First Nations Tax Commission Commission de la fiscalité des premières nations
The First Nations Tax Commission, pursuant to the First Nations Fiscal Management Act, hereby approves the following law made by the ?Akisq'nuk First Nation in the Province of British Columbia, 2Akisgnuk First Nation Borrowing Agreement Law, 2016 Dated at Kamloops, British Columbia this 15th day of November, 2016.
On behalf of the First Nations Tax Commission C.T. (Man tillJules — Chief Commissioner (#),
/4 ,,' First Nations Tax Commission
?AKISQNUK FIRST NATION BORROWING AGREEMENT LAW, 2016 WHEREAS: A. Pursuant to paragraph 5(1)(d) of the First Nations Fiscal Management Act, the council of a first nation may make laws respecting the borrowing of money from the Authority, including any authorization to enter into a borrowing agreement with the Authority;
B. The ?Akisgnuk First Nation wishes to become a borrowing member of the Authority; C. The ?Akisq'nuk First Nation wishes to enter into a borrowing agreement with the Authority as provided in this Law;
D. The ?Akisq'nuk First Nation has enacted a financial administration law under paragraph 9(1)(a) of the Act, which law has been approved by the First Nations Financial Management Board, as required by section 4 of the Act; and
E. The ?Akisq'nuk First Nation has obtained a certificate from the First Nations Financial Management Board, as required by subsection 32(1) of the Act, a copy of which certificate is attached as Schedule "A" to this Law.
NOW THEREFORE the Council of the ?Akisq'nuk First Nation duly enacts as follows: 1. This Law may be cited as the 2Akisq)iuk First Nation Borrowing Agreement Law, 2016. 2. In this Law: "Act" means the First Nations Fiscal Management Act, S.C. 2005, c.9, and the regulations enacted under that Act;
"Authority" means the First Nations Finance Authority established under the Act; "Borrowing Agreement" means the borrowing member agreement between the Authority and the First Nation in the form attached to this Law as Schedule "B";
"Certificate" means a Financial Performance Certificate issued by the First Nations Financial Management Board under subsection 50(3) of the Act;
"First Nation" means the ?Akisq'nuk First Nation; and "Law" means this borrowing agreement law. 3. Unless the context otherwise requires, words and expressions used in the Law and not otherwise defined have the same meaning as in the Act.
4. The Council is authorized to enter into the Borrowing Agreement with the Authority and the Chief and the Senior Administrator Officer are authorized and directed to execute the Borrowing Agreement on behalf of the First Nation.
5. Where a provision in this Law is expressed in the present tense, the provision applies to the circumstances as they arise.
6. This Law shall be construed as being remedial and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objectives.
7. The Schedules attached to this Law form integral parts of this Law. 8. The 2Akisgtzuk First Nation Borrowing Agreement Law, 2015 is hereby repealed. 9. This Law comes into force and effect on the day after it is approved by the First Nations Tax Commission.
THIS LAW IS HEREBY DULY ENACTED by Council on the 26th day of October, 2016, at Windermere in the Province of British Columbia.
A quorum of Council consists of three (3) members of Council.
Chief Lorne Shovar Councillor Donald Sam
FIRST NATIONS FINANCIAL MANAGEMENT BOARD LE CONSEIL.. DE GESTION FINANCIÈRE DES PREMIERES NATIONS FINANCIAL PERFORMANCE CERTIFICATE ISSUED TO THE ?AKISQ'NUK FIRST NATION The First Nations Financial Management Board ("the Board") completed its review of the ?Akisq'nuk First Nation's Financial Performance for compliance with the Financial Performance Standards established under section 55 of the First Nations Fiscal Management Act ("the Act"). The Board has not audited or otherwise attempted to verify the underlying financial information upon which the review is based. On the basis of its review and after consideration of its findings, the Board is of the opinion and certifies that, as at March 31, 2014, the ?Akisq'nuk First Nation was in compliance with the Financial Performance Standards.
The Board has provided the ?Akisq'nuk First Nation with a Report and attached Schedule dated March 31, 2015 as required under section 50(2) of the Act and upon which the Board's opinion and certification is based.
This Certificate has been issued to the ?Akisq'nuk First Nation under section 50(3) of the Act solely for the purpose of enabling the ?Akisq'nuk First Nation to satisfy the requirements of the Act. It should not be used or relied upon by the ?Akisq'nuk First Nation or by any other person for any other purpose and the Board accepts no responsibility for any loss or damages resulting from any unauthorized use of or reliance on this Certificate.
This Certificate is issued on the 31st day of March, 2015. nrst Natwlvk F ' Mcowyernevit Board/ 905 - 100 PARK ROYAL I WEST VANCOUVER, BC I V7T 1A2 ed 604.925.6665 I tollfrre 1,877.925.6665 I fax 604125.6662 I email MAIL'FNFMB.COM WWW.FNFMB.COM
SCHEDULE "B" ?AKISQNUK FIRST NATION BORROWING AGREEMENT (Property Tax Revenues)
This Borrowing Agreement, hereinafter referred to as the "Agreement", is made the day of , 2016 BETWEEN: FIRST NATIONS FINANCE AUTHORITY, a non-profit corporation with office at 202-3500 Carrington Road, Westbank, British Columbia
Authority") AND ?AKISQNUK FIRST NATION, being a band named in ule to the Act, (referred to as "?AKISQNUK FIRST NATION" in the schedu - - • c First Nations Fiscal Management Act, S.C. 2005, c.9), with an office at 30 - ~i ~ 93/95,Windermere, B.C.,VOB 2L2 as represented by its Chief and C
WHEREAS:
A. First Nations have lacked the institutional framew ich to gain access to private capital at affordable rates;
B. The Act creates a mechanism of financing fc>tNations; C. Section 58 of the Act creates the Autl it} a non-profit corporation without share capital; D. One of the purposes of the ', Or1T under paragraph 74(a) of the Act is to secure for its Borrowing Members, through the rty Tax Revenues, long-term financing of capital infrastructure for the provision of local ser i • serve lands; E. Section 75 of the ' ., ,ives the FNFA Board powers in relation to the issuance of securities; F. The Authority ws outstanding requests for financing from Borrowing Members and, in consideration of the r:. : nt market and economic conditions, authorizes the issue and sale of securities to raise a speci - a s unt in the manner determined by the FNFA Board; . uthority can provide Interim Long Term Financing to Borrowing Members in anticipation of ,`6. uding the applicable Borrowing Member's financing request in an issue of debt securities by the '4(1. Authority;
H. The Act sets out a procedure for First Nations to become Borrowing Members of the Authority; I. The Act also sets out the requirements for Borrowing Members to enact Borrowing Laws and to obtain the necessary certifications and approvals as part of the borrowing process;
J. The First Nation is a Borrowing Member of the Authority; K. The First Nation, as part of the process of obtaining financing from the Authority, will enact one or more - 1- BORROWING AGREEMENT - PROPERTY TAX
(the "First Nation")
Borrowing Laws; L. This Agreement sets out the contractual terms and conditions of the First Nation being a Borrowing Member and the contractual terms and conditions under which the Authority agrees to provide financing to the First Nation using the First Nation's Property Tax Revenues; and
M. The First Nation intends to use its Property Tax Revenues, in accordance with the provisions of the Act, to pay interest on and repay principal of financing provided by the Authority to the First Nation pursuant to this Agreement.
NOW THEREFORE, THE AU THORITY AND THE FIRST NATION AGREE TO THE FOLLOWiliçP 1.0 INTERPRETATION 1.1 In this Agreement, including the recitals, the following terms shall have the following "Act" means the First Nations Fiscal Management Act, the regulations enact edr that Act and any amendments thereto; "Authority" means the First Nations Finance Authority established und i''c tt ;; "Board" means the First Nations Financial Management Board es "Borrowing Agreement Law" means the First Nation Bo First Nation Borrowing Agreement Law PT 2016, enac A he First Nation under and in accordance with paragraph 5(1)(d) of the Act that came into for c~e ]~é~.. of 2016;
"Borrowing Law" means a law enacted by the âtion under paragraph 5(1)(d) of the Act to secure long term financing through the Authority of infrastructure for the provision of local services on the First Nation reserve lands by the use of the ation's Property Tax Revenues; "Borrowing Member" means a firms n.° n that has been accepted by the Authority as a borrowing member under subsection 76(2) o .`Ï e t and has not ceased to be a borrowing member under section 77 of the Act;
"Borrowing Room n Certificate" means a certificate in a form required by the Authority, setting out financi on of the First Nation including its unused annual debt servicing capacity based on its previ ear's audited consolidated financial statements; "Business Da : ns a day other than a Saturday, Sunday or statutory holiday in the Province of Ontario; "Capit.. . structure Project" means the project generally described in a Borrowing Law; eans Chief Lorne Shovar or his or her duly elected successor to the office of Chief of the First 'Commission" means the First Nations Tax Commission established under the Act; "Completion" of a Capital Infrastructure Project means that the project is substantially completed, not necessarily totally completed. A project will be considered to have achieved Completion when the Authority is provided with a certificate from a registered professional engineer or architect to the effect that the project has been substantially completed;
"Council" means the governing Council of the First Nation; "Debt Reserve Fund" means the fund established by the Authority under section 84 of the Act for financing secured by Property Tax Revenues;
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Ç S,, d V w A:- d er the Act; ing greement Law cited as the 2Akisdnuk
"Financial Administration Law" means the 2Akis4nuk First Nation Financial Administration Law, 2015 enacted by the First Nation under and in accordance with paragraph 9(1)(a) of the Act that has been approved by the Board;
"Financial Management System Certificate" means a certificate issued by the Board under subsection 50(3) of the Act confirming that the First Nation's financial management system is in compliance with the Board's standards;
"Financial Performance Certificate" means a certificate issued by the Board under subsection 5 ) of the Act confirming that the First Nation's financial performance is in compliance with the B standards;
Aiçl' "First Nation" means the ?Akisgnuk First Nation, being a band named in the schedule to e with an office at 3050 Highway 93/95, Windermere, B.C., VOB 2L2 as represented by its Chief a cil; "FNFA Board" means the Board of Directors of the Authority as described in secti y • ' f the Act; "Interim Long Term Financing" means financing provided by the Aut • •̀t o the First Nation in anticipation of the inclusion and replacement of such financing in an ' e of debt securities by the Authority by the earlier of
(a) five years from the date on which the first adva ' ►. nterim Long Term Financing is provided to the First Nation,
(b) Completion of the Capital Infrastructu • "Local Revenue Account" means the account es . • ' h by the First Nation pursuant to paragraph 13(1) of the Act into which the First Nation is requir t• pl ce, among other things, Property Tax Revenues;
"Local Revenue Law" means a law of t st ation made under paragraph 5(1)(b), (d), (f) or (g) of the Act;
"Material Adverse Change" change in the financial, operational or other condition of the First Nation that affects or is likely f et the ability of the First Nation to perform its obligations under this Agreement, a Borrowi ecurity Issuing Council Resolution, or a Promissory Note as and when they fall due;
"Person", in addit to its ordinary meaning, includes a corporation, society, a local, provincial or federal government, p s p or party and the personal or legal representative or successors or assigns of such person to who context can apply according to law; "Pro r ote" means a contractual promise to pay made by the First Nation to the Authority in res e repayment by the First Nation of money borrowed by the First Nation from the Authority for a ' 'o é set out in a Borrowing Law, in the form specified by the Authority; Qoperty Tax Revenues" means the property tax revenues described in section 57 of the Act; and "Security Issuing Council Resolution" means a resolution of Council in the form specified by the Authority whereby the First Nation formally requests to drawdown all or a portion of the loan amount authorized by a Borrowing Law: and
"Undertaking Agreement" means, the agreement in the form specified by the Authority, pursuant to which, inter alia, a third party may, in certain circumstances, exercise the Authority's rights in respect of a loan to the First Nation;
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1.2 Unless the context otherwise requires, words and expressions used in this Agreement and not otherwise defined have the same meaning as in the Act.
