First Nations Tax Commission Commission de Ia fiscalité des premieres nations
The First Nations Tax Commission, pursuant to the First Nations Fiscal and Statistical Management Act, hereby approves the following law made by the Songhees First Nation in the Province of British Columbia, Songhees First Nation Borrowing Agreement Law, 2012 Dated at Kamloops, British Columbia this 9th day of February, 2012.
On behalf of the First Nations Tax Commission 6 &&AAA C.T. tfl4aiiiyh Jules - Chief Commissioner —m First Nations Tax Commission
SONG[IEES FIRST BORROWING AGREEMEN’F W F II REA S A. Pursuant to paragraph 5(1 )(d) of Managenient Act, the council of a tirsi nation borrowing of money from the FNFA, including boiTowing agreement with the FNFA; B. The Songhees First Nation wishes the ENFA; C. The Songhees First Nation wishes with the FNFA as provided in this Law; C. The Songhees First Nation has under paragraph 9(1)(a) of the Act, which Nations Financial Management Board, as D. Fhe Songhees First Nation has Nations Financial Management Board, as Act, a copy of which certificate is attached NOW THEREFORE the Council of as follo’as: 1. This Law may be cited as the Agrceinciii Lan’, 2012. 2. In this Law: Act’’ means the First Notions Fiscal 2005, c. 9, arid the regulations enacted “Borrow ing Agreement” means a borrowing FNFA and the First Nation in Schedule “B”; “certificate’’ means a Financial Performance Nations Financial Management Board “FNFA” means the First Nations Finance “First Nat ion’’ means the Songltees First Nation: “Lu” nicans this borrowing agreement law. 3. l;nlss the context otherwise requires. words Law and not otherwise defined have the 4. l lie Council is authorized to enter the FNF.\ on behalf of the First Nation
NATION LAW, 2012 the First Nat/am’ Fiscal and Statistical may make laws respecting the any authorization to enter into a to become a borrowing member of to enter into a borrowing agreement enacted a financial administration law law has been approved by the First required by section 4 of the Act; and obtained a certificate from the First required by subsection 32(1) of the as Schedule “A” to this Law. the Songhees First Nation duly enacts Song/ices First Nation Borrowing and Statistical AIanageniciit ..lct, S.C. under that Act; member agreement between the the form attached to this I.aw as Certificate issued by the First tinder subsection 50(3) of the Act; Authority established under the Act; and and expressions used in the same meaning as in the Act. into the Borrowing Agreement with and a quorum of the Council is
_ _ _ _ authorized and directed to execute the First Nation. 5. Where a provision in this Law provision applies to the circumstances as 6. This Law shall be construed as fair, large and liberal construction and attainment of its objectives. 7. The Schedules attached to this Law 8. This Law comes into force and the First Nations Tax Coimnnission. TI-ITS LAW IS HEREBY DL LY ENACTED January, 2012, at Victoria iii the Province A dl110ft11n ot Council consists of four (‘ouncillor Nicholas Albany ( 7 — C’ounci Ilor Ron Sam
______ Borrowing Agreement on behalf of the is expressed in the present tense, the they arise being remedial and shall be given such interpretation as best ensures the form integral pilrts of this Law. effect on the day after it is approved by by Council on the 31st day of of British Columbia. (4) members of Council, Garmy A]bany Councillor Frank George Councillor Karen ‘lunkara
T FIRST NATIONS \I FINANCIAL MANAGEMENT BOARD NI CE CONSELI.. DE C3ESTION HNANRE L2 DES PREMIERES NATIONS SCHEDULE FINANCIAL PERFORMANCE CERTIFICATE iSSUED The First Nations Financial Management Board (the Board’) completed Performance ror compliance with the Financial Performance Standards and Stuttstkal Management Act (the Act”). On the basis of its review opinion nd certifies t1hat us at March 31, 2011, the Sanghees First Nation Standards.
Thu Board has provided the Songhee.s First Nation with a Report and attached Schedule dated November 23, 2011 as required under section 50(2) of the Act arid upon which the Board’s opinion and certilicatlon is based. This Certificate has been issued to the Songhees First Nation under section 50(3) or the Act solely for the purpose of enabling the Sonhees First Nation to satisfy the requirements of the Act. it should riot be used or relied upon by the Songhees First Nation or by any other person for any other purpose and the Board accepts no responsibility for any toss or damages resulting from any unauthorized use of or reliance on this Certificate. d23 This Certllicate is Issued on the day of November, 2011. FIRST NATIONS FINANCIAL MANAGEMENT BOAflD Chairperson
905 - 100 PARK ROYAL I WEST VANCOUVER, BC I V7T 1 A2 ,,i 604.925.6665 ,alIJrr’., i.877.923.6(i65 my 604.925.6662 t’.i,i MAIL@FNFMB.COM WWWFNPMn.COM
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“A” TO THE SONGHEES FIRST NATION Its review of the Songhees First Nation’s Financial established under section 55 of the First Natia,ss Fiscal end aftarconsideration of its findIngs, the Board (a of the was In compliance with the Financial Performance
SCHEDULE BORROWING (Property Tax This Borrowing Agreement, hereinafter referred 201 BETWEEN: FIRST NATIONS FINANCE As represented by its Board AND FIRST NATION As represented by its Chief WhEREAS: First nations have lacked the institutional framework affordable rates, for public infrastructure purposes; The Act creates a mechanism of long term financing order to promote economic development; Section 58 of the Act creates the Authority as having as one of its purposes to secure for its Borrowing tax revenues, long-term financing of capital infrastructure reserve lands; Section 75 of the Act gives the FNFA Board powers The Authority reviews outstanding requests for consideration of the relevant market and economic debt securities of the Authority to raise a specified FNFA Board; The Authority can provide Interim Long Term Financing of including the applicable Borrowing Member’s by the Authority; The Act sets out a procedure for first nations to become 4
“B” AGREErVEENT Revenues) to as the “Agreement”, is made the — day of AUTHORITY of Directors, (the “Authority”) and Council, (the “First Nation”) by which to gain access to private capital at of capital infrastructure for first nations in a non-profit corporation without share capital, Members, through the use of property for the provision of local services on in relation to the issuance of debt securities; financing from Borrowing Members and, in conditions, authorizes the issue and sale of amount in the manner determined by the to Borrowing Members in anticipation financing request in an issue of debt securities Borrowing Members of the Authority;
-2-The Act also sets out the requirements for Borrowing obtain the necessary certifications and approvals borrowing process; The First Nation is a Borrowing Member of the The First Nation, as part of the process of obtaining or more Borrowing Laws; This Agreement sets out the contractual terms Borrowing Member and the contractual terms and to provide financing to the First Nation from time Project using the First Nation’s property tax revenues; and It is intended that the source of funds to pay interest on by the Authority to the First Nation pursuant to from property taxation laws made by the First Nation NOW THEREFORE THE AUTHORITY AND FOLLOWING: 1.0 INTERPRETATION 1.1 In this Agreement, including the recitals, the meanings: “Act” means the First Nations Fiscal and enacted under that Act and any amendments “Authority” means the First Nations Finance “Board” means the First Nations Financial Management Board Act; “Borrowing Agreement Law” means the the First Nation under and in accordance force on the — day of — 20_; “Borrowing Law” means a law enacted Act to secure through the Authority long provision of local services on the First Nation Nation’s property tax revenues; “Borrowing Member” means a first nation borrowing member under subsection 76(2) borrowing member under section 77 of the
Members to enact Borrowing Laws and to of the Commission and the Board as part of the Authority; financing from the Authority, will enact one and conditions of the First Nation being a conditions under which the Authority agrees to time in relation to a Capital Infrastructure and repay principal of financing provided this Agreement will be from revenues derived under section 5(l)(a) of the Act. THE FIRST NATION AGREE TO THE following terms shall have the following Statistical Management Act, the regulations thereto; Authority established under the Act; established under the Borrowing Agreement Law # { } enacted by with section 5(1)(d) of the Act that came into by the First Nation under section 5(l)(d) of the term financing of capital infrastructure for the reserve lands by the use of the First that has been accepted by the Authority as a of the Act and has not ceased to be a Act;
-3-“Borrowing Room Calculation Certificate” the Authority, signed by the duly authorized setting out financial information of the servicing capacity based on its previous statements; “Business Day” means a day other than Province of Ontario; “Capital Infrastructure Project” means Law; “Commission” means the First Nations “Completion” of a Capital Infrastructure completed, not necessarily totally completed. achieved Completion when the Authority professional engineer or architect to the completed; “Chief’ means [•j or his or her duly elected Nation; “Council” means the governing Council of “Debt Reserve Fund” means the fund the Act for financing secured by property “Financial Administration Law” means # { } enacted by the First Nation of the Act that has been approved by the “Financial Management System Certificate” under section 50(3) of the Act that the First Nation’s compliance with the Board’s standards; “Financial Performance Certificate” section 50(3) of the Act that the First Nation’s with the Board’s standards; “FNFA Board” means the Board of Directors of the Act; “First Nation” means the [] First Nation; “Interim Long Term Financing” means Nation in anticipation of the inclusion and debt securities by the Authority by the earlier
means a certificate in a form required by senior financial officer of the First Nation, First Nation including its unused annual debt fiscal year’s audited consolidated financial a Saturday, Sunday or statutory holiday in the the project generally described in a Borrowing Tax Commission established under the Act; Project means that the project is substantially A project will be considered to have is provided with a certificate from a registered effect that the project has been substantially successor to the office of Chief of the First the First Nation; established by the Authority under section 84 of tax revenues; the First Nation Financial Administration Law under and in accordance with section 9(l)(a) Board; means a certificate issued by the Board financial management system is in means a certificate issued by the Board under financial performance is in compliance of the Authority as described in section 61 financing provided by the Authority to the First replacement of such financing in an issue of of (i) five years from the date on which the
-4-first advance of such Interim Long Term Completion of the Capital Infrastructure “Local Revenue Account” means the account established section 13(1) of the Act into which Revenues; “Material Adverse Change” means condition of the First Nation that affects Nation to perform its obligations under Issuing Council Resolution or Promissory “Person” in addition to its ordinary meaning provincial or federal government, partnership legal representative or successors or assigns apply according to law; “Promissory Note” means a contractual promise Authority in respect of the repayment by Nation from the Authority, in substantially Schedule A; and “Security Issuing Council Resolution” form attached to a Borrowing Law. 1.2 Unless the context otherwise requires, words not otherwise defined have the same meaning 1.3 Any computation of days or business Agreement shall be determined based on general banking business in the Province 1.4 Words importing the singular number importing gender include the neuter, feminine 1.5 The division of this Borrowing Agreement into and the insertion of headings are for convenience the construction or interpretation hereof. 1.6 In the event that any day on or before which is not a Business Day, then such action requisite time on the next succeeding day 2.0 APPLICATION OF THE ACT 2.1 The Authority and the First Nation agree the relationship between the Authority First Nation using property tax revenues
Financing is provided to the First Nation, or (ii) Project; by the First Nation pursuant to the First Nation is required to place its Local a change in the financial, operational or other or is likely to affect the ability of the First this Agreement, a Borrowing Law, Security Note as and when they fall due; includes a corporation, society, a local, or other legal entity and the personal or of such Person to whom the context can to pay made by the First Nation to the the First Nation of money borrowed by the First the form attached to this Agreement as means a Council resolution in substantially the and expressions used in this Agreement and as in the Act. hours in relation to borrowing under this days and hours during which banks are open for of Ontario. include the plural and vice versa and words and masculine genders. Articles, sections, subsections and clauses of reference only and shall not affect any action is required to be taken hereunder shall be required to be taken on or before the that is a Business Day. that the Act and this Agreement shall apply to and the First Nation and any borrowing by the under a Borrowing Law.
-5-2.2 In the event of a conflict between the Act and extent of the conflict. 3.0 AUTHORIZATION FOR AGREEMENT BORROWING 3.1 The First Nation and the Authority acknowledge Agreement establishing the contractual terms Borrowing Member and the contractual terms Authority by the First Nation is authorized contractual terms so established are in addition the Borrowing Law, a Security Issuing Council Resolution 4.0 CONSIDERATION 4.1 In consideration of the Authority agreeing Agreement and agreeing to consider, under Authority to raise monies to lend to the Project, the First Nation agrees to comply Agreement. 4.2 Without limiting the generality of clause First Nation in accordance with the Act, a Resolution for a Capital Infrastructure Project, the as set out in the Promissory Note and this conditions of this Agreement. 5.0 TERM OF AGREEMENT 5.1 This Agreement shall remain in force until the Member under section 77 of the Act. 6.0 FIRST NATION REPRESENTATIONS 6.1 The First Nation represents and warrants and acknowledges that the Authority is without independent inquiry in entering into (a) the First Nation’s Financial Administration and the First Nation has not repealed approval; (b) before becoming a Borrowing Member, the Management System Certificate provided the Authority with a copy of the Act in relation to that certificate;
this Agreement, the Act shall prevail to the AND THE FIRST NATION and agree that entering into this and conditions of the First Nation being a and conditions for borrowing from the by the Borrowing Agreement Law and the to any terms and conditions contained in and a Promissory Note. to comply with the terms and conditions of this clause 9.1, the First Nation’s request for the First Nation to finance a Capital Infrastructure with the terms and conditions of this 4.1, if the Authority provides fmancing to the Borrowing Law, or a Security Issuing Council First Nation agrees to make payments Agreement and to comply with the terms and First Nation ceases to be a Borrowing & WARRANTIES to the Authority as set forth in this clause 6.1, relying on such representations and warranties this Agreement: Law has been approved by the Board or amended its provisions without Board First Nation obtained a Financial or a Financial Performance Certificate and of the Board’s report given under section 50(2)
-6-(c) the First Nation has obtained all approvals the Borrowing Agreement Law; (d) the execution and delivery of this Nation of its obligations in this hereunder are all within the First Nation’s under the Borrowing Agreement Law; (e) all information furnished by or on Authority, Commission and Board certification and approval of the First Nation the enacting of the Borrowing Agreement Law respects as at the date such information deceptive in any material respect whether other information and did not omit any such information not misleading, and First Nation to the Authority, Commission the date such information is provided will not be misleading or deceptive or by omission of any other information necessary to make such information (1) all material financial transactions of Nation and accurately reflect in condition of the First Nation shown financial statements and other information Authority, Commission and Board; (g) no Material Adverse Change has occurred recent audited consolidated annual expressly disclosed in writing to the (h) there are no current or pending actions, suits, arbitrations, proceedings nor to the best of the First Nation’s such case could result in a Material Adverse (i) the First Nation is not in breach or terms of any material agreement, contract, instrument, lease which it is a party which could result in (j) the First Nation is in compliance Administration Law, local revenue and Commission in relation to any approvals Commission; (k) the First Nation is in compliance in (1) in addition to compliance under subparagraphs in compliance in all material respects
necessary from the Commission to enact Agreement and the performance by the First Agreement and the transactions contemplated powers, and have been duly authorized behalf of the First Nation in writing to the in connection with this Agreement, the becoming a Borrowing Member and was true and correct in all material was provided and was not misleading or by its inclusion or by omission of any material fact necessary in order to make any information hereafter furnished by the and Board will be true and correct as at to the Authority, Commission and Board and in any material respect whether by its inc’usion and will not omit any material fact not misleading; the First Nation have been recorded by the First all material respects the basis for the financial in the most recent audited consolidated annual provided by the First Nation to the since the date of the First Nation’s most financial statements, except as has been Authority, Commission and Board; or claims, knowledge are any threatened, which in any Change; violation in any material respect of any of the or other commitment to a Material Adverse Change; in all material respects with its Financial laws and all applicable standards of the Board or certifications issued by the Board or all material respects with the Act; (j) and (k) above, the First Nation is with all other applicable provisions of laws,
-7-rules, regulations, licenses, permits, governmental authority in relation First Nation’s obligations under this (m) there is no current or pending investigation, proceeding, complaint, order, directive, claim, citation or notice by any governmental the best of the First Nation’s knowledge non-compliance with or violation of the First Nation or the threatened hazardous material or the generation, manufacture, handling, production other environmental, health or safety 7.0 COVENANTS OF THE FH{ST NATION 7.1 The First Nation covenants and agrees that for (a) comply with applicable Board and obtain and maintain in good standing the Board and the Commission; (b) if on becoming a Borrowing Member Management System Certificate, provide certificate within 36 months after Member; (c) notify the Authority, Board and Commission Material Adverse Change to any of under this Agreement or during the entering into this Agreement, obtaining from the Board and the Commission Resolution; (d) comply with its Financial Administration (e) comply in all material respects with rules, regulations, orders and policies, as payments required in relation thereto; (f) advise the Authority in writing as soon Nation’s representative to the Authority the resolution of Council designating (g) use the funds loaned by the Authority permitted expenditures in relation to any funds loaned by the Authority not affect the obligations of the First Nation Borrowing Law, a Security Issuing Council Resolution
approvals and orders of any applicable to the Capital Infrastructure Project or any of the Agreement; and authority or any other Person, nor to are any threatened, with respect to any the requirements of any environmental law by or actual release, spill, or discharge of any use, storage, treatment, transportation, or disposal of any hazardous materials or any matter. the term of this Agreement it shall: Commission standards made under the Act and all necessary certifications and approvals from the First Nation did not have a Financial the Authority with a copy of such the First Nation’s acceptance as a Borrowing promptly in writing if there is a the information provided by the First Nation process of becoming a Borrowing Member, any necessary certifications and approvals or passing a Security Issuing Council Law and local revenue laws; the Act and all of the Authority’s by-laws, amended from time to time, and make all as possible if there is a change in the First and provide the Authority with a copy of a new representative; to the First Nation only for the payment of the Capital Infrastructure Project, provided that that are used for an unauthorized purpose shall under the Act, this Agreement, a or a Promissory Note;
-8-(h) in construction of a Capital Infrastructure with all applicable provisions of approvals and orders of any applicable applicable conditions and standards Borrowing Law; (i) deliver to the Authority: (i) the First Nation’s annual budget including Local Revenue Account applicable current year, and a five year acceptable to the Authority, within fiscal year end; (ii) the First Nation’s audited audited Local Revenue Account fmancial statements fiscal year end together with independent auditor who is Institute of Chartered Accountants auditors incorporated under the (iii) the Borrowing Room Calculation Nation’s fiscal year end; (iv) the First Nation’s most recent taxable classification and applicable (v) promptly upon receipt of notice threatened actions, suits, arbitrations, proceedings Nation; and (vi) a copy of the current strategic any existing operating plans of the First Nation as the Authority time; G) if required by the Authority, execute Authority considers necessary to grant to Local Revenue Account (including, for deposit in the Local Revenue Account); the Nation to obtain an agreement from party”) that has a security interest in First Nation becomes a Borrowing under which the security interest held Account is subordinated and postponed Authority in the Local Revenue Account; (k) permit representatives of the Board advisors, technical advisors and consultants, and
Project comply in all material respects laws, rules, regulations, licenses, permits, governmental authority and with all issued by the Commission in approving a the component respecting its to the borrowing for the First Nation’s capital expenditure plan, in each case in a form 120 days after the First Nation’s last consolidated annual financial statements and within 120 days after its an opinion on such financial statements by an a member in good standing of the Canadian or an association of accountants or laws of a province or territory in Canada; Certificate within 120 days after the First assessment valuation by property property tax rates by property classification; thereof, a report of any current, pending or or claims against the First plan and multi-year financial plan, a copy of and any other financial information or statistics may reasonably request from time to such documents and agreements as the the Authority a security interest in the greater certainty, all sums at any time on Authority may also require the First any Person (in this paragraph called a “third the Local Revenue Account as of the date the Member in form satisfactory to the Authority by the third party in the Local Revenue to any security interest held by the (including accountants, counsel, financial other representatives) to visit the
-9-First Nation’s premises at all reasonable take copies and excerpts, where applicable, from accounts, records, reports, files, properties as are deemed appropriate by the Board, acting to compliance with Board standards, the Member, or any obligation under Security Issuing Council Resolution administration of the funds borrowed may be reasonably necessary to conduct a 86(2) and (3) of the Act, to enter into under section 52 of the Act or to act as Act; (1) upon request by the Authority, do, execute, acknowledge done, executed, acknowledged and deeds as the Authority shall deem purposes of (i) this Agreement; (ii) Issuing Council Resolution; (v) a Promissory the Authority, and the First Nation evidence of the foregoing satisfactory (m) if the Authority provides Interim Long Nation must, and hereby covenants (i) five years after the date on Term Financing is provided (ii) Completion of the Capital Infrastructure (A) replace such Interim replacement of such by the Authority, or (B) prepay all unpaid principal of such Interim Long Term 12.11 and 12.12 ofthis 8.0 SECURITY ISSUING COUNCIL RESOLUTION 8.1 When, from time to time, the First Nation authorized under a Borrowing Law, the Resolution approving the borrowing of the Authority to include that amount as part of requesting the Authority to provide the Financing to the First Nation. The Security the date by which the First Nation wishes the Security Issuing Council Resolution.
business hours and to have access to and all of the First Nation’s books, and assets, in whatever form they take, honestly and in good faith, relating First Nation’s status as a Borrowing the Act, this Agreement, a Borrowing Law, or Promissory Note and to the receipt of and under this Agreement or a Borrowing Law, as review and make a report under sections and carry out a co-management arrangement third-party manager under section 53 of the and deliver or cause to be delivered every and all such further acts and necessary or appropriate to give effect to the the Act; (iii) a Borrowing Law; (iv) a Security Note; and (vi) by-laws or policies of shall promptly provide the Authority with to the Authority; and Term Financing to the First Nation, the First to, by the earlier of: which the first advance of such Interim Long to the First Nation, or Project, either: Long Term Financing by inclusion and financing in and by an issue of debt securities and accrued and unpaid interest on Financing in full in accordance with clauses Agreement. wishes to borrow all or a portion of the amount Council shall pass a Security Issuing Council specified amount and either: (i) requesting the its next issue of debt securities, or (ii) specified amount by way of Interim Long Term Issuing Council Resolution shall also specif,’ to receive the amount of financing specified in
- 10 8.2 The First Nation shall promptly send a Resolution to the Authority, and, for their If the Security Issuing Council Resolution amount in the Authority’s next issue of Issuing Council Resolution must be delivered Board by the date specified in writing by participate in the Authority’s next issue of 8.3 If financing is provided by the Authority Term Financing, the Authority may by written by which the First Nation must give written Security Issuing Council Resolution to confirm Long Term Financing to be replaced by debt securities by the Authority. 9.0 COVENANTS OF THE AUTHORITY 9.1 If the First Nation has obtained all necessary the Commission and complied with this Authority and a Borrowing Law, the Authority the First Nation set out in a Security Issuing relevant market and economic conditions issue and sale of debt securities to raise Interim Long Term Financing to the First Nation, in Nation to finance a specified Capital Infrastructure 9.2 The Authority agrees that for the term of (a) provide the First Nation fill opportunity Authority in accordance with the Act and (b) provide the First Nation with notice regime, requirements for Borrowing could significantly affect the First Nation’s obligations to the Authority; and (c) provide the First Nation with notice 10.0 FINANCING BY THE AUTHORITY 10.1 The Authority is authorized to finance from at the sole cost and on behalf of the First Nation Resolution up to but not exceeding the least of: (a) the amount authorized in a Borrowing
-certified copy of the Security Issuing Council information, to the Commission and the Board. requests the Authority to include the specified debt securities, the certified copy of the Security to the Authority, the Commission and the the Authority in order for the First Nation to debt securities. to the First Nation by way of Interim Long notice to the First Nation specify the date notice to the Authority by way of a new that the First Nation intends such Interim inclusion of such financing in the next issue of certifications and approvals from the Board and Agreement, the Act, by-laws and policies of the shall review the request for financing of Council Resolution and, in consideration of may, in accordance with the Act, authorize the ftinds requested by the First Nation or provide either case to be loaned to the First Project. this Agreement it shall: to participate in the governance of the the by-laws of the Authority; of any significant changes to the borrowing Members and other material information that rights as a Borrowing Member or its of any changes of fees or charges. time to time a Capital Infrastructure Project as set out in a Security Issuing Council Law;
