters Order to extend the Stay Period and increase the borrowing limit under the Second DIP Facility, and to provide additional relevant updates.

Status of File as of January 21, 2021

On January 20, 2021, the Applicants filed a motion with the Court for an order (the “Stay Extension, DIP Amendment and Ancillary Matters Order”) to:

1. Extend the Stay Period from January 29, 2021 to and including the earlier of June 30, 2011 and the Plan Implementation Date (as defined in the Plan);
2. Approve an increase in the principal amount of the Second DIP Facility previously approved by this Court with 1252707 B.C. Ltd. from the principal amount of $47 million to the principal amount of $67.1 million, and approving the corresponding increase of the previously-granted priority charge over the Property of the Applicants to secure repayment of the Second DIP Charge; and
3. Approve the Thirteenth Report of the Monitor dated November 30, 2020 and the supplement thereto dated December 8, 2020, the Fourteenth Report of the Monitor dated December 15, 2020 and the supplement thereto dated January 5, 2021, the Fifteenth Report of the Monitor dated on or about January 21, 2021 and, in each case, the activities described therein.

The motion will be heard on January 26, 2021

Status of File as of January 15, 2021

All capitalized terms used below have the meaning given to them in the Applicants' Plan of Compromise and Arrangement dated November 6, 2020, as amended (the "Plan").

The Plan was approved by the requisite majorities of both creditor classes at the Creditors’ Meeting on December 15, 2020 and sanctioned by the Court on January 8, 2021.

The terms of the Plan require the Pre-Sale Purchasers to make an election for either the Purchase Option or the Compensation Option. Among other things, the terms of the Purchase Option include an increase in the purchase price, subject to a further adjustment to be determined by the Applicants’ appraiser. The Applicants anticipate receiving this information by January 20, 2021 and will communicate it to the Pre-Sale Purchasers thereafter.

Per the Plan, the deadline to make the Purchase Option Election is January 18, 2021. In order to give better effect to the implementation of the Plan, the Applicants, with the consent of the Monitor, are extending the deadline for the election. The Monitor will communicate the revised deadline in the coming days.

Further details and the forms for making the relevant elections will be communicated to Pre-Sale Purchasers subsequent to purchase price information becoming available.

Status of File as of January 8, 2021

On January 8, 2021, the Court issued an order (the “Sanction Order”) which among other things:

1. Sanctioned and approved the Plan pursuant to section 6 of the CCAA;
2. Authorized and directed the Applicants and the Monitor, as the case may be, to implement the Plan and the transactions contemplated therein in accordance with and subject to the terms of the Plan;
3. Authorized the Applicants and the Monitor to make any distributions, deliveries or allocations or take any steps or actions related thereto pursuant to the Plan and in accordance with the terms of the Plans;
4. Declared that the Stay Period is in effect up to and including January 29, 2021; and
5. Declared that the Pre-Sale Contracts are hereby automatically disclaimed effective as of the Plan Implementation Date; and
6. Approved the Monitor’s Reports and activities of the Monitor described therein.

Status of File as of December 17, 2020

The rescheduled Creditors’ Meeting was held at 2:00pm on December 15, 2020 pursuant to the Meeting Order. Based on the votes of Voting Claims, both the Depositor Creditor Class and General Unsecured Creditor Class voted in the Requisite Majorities to approve the Plan. The results of the Creditors' Meeting are discussed further in the Monitor's Fourteenth Report to the Court dated December 15, 2020.

The Sanction Hearing has been adjourned to January 7, 2021.

Status of File as of December 10, 2020

The Creditors’ Meeting has been rescheduled further to December 15, 2020 at 2:00pm Eastern Standard Time.  The Proxy Deadline has been extended to December 14, 2020 at 5:00 pm Eastern Standard Time.

The meeting has been rescheduled at the request of certain creditors, and with the support of the Applicants.  No further amendments to the Plan or the Purchaser RSA have been made.

These developments are discussed further on the Virtual Creditors’ Meeting / Plan Information page of this website.  Creditors holding Eligible Voting Claims should review the Supplementary Report and other materials posted on that page for further information.

