Enterprise Development Regulations

Regulations Respecting the Enterprise Development Program These Regulations may be cited as the Enterprise Development Regulations. In these Regulations, application means in respect of a loan, an application referred to in section 21, and in respect of insurance, an application referred to in section 38; (demande) Board[Revoked, SOR/83-708, s. 1] contribution means any contribution authorized under a Department of Industry, Trade and Commerce vote of an Appropriation Act; (contribution) letter of credit[Revoked, SOR/79-335, s. 1] manufacturer means an individual, firm or corporation in Canada engaged in a manufacturing or processing activity; (fabricant) manufacturing or processing activity means an activity whereby any goods, products, commodities or wares are made, fabricated, processed or refined out of any raw material or other substance or combination thereof, are converted or rebuilt, but not repaired, or are made by causing any raw material or other substance to undergo a significant chemical, biochemical or physical change including change that preserves or improves the keeping qualities of that raw material or other substance but excluding change by growth or decay; (travaux de fabrication ou de transformation) Minister means the Minister of Industry, Trade and Commerce; (ministre) private lender means a lender other than the Government of Canada, the government of any province of Canada, an agency of any government referred to in paragraph (a) or (b) or any company that is effectively controlled by any such government or any agency thereof, or any municipal corporation; (prêteur privé) restructure means a change that, in the opinion of the Minister, is significant in the operations of a manufacturer or other person eligible for assistance under these Regulations with respect to its or the person’s products, methods of production, markets or management procedures and includes, if directly related to such operations, the acquisition of working capital or the acquisition, construction or conversion of machinery, equipment, buildings, land or other facilities. (restructuration) [Revoked, SOR/79-335, s. 1] Except for applications made under section 36, subparagraphs 44(b)(iii), (v), (vii), (ix) and (x) and sections 45 and 46 the Minister shall not consider any applications received under these Regulations after September 15, 1983. The Minister shall administer the loans, insurance, stock options, and capital stock made, authorized or obtained under these Regulations; contributions required to be administered in accordance with the terms and conditions referred to in section 44; and the loans, insurance, stock options, capital stock and contributions made, authorized or obtained under the Canada Cycle and Motor Company Limited Enterprise Development Regulations, the General Adjustment Assistance Regulations, the Consolidated Computer Inc. Adjustment Assistance Regulations, the Consolidated Computer Inc. Enterprise Development Regulations, the Automotive Manufacturing Assistance Regulations, the Pharmaceutical Industry Development Assistance Regulations, the Footwear and Tanning Industries Assistance Regulations, the Program for the Advancement of Industrial Technology, the Industrial Design Assistance Program and the Program to Enhance Productivity. The Minister may, in respect of any loan, insurance, stock option or contribution administered by the Minister pursuant to subsection (1), require such information and documentation and make such stipulations as he deems appropriate in relation to such loans, insurance, stock options or contributions. The Minister shall do everything that in his opinion is necessary or appropriate to facilitate the efficient operation of the Enterprise Development Program, to minimize any loss suffered or threatened to be suffered by Her Majesty arising out of any loan or insurance administered by the Minister pursuant to subsection (1) and to maximize the potential economic gains to Canada arising from any contribution administered by him pursuant to subsection (1). [Revoked, SOR/83-708, s. 2] Subject to sections 19 and 20, the Minister may make a loan to a manufacturer for the purpose of assisting the manufacturer in restructuring his manufacturing or processing activity if the manufacturer was engaged in a manufacturing or processing activity prior to the first reduction of tariffs or first modification of non-tariff barriers by Canada resulting from the Tokyo Round agreements; and in the opinion of the Minister the manufacturer requires a loan in order to restructure his manufacturing or processing activity for the purpose of improving his position in international competition, and the manufacturer is seriously injured or threatened with serious injury by reason of increased imports as a direct result of the Tokyo Round agreements. Subject to sections 19 and 20, the Minister may make a loan to a manufacturer for the purpose of assisting the manufacturer to adjust to changes in conditions affecting his access to foreign markets if, in the opinion of the Minister, the manufacturer requires a loan for such purpose; and the changes are attributable to the imposition by a country other than Canada of an import surtax or to the taking by such country of other actions having the same effect. Subject to sections 19 and 20, where, pursuant to these Regulations, the Minister has authorized the provision of insurance on a loan not exceeding $200,000 made by a private lender to a manufacturer or other person in Canada, the Minister may make a loan in an amount not exceeding, in the aggregate, 50 per cent of the amount of the loan to the manufacturer or other person on the following conditions: a loan may be made pursuant to this section only when a private lender has agreed to make the loan on which the Minister has authorized the provision of insurance on the terms and conditions under which the Minister authorized such insurance; a loan made pursuant to this section shall be subject to interest at a rate of not less than the aggregate of the interest to be charged by the private lender on the insured loan and the insurance fee thereon; a loan may be made pursuant to this section only where, in the opinion of the Minister, such loan is essential to prevent a serious delay in implementing the restructuring program for which the loan by the private lender was obtained; a loan made pursuant to this section shall be repaid on the date of the first disbursement of the loan advanced by the private lender or on such earlier date as the Minister may determine; and the Minister shall specify the date on which the loan made pursuant to this section shall be repaid in the event that a disbursement to repay the loan has not been made by the private lender within a reasonable time as established by the Minister. Subject to sections 19 and 20, where a manufacturer or other person, or a trustee or receiver authorized by law to carry on the business of such manufacturer or other person, has previously obtained assistance by way of a loan or insurance on a loan or other financial obligation administered by the Minister pursuant to subsection 4(1), a loan may be made by the Minister to the manufacturer or other person or to the trustee or receiver for the purpose of protecting the Crown’s interest in respect of the loan previously made or the loan or other financial obligation previously insured. The Minister shall grant a loan pursuant to sections 16 to 18 only where the manufacturer or other person is unable to obtain sufficient financing on reasonable terms from other sources for the purposes set out in those sections. Where a loan is to be made by the Minister pursuant to these Regulations to a manufacturer enabling the manufacturer to make adjustments to his operations that will result in 20 or more of his employees being laid off for a period of two or more months, the making of that loan shall be on condition that the manufacturer agree to give at least three months notice of the lay-off to the Minister and to each employee who is to be laid off. A manufacturer or other person who requires a loan in accordance with these Regulations shall make application therefor to the Minister and shall provide such information relating to the application as the Minister may require. Where an application for a loan is approved by the Minister, the applicant shall enter into a loan agreement with Her Majesty and that agreement shall, subject to these Regulations, be in such form and contain such provisions as the Minister considers necessary. The amount of a loan made pursuant to these Regulations shall be advanced to the manufacturer or other person on the requisition of the Minister. Subject to paragraph 17(b), the rate of interest for any loan made pursuant to these Regulations shall be determined as of the day the application is approved by the Minister and shall be the rate within the prescribed range described in subsection (2) that the Minister deems reasonable in the circumstances. The prescribed range of rates of interest for loans made pursuant to these Regulations shall be not less than the rate of interest charged by the Government of Canada to Crown corporations for loans of a similar term nor higher than three per cent above that rate. A loan made pursuant to these Regulations shall be for such term, not exceeding 20 years, as may be fixed by the Minister. The whole or any part of a loan made pursuant to these Regulations may, in such manner as may be prescribed by the Minister, be repaid in advance of the due date of repayment without notice, bonus or penalty. Where, in the opinion of the Minister, it is advisable to obtain security for the repayment of a loan administered by him pursuant to subsection 4(1), the Minister shall obtain or hold such security as he deems proper. The Minister may surrender, retransfer or reconvey any security obtained or held by him pursuant to subsection (1) in exchange for other security or amend the provisions thereof. The Minister may designate any trustee, receiver, receiver-manager or other person required to be appointed by the Minister under any security. Subject to sections 33 and 34, the Minister may provide insurance on a loan made by a private lender to a manufacturer, individual, firm or corporation in Canada, as the case may be, if, in the opinion of the Minister, in the case of a manufacturer, the manufacturer requires a loan to restructure his operations in order to improve his position in international trade competition, to adjust to changes affecting his access to foreign markets, which changes are attributable to the imposition by a country other than Canada of an import surtax or to the taking by such country of other actions having the same effect, or to engage in the manufacture or production of products that will be subject to international trade competition; in the case of an individual, firm or corporation about to engage