1.3 Any computation of days or business hours in relation to borrowing under this Agreement shall be determined based on days and hours during which banks are open for general banking business in the Province of Ontario.
1.4 Words importing the singular include the plural and vice versa and words importing gender include the neuter, feminine and masculine genders.
1.5 The division of this Borrowing Agreement into articles (1), sections (1.1), paragraphs f. ), subparagraphs (1.1(a)(i)) and sub-subparagraphs (1.1(a)(i)(A)) and the insertion of head for convenience of reference only and shall not affect the construction or interpretation hereof.
1.6 In the event that any day on or before which any action is required to be taken under u,. , eement is not a Business Day, then such action shall be required to be taken on or before the re ime on the next succeeding day that is a Business Day.
2.0 APPLICATION OF THE ACT 2.1 The Authority and the First Nation agree that the Act and this all apply to the relationship between the Authority and the First Nation and to any borrowin st Nation from the Authority using Property Tax Revenues.
2.2 In the event of a conflict between the Act and this Agre he Act shall prevail to the extent of the conflict. • 3.0 AUTHORIZATION FOR AGREEMENT A î FIRST NATION BORROWING 3.1 The First Nation and the Authority ackn• • and agree that entering into this Agreement establishing the contractual terms and conditions o irst Nation being a Borrowing Member and the contractual terms and conditions for borrowing - Authority by the First Nation is authorized by the Borrowing Agreement Law and the contrac 1 t s so established are in addition to any terms and conditions contained in a Borrowing La s rity Issuing Council Resolution, an Undertaking Agreement and a Promissory Note. 4.0 CONSIDERATI 4.1 In consideration t", uthority agreeing to comply with the terms and conditions of this Agreement and agreeing to co , under section 9.1, the First Nation's request for the Authority to raise monies to lend to the First Nati to finance a Capital Infrastructure Project by the issuance of securities, the First Nation agrees to • .ly with the terms and conditions of this Agreement.
4.2 W' o..'miting the generality of section 4.1, if the Authority provides financing to the First Nation in • nce with the Act, a Borrowing Law, or a Security Issuing Council Resolution for a Capital O astructure Project, the First Nation agrees to make payments as set out in the Promissory Note and this eement and to comply with the terms and conditions of this Agreement. 5.0 ' TERM OF AGREEMENT 5.1 This Agreement shall remain in force until the First Nation ceases to be a Borrowing Member under section 77 of the Act.
6.0 FIRST NATION REPRESENTATIONS & WARRANTIES -4- BORROWING AGREEMENT - PROPERTY TAX
6.1 The First Nation represents and warrants to the Authority as set forth in this section, and acknowledges that the Authority is relying on such representations and warranties without independent inquiry in entering into this Agreement:
(a) the Financial Administration Law has been approved by the Board and the First Nation has not repealed or amended its provisions without Board approval;
(b) before becoming a Borrowing Member, the First Nation obtained a Financial Management System Certificate or a Financial Performance Certificate and provided the Authority with a copy f the Financial Management System Certificate or Financial Performance Certificate and a copy Board's report given under subsection 50(2) of the Act in relation to that certificate;
(c) the First Nation has obtained all approvals necessary, including all approvals nec-ss rom the Commission, to enact the Borrowing Agreement Law;
(d) the execution and delivery of this Agreement and the performance by ï- ' r t Nation of its obligations in this Agreement and the transactions contemplated under t ment are all within the First Nation's powers, and have been duly authorized under the Bo . i Agreement Law; (e) all information provided by or on behalf of the First Nation in w tit he Authority, Commission and Board in connection with this Agreement, the certif.. ation becoming a Borrowing Member, and the enacting of the .~..? correct in all material respects as at the date such informati was provided and was not misleading or deceptive in any material respect whether by s in usion or by omission of any other information, and did not omit any material fact n misleading, and any further information provid and Board will be true and correct as at Commission and Board and will not be its inclusion or by omission of any othe make such information not misleadin
(f) all material financial transacti e First Nation have been recorded by the First Nation and accurately reflect in all m spects the basis for the financial condition of the First Nation shown in the most rece d consolidated annual financial statements and other information provided by the Fi the Authority, Commission and Board; (g) no Material dve ange has occurred since the date of the First Nation's most recent audited consolidate nnual financial statements, except as has been expressly disclosed in writing to the Authority_ ission and Board; (h) there are current or pending actions, suits, arbitrations, proceedings or claims, nor to the best of h st Nation' s knowledge are any threatened, which in any such case could result in a Material e Change;
he First Nation is not in breach or violation in any material respect of any of the terms of any material agreement, contract, instrument, lease or other commitment to which it is a party which could result in a Material Adverse Change;
'<le (j) the First Nation is in compliance in all material respects with its Financial Administration Law, Local Revenue Laws and all applicable standards of the Board and Commission in relation to any approvals or certifications issued by the Board or Commission;
(k) the First Nation is in compliance in all material respects with the Act; (1) in addition to compliance under paragraphs (j) and (k) above, the First Nation is in compliance in all material respects with all other applicable provisions of laws, rules, regulations, licenses, permits,
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'pproval of the First Nation . sr Agreement Law was true and in order to make such information not -{ irst Nation to the Authority, Commission uc information is provided to the Authority, e g or deceptive in any material respect whether by mation and will not omit any material fact necessary to
approvals and orders of any applicable governmental authority in relation to the Capital Infrastructure Project or any of the First Nation's obligations under this Agreement; and
(m) there is no current or pending investigation, proceeding, complaint, order, directive, claim, citation or notice by any governmental authority or any other Person, nor to the best of the First Nation's knowledge are any threatened, with respect to any non-compliance with or violation of the requirements of any environmental law by the First Nation or the threatened or actual release, spill or discharge of any hazardous material or the generation, use, storage, treatment, transportation, manufacture, handling, production or disposal of any hazardous materials or any Ios hoer environmental, health or safety matter.
7.0 COVENANTS OF THE FIRST NATION 7.1 The First Nation covenants and agrees that for the term of this Agreement it shall: (a) comply with applicable Board and Commission standards made under t and obtain and maintain in good standing all necessary certifications and approva the Board and Commission; (V/ 1 (b) provide the Authority with a copy of the Financial Management 1 certificate within 36 months after the First Nation receives financing (other than I Term Financing) from the Authority;
(c) notify the Authority, Board and Commission pro in writing if there is a Material Adverse Change to any of the information provided by the tion under this Agreement or during the process of becoming a Borrowing Member, e this Agreement, obtaining any necessary certifications and approvals from the Boara~Ll~ission or passing a Security Issuing Council Resolution;
(d) not, on or after the date the First nacts a Borrowing Law, grant a security interest in the Local Revenue Account to any P other than the Authority without the prior written consent of the Authority;
(e) not, on or after the date Nation enacts a Borrowing Law, change the financial institution at which the Local count is located or change the account number of the Local Revenue Account witho r written consent of the Authority; (f) comply wit l he Financial Administration Law and the Local Revenue Laws; (g) comply ;. material respects with the Act and all of the Authority's by-laws, rules, regulations, orders a . olicies, as amended from time to time, and make all payments required in relation Ise the Authority in writing as soon as possible if there is a change in the First Nation's epresentative to the Authority and provide the Authority with a copy of the resolution of Council designating a new representative;
use the funds loaned by the Authority to the First Nation only for the payment of permitted expenditures in relation to the Capital Infrastructure Project, provided that any funds loaned by the Authority that are used for an unauthorized purpose shall not affect the obligations of the First Nation under the Act, this Agreement, a Borrowing Law, a Security Issuing Council Resolution, a Promissory Note or an Undertaking Agreement;
(j) in construction of a Capital Infrastructure Project comply in all material respects with all applicable provisions of laws, rules, regulations, licenses, permits, approvals and orders of any applicable governmental authority and with all applicable conditions and standards issued by the Commission in approving a Borrowing Law;
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(k) deliver to the Authority: (1) the First Nation's annual budget including the component respecting its Local Revenue Account applicable to the borrowing for the First Nation's current year, and a five year
capital expenditure plan, in each case in a form acceptable to the Authority, within 120 days after the First Nation's last fiscal year end,
(ii) the First Nation's audited consolidated annual financial statements and audited Local Revenue Account financial statements within 120 days after its fiscal year end togethe ith an opinion on such financial statements by an independent auditor who is a member i standing of the Canadian Institute of Chartered Accountants or an association of ac u .►►ts or auditors incorporated under the laws of a province or territory in Canada,
(iii) an executed Borrowing Room Calculation Certificate within 120 days afte 'ie st Nation's fiscal year end,
(iv) the First Nation's most recent taxable assessment valuation by classification and applicable property tax rates by property classification,
(v) promptly upon receipt of notice thereof, a report of ent, pending or threatened actions, suits, arbitrations, proceedings or claims a Nation, and (vi) a copy of the current strategic plan and multi-ye nancial plan, a copy of any existing operating plans and any other financial inf s ationor statistics of the First Nation as the Authority may reasonably request from time 'wl o • (1) if required by the Authority, execute such nts and agreements as the Authority considers necessary to grant to the Authority a sec rest in the Local Revenue Account (including, for greater certainty, all sums at any time osit in the Local Revenue Account); the Authority may also require the First Nation to ob n agreement from any Person (in this paragraph called a "third party") that has a securit nt est in the Local Revenue Account as of the date the First Nation becomes a Borrowing m in form satisfactory to the Authority under which the security interest held by the third p i e Local Revenue Account is subordinated and postponed to any security interest held by ority in the Local Revenue Account;
(m) permit represe• 1<_ fthe Board (including accountants, counsel, financial advisors, technical advisors an e con' ts, and other representatives) to visit the First Nation's premises at all reasonable ",, mess ours and to have access to and take copies and excerpts, where applicable, from all .. t zz First Nation's books, accounts, records, reports, files, properties and assets in whatev• they take as are deemed appropriate by the Board, acting honestly and in good faith, relating . ompliance with Board standards, the First Nation's status as a Borrowing Member, or a iligation under the Act, this Agreement, a Borrowing Law, Security Issuing Council r • Lion, Promissory Note or an Undertaking Agreement and to the receipt of and administration e funds borrowed under this Agreement or a Borrowing Law, as may be reasonably necessary to onduct a review and make a report under subsections 86(2) and (3) of the Act, to enter into and carry out a co-management arrangement under section 52 of the Act or to act as third-party manager under section 53 of the Act;
(n) upon request by the Authority, do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered every and all such further acts and deeds as the Authority shall deem necessary or appropriate to give effect to the purposes of
(i) this Agreement, (ii) the Act, -7- BORROWING AGREEMENT - PROPERTY TAX
(iii) a Borrowing Law, (iv) a Security Issuing Council Resolution, (v) an Undertaking Agreement, (vi) a Promissory Note, and (vii) by-laws or policies of the Authority, w and the First Nation shall promptly provide the Authority with evidence of the foregoinili?or y to the Authority; and T" (m) if the Authority provides Interim Long Term Financing to the First Nation, t ation must, and hereby covenants to, by the earlier of five years after the date on which advance of such Interim Long Term Financing is provided to the First Nation, or on of the Capital Infrastructure Project, either:
(i) replace such Interim Long Term Financing by inclusion !T! s: p lacement of such financing in and by an issue of debt securities by the Author
(ii) prepay all unpaid principal of and accrued and unpaid interest on such Interim Long Term Financing in full in accordance with sectioX11 y and 12.12 of this Agreement.
8.0 SECURITY ISSUING COUNCIL RESOLUTI8 8.1 When, from time to time, the First Nation wi borrow all or a portion of the amount authorized under a Borrowing Law, the Council will pass a i S y Issuing Council Resolution approving the borrowing of the specified amount and either: (a) request the Authority to inc . tî a `` r; amount as part of its next issue of debt securities, or (b) request the Author' o ro de the specified amount by way of Interim Long Term Financing to the First Nation.
8.2 The Security Issue Coudcil Resolution shall specify the date by which the First Nation requests the amount specifie Security Issuing Council Resolution be loaned by the Authority to the First Nation, it being ackno le e• by the First Nation that there can be no assurance that the Authority will loan such amount by such
8.3 The s `motion shall promptly send an originally executed or a certified copy of the Security Issuing C•~ cr ' esolution to the Authority, and, for their information to the Commission. If the Security Issuing 'l Resolution requests the Authority to include the specified amount in the Authority's next issue of securities, an originally executed or a certified copy of the Security Issuing Council Resolution must delivered to the Authority and the Commission by the date specified in writing by the Authority in order for the First Nation to participate in the Authority's next issue of debt securities.
8.4 If financing is provided by the Authority to the First Nation by way of Interim Long Term Financing, the Authority may by written notice to the First Nation specify the date by which the First Nation must give written notice to the Authority by way of a new Security Issuing Council Resolution to confirm that the First Nation intends such Interim Long Term Financing to be replaced by inclusion of such financing in the next issue of debt securities by the Authority.
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9.0 COVENANTS OF THE AUTHORITY 9.1 If the First Nation has obtained all necessary certifications and approvals from the Board and the Commission and complied with this Agreement, the Act, the by-laws and policies of the Authority, a Borrowing Law, and an Undertaking Agreement, the Authority shall review the request for financing of the First Nation set out in a Security Issuing Council Resolution and, in consideration of relevant market and economic conditions may, in accordance with the Act, authorize the issue and sale of debt securities to raise funds requested by the First Nation or provide Interim Long Term Financing to the First Nation, in either case to be loaned to the First Nation to finance a specified Capital Infrastructure Project.
9.2 The Authority agrees that for the term of this Agreement it shall: — (a) provide the First Nation full opportunity to participate in the governance of the ority in accordance with the Act and the by-laws of the Authority;
(b) provide the First Nation with notice of any significant changes to owing regime, requirements for Borrowing Members and other material information th significantly affect the First Nation's rights as a Borrowing Member or its obligations to t ority; and (c) provide the First Nation with notice of any changes of fees or ch 10.0 FINANCING BY THE AUTHORITY 10.1 The Authority is authorized to finance a Capital Infrastruc e Prdfect from time to time, at the sole cost and on behalf of the First Nation as set out in a Secu uing Council Resolution, up to but not exceeding the least of:
(a) the amount authorized in a Borrowing Law, (b) the amount remaining in the authori in a Borrowing Law after previous loans for a Capital Infrastructure Project have been _ ë • the First Nation by the Authority; or (c) the amount of the unused aial'lebt servicing capacity as calculated in the most recent Borrowing Room Calculation Certif
10.2 The financing by the s ahl l be in lawful money of Canada (provided that the First Nation may borrow all or part su •unt in such currency as the FNFA Board shall determine but the aggregate amount in lawful ney • Canada and in Canadian dollar equivalents so borrowed shall not exceed the limits set out in sec\4 10.1 in Canadian dollars) together with interest and at such interest rates and with such discounts • a urns and expense as the Authority may deem appropriate in consideration of the market and eco c,, c conditions of the time. 10.3 Reco, t at the term to maturity of debt securities issued by the Authority may not be the same as the Fi •n's requested term for financing from the Authority for a Capital Infrastructure Project, the First may by resolution of the Council request that the Authority fix the interest rate on the loan from the C A hority to the First Nation at the time of the borrowing described in the Security Issuing Council solution for the full term of the borrowing. 10.4 If the Authority provides Interim Long Term Financing to the First Nation, the amount of the loan withheld under subsection 84(2) of the Act and deposited in the Debt Reserve Fund in relation to the Interim Long Term Financing will be credited to the First Nation in determining the amount to be withheld under subsection 84(2) of the Act upon the subsequent issue of debt securities by the Authority to raise the funds requested by the First Nation.
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11.0 CONDITIONS OF FINANCING 11.1 In addition to the provisions of sections 9.1, 10.1 and 10.2 of this Agreement, any decision of the Authority to provide financing to the First Nation under those sections is conditional upon the following:
(a) execution of this Agreement by the First Nation and compliance by the First Nation with all terms of this Agreement;
(b) receipt by the Authority of a Borrowing Law, together with supporting information requested the Authority with respect to the Capital Infrastructure Project for which the First NationA is irçe s financing from the Authority, approved by the Commission;
(c) receipt by the Authority of supporting documentation relating to the establishm CAe Local Revenue Account by the First Nation;
(d) receipt b y the Authority of executed copies of the documents and agre e t rree quired by the Authority pursuant to paragraph 7.1(1) of this Agreement; A~' / (e) execution of an Undertaking Agreement by the First Nation as req y the Authority; (f) receipt by the Authority of a First Nation Security Issuingi'# ution signed by the Council; (g) receipt by the Authority of a current Borrowing Room Cal cu ion Certificate; (h) receipt by the Authority of the First Nation' s o t audited consolidated annual financial statements; • (i) receipt by the Authority of a Financial nce Certificate or a Financial Management System Certificate issued to the First Natio opy of the Board's report prepared in respect of that certificate under subsection 50(2) t; and (j) receipt by the Authority of s tl er financial information of the First Nation as the Authority may reasonably require.
11.2 In addition to require d section 11.1, any decision of the Authority to provide financing to the First Nation after t fi authorized by the First Nation's first Borrowing Law is conditional upon receipt by the Au +•rity o a Financial Management System Certificate issued to the First Nation and a copy of the Board' • •rt prepared in respect of that certificate under subsection 50(2) of the Act. 12.0 PAYMENT B E FIRST NATION 12.1 Upon • • Lion by the Authority of any financing undertaken pursuant to a Security Issuing Council Re,. ~.T", the First Nation shall, at a time that the Authority requests, execute and deliver a Promissory he Authority. e Promissory Note issued under section 12.1 shall be executed on behalf of the First Nation in accordance with the Security Issuing Council Resolution. The Promissory Note shall provide for payment by the First Nation to the Authority of the amounts required to meet the obligations of the Authority with respect to each of its borrowings undertaken pursuant to the First Nation's Borrowing Law and applicable Security Issuing Council Resolution.
12.3 The Promissory Note issued under section 12.1 shall be dated and payable in Canadian dollars and shall set out the schedule of repayment by the First Nation of the principal amount together with interest as determined by the Authority.
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12.4 The obligations under a Promissory Note shall bear interest from the date specified in the Promissory Note, which date shall be determined by the Authority, at rates to be determined by the Authority.
12.5 The obligations under a Promissory Note as to both principal and interest shall be payable in such manner and at such time or times as determined from time to time by the Authority and as provided for in the Promissory Note.
12.6 The First Nation shall, in each fiscal year after a Promissory Note has been signed, provide in its annual budget for payment of all amounts payable to the Authority during the fiscal year to which itsaloual budget applies.
12.7 The First Nation shall pay the amounts to the Authority set forth in, or attached as a s to, a Promissory Note during a fiscal year and shall make such payments in priority to other credjto the First Nation during that fiscal year.
12.8 No law enacted by the First Nation under paragraph 5(1)(b) of the Act shall auth moneys raised under a Local Revenue Law unless the First Nation's annu~i~b payment of all amounts payable to the Authority during the budget period. 12.9 The First Nation shall provide and pay over to the Authority such su obligations in accordance with the terms of a Promissory Note • ovi Promissory Note are not sufficient to meet the obligations of thi,' ' :ri securities or the provision of Interim Long Term Financing to raise e funds requested by the First Nation, any deficiency in meeting such obligations shall be a liabili'of th- First Nation to the Authority and shall be paid to the Authority by the First Nation.
12.10 If the First Nation's requested repayment term fô owing described in a Borrowing Law does not match the term for debt securities issued by the °\utty to provide for the First Nation's borrowing, the First Nation may, by way of a Council Resol uthorize the Authority to use a derivative product to fix the loan interest rate for the full repay - ' : r , or if no such Council Resolution is provided to the Authority, then the First Nation's loan •e refinanced by the Authority as needed to meet the First Nation's desired term of repayment s o ' its Borrowing Law. Any refinancing described in this section shall take place at the Authority lated interest rate in issuing new securities at the time of the refinancing.
12.11 In the event the First 'sties to prepay the amount owing under a Promissory Note the prepayment shall include the f ami •f the principal and interest due on the maturity of the Promissory Note, or another amount a lcula ed by the Authority to fully discharge the First Nation's obligations and any additional costin u y the Authority in relation to the prepayment. 12.12 The parties ac ledge that the Authority may fund advances of Interim Long Term Financing to the First Na • • the issuance of bankers' acceptances in the Canadian bank market or by the issuance of co • aper in the Canadian capital markets. The First Nation may not prepay any amount of Interim L• •_ Financing unless such prepayment is made on the maturity date of the bankers' acceptance or • commercial paper utilized by the Authority to fund the applicable advance of such Interim Long Financing, and the amount of such prepayment is sufficient to repay the relevant bankers' acceptance commercial paper in full.
12.13 All payments by the First Nation to the Authority shall be made to an account specified by the Authority on the due date as set out in the Promissory Note, or if the due date is not a Business Day then on the next Business Day.
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ire expenditure of t provides for the (V/ ~ : s ice required to discharge its t if sums provided for in a in relation to the issuance of
13.0 DEFAULT BY THE FIRST NATION 13.1 The occurrence of any one or more of the following events or conditions is a default under this Agreement: (a) the First Nation defaults on a payment owing to the Authority under this Agreement, a Borrowing Law, Security Issuing Council Resolution or Promissory Note;
(b) the First Nation fails to comply with the Act in any material respect; (c) the First Nation defaults in the observance or performance of any of the terms, condi4• covenants to be observed or performed by the First Nation under this Agreement;
(d) the First Nation or a Person on its behalf made a representation, warranty or Authority that was untrue in any material respect at the time it was made or deem (e) the First Nation defaults in payment of any indebtedness to any Person oth.' . n7fhe Authority, or defaults in the performance of any term, provision or condition creat _ which that indebtedness was created or is governed, where that defa y, cause the indebtedness to become due prior to its stated maturi declared to be due and payable other than by a regularly schedule (f) the First Nation commits or threatens to commit any act of (g) the holder of a security interest delivers a notic possession of all or any part of the First Nation's any part of it, or an execution or other pr$ces Nation;
(h) in the opinion of the Authority, a Mate i verse Change has occurred; (i) the First Nation fails to carry oust s of an Undertaking Agreement; (j) the First Nation fails or ,use" to exercise its rights and remedies to enforce collection of outstanding property to _jam - es in a manner that is acceptable to the Authority to meet the First Nation's obligatio thority under this Agreement or a Promissory Note; (k) the First Nn gr. 'a security interest in the Local Revenue Account to any Person other than the Authority out t e prior written consent of the Authority; or (1) the Firs n changes the financial institution at which the Local Revenue Account is located or chan es t - account number of the Local Revenue Account without the prior written consent of the
y.
t under section 13.1 occurs, the Authority, in its sole and absolute discretion, may declare all or t of the First Nation's obligations under this Agreement or a Promissory Note immediately due and able, without any further demand or notice of any kind.
13.3y Notwithstanding anything in this Agreement, no use of the Debt Reserve Fund or payment by other Borrowing Members to replenish the Debt Reserve Fund following a default by the First Nation on a loan payment to the Authority relieves the First Nation of its obligations under this Agreement, a Promissory Note, an Undertaking Agreement or the Act.
13.4 If a default under section 13.1 occurs, in addition to any other remedies the Authority has under the Act or this Agreement, the Authority may take one or both of the following actions under section 86 of the Act:
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t to the ade; agreement under . ,i d allow that Person to .r any such indebtedness is nt; or becomes insolvent; f intention to enforce its security or take including the Local Revenue Account or urt becomes enforceable against the First
(a) request the Board to conduct a review and make a report to the Authority of the reasons for the First Nation's default, including any recommendation for an intervention under section 52 or 53 of the Act; or
(b) require the Board to either (at the Board's discretion) impose a co-management arrangement on the First Nation or assume third-party management of the First Nation's local revenues under section 52 or 53 of the Act.
13.5 Notwithstanding any other provision of this Agreement, the Board may, at its discretion, give notice First Nation under section 52 of the Act requiring the First Nation to enter into a co-ma arrangement in respect of the First Nation's local revenues, including its Local Revenue Acco opinion of the Board, there is a serious risk that the First Nation will default on an obli Authority.
13.6 In addition to any other remedies or obligations under the Act or this Agreement e First Nation defaults on a loan payment to the Authority under paragraph 13(1)(a) and that . - eads to a reduction in the Debt Reserve Fund which other Borrowing Members are called upon t fe enish, the First Nation shall make payments to the Authority in order to repay amounts to other• , ng Members who have been called upon to replenish the Debt Reserve Fund, together with u on account of investment income that would have been earned on the amount of the First Nation It and any costs incurred by the Authority.
13.7 In each year following a default by the First Nation that le to the reduction in the balance of the Debt Reserve Fund, the Authority shall send to the Council a n posing a charge on the First Nation in an amount required to repay amounts outstanding under se • 13.8 Upon receipt of the notice from the Authority seal'` section 13.7, the First Nation shall forthwith pay to the Authority the amounts set out in the noti
13.9 Upon receipt of payments from the First an under section 13.8, the Authority shall pay to each of those Borrowing Members who have been pon to replenish the Debt Reserve Fund a share of monies received from the First Nation pro to to the amount of the total replenishment of the Debt Reserve Fund paid by each such Borrow er. 13.10 The First Nation agree sts and interest incurred by the Authority as a result of a default by the First Nation under , including all fees and disbursements paid by the Authority to its solicitors and counsel and ersons in connection with advising the Authority with respect to a default by the First Nation, ment of this Agreement and collection of monies owing, shall be payable by the First Nation to ority forthwith. 14.0 REPAY TS FROM DEBT RESERVE FUND 14.1 W i,_ • ! Qn default by another Borrowing Member that led to a reduction in the Debt Reserve Fund, the a ion has contributed to replenishment of the Debt Reserve Fund, any repayment to the First Nation O un a subsection 84(6) of the Act shall be reduced by an amount equal to the repayment monies received the First Nation from the Authority in respect of such contribution. '1<5.0i iI N DEMNITY 15.1 The Authority does not agree to undertake or assume any responsibility or duty to the First Nation to select, review, inspect, supervise, pass judgment upon, or inform the First Nation of any matter in connection with a Capital Infrastructure Project. The First Nation shall rely entirely upon its own judgment with respect to such matters; and any review, inspection, supervision, exercise of judgment or supply of information undertaken or assumed by the Authority in connection with such matters is solely for the protection of the Authority and neither the First Nation nor any other Person is entitled to rely thereon.
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15.2 The Authority shall not be responsible or liable to any Person for any loss, damage, liability or claim of any kind relating to injury or death to such Person or damage to any Person's property caused by the action, inaction or negligence of the First Nation.
15.3 The First Nation shall indemnify and save harmless the Authority from and against all claims, demands, actions and costs that arise out of the performance by the First Nation of the Capital Infrastructure Project or this Agreement or by reason of any matter or thing done or omitted to be done by the First Nation or by its employees or agents in connection with their performance in relation to the Capital Infrastructure Project or this Agreement, whether occasioned by negligence or otherwise. Such indemnification shall stitr liove termination of this Agreement.
16.0 ENFORCEMENT OF THIS AGREEMENT 16.1 Nothing in this Agreement or any procedures or remedies in this Agreement shall pre Authority from exercising or relying upon any other legal or equitable remedies or pr the Authority in addition to any remedies or procedures in this Agreement, in rel this Agreement or a Promissory Note.
17.0 SHARING OF INFORMATION
17.1 The First Nation consents to the sharing of information that it 'ro . the Authority, Commission and Board between those institutions as may be required by them t their duties, responsibilities and functions under the Act or as may be required in relation to th . Agreement, and further acknowledges and consents to the disclosure of such information to suc + hird • arties in the financial industry by the Authority as is reasonably necessary for the Authority ge in the issuance of securities or the provision of Interim Long Term Financing secured by ion's Property Tax Revenues. • 18.0 WAIVER /4S'" 18.1 No provision of this Agreement and no bre. either party of any such provision will be deemed to have been waived unless such waiver is in wri i gned by the party that has not committed the breach. 18.2 A written waiver by either party o h of any provision of this Agreement will not be deemed to be a general waiver of such provis0 any subsequent breach of the same or any other provision of this Agreement.
19.0 APPLICABLE L 19.1 This Agreement a1 governed by and construed in accordance with the laws of the Province of British Columbia and e ws of Canada applicable therein and the parties submit and attorn to the jurisdiction of the courts of th ovince of British Columbia. 20.0 TIM O `'t E ESSENCE 20.1 `.+ of the essence of this Agreement and forbearance by the Authority of a strict application of this ision shall not operate as a continuing or subsequent forbearance.
21. SURVIVAL OF WARRANTIES AND REPRESENTATIONS 21.1 All representations and warranties contained in this Agreement shall survive the execution and delivery of this Agreement and shall be deemed to have been made again to the Authority on the date of each loan by the Authority to the First Nation and shall be conclusively presumed to have been relied on by the Authority regardless of any investigation made or information possessed by the Authority.
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edA'çN' restrict the s available to q , . enforcement of
Aiç
21.2 The representations and warranties set forth in this Agreement shall be cumulative and in addition to any other representations or warranties which the First Nation shall now or hereafter give, or cause to be given, to the Authority.
21.3 Notwithstanding anything to the contrary contained herein, articles 15, 16, 19, 21, 22 and 23 shall survive the termination of this Agreement in accordance with its terms.
22.0 SEVERABILITY 22.1 If any article or portion of any article in this Agreement is determined to be unenforceable or invalid f y reason whatsoever, that unenforceability or invalidity shall not affect the enforceability or vali the remaining portions of this Agreement and such unenforceable or invalid article or portion tho, all be severed from the remainder of the Agreement.
23.0 SUCCESSORS AND ASSIGNS 23.1 This Agreement shall ensure to the benefit of and be binding upon the First N the Authority and their respective successors and permitted assigns.
24.0 NOTICES 24.1 Unless otherwise provided in this Agreement, all notices, s, demands, consents or other communications to be given or made under this Agreement shall be writing and are deemed to be well and sufficiently given if hand delivered, mailed or sent by facsimj4asfol ows:
To the Authority: First Nations Finance Avho Address: #202 — 3500 Carringto ~ Westbank, BC V4
Telephone Number: 250.768.5253 0 Fax Number: 250.768.52 Contact: Steven Chief Operating Officer To the First Nation: uk First Nation Address: Highway 93/95 indermere, BC VOB 2L2
Telephone NumO 250.342.63.01 Fax Num 250.342.9693 Kristi Kowalski Senior Financial Officer ?Akisq'nuk First Nation #3050 Highway 93/95 Windermere, BC VOB 2L2 P: (250) 342-6301 ext. 3805 F: (250) 342-9693
24.2 Any notice or other communication so given or made shall be conclusively deemed to have been given and received:
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(b) if sent by ordinary mail, on the date received; (c) if mailed by registered mail, on the second business day following the date of mailing, except in the case of the disruption of postal services, then in such event notice shall be delivered personally or by facsimile; or
(d) if sent by facsimile, on the day of transmission. 24.3 The address or facsimile telephone number for service under section 24.1 may be changed from time t•me by the party making such change notifying the other party as provided in sections 24.1 and 24.2.
25.0 IMPLEMENTATION OF THIS AGREEMENT eid#41°' 25.1 The First Nation shall execute such further and other documents and instruments and u u urther and other things as may be necessary to implement and carry out the intent and purpose of t ement.
26.0 FAX AND COUNTERPARTS A , 26.1 This Agreement may be executed and delivered by the parties in one or • counterparts, each of which when so executed and delivered will be an original, and those counterp together constitute one and the same instrument.
26.2 Delivery of this Agreement by facsimile transmission, e-mail ̀ gr functionally equivalent electronic transmission constitutes valid and effective delivery.
25.0 AMENDMENT 25.1 This Agreement may not be amended or modifiedin writing signed by the parties. EXECUTED this day of , 2016. Accepted on behalf of the ?AKISQNUK ° , T ATION A quorum of Council consists of three (3) s of Council. hief Lorne Shovar Councillor Councillor Rosemary Phillips Councillor Darcy Fisher
Witne Signatures: Brian Woodward
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