Status of File as of December 8, 2020

On December 8, 2020, the Monitor filed a Supplementary Report to the Monitor’s Thirteenth Report dated November 30, 2020, which provided an update on negotiations concerning the Plan, the amendments being made to both the Plan and the Purchaser RSA as a result of those discussions, and the implications for creditors in the CCAA Proceedings.

The Creditors’ Meeting has been rescheduled to December 14, 2020 at 10:00am Eastern Standard Time. The Proxy Deadline has been extended to December 11, 2020 at 11:59 pm Eastern Standard Time.

These developments are discussed further on the Virtual Creditors’ Meeting / Plan Information page of this website. Creditors holding Eligible Voting Claims should review the Supplementary Report and other materials posted on that page for further information.

Status of File as of December 6, 2020 - Adjournment of December 7, 2020 Creditors’ Meeting

Please be advised that pursuant to the terms of the Meeting Order made in the CCAA Proceedings, the Creditors’ Meeting scheduled for December 7, 2020 is being adjourned (i.e. postponed). We expect the Creditors’ Meeting will be rescheduled for a date in the week commencing December 14, 2020.  You will be notified of the rescheduled date for the Creditors’ Meeting as soon as it is confirmed.

The reason for the adjournment is that changes are being made to both the plan of compromise and arrangement (the “Plan”) of The Clover On Yonge Inc. and The Clover On Yonge Limited Partnership (collectively “Clover”) and the Restructuring Support Agreement dated as of August 19, 2020 (the “Restructuring Support Agreement”) entered into by and among certain purchasers of pre-sale condominium units from Clover (the “Pre-Sale Purchasers”) and Concord Pacific Developments Inc. and certain of its affiliates (together, the "Sponsors”).  The Restructuring Support Agreement was outlined in the Monitor’s Thirteenth Report dated November 30, 2020.  Further time is required to complete the amendments and to disseminate the updated documents to Affected Creditors and allow them to review the amendments and have an opportunity to sign on to the amended Restructuring Support Agreement.

These revisions are being made as a result of negotiations between Clover and the Sponsors and certain stakeholders (facilitated by the Monitor over the past few days), which have resulted in amendments to the Restructuring Support Agreement that will increase recoveries to Pre-Sale Purchasers who sign the agreement, if the Plan is approved.

Pre-Sale Purchasers who have not already signed the Restructuring Support Agreement and wish to do so will be given 5 business days to review and sign the amended Restructuring Support Agreement prior to the rescheduled Creditors’ Meeting.

Further information on the amendments to the Restructuring Support Agreement, as well as a supplementary report of the Monitor concerning these amendments, will be posted to the Monitor’s website late on December 7, 2020.

Given the adjournment of the Creditors’ Meeting, the deadline for the Monitor to receive Proxy Forms is now extended to 1:00pm Eastern Time on the Business Day before the rescheduled Creditors’ Meeting (the “Proxy Deadline”).  Should any Creditor wish to change their vote or otherwise amend their Proxy Form, the Proxy Form needs to be received by the Monitor before the Proxy Deadline.

Creditors may also attend and vote at the rescheduled Creditors’ Meeting if they wish.

The Monitor has sent electronic login details for the Creditors’ Meeting to those parties eligible to attend and/or vote.  Parties can use the same login details to attend the rescheduled Creditors’ Meeting.

Further information will be available on the Monitor’s dedicated website, and questions can be submitted to halo.clover@pwc.com.

Status of File as of November 25, 2020

A virtual meeting (the "Creditors' Meeting") of the Depositor Creditor Class and the General Unsecured Creditor Class (both defined in the Plan) of The Clover on Yonge Inc. and The Clover on Yonge Limited Partnership is to be held on December 7, 2020 at 10:00 a.m. (Toronto Time) by live audio webcast online for the purpose of considering and voting upon the Plan filed by the Applicants. Further information on this meeting is available on the "Virtual Creditors' Meeting/Plan Information" subpage of this website.

Status of File as of November 10, 2020

On November 9, 2020, the Monitor filed its Eleventh Report (the “Eleventh Report”) in conjunction with the Applicants’ motion for the Meeting Order.

Status of File as of November 7, 2020

On November 6, 2020, the Applicants filed their motion for an order (the “Meeting Order”) to, among other things:

1. Accept the filing by the Clover CCAA Applicants of their plan of compromise and arrangement (the “Plan”), the most recent draft of which is attached to the
2. Affidavit of Clifford McCracken sworn November 6, 2020 (the “Tenth McCracken Affidavit”), as part of the motion materials dated November 6, 2020;
3. Authorize the Applicants to establish two voting classes, being the Depositor Creditor Class (as defined in the Plan) and the General Unsecured Creditor Class (as defined in the Plan);
4. Authorize the Applicants to call, hold and conduct a meeting of the Depositor Creditor Class and the General Unsecured Creditor Class to consider and vote on a resolution approving the Plan (the “Meeting”);
5. Authorize and direct the mailing and distribution of certain meeting materials and other procedures to be followed to provide notice of the Meeting;
6. Approve the procedures to be followed at the Meeting, including voting procedures;
7. Set a date for the hearing of the Applicants’ motion seeking an order to sanction the Plan; and
8. Approve the sale and investment solicitation process attached to and described in the Tenth McCracken Affidavit (the “SISP”) and authorize and direct the Monitor to commence the SISP if the Plan is not approved at the Meeting or is not sanctioned.

The motion will be heard on November 12, 2020.

Status of File as of November 5, 2020

On November 4, 2020 the Monitor filed its Tenth Report (the “Tenth Report”) in support of the Monitor’s application for a determination that the Loss of Bargain Claims do not exist in law and are not provable claims pursuant to the Claims Procedure approved by the Claims Procedure Order. On July 22, 2020.

Status of File as of October 30, 2020

On October 28, 2020, the Court issued an order (the “Stay Extension and DIP Amendment Order”) which, among other things:

1. Extended the Stay Period from October 30, 2020 to and including November 27, 2020; and
2. Authorized the Applicants to borrow up to $40 million under the Second DIP Facility and approved the corresponding increase of Second DIP Charge.

Status of File as of October 29, 2020

On October 29, 2020, the Monitor filed its motion for an order (the “Loss of Bargain Claims Order”) to, among other things, determine that the Loss of Bargains Claims do not exist at law and not recoverable.

The date for the motion has not been fixed yet.

Status of File as of October 27, 2020

On October 27, 2020, the Applicants filed a motion with the Court for an order, among other things:

1. Extending the Stay Period from October 30, 2020 to and including November 27, 2020; and
2. Approving an increase of the Second DIP Facility from the principal amount of $35 million to the principal amount of $40 million, and approving the corresponding increase of the previously-granted priority charge over the assets, properties and undertakings of the Clover CCAA Applicants (the “Property”) to secure repayment of the amounts borrowed by the Clover CCAA Applicants under the Second DIP Facility (the “Second DIP Charge”).

On the same date the Monitor filed its Ninth Report (the “Ninth Report”) to provide the Court with the Monitor’s views on the Applicants’ request for an extension of the Stay Period to and including November 27, 2020.

The motion will be heard on October 28, 2020.

Status of File as of October 9, 2020

The Monitor has issued a letter (“Letter”) on the current status of the CCAA Proceedings, in particular, on the status of classification of the creditors. The Meeting proposed to be held on October 21, 2020 has now been cancelled. A copy of the Letter is available here.

On October 9, 2020, Justice Hainey issued an endorsement (the “Endorsement”) advising that the Court will hear the classification dispute at the earliest opportunity if it cannot be otherwise resolved. The Endorsement is available here.

Status of File as of October 1, 2020

On September 30, 2020 the Court issued the Second Further Amended and Restated Initial Order, which among other things:

1. Extended the Stay Period from October 2, 2020 to and including October 30, 2020;
2. Approved an increase of the First DIP Facility from the principal amount of $128,500,000 to the principal amount of $134,000,000, and approve the corresponding increase of the previously-granted First DIP Lender Charge; and
3. Approve the Monitor’s Reports.

Status of File as of September 29, 2020 

On September 29, 2020 the Applicants filed a motion for an order (the “Second Further Amended and Restated Initial Order”) to, among other things:

1. Extend the Stay Period from October 2, 2020 to and including October 30, 2020;
2. Approve an increase of the First DIP Facility from the principal amount of $128,500,000 to the principal amount of $134,000,000, and approve the corresponding increase of the previously-granted First DIP Lender Charge; and
3. Approve the Pre-Filing Report, the First Report, the Second Report, the Third Report, the Fourth Report, the Fifth Report, the Sixth Report, the Seventh Report

and the Eighth Report of the Monitor and the activities described therein (the “Monitor’s Reports”).

Status of File as of September 28, 2020 

On September 25, 2020, the Monitor filed its Eighth Report (the “Eighth Report”) with the Court to provide the Court, among other things, with an update on the status of the Meeting Order, the Claims Procedure and the Applicants’ cash flows.

Status of File as of September 4, 2020 

On August 30, 2020, a case conference occurred with Justice Koehnen among certain parties to this proceeding. On September 2, 2020, Justice Koehnen advised the Monitor that as a result of information he received during the case conference, he was concerned that a conflict may have arisen that would make it preferable for the Cresford matters to proceed before another judge. Justice Hainey will now assume carriage of these matters. 

Justice Hainey has directed that the outstanding motions will proceed on the following schedule: 

1. The CCAA Applicants wish to bring an urgent motion to extend the DIP. Justice Hainey will hear that motion on Tuesday, September 8, 2020 at 2:30 pm. 
2.  The disclaimer motion argued before Justice Koehnen on August 20, 2020 will be reargued before Justice Hainey. The creditor classification motion scheduled before Justice Koehnen for August 31, 2020 and adjourned will be argued before Justice Hainey. Both motions will proceed before Justice Hainey on September 30, 2020. 

The Creditors’ Meeting previously scheduled for September 21, 2020 has been postponed to a later date to be confirmed.

Status of File as of September 3, 2020

The hearing scheduled for September 4, 2020 in respect of an order to disclaim the condominium unit purchase agreements has been adjourned at the request of the Court.

Status of File as of September 1, 2020

On September 1, 2020, the Monitor filed its Seventh Report (the “Seventh Report”) with the Court to provide the Court with information concerning:

1. The status of the two interim financing facilities previously approved by the Court; and
2. The status of negotiations between the Applicants and certain groups of Pre-Sale Purchasers (as defined in the Seventh Report).

Status of File as of August 30, 2020

On August 28, 2020, the Monitor filed its Sixth Report (the “Sixth Report”) with the Court to provide the Court with:

1. An update with respect to the review of the security of the Applicants’ pre-filing secured creditors undertaken by the Monitor’s independent legal counsel, McCarthy Tétrault LLP (“McCarthys”);
2. An update on the status of the Claims Procedure as approved by the Claims Procedure Order; and
3. The Monitor’s views with respect to the classification of creditors as reflected in the proposed Plan.

The motion for the classification of the creditors scheduled for August 31, 2020 has been adjourned.

Status of File as of August 23, 2020

On August 20, 2020 the Court issued an order (the “Initial Meeting Order”) which approved the calling of the Creditors’ Meeting on September 21, 2020 to vote on the Plan, subject to any rulings of the Court at the further hearing on August 31, 2020 with respect to the classification of the creditors.

The hearing for an order (the “Disclaimer Order”) to disclaim the condominium unit purchase agreements between the Clover Pre-Sale Purchasers (as defined in the Factum of the Applicants dated August 13, 2020) and the Applicants has been adjourned to September 4, 2020.

Status of File as of August 19, 2020

On August 18, 2020, the Monitor filed its Fifth Report (the “Fifth Report”) to provide the Monitor’s views on the motion of the Applicants for the Meeting Order to, inter alia, approve the filing of the proposed Plan and the convening of a meeting of creditors (the “Creditors’ Meeting”) to consider the Plan.

The motion will be heard on August 20, 2020.

Status of File as of August 16, 2020

On August 15, 2020, the Monitor filed its Fourth Report (the “Fourth Report’) with the Court to provide the Court with the information in connection with:

1. The Applicants’ motion to disclaim the existing contracts (each a “Pre-Sale Contract”) of pre-construction condominium unit purchasers (the “Pre-Sale Purchasers”) in the Clover Project; and
2. The two expert reports of Pelican Woodcliff Inc. (“Pelican”), dated July 31, 2020 (the “Original Pelican Report”) and August 9, 2020 (the “Second Pelican Report”), concerning their review of the Appraisal Report and the Updated Construction Budget prepared by Altus (each defined in the Fourth Report).

The motion will be heard on August 20, 2020.

Status of File as of July 23, 2020

On July 22, 2020, the Court issued the Claims Procedure Order which, among other things, approving the Claims Procedure for the determination and resolution of claims filed against the Applicants.

On the same date, the Court issued the Further Amended and Restated Initial Order which, among other things,

1. Approved the First DIP Facility in the amount of $128,000,000 and granted a third ranking charge on the Property of the Applicants to secure the repayment of the amounts borrowed; and
2. Sealed the unredacted copy of the First DIP Term Sheet.

Status of File as of July 22, 2020

On July 21, 2020, the Monitor filed its Third Report (the “Third Report”) with the Court which has been prepared in connection with a motion made by representatives of a group of preconstruction condominium unit purchasers (the “Pre-Sale Purchasers”) for an order compelling the disclosure of the Appraisal Report, as defined and discussed in the Third Report, which motion is to be heard on July 22, 2020. The Third Report also provides a brief update in respect of the DIP Facility.

Status of File as of July 16, 2020

The Claims Procedure Motion that was scheduled to proceed on July 17, 2020 has been adjourned by the Applicants for a short time.  Counsel has asked the Court to use the July 17th date for a case conference in respect of the motion.  Further information in respect of the application will be posted to this website following the case conference.

Status of File as of July 15, 2020

On July 15, 2020, the Applicants filed a motion (the “Claims Procedure Motion”) for an order (the “Claims Procedure Order”) approving the claims procedure (the “Claims Procedure”) to be conducted in the CCAA proceedings for the determination and resolution of claims against the Applicants.

The Claims Procedure Motion will be heard on July 17, 2020.

Status of File as of July 9, 2020

On July 8, 2020, the Applicants filed a motion with the Court for

1.   an order (the “Further Amended and Restated Initial Order”) to, among other things:

a. Approve a debtor-in-possession financing facility with a syndicate of financial institutions (the “First DIP Facility”) for $128,500,000 and granting a priority charge (the “First DIP Charge”) over the Property of the Applicants to secure the repayment of the amounts borrowed;

b. Seal the unredacted term sheet reflecting the commercially-sensitive terms of the First DIP Facility (the “First DIP Term Sheet”); and

2. An order (the “Meeting Order”) to, among other things:

a. Accept the filing by the Applicants of the plan of compromise and arrangement (the “Plan”);

b. Authorize the establishing of one voting class of creditors, being the General Unsecured Creditors Class (as defined in the Plan);

c. Authorize the Applicants to hold a meeting of the General Unsecured Class to consider and vote on the Plan (the “Meeting”);

d.  Approve the notice of the Meeting;

e. Approve procedures at the Meeting;

f. Set the date for the Court hearing to seek sanctioning of the Plan; and

g. Approve the disclaimer of the Applicants’ existing condominium unit purchase agreements.

The motion will be heard on July 17, 2020.

Status of File as of June 26, 2020

On June 26, 2020, the Court issued the Amended and Restated Initial Order which among other things:

1. Extended the Stay Period to and including October 2, 2020,
2. Approved the DIP Facility in the principal amount of $35 million; and
3. Granted a charge in favour of the DIP Lender to secure the repayment of amounts borrowed under the DIP Facility.

On June 25, 2020, the Monitor filed its First Report (the “First Report”) with the Court to provide the Court with its view with regards to the Applicants’ motion for the Amended and Restated Initial Order.

The motion will be heard on June 26, 2020.

Updates on the Receivership Proceedings are posted here.