-11-(b) the amount remaining in the authorization for a Capital Infrastructure Project have Authority; or (c) the amount of the unused annual debt servicing recent Borrowing Room Calculation 10.2 The financing by the Authority shall be First Nation may borrow all or part of such shall determine but the aggregate amount in dollar equivalents so borrowed shall not exceed Canadian dollars) together with interest and or premiums and expense as the Authority market and economic conditions at the relevant time. 10.3 Recognizing that the term to maturity of be the same as the First Nation’s requested relevant time, the First Nation may by resolution fix the interest rate on the loan from the borrowing described in the Security Issuing borrowing. 10.4 If the Authority provides Interim Long Term the loan withheld under section 84(2) of in relation to the Interim Long Term Financing determining the amount to be withheld subsequent issue of debt securities by the First Nation. 11.0 CONDITIONS OF FINANCING 11.1 In addition to the provisions of clauses 9.1, 10.1 of the Authority to provide financing conditional upon the following: (a) execution of this Agreement by the with all terms of this Agreement; (b) receipt by the Authority of a Borrowing (c) receipt by the Authority of a First Nation (d) receipt by the Authority of a current Borrowing (e) receipt by the Authority of the First Nation’s annual financial statements; (f) receipt by the Authority of supporting of the Local Revenue Account by the
in a Borrowing Law after previous loans been made to the First Nation by the capacity as calculated in the most Certificate. in lawful money of Canada (provided that the amount in such currency as the FNFA Board lawful money of Canada and in Canadian the limits set out in clause 10.1 in at such interest rates and with such discounts may deem appropriate in consideration of the debt securities issued by the Authority may not term for financing from the Authority at the of the Council request that the Authority Authority to the First Nation at the time of the Council Resolution for the full term of the Financing to the First Nation, the amount of the Act and deposited in the Debt Reserve Fund will be credited to the First Nation in under section 84(2) of the Act upon the Authority to raise the funds requested by the and 10.2 of this Agreement, any decision to the First Nation under those clauses is First Nation and compliance by the First Nation Law approved by the Commission; Security Issuing Council Resolution; Room Calculation Certificate; most recent audited consolidated documentation relating to the establishment First Nation;
- 12 (g) receipt by the Authority of executed required by the Authority pursuant to (h) receipt by the Authority of a Financial Performance Nation and a copy of the Board’s report prepared section 50(2) of the Act; and (i) receipt by the Authority of such other the Authority may reasonably require. 11.2 In addition to the requirements under provide financing to the First Nation after first Borrowing Law is conditional upon Management System Certificate issued report prepared in respect of that certificate Nation did not have a Financial Management System Borrowing Member. 12.0 PAYMENT BY THE FIRST NATION 12.1 Upon completion by the Authority of any Issuing Council Resolution, the First Nation execute and deliver a Promissory Note to 12.2 The Promissory Note shall be executed on in a Security Issuing Council Resolution. The by the First Nation to the Authority of the Authority with respect to each of its borrowings Borrowing Law and applicable Security Issuing 12.3 The Promissory Note shall be dated and payable schedule of repayment by the First Nation as shall be determined by the Authority. 12.4 The obligations under a Promissory Note therein, which date shall be determined by Authority. 12.5 The obligations incurred under a Promissory be payable in such manner and at such time the Authority. 12.6 The First Nation shall in each fiscal year after in its annual budget for payment of all amounts year to which its annual budget applies. 12.7 The First Nation shall pay the amounts schedule to, a Promissory Note during a priority to other creditors of the First Nation
-copies of the documents and agreements clause 7.1 G) of this Agreement; Certificate issued to the First in respect of that certificate under financial information of the First Nation as clause 11.1, any decision of the Authority to the financing authorized by the First Nation’s receipt by the Authority of a Financial to the First Nation and a copy of the Board’s under section 50(2) of the Act, if the First Certificate when it became a financing undertaken pursuant to a Security shall, at a time that the Authority requests, the Authority. behalf of the First Nation by the Person named Promissory Note shall provide for payment amounts required to meet the obligations of the undertaken pursuant to the First Nation’s Council Resolution. in Canadian dollars and shall set out the of the principal amount together with interest shall bear interest from the date specified the Authority, at rates to be determined by the Note as to both principal and interest shall or times as determined from time to time by a Promissory Note has been signed provide payable to the Authority during the fiscal to the Authority set forth in, or attached as a fiscal year and shall make such payments in during that fiscal year.
- 12.8 No expenditure law enacted by the First Nation authorize the expenditure of moneys raised Nation’s annual budget provides for the during the budget period. 12.9 The First Nation shall provide and pay over discharge its obligations in accordance that if sums provided for in a Promissory of the Authority in relation to the issuance Long Term Financing to raise the funds meeting such obligations shall be a liability Council shall make due provision to discharge 12.10 If the First Nation’s requested repayment term Law does not match the term for debt securities First Nation’s borrowing, the First Nation the Authority to use a derivative product to term, or if no such Council Resolution Nation’s loan will be refinanced by the desired term of repayment set out in a Borrowing clause shall take place at the Authority’s at the time of the refinancing. 12.11 In the event the First Nation wishes to prepay the prepayment shall include the full amount of maturity of the Promissory Note or another discharge the First Nation’s obligations and in relation to the prepayment. 12.12 The parties acknowledge that the Authority Financing to the First Nation by the issuance bank market or by the issuance of commercial paper The First Nation may not prepay any amount of such prepayment is made on the maturity commercial paper utilized by the Authority Interim Long Term Financing, and the amount of the relevant bankers’ acceptance or commercial paper 12.13 All payments by the First Nation to the by the Authority on the due date as set out in not a Business Day then on the next Business
13 -under section 5(1)(b) of the Act shall under a local revenue law unless the First payment of all amounts payable to the Authority to the Authority such sums as are required to with the terms of a Promissory Note, provided Note are not sufficient to meet the obligations of debt securities or the provision of Interim requested by the First Nation, any deficiency in of the First Nation to the Authority and the such liability. for a borrowing described in a Borrowing issued by the Authority to provide for the may, by way of Council Resolution, authorize fix the loan interest rate for the full repayment is provided to the Authority, then the First Authority as needed to meet the First Nation’s Law. Any refinancing described in this calculated interest rate in issuing debt securities the amount owing under a Promissory Note the principal and interest due on the amount as calculated by the Authority to fully any additional cost incurred by the Authority will fund advances of Interim Long Term of bankers’ acceptances in the Canadian in the Canadian capital markets. Interim Long Term Financing unless date of the bankers’ acceptance or issue of to fund the applicable advance of such such prepayment is sufficient to repay in full. Authority shall be made to an account specified the Promissory Note, or if the due date is Day.
-14-13.0 DEFAULT BY THE FIRST NATION 13.1 The occurrence of any one or more of the under this Agreement: (a) the First Nation defaults on a Agreement, a Borrowing Law, Security Note; (b) the First Nation fails to comply with (c) the First Nation defaults in the observance conditions or covenants to be observed Agreement; (d) the First Nation or a Person on statement to the Authority that was made or deemed to be made; (e) the First Nation defaults in payment of the Authority, or defaults in the performance created in any agreement under which where that default would allow that Person prior to its stated maturity, or any payable other than by a regularly scheduled (f) the First Nation commits or threatens insolvent; (g) the holder of a security interest delivers or take possession of all or any part of Local Revenue Account or any part of court becomes enforceable against the (h) the First Nation fails or refuses to collection of outstanding property tax Authority to meet the First Nation’s Agreement or a Promissory Note; or (i) in the opinion of the Authority, a Material Adverse 13.2 If a default under clause 13.1 occurs the may declare all or any part of the First Nation’s Promissory Note immediately due and payable, without any any kind. 13.3 Notwithstanding anything in this Agreement, no payment by other Borrowing Members to
following events or conditions will be a default payment owing to the Authority under this Issuing Council Resolution or Promissory the Act in any material respect; or performance of any of the terms, or performed by the First Nation under this its behalf made a representation, warranty or untrue in any material respect at the time it was any indebtedness to any Person other than of any term, provision or condition that indebtedness was created or is governed, to cause the indebtedness to become due such indebtedness is declared to be due and payment; to commit any act of bankruptcy or becomes a notice of intention to enforce its security the First Nation’s property, including the it, or an execution or other process of any First Nation; exercise its rights and remedies to enforce revenues in a manner that is acceptable to the obligations to the Authority under this Change has occurred. Authority, in its sole and absolute discretion, obligations under this Agreement or a further demand or notice of use of the Debt Reserve Fund or replenish the Debt Reserve Fund following a
- 15-default by the First Nation on a loan payment to its obligations under this Agreement, a Promissory 13.4 If a default under clause 13.1 occurs, in under the Act or this Agreement, the Authority actions under section 86 of the Act: (a) request the Board to conduct a review reasons for the First Nation’s default, including intervention under section 52 or 53 (b) require the Board to either (at the arrangement on the First Nation Nation’s local revenues under section 13.5 Notwithstanding any other provision of give notice to the First Nation under section enter into a co-management arrangement in including its Local Revenue Account, if, in risk that the First Nation will default on an 13.6 In addition to any other remedies or obligations the First Nation defaults on a loan payment to that default leads to a reduction in the Members are called upon to replenish, the Authority in order to repay amounts to other upon to replenish the Debt Reserve investment income that would have been default and any costs incurred by the Authority. 13.7 In each year following a default by the First Nation of the Debt Reserve Fund, the Authority charge on the First Nation in an amount required clause 13.6. 13.8 Upon receipt of the notice from the Authority shall forthwith pay to the Authority the amounts 13.9 Upon receipt of payments from the First Nation pay to each of those Borrowing Members Debt Reserve Fund a share of monies received amount of the total replenishment of the Debt Reserve Member. 13.10 The First Nation agrees that all costs and a default by the First Nation under clause by the Authority to its solicitors and counsel and advising the Authority with respect to
the Authority relieves the First Nation of Note or the Act. addition to any other remedies the Authority has may take one or both of the following and make a report to the Authority of the any recommendation for an of the Act; or Board’s discretion) impose a co-management or assume third-party management of the First 52 or 53 of the Act. this Agreement, the Board may, at its discretion, 52 of the Act requiring the First Nation to respect of the First Nation’s local revenues, the opinion of the Board, there is a serious obligation to the Authority. under the Act or this Agreement, where the Authority under clause 13(1)(a) and Debt Reserve Fund which other Borrowing First Nation shall make payments to the Borrowing Members who have been called Fund, together with amounts on account of earned on the amount of the First Nation’s that led to a reduction in the balance shall send to the Council a notice imposing a to repay amounts outstanding under sent under clause 13.7, the First Nation set out in the notice. under clause 13.8, the Authority shall who have been called upon to replenish the from the First Nation proportionate to the Fund paid by each such Borrowing interest incurred by the Authority as a result of 13.1, including all fees and disbursements paid any other Persons in connection with a default, enforcement of this Agreement and
- collection of monies owing, shall be forthwith. 14.0 REPAYMENT FROM DEBT RESERVE 14.1 Where, upon default of another Borrowing Reserve Fund, the First Nation has contributed Fund, any repayment to the First Nation by an amount equal to the repayment from the Authority under clause 13.9. 15.0 INDEMNITY 15.1 The Authority does not agree to undertake First Nation to select, review, inspect, supervise, pass Nation of any matter in connection with shall rely entirely upon its own judgment inspection, supervision, exercise of judgment or assumed by the Authority in connection the Authority and neither the First Nation 15.2 The Authority shall not be responsible liability or claim of any kind relating to Person’s property caused by the action, inaction 15.3 The First Nation shall indemnify and save claims, demands, actions and costs that arise of the Capital Infrastructure Project and thing done or omitted to be done by the connection with their performance in relation Agreement, whether occasioned by negligence survive termination of this Agreement. 16.0 ENFORCEMENT OF THIS AGREEMENT 16.1 Nothing in this Agreement or any procedures or restrict the Authority from exercising remedies or procedures available to the procedures in this Agreement, in relation Promissory Note. 17.0 SHARING OF INFORMATION 17.1 The First Nation consents to the sharing Authority, Commission and Board between required by them to carry out their duties, responsibilities as may be required in relation to this Agreement, and to the disclosure of such information to Authority as is reasonably necessary for
