LOAN AGREEMENT For use outside Quebec AMONG: INDUSTRIAL ALLIANCE INSURANCE AND FINANCIAL SERVICES INC., a corporation duly incorporated under the laws of the Province of Québec, having its head office at 1080 Grande-Allée West, Quebec, province of Quebec, represented for the purposes hereof by Yvon Charest, President and Chief Executive Officer and Pierre Vincent Senior Vice-President Individual Insurance and Sales; (the Lender ) AND: [Insert name of the Borrower], [address] (the Borrower ) AND: [Insert name of the Borrower], [address] (the Borrower ) (referred to collectively from time to time as the Parties ) FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby mutually acknowledged, the Parties to this Loan Agreement (the Loan Agreement ) agree as follows: 1. DEFINITIONS 1.1 Where used in this Loan Agreement, the following terms have the following meanings: a) Anniversary Date means the [insert day and month] in each year succeeding the Effective Date; b) Borrower means the Loan applicant and, where there is more than one Loan applicant, means the Loan applicants collectively unless specified otherwise; c) Business Day means a day, other than a Saturday, Sunday or statutory holiday in the Borrower s province of residence;
d) Collateral Assignment Agreement means the agreement attached hereto as Schedule 1; e) Collateral Investment Accounts means the Fixed Term Investment Accounts, the 5-Year Average Account, the Stabilized Return Index Account and the Money Market Index Account established pursuant to the Policy; f) Cost of Credit Disclosure Statement means the cost of credit disclosure statement attached hereto as Schedule 3; g) Default Event means an event of default listed in section 12 hereof; h) Effective Date means the date the first Loan Advance is made by the Lender to the Borrower, or in the event the Loan Agreement is renewed, the date described in section 2; i) Expiry Date has the meaning set out in subsection 17.1 hereof; j) Guarantee means, as the case may be, the Guarantee attached hereto as Schedule 2; k) Guarantor means, as the case may be, the Guarantor referred to in the Guarantee attached hereto as Schedule 2; l) Insurer means Industrial Alliance Insurance and Financial Services Inc. acting in its capacity as an insurer and which is the issuer of the Policy; m) Lender means Industrial Alliance Insurance and Financial Services Inc. acting solely in its capacity as a lender under this Loan Agreement; n) Loan has the meaning set out in subsection 3.1 hereof; o) Loan Advance means any Loan Advance as defined in section 4; p) Loan Advance Request Form refers to the form required to request a Loan Advance, signed by the Borrower; q) Loan Application means the application for the Collateral Loan Facility dated [insert date]; r) Loan Documents means the Loan Application, any Loan Advance Request Form, the Loan Agreement, the Collateral Assignment Agreement attached hereto as Schedule 1, the Guarantee attached hereto as Schedule 2, if any, and any amendments, or other documents in connection with the Loan executed by the Borrower. For greater certainty, and notwithstanding the generality of the foregoing, the Policy does not form part of the Loan Documents; s) Maturity Date means the tenth (10 th ) anniversary of the Effective Date; t) Outstanding Balance means, at any particular time, the sum of all outstanding Loan Advances made by the Lender to the Borrower under the terms of this Loan Agreement and all accrued and unpaid interest thereon; u) Policy means the life insurance policy bearing the number [insert policy number] issued by the Insurer; 2
2. TERM v) Policy Accumulation Fund means the total value of the Collateral Investment Accounts and all other investment accounts of the Policy; w) Policy Owner means the owner of the Policy; x) SRIA means the Stabilized Return Index Account established pursuant to the Policy; y) SRIA Net Credited Rate means the Stabilized Return Index Account net credited rate on January 1 st of each year as published on the Lender s website at http://com.ia1.co/web-269/index-en.html; z) Spread has the meaning set out in subsection 5.1 hereof; and aa) Taxes means all taxes and levies of any kind such as, but not limited to, source deductions, withholding taxes, income taxes and any interest and penalties in respect thereof. 2.1 The term of this Loan Agreement is ten (10) years, which begins on the Effective Date. Where the Loan Agreement is renewed, the day following the Maturity Date shall be the Effective Date, and all time periods and reckoning dates referred to herein shall be adjusted accordingly. 3. LOAN 3.1 Loan Amount Subject to the terms and conditions of this Loan Agreement, the Lender grants the Borrower a loan not exceeding, in aggregate, [insert $ amount]. 4. LOAN ADVANCES 4.1 Disbursement of Loan Advances Provided the Borrower is in compliance with the terms and conditions of this Loan Agreement, the Loan will be available to the Borrower, for the term referred to in subsection 2.1 hereof, by way of Loan Advances disbursed, to a maximum of four (4) advances each year, provided that: a) the amount of the Loan Advance does not exceed the Maximum Permitted Loan Advance referred to in the Cost of Credit Disclosure Statement attached hereto as Schedule 3 and does not exceed the aggregate value of the Collateral Investment Accounts minus the Outstanding Balance; b) all conditions in section 17 have been fulfilled; c) the Borrower has provided the Lender with a duly completed Loan Advance Request Form; d) the Borrower has, in the Loan Advance Request Form, confirmed that the 3
representations and warranties made to the Lender in connection with this Loan Agreement are true, accurate and complete; e) where, at the time of making the first Loan Advance, the Borrower is the Policy Owner and a Policy loan balance is outstanding, the Loan Advance will first be used by the Lender to repay the Policy loan balance in full; and f) a Default Event as defined in section 12 has not occurred, or, if a Default Event has occurred, it has been remedied. 4.2 Minimum amount of a Loan Advance Except with the Lender s prior approval, the first Loan Advance made hereunder shall not be less than Twenty-Five Thousand Dollars ($25,000), and subsequent advances shall not be less than One Thousand Dollars ($1,000). 4.3 Use of Loan Advances 5. INTEREST Loan Advances may be used by the Borrower for general investment purposes. 5.1 Loan Advances under this Loan Agreement shall bear interest at an annual interest rate equal to the SRIA Net Credited Rate plus the Spread and shall be adjusted on January 1 st of each year. The Spread shall be calculated as follows: a) If the SRIA Net Credited Rate is less than or equal to FOUR POINT FIVE ZERO PERCENT (4.50%), the Spread shall be ONE POINT FIVE ZERO PERCENT (1.50%); b) If the SRIA Net Credited Rate is higher than FOUR POINT FIVE ZERO PERCENT (4.50%) but lower than FIVE POINT FIVE ZERO PERCENT (5.50%), the Spread shall be determined as follows: Spread = 1.50% + (SRIA Net Credited Rate 4.50%) / 20F1 c) If the SRIA Net Credited Rate is higher than or equal to FIVE POINT FIVE ZERO PERCENT (5.50%), the Spread shall be TWO PERCENT (2.00%). 5.2 Interest shall accrue daily at the rate specified in subsection 5.1 on the Outstanding Balance. It shall be due and payable on each Anniversary Date, starting on the Anniversary Date that immediately follows the day of the first (1 st ) Loan Advance by the Lender, and continuing until the Outstanding 1 A chart of the SRIA Net Credited Rate and the Spread calculation can be found online at http://com.ia1.co/web-269/index-en.html. 4
Balance has been fully repaid. 5.3 The Outstanding Balance shall bear interest at the interest rate and in the manner provided for in this section 5 before and after the Maturity Date and before and after default. 6. PAYMENT OF OUTSTANDING BALANCE 6.1 General a) Each payment due by the Borrower to the Lender must be received by the Lender on or prior to the day the payment is due, provided that the payment due on a day other than a Business Day must be received on or prior to the previous Business Day. b) All payments due to the Lender shall be made in full without any deduction, set-off, or counterclaim, including, but not limited to, the deduction for or on account of any Taxes imposed by any federal, provincial, municipal or other governmental legislation or authority, including taxes the Borrower is obliged to pay and that must be withheld from any such payments. If any such tax is required to be withheld or deducted from any such payments due by the Borrower to the Lender, the Borrower shall pay to the Lender the equivalent of the amounts so withheld or deducted so that the Lender receives a payment equal to the payments due, which it would have received if no such withholding or deduction had been made. The Borrower shall, if requested to do so by the Lender, provide the Lender with official receipts or other evidence satisfactory to the Lender acting reasonably evidencing payment to the appropriate taxing authority of such tax. c) Where the Lender has paid an Additional Expense, the amount paid by the Lender shall bear interest, at the annual rate of interest specified in section 5.1 hereof, from the date the Lender paid such Additional Expense to the date it has been repaid in full by the Borrower. 6.2 Payment at Maturity Date 7. PREPAYMENT Unless this Loan Agreement is renewed as set out in section 14, the Borrower shall repay the Outstanding Balance in full by or on the Maturity Date, without further notice or demand for payment from the Lender. 7.1 The Borrower may, at any time, repay in whole or in part any Outstanding Balance pursuant to this Loan Agreement provided that the Borrower first gives the Lender at least one (1) Business Day s prior written notice of its intention to make such repayment. 7.2 Amounts paid to the Lender by the Borrower shall first be applied by the Lender to the payment of any accrued but unpaid interest amounts and thereafter to 5
repayment of all Loan Advances then outstanding. 7.3 If for any reason the amount paid by the Borrower exceeds the Outstanding Balance such excess amount will be reimbursed to the Borrower unless the Lender is otherwise directed in writing by the Borrower. 8. COLLATERAL ASSIGNMENT 8.1 As collateral security for the observance and performance of all of the Borrower s covenants and obligations under or in connection with this Loan Agreement, including, but not limited to, the representations, warranties, covenants and the repayment of the Outstanding Balance, the Borrower shall provide the Lender, or cause the Policy Owner to provide the Lender, with an executed collateral assignment of the Policy in the form of the Collateral Assignment Agreement attached hereto as Schedule 1. 9. GUARANTEE The Collateral Assignment shall provide that on the happening of any event that causes Policy proceeds to be paid, the Policy Owner will irrevocably authorize and directs the Insurer to pay the Policy proceeds to the Lender in an amount up to but not exceeding the amount of the Outstanding Balance at the time of such payment. For greater certainty, the Parties covenant and agree that any payment of Policy proceeds (net of costs, if any) must first be used to repay the Outstanding Balance and cannot first be used to repay any other debt the Borrower or the Guarantor may have with the Lender. 9.1 Where the Borrower is not the Policy Owner, the Borrower shall cause the Policy Owner to provide the Lender with an executed guarantee in the form of the Guarantee attached hereto as Schedule 2. For greater certainty, where the Borrower is the Policy Owner, the Policy Owner is not required to provide the Lender with a Guarantee. 10. REPRESENTATIONS AND WARRANTIES 10.1 The Borrower represents and warrants that: a) the Borrower is not a party to any claims or legal proceedings, threatened or pending, which could materially and adversely affect the Borrower s financial situation; b) the Borrower is not in violation or default under the terms of any judgment, order, injunction or decree from any court, bureau, agency, arbitrator or commission, or agreements to which the Borrower is a party, including this Loan Agreement; c) the Borrower has filed all tax returns, and paid all taxes imposed by any federal, provincial, municipal or other governmental legislation or authority, rates, remittances or assessments of any kind, when due; 6
11. COVENANTS d) the Borrower has the requisite powers and capacity to enter into this Loan Agreement and to perform the obligations hereunder, and, where the Borrower is a corporation, it is duly incorporated and validly exists under the laws of a provincial or federal business corporations act and is duly registered or qualified to carry on business in all jurisdictions in which it is incorporated or registered; and e) the Borrower has made a true, accurate and complete disclosure to the Lender of all information required by the Lender in connection with the Loan Documents. 11.1 The Borrower covenants and agrees with the Lender: a) to punctually pay all amounts due and payable under this Loan Agreement, without making any deduction, set-off or counterclaim; b) to provide the Lender with prompt notice of any event which constitutes, or which, with the giving of notice, the lapse of time, or both, would constitute a Default Event; c) to provide the Lender with prompt notice of any change of address of its residence; d) to, upon notification by the Lender, indemnify and save harmless the Lender from and against all fees, losses, costs and expenses which the Lender may sustain, incur or become liable for by reason of exercising or otherwise enforcing its rights and recourses set out in this Loan Agreement, or pursuant to law, such as, but not limited to, recovering the Outstanding Balance, and the pleading, negotiating and litigating of its rights, remedies and recourses pursuant to a Default Event set out in this Loan Agreement; e) to file all tax returns, and pay all taxes imposed by any federal, provincial, municipal or other governmental legislation or authority, rates, remittances or assessments of any kind, when due; f) where the Borrower is a corporation, not to merge, amalgamate, or otherwise enter into any other form of business combination with any other corporation or firm ( Successor Entity ) without the Lender s prior written consent unless the Successor Entity assumes all the rights and obligations of the Borrower under the Loan Agreement pursuant to an agreement in form and substance satisfactory to the Lender; g) to comply with applicable laws in all material respects; h) to promptly notify the Lender of the death or insolvency of the Guarantor or 7
12. DEFAULT of a breach or non-observance of the Guarantor s representations and warranties under the Guarantee; i) to execute a Compliance Certificate, which will be provided by the Lender, stating that the Borrower is in compliance with the terms and confirming the accuracy of the representations and warranties in this Loan Agreement. This Compliance Certificate will be provided to the Borrower on each Anniversary Date. 12.1 The following events constitute Default Events: a) The Borrower fails to make any payment when due pursuant to the terms of this Loan Agreement. b) The Borrower is in default of filing tax returns, or fails to pay or remit taxes, remittances or other charges when due. c) The Borrower: i. becomes or is about to become insolvent or bankrupt; or ii. assigns assets to his or its creditors; or iii. takes advantage of or attempts to take advantage of the Bankruptcy and Insolvency Act (Canada) or any other legislation relating to arrangements with creditors. d) There is a major adverse change in the financial position of the Borrower including, without limiting the generality of the foregoing, a creditor, receiver or agent takes possession of, or otherwise proceeds to enforce any security, lien or other encumbrance over all or any part of the Borrower s property which, in the Lender s opinion, acting reasonably, would have a material adverse effect on the financial position of the Borrower. e) The Borrower breaches any covenant, representation, warranty or obligation contained in the Loan Documents. f) The Lender becomes aware that any representation, statement, declaration, information made or given under any of the Loan Documents or the Policy, or in any document which was provided to the Lender in connection with this Loan Agreement or the Policy is materially false, incomplete or inaccurate. g) Where the Borrower is a corporation, there is a change in control of the corporation and the new controlling shareholder was not a controlling shareholder of the corporation on the Effective Date of this Loan Agreement. 8
h) The Borrower ceases to be a resident of Canada for the purposes of the Income Tax Act (Canada) or, where the Borrower is a corporation, the head office of the corporation is moved outside Canada. i) The Borrower dies, or, where the Borrower is a corporation, the corporation is dissolved, liquidated or wound-up. j) The Borrower fails to, within five (5) Business Days following a written request from the Lender pursuant to subsection 13.2, provide the Lender with sufficient repayment of the Outstanding Balance and/or otherwise provide additional security acceptable to the Lender such that the Outstanding Balance does not exceed the combined value of the Collateral Investment Accounts and the additional security provided. k) The value of the Lender s security in the Policy becomes impaired for any reason, including, but not limited to: (i) the surrender of the Policy, a partial withdrawal or the payment of Policy proceeds to a beneficiary under the Policy, either triggered by a death or a disability, which would result immediately after such Policy proceeds payment in the Outstanding Balance (less interest accrued thereon since the last Anniversary Date) exceeding the value of the Collateral Investment Accounts (less accrued interest thereon since the last Anniversary Date), (ii) the automatic termination of the Policy, (iii) a claim by a taxing authority against the Policy pursuant to the provisions of the Income Tax Act (Canada) or similar legislation, or (iv) if the Lender, acting reasonably, has any reason to believe that the value of its security in the Policy will become impaired. l) A Default Event, as defined in section 4 of the Collateral Assignment Agreement, has occurred and has not been remedied. m) The Guarantor is in breach of any of the provisions of the Guarantee. 13. LENDER S REMEDIES 13.1 Upon the happening of a Default Event, the Lender may, by sending a written notice to the Borrower, declare the Outstanding Balance immediately due and payable, exercise all of its rights and seek remedies under the Loan Documents, including but not limited to executing any rights granted under the Guarantee and the Collateral Assignment Agreement and any rights or remedies it may have under common law, statute or in equity. Furthermore, without limiting the generality of the foregoing, it may: a) commence legal proceedings against the Borrower; b) immediately cease to make any further Loan Advances to the Borrower; and c) once the Outstanding Balance is repaid in full, recover any indebtedness of the Borrower to the Lender, whether or not then due. Notwithstanding 9
the foregoing statement, and for greater certainty and as set out in subsection 8.1, the Parties agree that any payment of Policy proceeds (net of costs, if any) must first be used to repay the Outstanding Balance and cannot first be used to repay any other debt the Borrower or the Guarantor may have with the Lender. 13.2 If, at any given time, the Outstanding Balance (less interest accrued thereon since the last Anniversary Date) exceeds the value of the Collateral Investment Accounts (less interest accrued thereon since the last Anniversary Date), the Lender shall be entitled, by sending written notice to the Borrower, to require that the Borrower immediately provide the Lender with sufficient repayment of the Outstanding Balance and/or otherwise provide additional security acceptable to the Lender such that the combined value of the Collateral Investment Accounts and the additional security provided is at least equal to the Outstanding Balance. 13.3 Where there is more than one Borrower, if one of the Borrower dies and at least one of the other Borrower survives, the Lender may, at its sole discretion, agree to continue the loan at the same terms and conditions as those provided in the Loan Documents. 13.4 The Lender s failure to exercise a right or remedy shall not constitute a waiver of the Lender s right to exercise such right or remedy in the future, and, for greater certainty, the Lender s acceptance of the payment of a sum of money following a Default Event shall not constitute a waiver of its rights and remedies hereunder. 14. RENEWAL 14.1 The Lender will send to the Borrower a loan renewal offer in advance of the Maturity Date provided that a Default Event has not occurred or, if a Default Event has occurred, it has been remedied. 14.2 The signed loan renewal offer together with a duly completed Loan Application and financial requirements shall be returned to the Lender not less than one hundred and twenty (120) days and not more than one hundred and eighty (180) days prior to the Maturity Date. 14.3 Upon receipt of the required documents referred to in subsection 14.2, the Lender may, in its unfettered discretion, elect whether or not to renew the Loan Agreement. If the Lender elects to renew the Loan Agreement, a loan renewal approval letter will be sent to the Borrower with a new Loan Agreement to be signed by the Borrower. If the Lender elects not to renew the Loan Agreement, a loan renewal refusal letter will be sent to the Borrower, the Loan Agreement will terminate on the Maturity Date and the Outstanding Balance shall be repaid by the Borrower to the Lender on the Maturity Date without further notice or demand for payment. 14.4 If the Lender has not received the required documents in the period referred to 10
in subsection 14.2, the Lender s offer to renew the Loan Agreement may, at the Lender s sole and exclusive option, be null and void and the Outstanding Balance shall be immediately due and payable by the Borrower to the Lender on the Maturity Date without further notice or demand for payment. 15. TERMINATION OF AGREEMENT PRIOR TO THE MATURITY DATE 15.1 Notwithstanding any other provision of this Loan Agreement, upon giving prior written notice to the Borrower, the Lender may, at its sole discretion, terminate this Loan Agreement when the Lender is no longer permitted by law to make further Loan Advances, or to administer any Loan Advances, or to perform its other obligations under this Loan Agreement. The date of termination shall be the date stated in the written notice given by the Lender to the Borrower. 15.2 Upon termination pursuant to subsection 15.1, the obligation of the Lender to make further Loan Advances, to maintain the Loan hereunder, or perform its obligations shall terminate immediately and, upon such termination, the Outstanding Balance shall be repaid in full by the Borrower to the Lender without further notice or demand for payment. 16. MISCELLANEOUS 16.1 Acknowledgement The Borrower (and, where there is more than one Borrower, each of them) acknowledges having received and read a copy of this Loan Agreement, understands its nature and scope, acknowledges having been given the opportunity to obtain legal advice with respect to such of the Loan Documents prior to executing any such Loan Documents, and agrees to be bound by the terms thereof. 16.2 Amendment No amendment or waiver of any provision of this Loan Agreement will be effective unless it is in writing and signed by all the Parties hereto. 16.3 Assignment The Lender may assign all or a part of its rights and obligations under this Loan Agreement to any person, firm or corporation without the Borrower s consent. The rights and obligations of the Borrower under this Loan Agreement may not be assigned by the Borrower without the Lender s prior written consent. 16.4 Currency All amounts payable to or by the Lender shall be in lawful money of Canada. 16.5 Entire Agreement The Loan Documents constitute the whole and entire agreement among the Parties hereto and cancel and supersede any prior verbal or written agreements or understandings among the Parties. The Parties agree that there are no undertakings, warranties or representations, expressed or implied, among them except as expressly set out in the Loan Documents and any other document delivered pursuant to or referred to herein (other than the Policy which, for greater certainty, is not delivered pursuant hereto). 11
16.6 Extended Meaning In the Loan Documents, words importing the singular number shall include the plural and vice versa, and words importing any gender shall include all genders. 16.7 Governing Law The interpretation and construction of this Loan Agreement shall be governed by the laws of the Borrower s province of residence and the laws of Canada applicable therein. The Parties hereto irrevocably attorn to the jurisdiction of the courts of the said province with respect to any dispute arising out of this Loan Agreement. 16.8 Independent Advice The Lender strongly recommends that the Borrower (and where there is more than one Borrower, recommends that each of them) seek independent legal and tax advice prior to the execution of this Loan Agreement and the Borrower acknowledges receipt of the Lender s recommendation that the Borrower first obtain independent legal and tax advice prior to entering into this Loan Agreement. 16.9 Joint and Several Liability The Parties agree that where there is more than one Borrower hereunder, the liability of each such Borrower is joint and several with each other Borrower with regard to the performance and observance of any obligation, representation, warranty or covenant under this Loan Agreement. 16.10 Language The Parties confirm their express wish that the Loan Agreement and all other Loan Documents and documents relating to them be drawn up in the English language only. Les Parties ont expressément exigé que le contrat de prêt ainsi que tous les documents de prêt et autres documents émis s y rattachant soient rédigés en anglais seulement. 16.11 No Obligation to Enforce The Borrower agrees that the Lender will not be bound to exhaust its recourses against the Borrower, or any person, before being entitled to enforce its rights under this Loan Agreement. 16.12 Notices All notices, requests, consents, acceptances, waivers and other communications required or permitted to be given by one party to another party under the terms of this Loan Agreement shall be in writing, and shall be effective immediately on transmittal if sent by facsimile, or at the time of sending if sent by electronic means of delivery, or, if mailed by registered or ordinary mail or postage prepaid, five (5) days after the postmark date, or otherwise on personal delivery thereof. Any notices to be sent by any party shall be sent to the last known postal or electronic address of the other party. 16.13 Set-Off The Borrower waives any right of set-off that the Borrower may have, whether contractual, statutory or equitable in nature, and agrees that all payments due to the Lender under this Loan Agreement shall be made free of any set-off or counterclaim or any withholding or deduction whatsoever. 16.14 Severability The provisions of this Loan Agreement shall apply to the 12
extent permitted by law. If any provision of this Loan Agreement is or becomes prohibited, invalid or unenforceable, in whole or in part, in any jurisdiction, such prohibition, invalidity or unenforceability shall not invalidate, affect or impair any of the remaining parts of the concerned provision or other provisions. 16.15 Successors This Loan Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, legal personal representatives, successors and permitted assigns. 17. ACCEPTANCE 17.1 This Loan Agreement offer is open for acceptance until [insert Date and Hour] (the Expiry Date ). 17.2 This offer is subject to the fulfilment of the following conditions on or before the Expiry Date: a) the Borrower has returned a signed and dated copy of this Loan Agreement to the Lender; b) the Policy Owner has provided the Lender with an executed Collateral Assignment Agreement and, where applicable, the Guarantee; and c) the first Loan Advance has been disbursed to the Borrower. 17.3 If the above conditions are not fulfilled on or before the Expiry Date, this offer shall become null and void. [Signatures on the following page] 13
Executed by the LENDER at on. INDUSTRIAL ALLIANCE INSURANCE AND FINANCIAL SERVICES INC. By: Yvon Charest President and Chief Executive Officer By: Pierre Vincent Senior Vice-President Individual Insurance and Sales The undersigned BORROWERS accept the terms and conditions of this Loan Agreement: Signed this day of. [Insert name of the Borrower] By: [name] [Title] By: [name] [Title] The undersigned GUARANTOR acknowledges the terms and conditions of this Loan Agreement. Signed this day of. [Insert name of the Guarantor] By: [name] [Title] 14