Northern Ontario Loan Insurance Regulations

Regulations Respecting the Provision of Loan Insurance in Northern Ontario Her Excellency the Governor General in Council, on the recommendation of the Minister of Regional Industrial Expansion and the Treasury Board, pursuant to Industry, Trade and Commerce Vote 1a of Appropriation Act No. 1, 1980-81*, as extended by Industry, Trade and Commerce Vote 1e of Appropriation Act No. 4, 1981-82** and Regional Industrial Expansion Vote L20 of Appropriation Act No. 2, 1988-89***, is pleased hereby to make the annexed Regulations respecting the provision of loan insurance in Northern Ontario. S.C. 1980-81-82-83, c. 3 S.C. 1980-81-82-83, c. 90 S.C. 1988, c. 25 These Regulations may be cited as the Northern Ontario Loan Insurance Regulations. In these Regulations, applicant means an individual, partnership, cooperative or body corporate, or any trustee or legal representative thereof, who makes an application pursuant to subsection 3(1), but does not include a government, municipality or agency thereof or a legal entity owned or controlled by a government, municipality or agency or any subsidiary thereof, or any combination thereof; (requérant) capital costs means capital costs that are determined in accordance with generally accepted accounting principles to be necessary to carry out a project, other than goodwill, motor vehicles not used exclusively on a project site or between two or more project sites, aircraft, and the portion of the cost of any asset which exceeds fair market value; (coûts en immobilisations) designated region means that area of Ontario north of and including the census divisions of Parry Sound and Nipissing as shown in the Statistics Canada publication 1981 Census of Canada, Reference Maps, Census divisions and subdivisions; (région désignée) disbursement means any amount paid by a lender to an applicant under a loan agreement; (versement) eligible sector means a sector set out in the schedule; (secteur admissible) formal demand means a demand in writing made by a lender to an applicant for the repayment of the outstanding amount under a loan agreement; (demande officielle) lender means a bank, credit union, caisse populaire or any other cooperative society, a trust company, a loan company, an insurance company or a pension fund, or a non-bank affiliate of a foreign bank as defined in section 303 of the Bank Act but does not include a government, municipality or agency thereof or an institution that is controlled by the Government of Canada, the government of a province, a municipality or by any agency thereof, or any combination thereof; (prêteur) loan agreement means any agreement entered into by a lender and an applicant whereby the lender agrees to grant to the applicant a loan to finance the applicant’s project and for which a loan insurance agreement is made; (convention de prêt) loan insurance agreement means any agreement entered into by the Minister and a lender whereby the Minister agrees to provide loan insurance to the lender in respect of one or more loans granted under one or more loan agreements; (convention d’assurance-prêt) Minister means the Minister of Industry, Science and Technology; (ministre) project means the establishment, expansion, modernization or renovation of a commercial operation located in the designated region in eligible sector 11, or the establishment, expansion or modernization of a commercial operation located in the designated region in any other eligible sector. (projet) For the purposes of the definition project in subsection (1), the establishment of a commercial operation includes the purchase of the assets of a facility if, at the time an applicant makes an application under these Regulations, the operation of the facility has ceased or is about to cease; the cessation or imminent cessation of the operation of the facility is due to circumstances beyond the control of its owner; and the purchase of the assets of the facility is an arm’s length transaction by the applicant in good faith who is unrelated to the present owner or the immediate predecessor of that owner, and the purchase has not been undertaken for the sole purpose of an application under these Regulations. An applicant requiring that the Minister enter into a loan insurance agreement shall apply in writing to the Minister on or before March 31, 1992 and shall provide a detailed description of the project and any other information that is necessary to effectively evaluate the application. The Minister may enter into a loan insurance agreement where the loan agreement is for an amount of not more than $15,000,000 and not less than $100,000 and the term of the loan does not exceed 15 years; the total amount of the loan is to be used to finance the applicant’s project; subject to section 4, the loan is to be used to finance only capital costs; the applicant is unable to obtain a loan on commercially acceptable terms, without a loan insurance agreement; the project would not likely be carried out within the proposed time or scope or in the proposed location, as described in an application made pursuant to subsection (1), without a loan insurance agreement; an application made pursuant to subsection (1) includes pro forma financial statements for each year in which loan insurance is required by the lender; the project and the applicant’s commercial operations, as the case may be, are or are expected to be commercially viable, subject to reasonable commercial risk; an application made pursuant to subsection (1) indicates it is likely that the applicant will have equity representing a minimum of 20 per cent of the capital costs for the project; the lender acquires an enforceable security for the purpose of securing the repayment of the loan under the loan agreement in a form consistent with standard banking practices; the project would constitute a significant contribution to the economic benefit of the designated region and of Canada; and all other requirements of these Regulations are met. A loan insurance agreement may be entered into in respect of a loan for working capital if, without loan insurance, the project would not be viable. Subject to section 6, a loan insurance agreement may be entered into in respect of a project in eligible sector 11 if the project is of a quality and scope likely to attract tourists from outside the designated region. A loan insurance agreement may be entered into in respect of a project in eligible sector 11 that is a tourism facility designed to serve food or beverages if that facility constitutes part of or supports another tourism facility; or is of a sufficiently thematic or original nature as to constitute a tourism attraction in its own right. No loan insurance agreement shall be entered into in respect of a loan granted for a merger, refinancing or an acquisition, except in respect of a project referred to in subsection 2(2). A loan insurance agreement shall insure 85 per cent or less of the amount of a loan disbursed pursuant to a loan agreement. Where a loan insurance agreement is entered into, an insurance fee is payable in advance by the lender to the Minister in accordance with the following formulae: fee payable at the time of the first disbursement: fee payable at the time of each subsequent disbursement: fee payable on each anniversary of the date of the first disbursement until the earlier of the date of formal demand and the date the loan is repaid: is the percentage of the loan that is insured under the loan insurance agreement, is the amount of the disbursement, is the number of days remaining between the date of the disbursement and the next anniversary date of the first disbursement, and is the outstanding amount of the loan under the loan agreement on the anniversary date. An insurance fee paid by the lender under subsection (1) is not refundable. The Minister shall not pay a claim made by a lender under a loan insurance agreement unless the lender makes a formal demand; and submits evidence to the Minister that establishes that the lender has taken all reasonable steps to protect the lender’s rights and realize on the security provided in respect of the loan, and suffered a loss as referred to in section 11. The maximum amount payable to a lender pursuant to a loan insurance agreement shall be the lesser of the amount representing the percentage of insurance, as stipulated in the loan insurance agreement, that is applied to the loss suffered; and the insured amount at the time of the formal demand. For the purpose of subsection (1), loss means the aggregate of the principal amount of the outstanding loan and the amount of unpaid interest on the loan at the date of the formal demand, reasonable legal fees, costs and other expenses paid by the lender for the purpose of collecting any amount referred to in paragraph (a), costs incurred and paid by the lender to protect any security provided in respect of the loan disbursed under the loan agreement, and interest on the amounts referred to in paragraphs (a), (b) and (c), to be calculated from the date of the formal demand until the date of payment of the lender’s claim by the Minister at the rate charged by the lender under the loan agreement at the date of the formal demand for a period of up to 180 days after the date of the formal demand, and for an additional period not exceeding 180 days where the Minister and the lender agree to realize on the security during that additional period, and at one-half the rate referred to in subparagraph (i) for any period after the relevant periods referred to in that subparagraph, less any amount realized on the security provided in respect of the loan, and recovered by the lender after the date of the formal demand in excess of the aggregate amount of all other loans granted by the lender to the applicant. The Minister may, on behalf of Her Majesty in right of Canada, acquire a stock option as a condition of entering into a loan insurance agreement if the total amount of the loan provided for by the loan agreement is $500,000 or more and the expected rate of return associated with the project justifies the acquisition of the stock option. Where, pursuant to subsection (1), the Minister acquires a stock option, the Minister may exercise, assign or sell the stock option where the exercise, assignment or sale is of benefit to Her Majesty in right of Canada. Where the Minister on behalf of Her Majesty in right of Canada acquires capital stock under a stock option, the Minister shall, within two years after the day on which the capital stock is acquired, sell the capital stock to benefit Her Majesty in right of Canada. Where the Minister receives an offer to purchase a stock option or capital stock acquired under a stock option and the acceptance of the offer would be of benefit to Her Majesty in right of Canada, the Minister shall in writing notify the applicant of the offer. Where the applicant intends to purchase the stock option or the capital stock at the price and on the terms and conditions specified in the offer referred to in subsection (4), the applicant shall so advise the Minister within seven business days following the day on which the applicant is notified of the offer. Where an applicant advises the Minister pursuant to subsection (5), the Minister shall sell the stock option or capital stock to the applicant. Sector 1 — Agricultural Industries Industry class 0222 (crop dusting and spraying services), as set out in Statistics Canada’s Standard Industrial Classification 1980. Maple sugar, maple syrup and maple taffy production, farm produce cleaning, farm produce grading, farm produce packing, grain cleaning, grain drying and seed cleaning, and repair services for farm equipment. Sector 2 — Aquaculture Farming (including breeding and propagating) of fish, shellfish and crustaceans. The cultivation of marine plants. Fishing gear repair services. Fish net mending services. Fish hatchery services. Sector 3 — Business Service Industries Industry group 772 (computer and related services) and industry classes 7751 (offices of architects, except for design of residential dwellings), 7752 (offices of engineers), and 7796 (duplicating services), as set out in Statistics Canada’s Standard Industrial Classification 1980. Convention services, demonstration services (except selling), fashion designing (apparel), graphic designing services, inventory-taking services, mailing services, marketing research services, packaging services and pattern making (needle trade) services. Drafting services, testing services (except medical and clinical testing) and photogrammetric services. Sector 4 — Commercial Research and Development Facilities Sector 5 — Freight Forwarding Industry Industry class 4592 (freight forwarding industry), as set out in Statistics Canada’s Standard Industrial Classification 1980. Sector 6 — Logging Industry Industry class 0411 (logging industry, except contract logging), as set out in Statistics Canada’s Standard Industrial Classification 1980. Industry class 0412 (contract logging industry), as set out in Statistics Canada’s Standard Industrial Classification 1980. Sector 7 — Manufacturing Industries Manufacturing industries as set out in Statistics Canada’s Standard Industrial Classification 1980 (Division E), except for industry class 3611 (refined petroleum products industry, except lubricating oil and grease). Packaging operations. Sector 8 — Mining and Related Services Industry groups 061 (metal mines), 062 (non-metal mines, except coal), 063 (coal mines), 081 (stone quarries), 082 (sand and gravel pits), and 092 (service industries incidental to mining), as set out in Statistics Canada’s Standard Industrial Classification 1980. Sector 9 — Other Service Industries Industry classes 9911 (industrial machinery and equipment rental and leasing), 9913 (office furniture and machinery rental and leasing), 9941 (electric motor repair, except for households), and 9942 (welding, except for households), as set out in Statistics Canada’s Standard Industrial Classification 1980. Sector 10 — Storage and Warehousing Industries Industry groups 471 (grain elevator industry) and 479 (other storage and warehousing industries), as set out in Statistics Canada’s Standard Industrial Classification 1980. Sector 11 — Tourism Major groups 91 (accommodation service industries, except for boys’ and girls’ camps), and 92 (food and beverage service industries), as set out in Statistics Canada’s Standard Industrial Classification 1980. Industry classes 9651 (golf courses), 9653 (skiing facilities), 9654 (boat rentals and marinas), and 9696 (botanical and zoological gardens), as set out in Statistics Canada’s Standard Industrial Classification 1980. Resorts, amusement parks, theme parks, white water rafting operations and tour boat operations. Sector 12 — Repair Services All repair services to industry and to the resource sector not otherwise set out in this schedule. Sector 13 — Forest Fire-Fighting Services