16 payable by the First Nation to the Authority FUND Member that led to a reduction in the Debt to replenishment of the Debt Reserve under section 84(6) of the Act shall be reduced monies previously received by the First Nation or assume any responsibility or duty to the judgment upon, or inform the First a Capital Infrastructure Project. The First Nation with respect to such matters, and any review, supply of information undertaken or with such matters is solely for the protection of nor any other Person is entitled to rely thereon. or liable to any Person for any loss, damage, injury or death to such Person or damage to any or negligence of the First Nation. harmless the Authority from and against all out of the performance by the First Nation of this Agreement or by reason of any matter or First Nation, or by its employees or agents in to the Capital Infrastructure Project or this or otherwise. Such indemnification shall or remedies in this Agreement shall prevent or relying upon any other legal or equitable Authority in addition to any remedies or to enforcement of this Agreement or a of information that it may provide to the and among those institutions as may be and functions under the Act or further acknowledges and consents such third parties in the financial industry by the the Authority to engage in the issuance of debt
- 17-securities or the provision of Interim Long property tax revenues. 18.0 WAIVER 18.1 No provision of this Agreement and no breach be deemed to have been waived unless such has not committed the breach. 18.2 A written waiver by either party of a breach be deemed to be a general waiver of such same or any other provision of this Agreement. 19.0 APPLICABLE LAW 19.1 This Agreement shall be governed by and Province of British Columbia and the laws submit and attorn to the jurisdiction of the 20.0 TIME OF THE ESSENCE 20.1 Time is of the essence of this Agreement and application of this provision shall not operate 21.0 SURVIVAL OF WARRANTIES AND 21.1 All representations and warranties contained execution and delivery of this Agreement and to the Authority on the date of each loan conclusively presumed to have been relied investigation made or information possessed 21.2 The representations and warranties set forth addition to any other representations or warranties hereafter give, or cause to be given, to the 21.3 Notwithstanding anything to the contrary 23 shall survive the termination of this Agreement 22.0 SEVERABILITY 22,1 If any clause or portion of any clause unenforceable or invalid for any reason shall not affect the enforceability or validity and such unenforceable or invaLid clause remainder of the Agreement. 23.0 SUCCESSORS AND ASSIGNS
Term Financing secured by the First Nation’s by either party of any such provision will waiver is in writing signed by the party that of any provision of this Agreement will not provision or of any subsequent breach of the construed in accordance with the laws of the of Canada applicable therein and the parties courts of the Province of British Columbia. forbearance by the Authority of a strict as a continuing or subsequent forbearance. REPRESENTATIONS in this Agreement shall survive the shall be deemed to have been made again by the Authority to the First Nation and shall be on by the Authority regardless of any by the Authority. in this Agreement shall be cumulative and in which the First Nation shall now or Authority. contained herein, clauses 15, 16, 19, 21, 22 and in accordance with its terms. in this Agreement is determined to be whatsoever, that unenforceability or invalidity of the remaining portions of this Agreement or portion thereof shall be severed from the
- 18 -23.1 This Agreement shall enure to the benefit of and be binding upon the First Nation and the Authority and their respective successors and permitted assigns. 24.0 NOTICES 24.1 Unless otherwise provided in this Agreement, all notices, requests, demands, consents or other communications to be given or made under this Agreement shall be in writing and are deemed to be well and sufficiently given if hand delivered, mailed or sent by facsimile as follows: To the Authority: First Nations Finance Authority #202 — 3500 Carrington Road Westbank, BC V4T 3C1 Telephone Number: 250.768.5253 Fax Number: 250.768.5258 Contact: To the First Nation: Address: Telephone Number: Fax Number: Contact:
24.2 Any notice or other communication so have been given and received: (a) if delivered personally, at the actual time (b) if sent by ordinary mail, on the date (c) if mailed by registered mail, on the mailing, except in the case of the disruption notice shall be delivered personally (d) if sent by facsimile, on the day of transmission. 24.3 The address or facsimile telephone number from time to time by the party making such in this clause.
given or made shall be conclusively deemed to of delivery; received; second business day following the date of of postai services, then in such event or by facsimile; or for service under this clause may be changed change notifying the other party as provided
_ _ _ _ _ - 19-25.0 IMPLEMENTATION OF THIS AGREEMENT 25.1 The First Nation shall execute such further such further and other things as may be necessary and purpose of this Agreement. 26.0 FAX AND COUNTERPARTS 26.1 This Agreement may be executed and counterparts, each of which when so executed counterparts will together constitute one and 26.2 Delivery of this Agreement by facsimile electronic transmission constitutes valid and 27.0 AMENDMENT 27.1 This Agreement may not be amended or modified EXECUTED this day of Signature ofthe Council: Chief Councillor Councillor Witness to Signatures: Accepted on behalf of the First Nations Finance Chairperson Board Member Board Member
and other documents and instruments and do to implement and carry out the intent delivered by the parties in one or more and delivered will be an original, and those the same instrument. transmission, e-mail or functionally equivalent effective delivery. except in writing signed by the parties. ,20. Councillor Councillor Councillor Authority: Deputy Chairperson Board Member Board Member
- 20 -Witness to Signatures:
SCHEDULE PROMISSORY (the “Promissory • (the “First Nation”), for value received, hereby to pay to the First Nations Finance Authority (the Road, Westbank, British Columbia, V4T 3C1, all sums Authority under this Promissory Note and the Canada, in the place and in the manner as the Authority The terms of the Promissory Note are as follows: ARTICLE INTERPRETATION
1.1 Definitions In this Promissory Note, unless there is something therewith: “Borrowing Agreement” means the agreement dated First Nation and the Authority; “Business Day” means a day other than Province of Ontario; and “Principal Amount” has the meaning assigned Note.
1.2 Number and Gender Words importing the singular number include gender include the neuter, feminine and masculine 1.3 Headings The division of this Promissory Note into Articles, sections headings are for convenience of reference only interpretation hereof. 1.4 Applicable Law This Promissory Note shall be governed by and Province of British Columbia and the laws of Canada and attorn to the jurisdiction of the courts of the 1066370_6
_ _ _ _ _ _ _ _ _ _ _ _ _ _ , A NOTE Note “) acknowledges itself indebted to and promises “Authority”) of Suite 202 — 3500 Carrington payable by the First Nation to the Borrowing Agreement, in lawful money of may advise the First Nation in writing. 1
in the subject matter or context inconsistent 20_, between the a Saturday, Sunday or statutory holiday in the to it in Section 2.1 of this Promissory
the plural and vice versa and words importing genders. and subsections and the insertion of and shall not affect the construction or construed in accordance with the laws of the applicable therein and the parties submit Province of British Columbia.
-2-1.5 Business Day In the event that any day on or before which any Business Day, then such action shall be required the next succeeding day that is a Business Day. 1.6 Monetary Reference Any reference in this Promissory Note to “Dollars”, “dollars” reference to lawful money of Canada. 1.7 Invalidity of Provisions If any Article or portion of any Article in this Promissory or invalid for any reason whatsoever, that unenforceability enforceability or validity of the remaining unenforceable or invalid Article or portion thereof Promissory Note. 1.8 Interpretation of Terms in Promissory Unless the context otherwise requires, words and not otherwise defined have the same meaning as ARTICLE PRINCIPAL AND 2.1 Promise to Pay [Use the following clause where the First Authority’s next issue of debt securities.] The of ( $ th _ e __ “ _ P _ r _ in _ c _ i _ p _ al ___ A _ m __ o _ unt”) annually in each and every year during the currency interest as determined by the Authority from time been previously prepaid in accordance with Section attached to this Promissory Note and commencing Authority may advise the First Nation in writing. [Use the following clause where the First Nation Interim Long Term Financing to the First Authority interest on the $________________ principal amount of Term Financing advanced by the Authority to the Authority may advise the First Nation in writing this Promissory Note, at such rates of interest as (unless this Promissory Note shall have been previously hereof) in the manner set out in the table attached •, at the place and in the manner as the Authority
action is required to be taken hereunder is not a to be taken on or before the requisite time on or “$“ shall be deemed to be a Note is determined to be unenforceable or invalidity shall not affect the portions of this Promissory Note and such shall be severed from the remainder of the Note expressions used in this Promissory Note and in the Borrowing Agreement. 2 INTEREST Nation has requested financing from the First Nation shall pay to the Authority the sum together with interest calculated semi of this Promissory Note, at such rates of to time (unless this Promissory Note shall have 3.1 hereof) in the manner set out in the table on •, at the place and in the manner as the has requested the Authority to provide Nation.1 The First Nation shall pay to the outstanding Interim Long First Nation, calculated for such periods as the in each and every year during the currency of determined by the Authority from time to time prepaid in accordance with Section 3.1 to this Promissory Note and commencing on may advise the First Nation in writing.
-3-2.2 Promise to Pay Additional Amounts In the event the payments of principal and interest hereunder obligations of the First Nation to the Authority shall pay to the Authority such further amounts the First Nation to the Authority. These further communicated in writing to the First Nation and writing by the Authority to the First Nation. 2.3 Accelerated Payment Notwithstanding the foregoing, if a default as Agreement occurs the Authority may, in its sole the obligations of the First Nation under the Borrowing obligations of the First Nation under this Promissory any further demand or notice of any kind. ARTICLE PREPAYMENT
3.1 Prepayment The First Nation may prepay all or any portion does so in accordance with clauses 12.11 and 12.12 applicable. ARTICLE SATISFACTION AND 4.1 Release from Covenants Upon the payment in full of all amounts payable interest then accrued and payable, the Authority instruments as may be reasonably requested by First Nation from its covenants in this Promissory ARTICLE MISCELLANEOUS
5.1 Notice Unless otherwise provided in this Promissory Note, all notices, requests, demands, consents other communications to be given or made under deemed to be well and sufficiently given if hand follows:
are insufficient to satisf’ the under the Borrowing Agreement, the First Nation as are sufficient to discharge the obligations of amounts will be calculated by the Authority, payable by the First Nation at a date specified in described in clause 13.1 of the Borrowing and absolute discretion, declare all or any part of Agreement and all or any part of the Note immediately due and payable, without 3
of the Principal Amount at any time, provided it of the Borrowing Agreement, to the extent 4 DISCHARGE under this Promissory Note, including all shall deliver to the First Nation all such the First Nation to evidence the release of the Note. 5
or this Promissory Note shall be in writing and are delivered, mailed or sent by facsimile as
-4-To the Authority: First Nations Finance Authority #202 — 3500 Carrington Road Westbank, BC V4T 3C1 Telephone Number: 250.768.5253 Fax Number: 250.768.5258 Contact:
To the First Nation: [NAME] [Address:] Telephone Number: Fax Number: Contact:
Any notice or other communication so given or given and received: a) if delivered personally, at the actual time b) if sent by ordinary mail, on the date c) if mailed by registered mail, on mailing, except in the case of the notice shall be delivered personally d) if sent by facsimile, on the day of The address or facsimile telephone number for service time to time by the party making such change Article. 5.2 Replacement of Promissory Note If this Promissory Note becomes mutilated or is execute and deliver to the Authority a new Promissory lost, destroyed or stolen in exchange for and upon Promissory Note or in lieu of and in substitution Note. 5.3 Assignment The Authority may assign this Promissory Note The First Nation may not assign its obligations consent of the Authority. Any purported assignment by void.
made shall be conclusively deemed to have been of delivery; received; the second business day following the date of disruption of postal services, then in such event or by facsimile; or transmission, under this Section may be changed from notifying the other party as provided in this lost, destroyed or stolen, the First Nation shall Note of like tenor as the one mutilated, surrender and cancellation of such mutilated for such lost, destroyed or stolen Promissory without the written consent of the First Nation, under this Promissory Note without the written the First Nation without such consent is
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ -5-5.4 Successors and Assigns This Promissory Note shall enure to the benefit Authority and their respective successors and permitted 5.5 Waiver No provision of this Promissory Note and no breach deemed to have been waived unless such waiver committed the breach. A written waiver by either party of a breach of any deemed to be a general waiver of such provision other provision of this Promissory Note. 5.6 Interpretation In the event of a discrepancy between the amounts calculated with reference to this Promissory Note the Authority calculated with reference to the Borrowing First Nation to the Authority shall be the amount calculated Agreement and this Promissory Note shall be amended implement such intention. 5.7 Amendment This Promissory Note may not be amended or Nation and the Authority. iN WITNESS WHEREOF the First Nation has authorized signatory as of the day of IName By: TERMS ACKNOWLEDGED AND AGREED; First Nations Finance Authority By: Authorized Signatory
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ of and be binding upon the First Nation and the assigns. by either party of any such provision will be is in writing signed by the party that has not provision of this Promissory Note will not be or of any subsequent breach of the same or any payable by the First Nation to the Authority and the amounts payable by the First Nation to Agreement, the amount owing by the with reference to the Borrowing by the parties in the manner necessary to modified except in writing signed by the First caused this Promissory Note to be signed by its , 20. of First Nation] Authorized Signatory
-6-PRINCIPAL AND INTEREST Date of Payment Principal $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ TOTALS $. \MASONS\76444
PAYMENTS Interest Total $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $