Yukon
Mortgage of Land or Lease
Readvance
- This form is for land and registered leases.
- The form uses a face amount greater than the amount of the current loan and is intended to secure present and future loans up to that amount should other loans be approved. The use of this form does not commit BDC to any future loans.
- The principal amount, the interest rate and the repayment terms of the current loan are not put into this form as it may secure further loans without amendment.
- Completion is required on page 1 and the signing area.
- Please append appropriate signing affidavits.
Changes:
June 2013
- changed business centre address on page 4
November 2007
- changed the “Bank” to “BDC”
- corrected address for “Payment Office”
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L1566 - Re-advance Mortgage - Yukon
Rev. June 2013
PREFACE
MORTGAGE
THE LAND TITLES ACT (YUKON)
YUKON TERRITORY
THIS MORTGAGE dated _____.
Made under "The Land Titles Act (Yukon)"
BETWEEN:
_____ being registered as owner of an estate in fee simple subject, however, to such encumbrances, liens and interests as are notified by memorandum underwritten and endorsed herein, in the land hereinafter described;
(the "Borrower")
OF THE FIRST PART
AND:
BUSINESS DEVELOPMENT BANK OF CANADA, incorporated by Special Act of the Parliament of Canada, and having its head office in Montreal, Quebec, and having a business centre in the City of Whitehorse in the Yukon Territory
("BDC")
OF THE SECOND PART
WHEREAS the Borrower is the registered owner of an estate in fee simple in possession, subject however to such encumbrances, liens or interest as are notified on the Certificate(s) of Title therefor all and singular the lands, tenements, hereditaments and premises (hereinafter referred to as the "Mortgaged Lands" or "Lands") situate in the Yukon Territory more particularly described as follows:
_____
AND WHEREAS the Borrower is borrowing money from BDC on a current or running account or accounts whereby advances are and will be made or other liability incurred from time to time to and by the Borrower in the discretion of BDC and repayment of such indebtedness or liability will be made by the Borrower to BDC from time to time upon demand by BDC;
AND WHEREAS the Borrower has agreed to execute and deliver this Mortgage in favour of BDC as security for all such indebtedness or liability, present or future, of the Borrower to BDC at any time and from time to time outstanding limited to the sum of $_____ of lawful money of Canada (hereinafter referred to as the "Principal Sum") together with interest thereon at the rate hereinafter specified.
Re-advance Mortgage - YK
Rev. June 2013Page 1
NOW THEREFORE WITNESSETH that for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Borrower, the Borrower mortgages to BDC the Lands and warrants, represents, covenants and agrees with BDC as follows:
1.DEFINITIONS
1.1In this Mortgage:
(a)"Amount Secured" means the aggregate of:
(i)the Principal Sum,
(ii)interest thereon at the Interest Rate calculated both before and after default, demand, maturity and judgment at the expiration of each Interest Calculation Period on outstanding daily balances;
(iii)interest at the same rate on any interest or Costs not paid when due; and
(iv)Costs;
(b)"Balance Due Date" means on demand by BDC;
(c)"business day" means any day which in the City of Whitehorse, in the Yukon Territory is a day that:
(i)is not a "holiday" as that word is defined in the Interpretation Act (Yukon Territory) as amended or replaced from time to time; and
(ii)BDC is open for business at its Payment Office;
(d)"Costs" mean all amounts, costs and expenses which, pursuant to the provisions of this Mortgage (other than paragraphs 4.1 and 4.3), the Borrower is required to pay to BDC;
(e)"First Payment Date" means the first payment date, if any, set out or referred to in any Loan Agreement as modified or amended from time to time between the Borrower and BDC;
(f)"Fixtures" mean all present and after-acquired structures, additions, improvements, plant, machinery, apparatus, facilities, equipment, fixtures and other goods installed in or affixed or attached to the buildings or improvements situate on the Borrower's Interest in the Mortgaged Lands or affixed or attached thereto, including without limitation:
(i)all fences, motors, wiring, fixed mirrors, suspended ceiling tiles, doors, windows and computers and all other structures, additions, improvements, plant, machinery, apparatus, facilities, equipment, fixtures and other goods installed in or affixed or attached to the buildings or improvements situate on the Mortgaged Lands or affixed or attached thereto for use in carrying on an activity inside the said buildings or improvements or on the Mortgaged Lands;
