Export Development Canada Exercise of Certain Powers Regulations

Regulations Governing the Disposal by Lease of Certain Property, the Entering Into of Certain Arrangements and the Acquisition of Certain Interests by Export Development Canada Whereas, pursuant to subsection 10(8)* of the Export Development Act, a copy of proposed regulations, substantially in the form annexed hereto, was published in the Canada Gazette Part I on November 6, 1993 and a reasonable opportunity was thereby afforded to interested persons to make representations with respect thereto; S.C. 1993, c. 26, s. 4(2) Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister for International Trade and the Minister of Finance, pursuant to subsection 10(6)* of the Export Development Act, is pleased hereby to make the annexed Regulations governing the disposal by lease of certain property, the entering into of certain arrangements and the acquisition of certain interests by Export Development Canada. These Regulations may be cited as the Export Development Canada Exercise of Certain Powers Regulations. In these Regulations, Act means the Export Development Act; (Loi) domestic financial transaction means any arrangement entered into by the Corporation whereby the Corporation provides credit to a person with respect to a transaction that does not relate, directly or indirectly, to the carrying on of business or other activities outside Canada, but does not include an arrangement that has as its purpose the management of the assets and liabilities of the Corporation; (opération de financement sur le marché national) domestic insurance transaction means any arrangement entered into by the Corporation whereby the Corporation provides any insurance, reinsurance, indemnity or guarantee with respect to a transaction entered into by another person and that does not relate, directly or indirectly, to the carrying on of business or other activities outside Canada; (opération d’assurance sur le marché national) equity interest means, in respect of an entity, an ownership interest in an entity; (titres de participation) estimated residual value means, in respect of property to be leased, the estimated value of the leased property at the end of the term of the lease, less any amount that the Corporation is entitled to receive under any agreement that is in effect on the day the lease is entered into and that relates to the disposal by the Corporation of its interest in the property, as determined by the Corporation at the time the lease is entered into by the Corporation; (valeur résiduelle estimative) export transaction means a transaction involving: the export of goods out of Canada, the manufacture, sale, leasing, treatment or servicing of goods that are to be used by a person in carrying on business or other activities outside Canada, the sale or licensing of any right in a patent, trademark or copyright to a person that are to be used by a person in carrying on business or other activities outside Canada, or the rendering of any service to a person in connection with the carrying on of business or other activities outside Canada by a person. (opération d’exportation) foreign project equity interest acquisition[Repealed, SOR/2008-46, s. 1] Subject to subsection (2), the Corporation may dispose by lease of property acquired by the Corporation for the purpose of such disposal. A disposal by lease of property of the Corporation requires the approval of the Minister and the Minister of Finance, where the property is not to be used outside Canada during the term of the lease; the lease is not entered into for the primary purpose of extending credit; the lease provides that the Corporation will be responsible for installing, promoting, servicing, cleaning, maintaining and repairing the property during the term of the lease; the Corporation does not intend to dispose of its interest in the property during or at the end of the term of the lease; the capital cost of the property and the financing charges related to the capital cost of the property will not be recovered by the Corporation; or no contractual arrangement exists for the final disposal of the Corporation’s interest in the property to be leased and the estimated residual value of the property to be leased, together with the estimated residual value of all other property that the Corporation has acquired an interest in for the purpose of disposal by lease in respect of which no contractual arrangement exists for the final disposal of the corporation’s interest in such property, would be more than 20 per cent of the aggregate of the cost of acquisition of all such properties. Subject to subsection (2), the Corporation may acquire an equity interest in an entity. Subject to subsections (4) and (5), an acquisition by the Corporation requires the approval of the Minister and the Minister of Finance, if the value of the equity interest to be acquired by the Corporation together with the value of any equity interest already held by the Corporation in that entity exceeds 25 per cent of the value of all equity interests in the entity at the time of acquisition by the Corporation. For the purposes of subsection (2), the value of all equity interests in the entity at the time of acquisition by the Corporation is to be calculated on a fully diluted basis and shall include the equity interest being acquired by the Corporation or by any other person and any equity interest that the Corporation or any other person is obligated to acquire; and is to be determined in accordance with the most recent audited financial statements of the entity, if available, any agreements between the entity and the Corporation that relate to the acquisition, and any agreements among persons who have acquired, are acquiring or are obligated to acquire an equity interest in the entity and any agreements between any of them and the entity that relate to the acquisition of their respective equity interests in the entity. Subsection (2) does not apply to an acquisition resulting from a restructuring, reorganization or other similar workout arrangement involving an entity in which the Corporation already holds an equity interest or to which it is a creditor. Subsection (2) does not apply where the equity interest is acquired by reason of dividend or other in-kind distribution; the exchange or substitution, as a result of an amalgamation, merger or other similar action, of an equity interest already held by the Corporation for an equity interest in an entity that is the result of the action; or the settlement, in whole or in part, of a debt held by the Corporation in connection with any arrangement that has the effect of extending credit or providing an undertaking to pay money, or a debt or claim in respect of which the Corporation has made a payment pursuant to an arrangement that has the effect of providing any insurance, reinsurance, indemnity or guarantee. The Corporation must ensure that domestic financial transactions and domestic insurance transactions complement the products and services available from commercial financial institutions, commercial insurance providers and the Business Development Bank of Canada. Subject to subsection (2), the Corporation may enter into a domestic financial transaction. A domestic financial transaction to be entered into by the Corporation requires the approval of the Minister and the Minister of Finance if it is entered into with or in respect of a person whose annual export transaction and foreign market business volume, at the time of the person’s request for credit to the Corporation, is less than 50 per cent of that person’s total annual business volume. Despite subsection (2), the approval of the Minister and the Minister of Finance is not required if, within 48 months before the person’s request for credit, the Ministers approved a domestic financial transaction entered into by the Corporation with or in respect of that person. Subject to subsections (2) and (3), the Corporation may enter into a domestic insurance transaction. A domestic insurance transaction to be entered into by the Corporation requires the approval of the Minister and the Minister of Finance if it is entered into with or in respect of a person whose annual export transaction and foreign market business volume, at the time of the person’s request for insurance, reinsurance, indemnity or guarantee to the Corporation, is less than 50 per cent of that person’s total annual business volume. Despite subsection (2), the approval of the Minister and the Minister of Finance is not required if, within 48 months before the person’s request for insurance, reinsurance, indemnity or guarantee, the Ministers approved a domestic insurance transaction entered into by the Corporation with or in respect of that person. A domestic insurance transaction to be entered into by the Corporation requires the approval of the Minister and the Minister of Finance where the domestic insurance transaction is an insurance arrangement that is of a class defined in the schedule to the Insurance Companies Act and that is set out in column II of an item of the schedule to these Regulations. Application suspended Subsections 5(2) and 6(2) and (3) of the Export Development Canada Exercise of Certain Powers Regulations do not apply for the period beginning on the day on which paragraph 10(1)(a) of the Act, as enacted by subsection 260(1), comes into force and ending on the day on which that paragraph is repealed. Transactions entered into before repeal Despite subsection (4), subsections 5(2) and 6(2) and (3) of the Export Development Canada Exercise of Certain Powers Regulations do not apply to a new transaction that Export Development Canada enters into during the period that paragraph 10(1)(a) of the Act, as enacted by subsection 260(1), is in force, even after that paragraph is repealed. Despite the repeal, Export Development Canada may take any steps and do anything that it considers necessary or desirable to implement the transaction or that it considers related to the transaction.