in a manufacturing or processing activity in Canada, the individual, firm or corporation requires a loan to engage in the manufacture or production of products that will be subject to international trade competition; or the individual, firm or corporation requires a loan to acquire a corporation or group of corporations engaged in a manufacturing or processing activity and the acquisition will result in a significant increase in the manufacturing or processing activity in Canada. Subject to sections 33 and 34 and subsection (3), the Minister, with the approval of the Treasury Board, may provide insurance on any loan made by a private lender to an individual, firm or corporation engaged or about to engage in the business of general contracting or special trades contracting in Canada, if, in the opinion of the Minister, the individual, firm or corporation requires a loan to restructure his or its operations in order to improve his or its position in international trade competition and the restructuring will improve his or its capability to undertake foreign turnkey and other capital projects that would result in significant benefits to Canada. The aggregate amount of insurance that may be provided by the Minister pursuant to subsection (2) shall not exceed $12 million at any time. Notwithstanding any other provision of these Regulations, the Minister shall not, without the approval of the Treasury Board, authorize the amendment of the terms and conditions of any loan insured pursuant to subsection (2) or exercise any of his powers under subsection 24(2) in respect of security taken for the loan except, only, where the Minister is satisfied that such amendment or the exercise of such powers will not substantially increase the risk of any loss to Her Majesty. Subject to sections 33 and 34, the Minister may provide insurance on a loan made by a private lender to a manufacturer to assist that manufacturer in restructuring his manufacturing or processing activity if Subject to sections 33 and 34, the Minister may provide insurance on a loan made by a private lender to a manufacturer or to a trustee or receiver authorized by law to carry on the business of the manufacturer if the manufacturer’s products are subject to international trade competition; in the opinion of the Minister the manufacturer is in financial difficulty that threatens the cessation of a significant portion of his manufacturing or processing activity and the lay-off of a significant number of his employees; and the manufacturer proposes the sale of all or a significant portion of his assets or the individual firm or corporation which holds effective ownership control of the manufacturer proposes the sale of such control and in the opinion of the Minister the manufacturer requires a loan to continue his operations until the assets are sold or effective ownership control of the manufacturer is sold, as the case may be, the sale will be effected within a reasonable period of time, and the sale will enhance the prospects for the continued employment of a significant number of his employees. Subject to subsection (3), the Minister may provide insurance on a loan made by a private lender to an individual in Canada or to a firm or corporation incorporated under the laws of Canada or a province if, in the opinion of the Minister, the individual, firm or corporation requires the loan to acquire effective ownership control of a corporation engaged in a manufacturing or processing activity in Canada; acquire from a manufacturer the whole or a significant portion of that manufacturer’s assets; or restructure the operations of that individual, firm or corporation, as the case may be, as a result of the acquisition by the individual, firm or corporation of the whole or a significant portion of a manufacturer’s assets. Subject to subsection (3), the Minister may provide insurance on a loan made by a private lender to a corporation engaged in a manufacturing or processing activity in Canada and incorporated under the laws of Canada or a province for the purpose of restructuring its operations if in the opinion of the Minister the corporation requires the loan to restructure its operations as a result of the acquisition of its effective ownership control by an individual, firm or corporation. The Minister may provide insurance pursuant to subsection (1) or (2) on the following conditions: the individual, firm or corporation, as the case may be, described in subsection (1) or (2), that requires a loan has agreed to provide or to arrange to be provided to the private lender a guarantee satisfactory to the Minister for 10 per cent of the amount of the loan to be provided, and to provide the private lender with security satisfactory to the Minister on the assets acquired or on the assets of the corporation the effective ownership control of which has been acquired; and in the opinion of the Minister, the acquisition or restructuring in respect of which the loan is required is essential to prevent a serious disruption in the manufacturing or processing activity of the corporation acquired or the manufacturing or processing activity resulting from the use of the assets acquired, will result in the growth, efficiency or international competitiveness of a manufacturing or processing activity in Canada, would not proceed unless the loan required is insured by the Minister, and would not proceed unless the private lender and the Minister agree to limit the liability of the individual, firm or corporation acquiring the assets, as the case may be, to the lender to 10 per cent of the amount of the loan to be provided. Subject to sections 33 and 34, the Minister may provide insurance on a loan made by a private lender to a person engaged or about to engage in a business in Canada that provides services, directly or indirectly, to a manufacturer in Canada who is engaged in international trade competition if, in the opinion of the Minister, that person requires a loan to establish, restructure or improve his operations in order to improve the manufacturer’s position in international trade competition; or provides services to business or government administration through the application of intellectual skills, knowledge, expertise or aptitude embodied in specific programs, procedures or systems, if, in the opinion of the Minister that person requires a loan to develop or exploit such programs, procedures or systems to improve his position in international trade competition. Subject to sections 33 and 34, where a manufacturer or other person, or a trustee or receiver authorized by law to carry on the business of such manufacturer or other person, has previously obtained assistance by way of a loan or insurance on a loan or other financial obligation administered by the Minister pursuant to subsection 4(1), the Minister may provide insurance on a loan to the manufacturer or other person or to the trustee or receiver for the purpose of protecting the Crown’s interest in respect of the loan previously made or the loan or other financial obligation previously insured. In this section and section 32, footwear does not include footwear, the main component of which is canvas; (chaussure) manufacturer means an individual, firm or corporation or a division thereof in Canada that on January 1, 1974 was engaged in a manufacturing or processing activity in the footwear or tanning industry, or both, or acquires from an individual, firm or corporation or division thereof referred to in subparagraph (i), the whole or a significant portion of its manufacturing or processing activity, any corporation restructuring by means of the acquisition of one or more corporations or divisions thereof referred to in paragraph (a), a corporation formed after January 1, 1974 by the amalgamation or merger of two or more corporations or divisions thereof referred to in paragraph (a), or a corporation or partnership formed by two or more individuals, firms, corporations or divisions thereof referred to in paragraph (a), (b) or (c) for the purpose of undertaking and performing an activity directly related to their manufacturing or processing activities; (fabricant) restructure means a change that, in the opinion of the Minister, is significant in the operations of a manufacturer with respect to his products, methods of production, markets or management procedures and includes, if directly related to such operations, the acquisition, amalgamation or merger of one or more manufacturers described in the definition “manufacturer” or the formation of a corporation or partnership described in paragraph (d) thereof, the acquisition of working capital, or the acquisition, construction or conversion of machinery, equipment, buildings, land or other facilities. (restructuration) The Minister may provide insurance on a loan or loans, not exceeding $1,500,000 in the aggregate, made by a private lender to a manufacturer to assist that manufacturer in restructuring his manufacturing or processing activity if the manufacturer has submitted plans for restructuring based on a comprehensive analysis of his operations made by a consultant approved by the Minister in respect of the products, methods of production, markets or management procedures of the manufacturer; and in the opinion of the Minister, the manufacturer requires the loan to restructure his operations in order to improve his position in international trade competition. Notwithstanding subsection (1), where the manufacturer is able to establish to the satisfaction of the Minister his capability of making the analysis described in subsection (1), the analysis may be made without the assistance of a consultant. Notwithstanding subsection (1), the Minister may provide insurance on a loan or loans exceeding $1,500,000 in the aggregate, to a manufacturer for the purpose of assisting the manufacturer in restructuring by means of acquisition, amalgamation or merger or the formation of a corporation or partnership described in paragraph (d) of the definition “manufacturer” in section 31. The Minister shall grant insurance pursuant to sections 25 to 27, 29 and 30 only where the person requiring the loan is unable to obtain sufficient financing on reasonable terms unless the loan is insured by the Minister. Where insurance is to be provided by the Minister pursuant to these Regulations in respect of a loan made by a private lender to a manufacturer and the loan enabled the manufacturer to make adjustments to his operations that will result in 20 or more of his employees being laid off for a period of two or more months, the provision of that insurance shall be on condition that the manufacturer agree to give at least three months notice of the lay-off to the Minister and to each employee who is to be laid off. In sections 36 to 41, private lender means a lender, lessor or vendor approved by the Minister that provides financing under loans, leases or conditional sales contracts other than privatization date means the date on which all shares in The de Havilland Aircraft of Canada, Limited owned by the Canada Development Investment Corporation are sold to a third party. (date de privatisation) The Minister may provide insurance on the financial obligations to a private lender incurred by a purchaser or other person in Canada or the United States if, in the opinion of the Minister, the purchaser or other person requires financing under a loan, lease or conditional sales contract in order to acquire the use or ownership of a de Havilland DHC-7 or DHC-8 aircraft; the purchaser or other person is unable to obtain sufficient financing on reasonable terms unless the financial obligation is insured by the Minister; and the manufacturer of a de Havilland DHC-7 or DHC-8 aircraft meets criteria in respect of the level of Canadian material and labour content as set out in “EDC at Your Service”, Number 7, published in February, 1984 by the Export Development Corporation, and industrial benefits to Canada as set out in “Canadian Capital Goods Exports and EDC Financing: An Economic Assessment”, published by the Export Development Corporation, dated November, 1982. Insurance provided by the Minister pursuant to section 25, 28 or 29 shall not exceed 90 per cent of the amount of the loan in respect of which it is provided. Insurance provided by the Minister pursuant to section 36 shall not exceed 90 per cent of the amount of the financial obligations of the purchaser or other person under the loan, lease or conditional sales contract in respect of which it is provided. Notwithstanding subsection (2), where the manufacturer of a de Havilland DHC-7 or DHC-8 aircraft has agreed to indemnify Her Majesty to the extent of ten per cent of the total liability of Her Majesty under an agreement for insurance provided after March 13, 1992 under these Regulations to a purchaser or other person who has acquired the use or ownership of a de Havilland DHC-7 or DHC-8 aircraft, insurance is provided under section 36 for the full amount of the financial obligation of the purchaser or other person under the loan, lease or conditional sales contract in respect of which the insurance is provided. Any insurance provided after March 13, 1992 under section 36 for the benefit of a person who acquires the use of a de Havilland DHC-7 or DHC-8 aircraft in Canada under a loan, lease or conditional sales contract shall be subject to the provision by a person (other than a person who has acquired the use of a de Havilland DHC-7 or DHC-8 aircraft under a loan, lease or conditional sales contract) of insurance or self insurance in the amount of not less than 10 per cent of the financial obligation of that person or of the person who acquires the use of that aircraft under the loan, lease or conditional sales contract. A private lender who wishes the Minister to provide insurance on a loan or other financial obligation in accordance with these Regulations shall make application therefor to the Minister and shall provide such information relating to the application as the Minister may require. [Revoked, SOR/79-335, s. 16] The amount of any insurance provided by the Minister pursuant to these Regulations may be reduced at the request of the private lender at such times and in such manner as is specified by the Minister. The insurance fee payable by a private lender shall be one per cent per annum of the amount of insurance in force from time to time and shall be paid in advance to the Minister in semi-annual instalments. Notwithstanding subsection (2), the Minister may, in respect of insurance provided pursuant to sections 26 to 28, waive or vary the amount and terms of payment of the insurance fee. If the amount of a loan made by a private lender is advanced in periodic advances, the Minister may, if required by the private lender, provide insurance pursuant to these Regulations on such advances. Notwithstanding subsection (2), the Minister may, in respect of insurance provided to a lender pursuant to section 36, postpone the date of payment of the insurance fee, if, in the opinion of the Minister, the purchaser or other person would be otherwise unable to acquire the de Havilland DHC-7 or DHC-8 aircraft. Notwithstanding subsection (2), the annual insurance fee payable after the privatization date on any insurance provided by the Minister under section 36 is where the insurance covers 50 per cent or less of the financial obligation of the purchaser or other person under the loan, lease or conditional sales contract in respect of which the insurance was provided, the product obtained by multiplying 0.0025 by the total amount of insurance provided by the Minister; and where the insurance covers more than 50 per cent of the financial obligation referred to in paragraph (a), the aggregate of the product obtained by multiplying 0.0025 by the total amount of insurance provided by the Minister, and the product obtained by multiplying 0.0000625 by the number of percentage points of the coverage of the insurance provided by the Minister that exceeds 50 per cent the total amount of insurance provided by the Minister. Subject to section 40.1, where a private lender has demanded repayment of a loan, or has given notice of default under a lease or conditional sales contract, in respect of which insurance has been provided pursuant to these Regulations, the amount payable to the private lender shall not exceed the lesser of the amount of insurance in effect on the date of such demand or notice; and in the case of a loan or other financial obligation insured pursuant to section 25, 29 or 36, 90 per cent of the loss incurred by the private lender, and a loan insured pursuant to section 26, 27, 30 or 32, 100 per cent of the loss incurred by the private lender. Where a private lender has demanded repayment of a loan or has given notice of default under a lease or conditional sales contract, in respect of which insurance has been provided before March 14, 1992 pursuant to these Regulations, the amount payable to the private lender shall not exceed the lesser of the aggregate of the amount of the insurance provided by the Minister and the amount of the insurance provided by another person pursuant to these Regulations that is in effect on the date of the demand or notice, and in the case of a loan or other financial obligation insured pursuant to section 36, one hundred per cent of the loss incurred by the private lender. Where a private lender has demanded repayment of a loan or has given notice of default under a lease or conditional sales contract in respect of which insurance has been provided by the Minister pursuant to subsection 37(3), the amount payable to the private lender shall not exceed the amount of insurance in effect on the date of such demand or notice. Notwithstanding section 40, where a private lender has demanded repayment of a loan in respect of which insurance has been provided by the Minister pursuant to section 28, the amount payable to the private lender shall not exceed the lesser of the amount of insurance in effect on the date of such demand; and 90 per cent of the loss incurred by the private lender excluding any amount recovered or recoverable under the guarantee obtained by the private lender in accordance with subparagraph 28(3)(a)(i). The Minister may obtain a stock option to purchase capital stock of a company on behalf of Her Majesty, where, in the opinion of the Minister, it is advisable to obtain the stock option as a condition of or in connection with a loan or insurance administered by the Minister pursuant to subsection 4(1). Where a stock option to purchase capital stock of a company is acquired by the Minister pursuant to subsection (1) or is administered by the Minister pursuant to subsection 4(1), the Minister may exercise or assign the stock option on behalf of Her Majesty if, in the opinion of the Minister, the value of the capital stock of the company has increased as a result of the assistance provided; and the exercise or assignment of such option would permit Her Majesty to benefit from the increased value of the capital stock of the company. Where capital stock of a company is acquired by the Minister pursuant to subsection (2) or is administered by the Minister pursuant to subsection 4(1), the Minister shall, subject to the following conditions, sell or dispose of the capital stock as soon thereafter as it is in the interest of Her Majesty to do so: the capital stock shall be sold at such price and on such terms as will, in the opinion of the Minister, provide maximum benefit to Her Majesty; and when the Minister receives an acceptable offer to purchase any such capital stock he shall notify the person from whom the capital stock was obtained and that person shall have the assignable right, during the next seven business days following the day the notice was given, to elect to purchase the capital stock at the price and on the terms and conditions specified in the offer. Where the Minister intends to assign a stock option acquired pursuant to subsection (1) or administered pursuant to subsection 4(1) the Minister, prior to assigning the stock option, shall give notice of any intended assignment thereof to the person from whom the option was acquired and that person shall have the assignable right, during the next seven business days following the day the notice was given, to elect to purchase the stock option at the same price and on the same terms and conditions as the intended assignment. The Minister shall administer contributions made in accordance with terms and conditions approved by Treasury Board in respect of special authorities, by T.B. 758051 dated June 15, 1978, T.B. 758166 dated June 29, 1978, T.B. 767837 dated November 29, 1979 as amended by T.B. 799107 dated July 31, 1985, T.B. 769206 dated January 25, 1980, T.B. 774918 dated January 29, 1981, T.B. 780230 dated December 17, 1981, T.B. 784473 dated August 27, 1982, T.B. 788476 dated June 22, 1983, T.B. 784863 dated October 15, 1982, and T.B. 788706 dated June 16, 1983; and in respect of general authorities, by T.B. 748284 dated March 17, 1977, as amended by T.B. 763854 dated March 29, 1979, T.B. 771519 dated July 3, 1980, T.B. 776183 dated March 12, 1981, T.B. 777458 dated June 4, 1981, T.B. 778288 dated December 17, 1981, T.B. 782926 dated June 17, 1982, T.B. 784945 dated October 22, 1982, T.B. 785132 dated October 22, 1982, T.B. 786640 dated March 10, 1983, and T.B. 788332 dated May 26, 1983. The Minister shall administer contributions made to persons located in the Prince Edward Island for industrial development initiatives in accordance with terms and conditions approved by Treasury Board by T.B. 779341 dated October 8, 1981. The Minister shall administer contributions made to persons located in the Province of New Brunswick for industrial development initiatives in accordance with terms and conditions approved by Treasury Board by T.B. 781197 dated February 8, 1982.