(ii)all carpeting and other floor coverings, including without limitation all carpets and floor coverings in all rooms, halls and stairways;
(iii)all window coverings and fixtures, including without limitation all awnings, shutters, drapes, blinds and valances;
(iv)all appliances, including without limitation all refrigerators, ranges, dishwashers, garbage disposal units and stoves; and
(v)all heating, cooling, plumbing, air-conditioning, air-filtering, ventilating, conveyancing, electrical, lighting, telecommunications, security, vacuum, sprinkler, fire-fighting, cooking and refrigeration devices, systems and equipment, including without limitation all furnaces, water heaters, hot water tanks, oil and gas burners, electric fixtures, escalators, elevators, boilers, pressure vessels, stokers, blowers, tanks, gas pipes, radiators, aerials, television antennae, satellite dishes and built-in furniture;
(g)"Freehold Lands" mean that portion of the Mortgaged Lands in respect of which the Borrower is the registered owner in fee simple;
(h)"Indebtedness" means the aggregate of all present and future indebtedness and liabilities of the Borrower to BDC (direct or indirect, absolute or contingent, matured or not, wheresoever and howsoever incurred, whether incurred as principal or surety, whether incurred alone or with another or others, and whether arising from dealings between BDC and the Borrower or from other dealings or proceedings by which BDC may become a creditor of the Borrower) including without limitation the outstanding balance of the Principal Sum advanced or re-advanced to the Borrower from time to time, interest thereon at the Interest Rate and all other present or future indebtedness and liabilities of the Borrower to BDC payable under or by virtue of this Mortgage;
(i)"Interest Adjustment Date" means the interest adjustment date, if any, set out or referred to in any Loan Agreement as modified or amended from time to time between the Borrower and BDC;
(j)"Interest Calculation Period" means the interest calculation period set out or referred to in any Loan Agreement as modified or amended from time to time between the Borrower and BDC;
(k)"Interest Margin" means the annual percentage rate, if any, above or below BDC's Operational Rate set out or referred to herein;
(l)"Interest Rate" means, subject to the provisions of paragraph19 and 20 of this Mortgage, the annual interest rate set out or referred to herein; namely, 5% above BDC's Operational Rate, per annum (or such other rate or rates of interest as may be agreed upon between the Borrower and BDC) calculated and compounded at the end of each Interest Calculation Period not in advance;
(m)"Lands" mean:
(i)the land(s) described or referred to herein together with the improvements and appurtenances affixed thereto whether now or hereafter existing or acquired, in connection with such land(s); and
(ii)the Fixtures;
(n)"Last Payment Date" means the last payment date, if any, set out or referred to in any Loan Agreement as modified or amended from time to time between the Borrower and BDC;
(o)"Lease" means, in respect of any part of the Mortgaged Lands in respect of which a leasehold or subleasehold interest is charged hereunder, the lease or sublease under which such leasehold or subleasehold interest is created and any lease or sublease which may be entered into in replacement or renewal of such lease or sublease, as any of the foregoing may be amended or extended from time to time;
(p)"Leasehold Lands" means that portion of the Lands demised to the Borrower pursuant to one or more Leases;
(q)"Lien" means any mortgage, lien, pledge, assignment, charge, security interest, title retention agreement, levy, execution, attachment or other encumbrance (whether statutory or otherwise);
(r)"Mortgage" means this Mortgage and express mortgage terms, as amended, modified and extended from time to time as executed by the Borrower and all schedules and addenda attached thereto;
(s)"Mortgaged Lands" mean the Freehold Lands and the Leasehold Lands;
(t)"BDC" means the person or persons described herein as the lender(s) or mortgagee(s) and their respective heirs, personal representatives, successors or assigns, as the case may be;
(u)"Borrower" means the person or persons described herein as the borrower(s) or mortgagor(s) who executed this Mortgage and their respective heirs, personal representatives, successors or permitted assigns, as the case may be;
(v)"Borrower's Interest" at any time means:
(i)in respect of that portion of the Mortgaged Lands which are Freehold Lands, the legal and beneficial fee simple estate and title therein and thereto;
(ii)in respect of that portion of the Mortgaged Lands which are Leasehold Lands:
A.the legal and beneficial leasehold (or subleasehold, as the case may be) estate and title therein and thereto;
B.the Lease relating thereto and all the right, title and interest of the Borrower in and to the Lease; and
C.all benefit and advantage from the Lease relating thereto and from the Leasehold Lands leased (or subleased, as the case may be) to the Borrower thereby;
(w)"Operational Rate" means the annual rate of interest announced from time to time by BDC as the operational rate then in effect for determining the floating interest rates on Canadian dollar commercial and industrial loans made by BDC in Canada;
(x)"Payment Dates" mean the payment dates, if any, set out or referred to in any Loan Agreement as modified or amended from time to time between the Borrower and BDC and "Payment Date" means any one of them;
(y)"Payment Office" means 210 – 2237 2nd Avenue, Whitehorse, Yukon Territory, Y1A 0K7 or such other place as designated from time to time by BDC;
(z)"Periodic Payment" means the amount of each payment, if any, set out or referred to in any Loan Agreement as modified or amended from time to time between the Borrower and BDC;
(aa)"Permitted Encumbrances" means the prior encumbrances, if any, set out herein;
(bb)"person" includes an individual, a corporation and a partnership of individuals or corporations or a combination thereof;
(cc)"Principal Sum" means the principal amount set out or referred to herein which shall be in lawful money of Canada unless otherwise specified herein;
(dd)"terms" and "mortgage terms" mean, unless the context otherwise requires, all of the covenants, agreements, provisos, terms, conditions and provisions of this Mortgage to be bound by the mortgage terms referred to herein shall constitute the agreement of the Borrower to be bound by all of the covenants, agreements, provisos, terms, conditions and provisions of this Mortgage.
2.GRANT OF SECURITY
2.1This Mortgage is made under the Land Titles Act (Yukon) as amended or replaced from time to time;
2.2The Borrower HEREBY GRANTS AND MORTGAGES the Borrower's Interest in and to the Freehold Lands to BDC forever and for the better securing of this Mortgage, the repayment in the manner aforesaid of the Principal Sum and Interest, the Borrower hereby mortgages to BDC the Borrower's estate and interest in the Lands described or referred to herein;
(a)The Borrower HEREBY DEMISES, SUBLEASES AND MORTGAGES by way of a sublease to and in favour of BDC the Borrower's Interest in and to each of the Leasehold Lands (except in each case the last day thereof) and all other estate, term, right of renewal and other interest in each Lease relating thereto; and
(b)The Borrower HEREBY GRANTS AND MORTGAGES the Fixtures to BDC forever;
subject to Permitted Encumbrances, if any, and the proviso for redemption set out in section 3 of this Mortgage:
2.3If the Borrower hereafter acquires any further or greater estate, right, title or interest in the Mortgaged Lands, this Mortgage shall extend to such estate, right, title or interest in the Mortgaged Lands;
2.4Without in any way affecting or releasing the Borrower's liability to BDC for the payment of the monies and the performance of the obligations hereby secured and for the consideration aforesaid the Borrower assigns, transfers and sets over to BDC:
(a)any monies due and payable to the Borrower by an expropriating authority upon an expropriation of any or all of the Borrower's Interest in the Mortgaged Lands, provided that such assignment is limited to the amount of monies secured hereby and outstanding at the date the Borrower ceases to be the registered owner thereof or such part thereof as may be affected by any such expropriation, and the Borrower further agrees that it shall execute and deliver any such further or additional documentation which BDC may in BDC's sole discretion deem necessary to effect the above assignment or which is requested by the expropriating authority and also agrees to forward to BDC copies of any documentation relating to an expropriation or proposed expropriation of the Borrower's Interest in the Mortgaged Lands or any portion thereof forthwith upon the receipt of the same; and
(b)all right, title, claim, demand and interest of the Borrower whatsoever at law or in equity or otherwise to indemnification, express or implied, of and from the performance and observance of any and all of the terms of this Mortgage, including without limitation payment of any and all monies due under this Mortgage by any purchaser of the Borrower's Interest in the Mortgaged Lands, or any part thereof, from the Borrower.
3.PROVISO FOR REDEMPTION
3.1This Mortgage shall be void on the occurrence of the following events:
(a)payment by the Borrower to BDC, on demand, of the Indebtedness not exceeding the Amount Secured; and
(b)observance and performance of all covenants, agreements, provisos, terms, conditions and provisions herein contained;
the Borrower releases to BDC all the claims of the Borrower on the Borrower's Interest in the Mortgaged Lands subject to the above proviso(s).
4.PAYMENT
4.1The Borrower will duly pay the Indebtedness to BDC on demand and will observe the above proviso(s);
4.2The Indebtedness hereunder shall be paid when due without any set-off, deduction, defalcation or abatement whatsoever;
4.3If the Borrower fails to pay the Indebtedness or any part thereof, when due, the Borrower shall pay to BDC compound interest thereon on demand, as well after as before maturity, default and judgment, to be computed with rests on the last day of each Interest Calculation Period;
4.4The following shall apply if the Interest Rate is a rate below, equal to or above BDC's Operational Rate:
(a)if BDC's Operational Rate changes and so often as the same occurs during the currency of this Mortgage, the Interest Rate shall change without notice to the Borrower on the same day and in the same amount as BDC's Operational Rate changed;
(b)a certificate of any officer of BDC as to BDC's Operational Rate at any particular time or times, shall be deemed to be conclusive evidence of BDC's Operational Rate hereunder at such time or times;
(c)if BDC shall at any time during the currency of this Mortgage establish more than one rate of interest as BDC's Operational Rate, then for the purposes hereof BDC's Operational Rate hereunder shall be the higher or highest of such rates so established; and
(d)in the event foreclosure proceedings are commenced hereunder by BDC, BDC may, at its option, apply to fix the Interest Rate that will be payable hereunder after the grant of the Order Nisi until the balance of the Principal Sum outstanding has been paid in full at the Interest Rate applicable hereunder on that day which is seven (7) days prior to the date of the grant of the Order Nisi;
4.5Until BDC shall notify the Borrower otherwise, all payments to be made to BDC under this Mortgage shall be paid to or to the order of BDC at the Payment Office, in dollars of lawful money of Canada, solely on business days, and before 12:00 o'clock noon local time on any such day and in the event a payment is made after 12:00 o'clock noon local time on any business day, or is made on any day that is not a business day, such payment will be deemed to have been received by BDC on the business day next following;
4.6Save as herein expressly provided, the Borrower shall not compel BDC to receive the Indebtedness or any part thereof, nor shall the Borrower have any privilege or right to pay the Indebtedness or any part thereof before the Balance Due Date;
4.7The Borrower will, on the due date thereof, pay and satisfy all taxes, rates, levies, charges, rents, assessments, statute labour and other impositions whatsoever already or hereafter rated, charged, assessed or imposed no matter by whom or by what authority howsoever on the Borrower's Interest in the Mortgaged Lands or the Borrower or BDC in respect of the Borrower's Interest in the Mortgaged Lands, and submit to BDC tax receipts evidencing the payment of taxes within thirty (30) days after they become due, provided that: