Tag: insolvency process

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TRUSTEE IN BANKRUPTCY: CERTAIN ACTIONS AGAINST TRUSTEE CAN BE UNLEASHED WITHOUT FIRST REQUIRING COURT PERMISSION

trustee in bankruptcy
trustee in bankruptcy

We hope that you and your family are safe, healthy and secure during this COVID-19 pandemic.

Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

If you would prefer to listen to the audio version of this Brandon Blog, please scroll to the very bottom and click play on the podcast.

Trustee in Bankruptcy: No action against Trustees without leave of court

Canadian insolvency laws say that there cannot be any legal action against trustees in bankruptcy (now called a licensed insolvency trustee) without the prior leave of the court. The leave application, more often than not, would be brought before a Bankruptcy Judge. However, as you will see below, any Judge of the Ontario Superior Court of Justice could hear such an application involving a trustee in bankruptcy.

Section 215 of the Bankruptcy and Insolvency Act (Canada) (BIA) protects the Canadian bankruptcy laws for all officials in the bankruptcy process, including the bankruptcy trustee:

“215 Except by leave of the court, no action lies against the Superintendent, an official receiver, an interim receiver or a trustee with respect to any report made under, or any action taken pursuant to, this Act.”

In my January 9, 2019, Brandon Blog, PRIVACY BREACH LAWSUIT AGAINST LICENSED INSOLVENCY TRUSTEE FAILS, I described one attempt that failed to obtain leave of the court to begin litigation against a trustee in bankruptcy.

Our bankruptcy and insolvency courts believe that the test to determine whether a court should use its discretion to give leave for litigation to be commenced against either a trustee in bankruptcy or a court-appointed receiver was not a tough test. The protection is only to ensure that the receiver or trustee in bankruptcy is protected against senseless or burdensome actions that have no basis.

In this Brandon Blog, I describe a recent Ontario court decision that further clarifies a basis for when the court will exercise its discretion and allow litigation against a licensed trustee in bankruptcy. As the Motions Judge used the old terminology, I will stick with it in this blog.

Action against the trustee in bankruptcy background

The Motion Judge‘s Endorsement was released on May 31, 2021. The Endorsement was from a motion by the plaintiff for a determination as to whether or not leave of the court under S.215 of the BIA was required. The plaintiff’s position was that it was not, but if it was, such leave should be granted. The defendant trustee in bankruptcy’s position was that leave was required and should not be granted.

The plaintiff, Mr. Flight, ended up filing bankruptcy proceedings 4 times over a 13 year period of time! He filed the same type of bankruptcy over and over again! He claims his financial situation is the fault of the defendant trustee in bankruptcy. He used the same trustee in bankruptcy for all of his bankruptcies! It is not clear in this motion how the trustee is responsible for his having to file personal bankruptcy all those times.

Mr. Flight brings on litigation against the trustee in bankruptcy claiming negligence, fraud, breach of fiduciary duty, unjust enrichment and conversion. The complainant claims the accused failed to identify and take suitable action relating to a fraud perpetrated by the bookkeeper for Mr. Flight’s sole proprietorship business.

The plaintiff’s amended claim seeks a declaration the defendant engaged in misfeasance, negligence, fraud and breach of fiduciary duty in his personal capacity, and that the defendant was unjustly enriched.

trustee in bankruptcy
trustee in bankruptcy

The plaintiff’s claim against the trustee in bankruptcy

The main subject matter of the claim alleges the bookkeeper’s theft caused the plaintiff’s repeated bankruptcies and that the defendant trustee in bankruptcy ought to have detected this fraud in the administration of the four bankruptcies.

The plaintiff maintains that the trustee in bankruptcy then failed to take any meaningful action to address the alleged fraud and its impact on the fourth bankruptcy after its discovery. In particular, the plaintiff claims the trustee failed to diligently commence an action against the former bookkeeper, failed to investigate the fraud, failed to adjust the plaintiff’s surplus income, failed to recommend debt relief options or financial options, and certainly no other possible insolvency process such as a consumer proposal alternative to bankruptcy and failed to have the plaintiff promptly discharged from his fourth bankruptcy.

The defendant’s alleged “grand failure to act” caused Mr. Flight damages of $10 million from loss of business, loss of profit, loss of income and pain and suffering.

The court’s analysis

As I mentioned above, the threshold issue under Canadian insolvency legislation is whether the plaintiff required leave to commence this action. If it is determined that leave is required, the analysis then moves to whether the claim meets the test for leave.

The Motion Judge stated that there is authority to support the plaintiff’s position that the insolvency laws state that leave is not required where the trustee in bankruptcy is being sued in its personal capacity.

More particularly, the Supreme Court of Canada held that the leave provision under the BIA is not to be interpreted as though it applied to any action arising out of the administration of the estate. That is not the way section 215 is worded. To allege that the trustee in bankruptcy made an act of omission is a claim that is not concerning a report made under or any action taken according to the BIA.

trustee in bankruptcy
trustee in bankruptcy

Trustee in bankruptcy: The court’s decision

The plaintiff alleges causes of action against the trustee in bankruptcy in his personal capacity in their amended statement of claim and affidavit materials for negligence, fraud, breach of fiduciary duty, unjust enrichment and conversion starting with the confidential consultation and with each bankruptcy assignment. The Motion Judge concluded that the plaintiff does not require leave under s. 215 of the BIA to commence this action. Based on this conclusion, the Motion Judge did not need to consider anything further.

You will observe as I previously stated, none of the court’s evaluation had anything to do with whether the claims had a possibility of success in its litigation legal process. The Motion Judge, who was not a Bankruptcy Judge but rather a Motion Judge felt the accusations were such that they were not purposeless or burdensome actions that have no basis.

As the main action will now proceed, I will follow the case to find out the exact details and the various bankruptcy claims that Mr. Flight is making regarding the conduct of trustees involved. As the case is reported, I will report to you.

Finding a good, Licensed Insolvency Trustee (Trustee In Bankruptcy) Near You

I hope that you found this trustee in bankruptcy Brandon Blog interesting. If you are concerned because you or your business are dealing with substantial debt challenges and you assume bankruptcy is your only option, call me.

It is not your fault that you remain in this way. You have actually been only shown the old ways to try to deal with financial issues. These old ways do not work anymore.

The Ira Smith Team utilizes new modern-day ways to get you out of your debt difficulties with debt relief options as alternatives to bankruptcy. We can get you the relief you need and so deserve. Our professional advice will create for you a personalized debt-free plan for you or your company during our no-cost initial consultation.

The tension put upon you is big. We know your discomfort factors. We will check out your entire situation and design a new approach that is as unique as you and your problems; financial and emotional. We will take the weight off of your shoulders and blow away the dark cloud hanging over you. We will design a debt settlement strategy for you. We know that we can help you now.

We understand that people and businesses facing financial issues need a realistic lifeline. There is no “one solution fits all” method with the Ira Smith Team. Not everyone has to file bankruptcy in Canada. The majority of our clients never do as we know the alternatives to bankruptcy. We help many people and companies stay clear of filing an assignment in bankruptcy.

That is why we can establish a new restructuring procedure for paying down debt that will be built just for you. It will be as one-of-a-kind as the economic issues and discomfort you are encountering. If any one of these seems familiar to you and you are serious about getting the solution you need to become debt-free, contact the Ira Smith Trustee & Receiver Inc. group today.

Call us now for a no-cost bankruptcy consultation.

We hope that you and your family are safe, healthy and secure during this COVID-19 pandemic.

Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

Categories
Brandon Blog Post

INSOLVENCY DEF: SHE HAS $100,000 IN DEBT AFTER A FAMILY EMERGENCY

We hope that you and your family are safe, healthy and secure during this COVID-19 pandemic.

Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

If you would prefer to listen to the audio version of this Brandon Blog, please scroll to the very bottom and click play on the podcast

insolvency def
insolvency def

What is insolvency def?

The insolvency definition (insolvency def) is a state of financial distress in which a person or company is unable to pay its debts. The definition of insolvency can be displayed in an insolvent person or the insolvent debtor company which arises from:

  • poor cash management;
  • a reduction in cash inflow;
  • an increase in expenses;
  • inadequate accounting controls and reporting;
  • a lack of proper human resources management; or
  • all of the above.

The purpose of this insolvency def Brandon Blog is twofold. First I will give a simple primer on what insolvency def is. Next, I will explain how a person can analyze their situation to determine if an insolvency process is for them and if so, which one.

I will use a real-life example that appeared earlier this week in the Toronto Star.

Factors contributing to insolvency

The above reasons can lead to different types of insolvency. The insolvency def can be looked at in a few different ways when considering factors and symptoms.

Balance Sheet insolvency def –

Balance sheet insolvency is when a person or company does not have enough assets, if fully collected or liquidated to pay off all of their debts.

Cash flow insolvency def –

Cash-flow insolvency is when an individual or company has enough assets, if fully collected or liquidated, to pay what is owed. Nevertheless, they do not have enough cash to pay their creditors in full.

What is the difference between technical insolvency and actual insolvency def?

While insolvency def in the technical sense is a basic synonym for balance sheet insolvency, cash-flow insolvency is not the same as insolvency under the Bankruptcy and Insolvency Act (Canada) (BIA).

insolvency def
insolvency def

What Is an insolvent person according to the BIA?

“Insolvent person” according to the BIA insolvency def is a person or company that is not bankrupt and is resident, carries on business or has property in Canada, whose liabilities to creditors provable as claims under the BIA amount to $1,000 or more and which for any reason they are not able to pay those obligations as they typically come to be due.

Further, if the insolvent person or the insolvent company liquidated all of their assets, there would still not be enough money to pay off all of the amounts owing to creditors; both secured creditors and unsecured creditors.

What does the insolvent def mean financially?

Now that I have given you the textbook insolvency def, let us look at a real-life example. Every Monday in the Toronto Star there is a column called Millenial Money. This past Monday, Evelyn Kwong wrote about a 34-year-old named Chele. Chele earns $45,000 per year gross.

As I understand it, she borrowed $100,000 to pay for medical expenses back home in the Philippines for a family member. Also, her ex-husband racked up an amount of debt that she is also responsible for. It is unclear from the article if the two sets of debt obligations total $100,000 or something greater.

They presented Chele’s situation to a financial expert to give advice. After looking at Chele’s debt situation, he advised that she speak with a licensed insolvency trustee to determine if a consumer proposal or a bankruptcy proceeding would be best to alleviate Chele of her outstanding debts.

insolvency def
insolvency def

What If I Am Insolvent?

What is Chele’s situation? First, let us look at her monthly statement of income and expenses:

Monthly take-home pay$2,200
Recurring monthly expenses:
Rent 700
Transportation810
Food250
Sports and hobbies 50
Cell and internet100
Personal300
Monthly total expenses $2,210

So Chele is able to essentially balance her cash-flow budget. Her take-home pay is presumably after income tax and other deductions. We can assume that she either receives a small refund on her tax return or at least does not owe any income tax.

As she rents, she does not own a home. Her transportation costs are for her car which is financed. Let us assume that the equity she has in her car fits into her provincial exemption so that a licensed insolvency trustee would have no interest in her car.

So Chele has no assets other than her car and she owes at least $100,000. Now we can look at the consumer proposal as an alternative to bankruptcy vs her doing an assignment in bankruptcy filing.

Consumer proposal vs bankruptcy proceeding

As I have written before, a consumer proposal is an insolvency process under the BIA for any person who owes $250,000 or less, not including any debts secured by their personal residence. It is a debt settlement arrangement to pay your unsecured creditors less than the total you owe in order to relieve yourself of all of your debt obligations.

A person can take up to 5 years to make the regular monthly payments to the licensed insolvency trustee acting as the Administrator in the consumer proposal. The insolvency trustee then distributes the total amount agreed to by the creditors and paid by the insolvent debtor as a dividend distribution. Once the insolvent debtor fully completes the consumer proposal, they are relieved of all of their unsecured debt balances (other than a few minor exceptions laid out in the BIA).

Canadian bankruptcy law says that any offer to the creditors in a consumer proposal has to be a better alternative for the creditors than they would get from the person’s bankruptcy estate. So first we need to calculate what the creditors could expect from Chele’s bankruptcy.

Chele has no assets available to her creditors. Her equity in her only asset, her car, is protected by her personal exemption for a vehicle in Ontario. There are no other known assets. All bankruptcy trustees are required to perform a surplus income calculation. In Chele’s case, she earns $2,200 per month net of tax, and she is allowed to earn as a single person in 2021 $2,400 per month before she is subject to any surplus income. So she also does not need to contribute any surplus income.

Assuming Chele has never been bankrupt before if she performs all of her duties in bankruptcy, she is entitled to a discharge from bankruptcy 9 months after the date of bankruptcy, unless a creditor opposes it. All she will be required to pay is the fee to the licensed insolvency trustee to administer her bankruptcy.

In a consumer proposal, in this case, she could offer anything because that would meet the requirement of being a better alternative than her bankruptcy. However, creditors generally expect to receive no less than 20% to 25% on their outstanding debt. So if Chele owes $100,000, at the midpoint of 22.5%, she would have to offer to pay her creditors $22,500 payable in monthly payments over no more than 5 years or 60 months. That works out to a monthly payment of $375. Chele does not have room in her budget right now to afford that monthly payment.

So in her case, unless she can figure out how to reduce her spending so that she can afford a monthly payment for the next 60 months, my advice to her would be to choose the bankruptcy option and file an assignment in bankruptcy. If all goes well, she can start to rebuild her life, free from all her unsecured debt, in 9 months’ time.

insolvency def
insolvency def

Insolvency def summary

I hope that you found this insolvency def Brandon Blog interesting. If you are concerned because you or your business are dealing with substantial debt challenges and you assume bankruptcy is your only option, call me.

It is not your fault that you remain in this way. You have actually been only shown the old ways to try to deal with financial issues. These old ways do not work anymore.

The Ira Smith Team utilizes new modern-day ways to get you out of your debt difficulties while avoiding bankruptcy. We can get you the relief you need and so deserve. Our professional advice will create for you a personalized debt-free plan for you or your company during our no-cost initial consultation.

The tension put upon you is big. We know your discomfort factors. We will check out your entire situation and design a new approach that is as unique as you and your problems; financial and emotional. We will take the weight off of your shoulders and blow away the dark cloud hanging over you. We will design a debt settlement strategy for you. We know that we can help you now.

We understand that people and businesses facing financial issues need a realistic lifeline. There is no “one solution fits all” method with the Ira Smith Team. Not everyone has to file bankruptcy in Canada. The majority of our clients never do. We help many people and companies stay clear of bankruptcy.

That is why we can establish a new restructuring procedure for paying down debt that will be built just for you. It will be as one-of-a-kind as the economic issues and discomfort you are encountering. If any one of these seems familiar to you and you are serious about getting the solution you need to become debt-free, contact the Ira Smith Trustee & Receiver Inc. group today.

Call us now for a no-cost consultation.

We hope that you and your family are safe, healthy and secure during this COVID-19 pandemic.

Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

Categories
Brandon Blog Post

COMPANIES’ CREDITORS ARRANGEMENT ACT: CREDITORS ARE NOW ABLE TO MAKE BOLD CLAIMS AGAINST LAURENTIAN

We hope that you and your family are safe, healthy and secure during this COVID-19 pandemic.

Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

companies' creditors arrangement act
Companies’ Creditors Arrangement Act

If you would like to listen to an audio version of this Companies’ Creditors Arrangement Act Brandon’s Blog, please scroll to the very bottom and click play on the podcast.

Companies’ Creditors Arrangement Act: Facing insolvency, Laurentian University files for creditor protection

Laurentian University’s filing under the Companies’ Creditors Arrangement Act has been reported in the media and I have written about it in previous Brandon Blogs. On February 1, 2021, Laurentian University filed for what the media calls the “bankruptcy protection process” under the Companies’ Creditors Arrangement Act. It is really a creditor protection process for a financial restructuring. A large amount of work and involving tough choices will definitely be required for Laurentian to emerge from this as a financially and operationally sound university.

This restructuring will call for difficult negotiations with its lenders, suppliers, faculty and labour unions. Laurentian will have to overhaul its academic programs and look for brand-new revenue generation opportunities to survive. As well it will require a re-evaluation of its federated colleges’ design (Laurentian is just one of 4 universities that make the Laurentian Federation; the others who are all part of the Laurentian Federation Agreement are: the University of Sudbury, the University of Thorneloe, and Huntington University).

The stay of proceedings provided by the Court gives Laurentian protection from creditors and prevents them from taking steps against Laurentian, without the prior leave of the Court. The Companies’ Creditors Arrangement Act filing means that Laurentian has concluded that it cannot fulfill its financial commitments as they end up being due and uses the protection supplied by this restructuring law to reduce its overall debt load without having to pay its debts in full.

FOR A FULL DESCRIPTION OF WHAT THE COMPANIES’ CREDITORS ARRANGEMENT ACT IS AND HOW IT WORKS, SEE OUR BLOG:

CCAA CANADA: OUR EXTRAORDINARY GUIDE TO 2020 TROUBLED CANADIAN COMPANIES SEEKING BANKRUPTCY PROTECTION

FAQ on the Companies’ Creditors Arrangement Act Insolvency Proceedings of Laurentian University

As I mentioned, I previously wrote three blogs so far on the Laurentian University Companies’ Creditors Arrangement Act insolvency process:

Every time there has been a major event in this court-supervised restructuring, I have written about it. So far the topics I have covered are:

  • The filing under the Companie’s Creditors Arrangement Act.
  • What creditor protection is under the “Bankruptcy Protection Legislation“.
  • What a stay period and a stay of proceedings are.
  • What does CCAA mean?
  • The Laurentian President affidavit upon filing and what it said about the university finances.
  • What Laurentian has said about its day-to-day operations, the Federated University model and the need to get out of that agreement and general oversight of university affairs.
  • The shock and the effect on Northern Ontario’s community over Laurentian’s filing.
  • The potential effect on current students, both undergraduate and graduate students and the overall student experience.
  • The initial list of creditors, both secured and unsecured creditors, in this restructuring process filing.
  • The unions have lost the fight to unseal documents relating to Laurentian communications with the provincial government.
  • Faculty and other staff terminations.
  • The union represents faculty members on a new collective agreement reached by Laurentian Union Faculty Association or LUFA.
  • Adjustments to the benefit pension plan and health benefit plan.
  • The failure of the non-Laurentian parties to the Federated University agreement in appealing Laurentian’s disclaimer of the Federated University model agreement.
  • The status of the interim financing DIP loan in the Companies’ Creditors Arrangement Act administration.
companies' creditors arrangement act
Companies’ Creditors Arrangement Act

So as you can see, all the topics that I have covered in these 3 previous Brandon Blogs really are answers to a legal FAQ regarding Laurentian University’s CCAA filing.

Decisions about Laurentian University being made by creditors, insolvency specialists and the Ontario Court but not public

The National Union of Public and General Employees have stated that in a free and democratic society, choices regarding publicly financed institutions are expected to be made by elected officials or people who are responsible to them. That makes sure that when choices are made the demands of our communities who are funding these institutions through our tax dollars and donations are considered.

But when such organizations, like Laurentian University, are permitted to use a bankruptcy protection statute like the Companies’ Creditors Arrangement Act, that responsibility is lost. All that matters is what the creditors either desire or are willing to accept. They want the federal government to change bankruptcy protection legislation so that this cannot happen again.

Liberal MP Paul Lefebvre introduced a bill in Parliament that aims to keep Laurentian University’s turmoil from happening at other schools. He and the Union believe that public institutions shouldn’t be allowed to use bankruptcy protection to force through cuts. I don’t believe that at this time, the bill has any traction to change bankruptcy legislation.

4 inspectors will be chosen to work with court monitor in the claims process

This now brings us current to the last attendance in the Ontario Superior Court of Justice Commercial List where Laurentian and its court monitor brought forward a claims process to be approved by the court in this Companies’ Creditors Arrangement Act process.

The lawyer for TD Bank advised the Court that TD supports the making of a Claims Process Order however feels that, in the circumstances, the procedure ought to contemplate that the Monitor will disclose its analysis of the claims filed with the Pre-filing Lenders. The Bank said that Laurentian and the Monitor have acknowledged that there may very well be material claims filed, some of which will be unliquidated and/or contingent. Some may be subject to a bona fide conflict – both relative to liability as well as quantum.

The Bank proposed a modification to the Monitor’s Claims Process where material cases should be discussed with the Pre-filing Lender group so that there could be a consensual resolution of such claims. The Bank said that it is reasonable as well as proper in this case to produce a reasonable and transparent process that enhances the goals of the Companies’ Creditors Arrangement Act.

Based upon information available to TD Bank at the time its factum was issued, the overall quantum of claims is unidentified, yet can sensibly be expected to include substantial claims representing: (a) the claims of the Pre-filing Lenders; (b) claims of current and also previous employees; (c) those of the federated colleges occurring from the termination and disclaimer of their contracts with Laurentian; (d) potential claims developing from the pension-related issues; as well as (e) claims of various other creditors with prefiling and also restructuring claims.

The Judge specified that he bore in mind the TD Bank submissions that it is extremely vital to move quickly, however not to rush. The Claims Process needs to be reasonable to all. He acknowledged that the Pre-filing Lenders should have some involvement in the Claims procedure. So the Judge borrowed from the provisions of the Bankruptcy and Insolvency Act (Canada) (BIA), as there were no specific rules for this in the Companies’ Creditors Arrangement Act. He ruled that there will be a bespoke process.

Laurentian and the Monitor should modify their proposed Claims Process by assigning 4 Inspectors; 2 of which will be representatives of the Pre-filing Lender group. The remaining 2 will be drawn from the creditors from those with a claim over $5 million.

The Inspectors will:

  • Be selected by the Monitor who will devise an appointment process.
  • Act in the interests of all creditors.
  • Stand in a fiduciary capacity on behalf of all creditors.
  • Need to accomplish their duties on an impartial basis.
  • Are entitled to payment by following the payment structure for Inspectors set out in the BIA.
  • Help the Monitor in evaluating and admitting material claims.

    companies' creditors arrangement act
    Companies’ Creditors Arrangement Act

Laurentian expecting about 15 claims of more than $5M from creditors, court documents show

Laurentian reported that upon filing under the Companies’ Creditors Arrangement Act, it estimated its liabilities at $322 million. The categories of creditor groups are properly summarized by legal counsel for TD Bank recently in Court, indicated above.

The “bespoke” Claims Process approved by the Court is now underway. It is for all claims against Laurentian, but not including any form of compensation claim by any current or former employee. That type of claim has been defined by Laurentian and its Monitor as “Compensation Claims“. The Monitor advised the Court that it would soon come back to Court to get approval for a special process to establish the Compensation Claims.

The current Claims Process, not including any Compensation Claims, works like this:

  • Any creditor who has not received a Claims Package and who believes that he or
    she has a Claim against Laurentian, under the Claims Process Order must contact the Monitor
    in order to obtain a Proof of Claim form or visit the Monitor’s website.
  • Employees (and Former Employees) will not be receiving a Claims Package and do not need to complete a Proof of Claim at this time. Compensation Claims of Employees and Former Employees will be determined by a Court Approved Compensation Claims Methodology at a later date.
  • Three types of Claims qualify for this Claims Process: (i) Claims for amounts owing as at the date of Laurentian filing under the Companies’ Creditors Arrangement Act (Pre-filing Claims), February 1, 2021; (ii) Claims which arose as a result of the restructuring itself (Restructuring Claims); and (iii) Claims against senior management, Directors and Officers, the Board (D&O Claims).
  • In order to for Claims to be considered in the Claims Process, the fully completed Proof of Claim must be received by the Monitor no later than:
    • For Pre-filing Claims, 5:00 PM Toronto time on July 30, 2021 (Pre-Filing Claims Bar Date).
    • For Restructuring Claims, 5:00 p.m. (Toronto Time) on, whichever is later: (i) July 30, 2021, or (ii) the date that is 30 days after the date on which the Monitor sends a Proof of Claim Document Package to the Creditor with respect to such Restructuring Claim (Restructuring Claims Bar Date).
    • For D&O Claims, 5:00 PM Toronto time on July 30, 2021 (D&O Claims Bar Date).

No doubt the Monitor, the Inspector Group and Laurentian will be very busy sorting out all the Claims.

Public institutions shouldn’t be allowed to use bankruptcy protection to force through cuts

There has been an outcry from the public service community that public institutions should not be allowed to make use of Canadian insolvency laws like any other person or company that qualifies. I doubt that movement will get much traction.

I hope that you found this Companies’ Creditors Arrangement Act Brandon Blog interesting. If you are concerned because you or your business are dealing with substantial debt challenges and you assume bankruptcy is your only option, call me.

It is not your fault that you remain in this way. You have actually been only shown the old ways to try to deal with financial issues. These old ways do not work anymore.

The Ira Smith Team utilizes new modern-day ways to get you out of your debt difficulties while avoiding bankruptcy. We can get you the relief you need and so deserve. Our professional advice will create for you a personalized debt-free plan for you or your company during our no-cost initial consultation.

The tension put upon you is big. We know your discomfort factors. We will check out your entire situation and design a new approach that is as unique as you and your problems; financial and emotional. We will take the weight off of your shoulders and blow away the dark cloud hanging over you. We will design a debt settlement strategy for you. We know that we can help you now.

We understand that people and businesses facing financial issues need a realistic lifeline. There is no “one solution fits all” method with the Ira Smith Team. Not everyone has to file bankruptcy in Canada. The majority of our clients never do. We help many people and companies stay clear of bankruptcy.

That is why we can establish a new restructuring procedure for paying down debt that will be built just for you. It will be as one-of-a-kind as the economic issues and discomfort you are encountering. If any one of these seems familiar to you and you are serious about getting the solution you need to become debt-free, contact the Ira Smith Trustee & Receiver Inc. group today.

Call us now for a no-cost consultation.

companies' creditors arrangement act
Companies’ Creditors Arrangement Act

We hope that you and your family are safe, healthy and secure during this COVID-19 pandemic.

Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

Companies’ Creditors Arrangement Act

Categories
Brandon Blog Post

EARNOUT DEALS AND INSOLVENCY: THE BOLD WAY THEY NEED TO INTERSECT DUE TO TORONTO CORONAVIRUS

earnout
earnout

The Ira Smith Trustee Team is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting. We hope that you and your family are safe and healthy.

If you would like to listen to the audio version of this Brandon’s Blog, please scroll to the bottom and click on the podcast.

Earnout introduction

Our firm has recently started consulting with a business that has been deeply negatively affected by the Toronto coronavirus. I cannot tell you what it is, but I can confirm it is not in the food and beverage industry. Their cash flow budget shows they are going to soon run out of cash. That is bad news. The good news is that they are being courted by a company that wants to acquire them. The purchaser is proposing to pay a certain amount of cash on closing with an earnout deal as an upside.

The question they asked us, and the retainer that we will get, is to review the various options available to the target company. They want recommendations in case an insolvency process must be used to get either a refinancing deal with their banker or the sale completed.

We have had a very high-level discussion so far. It was immediately obvious to me that an insolvency process was not just a potential, it was a necessity. Not because the target company is going to crater tomorrow. Rather, for a different reason.

The business is currently viable but insolvent. That is the perfect combination in order to do a debt settlement plan combined with a corporate debt restructuring. My initial impression was that we can enhance either the refinancing or the sale by doing a corporate restructuring of debt.

Such a combination will enhance either option because:

  • In a refinancing, the restructuring will allow for a finite amount of money to go towards discharging all of the company’s unsecured debt, with the majority going to future operations.
  • For the sale, the purchaser will not be taking on many liabilities which will allow for a higher negotiated selling price.

You might think that the purpose of this Brandon’s blog is to focus on corporate restructuring, but it isn’t. Rather I want to focus on giving a basic primer on earnout deals.

What is an earnout structure?

An earnout structure is the combination of all the components which add up to the negotiated earnout sales agreement (merger agreement or earnout agreement). These elements consist of the purchase price, monetary and/or operating targets to be met or exceeded, upfront payment, as well as contingent payment.

The framework of the earnout agreement will have the earnout formula spelled out. The formula and full arrangement will be described in the particular clauses within the earnout agreement

Earnout clauses are part of the legal contract between the seller and the buyer. They normally contain 7 essential elements in the merger agreement: (1) overall acquisition price (2) the amount to be paid on closing (3) what the total potential additional purchase price contingent payment is based on the earnout formula (4) the length of time that the earnout deal applies for (earnout period) (5) what the financial and operational targets are (6) how the performance will be measured, and (7) the earnout cash payment formula and time frame each measurement period to make the calculated payment.

Why agree to an earnout arrangement?

When the buyer and seller have a difference of opinion on what the purchase/sale price should be, earnout clauses can bridge that void. It is a way to attempt to negotiate a deal that will be a win for both parties.

A remedy can be found through earnout payments. The buyer agrees to a purchase price which includes both a set payment on closing and a variable amount over a defined amount of time. It is computed depending upon the future growth of the target business. The earnout payments come to be due if the targets (both in performance and time frame) are met by the target business.

How does an earnout work?

As indicated above, there is an earnout formula in the agreement of purchase and sale. The earnout formula will be based on certain milestones being met in the future over the earnout period. Examples of earnout milestones can include on or more of:

  • sales revenue of brand-new modern technologies or products;
  • certain accomplishments with a predefined client base;
  • meeting or exceeding specific key financial results; and/or
  • hitting a minimum level of financial performance measured by earnings before interest, taxes, depreciation, and amortization (EBITDA).

It is not uncommon in earnouts in m&a transactions, if the targets are not met, the seller gets absolutely nothing. This is notwithstanding there may have been performance improvement. That is because the target business did not meet the defined milestones. When putting together an earnout agreement, very close attention must be paid to both the computation and the definitions in the earnout clauses for the earnout payments. The parties must ensure that the language is as clear as it can be. If not, then disputes and probable litigation will be inescapable.

earnout
earnout

Earnout milestones and the good faith of the parties

When looking at any contract, there is a basic question. Does Canadian legislation place a duty on parties to a contract to carry out those duties honestly and in good faith? Must there be fair dealing between the parties? I believe the leading case on this topic is the decision of the Supreme Court of Canada (SCC) in Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494.

The answer to that question, as decided in that case, was yes. There must be fair dealing.

Nonetheless, in doing so, the SCC stated that the buyer does not act in the capacity as a fiduciary for the seller. The court also stated that there is nothing to prevent one party to legitimately obtain an economic benefit from the merger agreement over the other. The court was not asked to, and therefore did not, express any views on if a party goes out to frustrate or prevent a milestone from being met, does that constitute bad faith? It obviously won’t be fair dealing, but the court did not opine on the issue.

Earnout and Toronto coronavirus

The coronavirus pandemic has created so much uncertainty in all of our lives. The economy is just one of them. It has created a financial crisis for many. Entrepreneurs who had prepared to put their company up for sale in 2020 have been thrown a curveball. Buyers are of course looking to take advantage of the current financial crisis conditions to pay less for a viable business than they would have just 9 or 10 months ago. Sellers want to value their business on a historical average basis so that when the coronavirus financial crisis is over and the economy returns to normal, they will be fairly compensated. Buyers are looking for an advantage based on today’s economic realities.

An earnout clause may just be the way to bridge the gap. Perhaps both an earnout and a reverse earnout may be a way to go. The business gets valued on a historical average basis, but part of the purchase price is held in escrow invested. Over the agreed-upon earnout period, if the milestones are reached, including getting back to historical average earnings, then the earnout is paid out, in whole or part, to the seller. If not, the invested escrow funds are returned to the buyer.

Earnout deals and insolvency

In the current situation, we are being retained on, the viable but insolvent company has too much unsecured debt. Nobody is going to offer them new financing in order to pay off old debts. Financing is realistically available for go-forward expenses only.

The potential purchaser is not going to agree to assume the unsecured debt. The purchaser wants to buy assets of the target business, not the shares. They are going to want to make sure that if they purchase the assets, unsecured liabilities are not going to tag along. They will not want to just rely on common law. They are going to want a court order authorizing the purchase and getting proper title through a vesting order.

An insolvency process will accomplish both. It will be a debt settlement corporate restructuring. The merger agreement or earnout agreement will give both the seller and buyer certainty. The process will be conducted under either the proposal provisions of the Bankruptcy and Insolvency Act (Canada) (BIA) or under the Companies’ Creditors Arrangement Act (Canada) (CCAA).

A portion of the purchase price will be held back and used to create a proposal fund to offer a settlement to the unsecured creditors. If the sale does not take place and the company goes into bankruptcy, our current assessment is that the unsecured creditors will receive nothing. So, an offer through a restructuring plan to the unsecured creditors will get them a better result than in the bankruptcy of the company.

With a willing buyer and seller, both in fair dealing with each other to get an agreement of purchase and sale done, I am certain that we will get the debt settlement corporate restructuring done.

Earnout summary

I hope you have enjoyed this earnout deals and insolvency Brandon’s Blog. Hopefully, you have better insight now into the fact that a sick insolvent company’s business can be saved by doing a sale of its assets to a healthy organization.

Do you or your company have too much debt? Are you or your company in need of financial restructuring? The financial restructuring process is complex. The Ira Smith Team understands how to do a complex restructuring. However, more importantly, we understand the needs of the entrepreneur or the person who has too much personal debt.

You are worried because you are facing significant financial challenges. It is not your fault that you are in this situation. You have been only shown the old ways that do not work anymore. The Ira Smith Team uses new modern ways to get you out of your debt troubles while avoiding bankruptcy. We can get you debt relief freedom.

The stress placed upon you is huge. We understand your pain points. We look at your entire situation and devise a strategy that is as unique as you and your problems; financial and emotional. The way we take the load off of your shoulders and devise a debt settlement plan, we know that we can help you.

We know that people facing financial problems need realistic lifeline. There is no “one solution fits all” approach with the Ira Smith Team.

That is why we can develop a restructuring process as unique as the financial problems and pain you are facing. If any of this sounds familiar to you and you are serious in finding a solution, contact the Ira Smith Trustee & Receiver Inc. team today.

Call us now for a free consultation.

We will get you or your company back on the road to healthy stress-free operations and recover from the pain points in your life, Starting Over, Starting Now.

The Ira Smith Trustee Team is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting. We hope that you and your family are safe and healthy.

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CONSUMER PROPOSAL CANADA: A BLUEPRINT TO STOP BILL COLLECTORS

consumer proposal canada

If you would prefer to listen to the audio version of this Consumer proposal Canada Brandon’s Blog, please scroll down to the bottom and click on the podcast.

Introduction

I have written before on the concept of how a bankruptcy filing puts into place a stay of proceedings. A section of the Bankruptcy and Insolvency Act (Canada) (BIA) states that creditors are not allowed to take or continue any collection or enforcement activity against a bankrupt person or company. But what about a consumer proposal Canada? I will discuss this concept for a consumer proposal and highlight a recent case on this issue.

The federal law

Under section 69.2 (1) of the BIA, with certain limited exceptions, when a consumer proposal is filed, “…no creditor has any remedy against the debtor or the debtor’s property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy…”.

So if the claim is one that is provable in a bankruptcy, and therefore in a consumer proposal Canada, then the creditor cannot begin or continue a lawsuit or try to enforce a judgment for the amount owed.

A recent decision from the Ontario Court confirms this law where a consumer proposal Canada will stop creditors and bill collectors from starting or continuing legal action against you.

The facts of this case

The case is Yigzaw v. Ashagrie, 2019 ONSC 2474. It is about a motion to lift the stay of proceedings to permit enforcement of an order issued against the debtors who have filed a consumer proposal.

The applicants, Philipos Yigzaw and Aster Abraham, seek to appeal an order issued by the Court on February 21, 2017 (the 2017 order). The 2017 order was gotten on the basis of summary judgment on an application started by the applicants. In their application, they sought repayment of $102,500 that they had advanced to the respondents Anaketch Ashagrie and Yilma Gari to fund a business operating under the name “Telling Roses”. They also seek an accounting of how the funds had actually been spent.

The 2017 order required Ashagrie and Gari to pay $102,500 to Yigzaw and Abraham in addition to costs of $6,250. The respondents were likewise required to provide an accounting. The Court declined to issue a certificate of pending litigation against the respondents’ residence, although a writ of execution was issued. The respondents submitted a consumer proposal the very next day.

In this enforcement motion, the applicants state that the respondents have failed to adhere to the 2017 order. They look for relief that would require Ashagrie and Gari to be examined and to pay the amount of the judgment. They also want a finding that the respondents are in contempt.

The issues for the Court to consider

The Court first considered section 69.2 (1) of the BIA I spoke about above. The Court then looked at the exception I alluded to, being Section 69.4 of the BIA.

That section says that a Court may, in certain circumstances, raise the stay to allow a creditor to pursue its rights against a debtor who has filed consumer proposal. To obtain a lifting of the stay, the creditor must persuade the Court that it is most likely to be materially prejudiced by the ongoing stay, or that lifting the stay is equitable on other grounds.

Canadian courts have held that the criteria in s. 69.4 might be fulfilled where the creditor’s debt will not be released as an outcome of the insolvency process. The types of financial obligations that are not discharged are provided in s. 178( 1) of the BIA.

They consist of a debt or obligation arising out of fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity as well as a debt or obligation resulting from obtaining property or services by false pretenses or fraudulent misrepresentation. Lifting of a stay is not a routine matter.

To succeed, the applicants have to show how they are most likely to be materially prejudiced by the stay, or that there are various other equitable grounds to raise it.

In a typical motion under s. 69.4, the applicant looking to lift the stay says that it needs to have the opportunity to prove that its accusations come from an activity provided in s. 178( 1) to ensure that it may obtain a judgment against the bankrupt or insolvent person. If successful, then that claim would survive the insolvency process.

In that normal case, the Court examines the creditor’s claims to identify if the debt, if confirmed, would be released as an outcome of the bankruptcy or proposal. Sometimes, the Court may also consider evidence submitted by the creditor.

This case is uncommon because the applicants have already gotten a judgment on their claim. They are not seeking to show their claim. They are looking to enforce the Order. So the concern the Court must think about is whether that Order was made according to a cause of action listed in s. 178( 1 ). The Judge did this by reviewing the claims and evidence before the Judge who gave judgment, his analysis, and the evidence filed in this motion.

The Court’s analysis

The Court quite properly pointed out that in order to be successful for the lifting of the stay, the applicants had to show that their debt was more than just one of a contract to lend money that was not repaid.

The Court said that looking at the application in the most charitable method possible, the claims could not support a finding that the respondents obtained property from the applicants by false pretenses or fraudulent misrepresentation. The applicants state that their loan was conditional on the money being used for “Telling Roses”. They do not declare that they were induced to loan money to “Telling Roses” as an outcome of any type of illegal misstatement by the respondents. Likewise, the applicants do not allege that the respondents took part in any kind of deceitful acts that induced them to loan the funds. Therefore, the exception from the discharge of the debt in s. 178( 1 )( e) of the BIA was not advanced in the applicants’ claim.

The allegations in the application also do not support a finding that the participants engaged in fraudulence, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity. To meet that standard it is not nearly enough for a debt to have actually been brought on by fraud, embezzlement, misappropriation or defalcation. That form of criminal activity had to have occurred in the context of a fiduciary relationship.

The applicants do not declare that the respondents had a fiduciary obligation towards them. The relationship they explain with the respondents would not follow such a claim. Fiduciary relationships are unusual in arms’ length business transaction. The applicants additionally do not clearly affirm that the respondents participated in any type of scam at any point.

In reviewing the reasons given by the Judge who made the 2017 order, and in looking at all the other evidence in this motion, the Court found that it was anything more than one party loaning funds to another to start a business. The business never made a profit, it failed and therefore, could not repay the money.

The decision

Given these facts and the Court’s analysis, the Court found that the applicants could not succeed on their motion to lift the stay. Rather, the Court confirmed that the 2017 judgment could only be used as the basis for the applicants to file a proof of claim in the consumer proposal filed.

The basis for the 2017 order was a finding that the applicants lent the respondents the amount of $102,500. There is absolutely nothing in the underlying decision, or in the accusations in the application on which judgment was obtained, or in any evidence submitted in this motion, that puts the applicants’ claim in the classification of financial debts that are not released under s. 178( 1) of the BIA.

Therefore, the applicants’ motion to lift the stay under s. 69.4 of the BIA was rejected. They failed to show that they are likely to be materially prejudiced by the ongoing operation of the stay or that there are various other equitable factors that would lead to a conclusion to lift the stay.

Do you have too much debt?

Are you in financial distress? Do you not have adequate funds to pay your financial obligations as they come due?

If so, call the Ira Smith Team today. We have decades and generations of experience assisting people looking for financial restructuring, a debt settlement plan and to AVOID bankruptcy.

As a licensed insolvency trustee (formerly called a bankruptcy trustee), we are the only professionals accredited, acknowledged and supervised by the federal government to provide insolvency advice and to implement approaches to help you remain out of personal bankruptcy while eliminating your debts. A consumer proposal is a government-approved debt settlement plan to do that. We will help you decide on what is best for you between a consumer proposal vs bankruptcy.

Call the Ira Smith Team today so you can eliminate the stress, anxiety, and pain from your life that your financial problems have caused. With the one-of-a-kind roadmap, we develop just for you, we will immediately return you right into a healthy and balanced problem-free life.

You can have a no-cost analysis so we can help you fix your troubles. Call the Ira Smith Team today. This will allow you to go back to a new healthy and balanced life, Starting Over Starting Now.

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LICENSED INSOLVENCY TRUSTEE: 12 THINGS THEY MAY NOT TELL YOU!

If you would like a free copy of our eBook:

12 THINGS A LICENSED INSOLVENCY TRUSTEE MAY NOT TELL YOU!

PLEASE CLICK HERE

Why won’t they tell me?

It is not the case that any licensed insolvency trustee purposely won’t tell you everything you need to know. It is just that in all walks of life, some people explain things better than others. Some take more time and care, some are better equipped to explain technical matters in plain English to the layperson and sometimes, like Ira Smith, you might have a senior moment!

So the purpose of this video is to educate the stressed-out person who is facing financial challenges, and who has an appointment to see a licensed insolvency trustee, to give you a checklist of important questions you should ask, so that you walk out of the first meeting with all the information you need to make an educated, informed decision. So, here is our checklist.

12 questions you must ask the Licensed Insolvency Trustee, to get the information you need

  1. Is my first consultation free and how long do I get to meet with the Licensed Insolvency Trustee?
  2. Do you have the necessary qualifications, how many cases like mine have you done before and do you go to Court also or do I have to hire a lawyer to do so?
  3. Is bankruptcy right for me and is it my only option?
  4. Are there other options to avoid bankruptcy?
  5. How much will it cost me?
  6. Will I be dealing with the actual licensee ultimately responsible to the Office of the Superintendent of Bankruptcy for my file or only one of his or her clerks once I enter my insolvency process with you?
  7. How did I feel after meeting the people at their office after my first consultation?
  8. Do you practice exclusively in the bankruptcy/insolvency area?
  9. Do you have experience in only personal insolvency matters, only corporate insolvency matters, or both?
  10. Do you have enough experience and the time to handle my matter?
  11. Will you communicate in a timely manner with me throughout?
  12. So how does this process really work and who do you really work for and what difference does it make?

We hope that you found this checklist useful.

Is this checklist everything the layperson needs to know?

When developing this vlog a while back, we started thinking about all the other things that the honest but unfortunate stressed out person in financial trouble needs to know. We looked around for an appropriate book on Canadian personal insolvency but, we couldn’t find one! We found many resources for lawyers, professional trustees and academics, but nothing for the person in financial trouble. So, we just kept writing and writing, and this ended up in an eBook titled:

 

FREE OFFER FROM IRA SMITH TRUSTEE & RECEIVER INC., A LICENSED INSOLVENCY TRUSTEE

So here is our offer to you. If you would like to receive a complimentary copy of our new eBook which has just been listed on Amazon.com, please subscribe to our blog email list in the form provided on this vlog. We have already sent to all of our subscribers an email with information as to how to get access to their free copy. By clicking on the above link and subscribing to our Brandon’s Blog, you can get one too. No one will ask you for a credit card, PayPal, or any other form of payment. This offer is limited and available only to our blog subscribers as our way of saying thank you.

What should you do if you have too much debt?

Call us today. If you or your company is trapped in high debt, you need the Ira Smith Team to help you manage the situation before it reaches a critical stage where bankruptcy or receivership is your only option. We have been able to help many people and companies carry out successful debt settlement programs or corporate restructuring and turnarounds. It all began with a first consultation. The first step is a realistic cash-flow budget.

We know full well the discomfort and tension excessive debt can create. We can help you to eliminate that pain and address your financial issues supplying timely, realistic and easy to implement action steps in finding the optimal strategy created just for you.

Call Ira Smith Trustee & Receiver Inc. today. Make a free appointment to visit with one of the Ira Smith Team for a totally free, no-obligation assessment. You can be on your path to a carefree life Starting Over, Starting Now. Give us a call today so that we can help you return to an anxiety-free and pain-free life, Starting Over, Starting Now.

Successful completion of such a program will free you from the burden of your financial challenges to go on to live a productive, stress-free, financially sound life, Starting Over, Starting Now.

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FINANCIAL ADVICE THAT YOU SHOULD NEVER FOLLOW

bankruptcy, bankruptcy and insolvency act, credit history, credit rating, credit report, financial advice, insolvency, rebuilding credit, restructuring, student debt, toronto bankruptcy, trustee, vaughan bankruptcy, what is a consumer proposal, what is bankruptcy,woodbridge bankruptcyPeople mean well and many can’t resist giving advice, but when it comes to financial matters ONLY take financial advice from a qualified professional. Here are some classic examples of financial advice that you should never follow.

  • Don’t declare bankruptcy because it will ruin your credit rating. While it’s true that bankruptcy remains on your credit report for quite a while, if you aren’t paying your credit cards and other loans on time, your credit rating is probably already shot. With an insolvency process, we can provide you with easy ways to start rebuilding your credit fast. Without such a process, you will never get out from under your debt and won’t be able to rebuild your credit rating.
  • Credit cards will get you into trouble. Credit cards won’t get you into trouble if you charge only what you can afford to pay off. In fact, credit cards can help you to establish a credit history which future lenders will use when you want to take out a loan or a mortgage. Without a credit history you may find it very difficult to borrow money.
  • A house is always a great investment. Houses are not immune from market fluctuations. The prices of real estate are tied to changing demographics, interest rate spikes and the economy. There is no guarantee that your house will have increased in value at the point in time when you need to sell. Depending on the state of the real estate market when you purchase a home, there is always a possibility that your home may not increase in value and may even decrease in value from time to time, so don’t purchase the house because you need the increased value to be liquid on a specific date.
  • You can live for free if you buy an investment property and rent it out. Television shows on the Home & Garden channel have gone to perpetuate this bad advice. It’s not as easy as it seems on a one hour TV show and it’s a difficult and potentially financially hazardous route to take. Renovations almost always go over budget, so count on spending more than you planned on. Not every tenant is a jewel. Some are extremely difficult and can cost you a lot of time and money. Once you become a landlord you will have to manage your property. You just don’t find a tenant and expect that the property will manage itself. Expect to be called whenever something is not perfect and your tenant will expect immediate action. Be prepared for unexpected expenses.
  • Asking all your friends where can I get a loan with bad credit in Toronto. The lenders that would lend money to someone with debt problems and bad credit already charge extremely high upfront fees, very high interest rates and usually, you will never be able to pay off the loan and perhaps you will even fall behind on interest payments. The collection efforts of these types of lenders are not subtle or pleasant.
  • Student debt is good debt. Debt is debt, and borrowing more than you can repay is never a good idea. The Canadian Federation of Students estimates that average student debt is almost $28,000. According to the Canada Student Loan Program, most students take 10 years to pay off their loans. Does this sound like a good idea? We are certainly not advocating that students don’t pursue post secondary education, but keep the debt to a minimum by going to a more affordable college or university. Work part time during the school terms and full time during vacations.

When you need financial advice seek out a professional. Taking bad advice can be costly. If you are experiencing serious debt issues contact a trustee for advice. Ira Smith Trustee & Receiver Inc. is a full service insolvency and financial restructuring practice serving companies and individuals throughout the Greater Toronto Area (GTA) facing financial crisis or bankruptcy that need a plan for Starting Over, Starting Now. We will give you sound financial advice that you can count on.

Call a Trustee Now!