ALL OBLIGATIONS MORTGAGES
- What is an "All Obligations" mortgage? It is a mortgage of real estate (or a real estate interest) which, by its terms, secures all of the from time to time existing obligations owed by the mortgagor (or mortgagors) to the mortgagee, up to, from time to time and at any time, the maximum stated principal or face amount of the mortgage.
- Nomenclature. All obligations mortgages are sometimes also called "all purpose", "multi-purpose", "general liabilities" and "collateral mortgages".
- Broad scope of an all obligations mortgage's coverage. An all obligations mortgage, if properly worded, will provide "automatic" security for:
(a) all existing direct borrowing obligations owed by the mortgagor(s) to the mortgagee;
(b) all existing obligations owed by the mortgagor(s), other than "direct borrowing" obligations, including guarantee and indemnification obligations, and for that matter, all other legally enforceable monetary obligations owed to the mortgagee; and
(c) all future, and for that matter, not yet even conceived of, obligations arising out of future dealings between the mortgagor(s) and the mortgagee.
- Need for the mortgagee to ensure that each obligation to be secured is properly "documented". Because an all obligations mortgage secures, or is capable of securing, multiple presently existing and future arising obligations, it would be difficult, and with respect to future yet to be dreamed of obligations, it would be impossible, for the mortgage to contain particulars of each obligation (each loan, line of credit, guarantee, indemnification or other obligation). Thus it becomes particularly important for the parties to set out, outside of the four corners of the mortgage document itself, precisely what are the agreed to terms of each obligation. Contrast this situation with the more "ordinary" form of real property mortgage which secures one loan only (or perhaps one guarantee only) which will typically spell out all of the agreed upon (eg, the amount of the credit made available, the terms of repayment thereof, the applicable interest rate, and the terms of payment/repayment/prepayment and the agreed to prepayment rights of the mortgagor(s), if any).
- Typical all obligations mortgage wording. Please see the attached Schedule "A" which contains extracts from an all obligations mortgage, in particular, dealing with the definition of the "Obligations Secured" and the specification of the interest rate (and the method of calculation/compounding thereof) typically found in an all obligations mortgage. Note also the provisions under the heading "NATURE OF MONETARY OBLIGATIONS" (which emphasizes that it is indeed all, types of, obligations which are to be secured), and the provisions under the headings "INTERMEDIATE REPAYMENTS OR SATISFACTIONS NOT TO EXHAUST SECURITY" and "CHANGES IN THE NATURE OF THE MONETARY OBLIGATIONS NOT TO ADVERSELY AFFECT SECURITY" (which attempt to make it clear that notwithstanding certain changes to the underlying obligations or amendments to the underlying documentation evidencing or providing for the obligations - such as complete or whole debt repayments and the advancement of new credit - the mortgage security continues to secure all obligations, no matter how changed or restated).
- Is it necessary for an all obligations mortgage to contain a stated maximum principal or face amount? Some lawyers believe that it is permissible to create an all obligations mortgage which has no stated maximum principal or face amount. Where this may be legally permissible, it would certainly be a "plus" for the parties (the mortgagee in particular) in that it would further increase the flexibility of the use of an all obligations mortgage. Unfortunately, it is this writer's opinion that based on the current state of the law applicable in Manitoba, it is necessary to have a stated maximum principal or face amount contained in a mortgage. This is essentially due to two reasons:
(a) Section 17 of The Manitoba Mortgage Act - the opening (and for this purpose, the relevant) wording of Section 17 is: "To remove doubts, every mortgage duly registered against the lands comprised therein is, and subject to section 31 of The Builders' Liens Act, shall be deemed to be, as against the mortgagor, his heirs, executors, administrators, and every other person claiming by, through or under him, a security upon the lands to the extent of the moneys or money's worth actually advanced or supplied to the mortgagor under the mortgage (not exceeding the amount for which the mortgage is expressed to be a security)…" (the underlining here is the writer's for emphasis purposes). The underlined words pretty much dictate the need to have a stated maximum principal or face amount for a real property mortgage. Given the broad definition of the word "mortgage" in The Manitoba Mortgage Act, it is the writer's view that the need for a stated maximum principal or face amount applies not only to "ordinary" mortgages in the form prescribed for registration under The Manitoba Real Property Act, but also to any other type of real property mortgage, including mortgages of real estate interests other than freehold ownership (whether or not titled).
(b) An Ontario case (Re Lambton Farmers Ltd. (1978) 91 D.L.R. 3(d) 290, Ontario High Court) - in this case, the Court considered this matter in relation to virtually identical language to Section 17 of The Manitoba Mortgage Act, found in the Ontario Registry Act. The Court held that the section "deals with the priority of advances made under a mortgage subsequent to its registration as against the interests of subsequent registrants…it does not purport to set out rights as between the mortgagor and the mortgagee as parties to (the) mortgage…". Thus, as between a mortgagor and a mortgagee, but not as between a mortgagee and third party claimants claiming against the mortgaged realty, the absence of a maximum principal or face amount in a realty mortgage does not invalidate a mortgage. Where third party claimants are concerned, the mortgagee may lose priority for its advances to the subsequent claimants where there is no stated maximum principal or face amount. Presumably, the rationale behind this is to encourage the inclusion of stated maximum principal or face amounts in mortgages so that subsequent potential encumbrancers are able to see what is or could be the maximum prior principal exposure that they may be subject to if they acquire an interest in the lands.
- A common scenario where an all obligations mortgage could and should be used. Imagine a situation where a business borrower obtains certain credit facilities from a financial institution (the "Lender"). Those facilities may comprise, for example, two term loans, a line of credit and in addition, the customer may also have provided the Lender with a guarantee of the obligations owed to the Lender by a person or business related to the customer. In the aggregate, the Lender's monetary exposure is, say, $10,000,000.00. In this situation, my advice to the Lender - and as well to the customer - is to use an all obligations mortgage and to specify therein a maximum principal or face amount far in excess of the aforementioned $10,000,000.00. This is to provide future flexibility to the parties, should they agree upon the provision of additional credit by the Lender to the customer. Although I may suggest this, I have (on a number of occasions) been met with the following objections:
(a) To have a higher maximum principal or face amount in the mortgage would increase the registration and legal costs to be incurred by the customer. In fact, the Manitoba Land Titles system has not charged registration costs for mortgages based on the maximum principal or face amount since 1986, yet some people (including people in the lending business) continue to think that this is the case. As for increased legal costs, while there may in some instances be an increase in the legal costs by reason of the fact that the security being drafted is for a greater amount, thus potentially exposing the lawyer involved to a greater risk if something goes wrong, it is this writer's experience that in most cases, most lawyers will not increase their legal fees solely for this reason, if for no reason other than the existence of competitively priced legal services.
(b) Customers will sometimes complain that while they have no objection to the public record (the Land Titles Office) showing a maximum principal or face amount (in my hypothetical scenario) of $10,000,000.00, if a higher amount - say $20,000,000.00 - was stated, then third parties searching the register might conclude that the customer was "into the Lender" for far more than the customer is (or will likely be) indebted to the Lender. Of course this is a fallacious argument because all mortgages state a maximum principal or face amount, but at any given point, especially as time moves on, the actual principal balance outstanding under a mortgage may very well - and often does - decrease without there being any corresponding downward adjustment of the principal or face amount of the mortgage in the records at the Land Titles Office.
(c) Some customers will take the position that if, in this example, the mortgage states a maximum principal or face amount of $20,000,000.00, that will then somehow obligate the customer to borrow more money from the Lender, up to the maximum of $20,000,000.00. This too is a fallacious argument because, as we know, in order for the customer to increase its debt (in my example, beyond the maximum aggregate $10,000,000.00 amount), it would be necessary for the customer and the Lender to enter into new and further loan or credit agreements (or guarantees), and the customer always has the choice of not so proceeding,
Assume that the customer refuses to use an obligations mortgage with an (initially) much higher maximum face or principal amount, and further assume that one year later, with the customer's business doing very well and the customer needing further loan monies from the Lender, (and with the Lender more than willing to provide further credit), the parties now decide to increase the aggregate potential exposure of the Lender to, say, $20,000,000.00. Unfortunately, with the maximum principal or stated amount of the mortgage being only $10,000,000.00, any debt incurred above $10,000,000.00 will not be secured by the mortgage, unless either a new mortgage is provided to the Lender or (more likely) the parties enter into a mortgage amending agreement to increase the maximum principal or face amount from $10,000,000.00 to $20,000,000.00. This will involve additional legal costs which could have been avoided if my original suggestion (in this scenario) was accepted and, at the outset, the maximum principal or face amount stated in the all obligations mortgage was pegged at $20,000,000.00, not just $10,000,000.00.
- Utilization of all obligations mortgages in personal/consumer financing and a potential problem regarding both consumer and business borrowers. One particular segment of the financing business has massively adopted the use of all obligations mortgages (with relatively high stated maximum principal or face amounts) to achieve future flexibility and (usually) to decrease borrowing costs. This is the personal or consumer loan market where a person (the "Homeowner") mortgages his/her/their residential property to a Lender to secure not only a conventional residential property mortgage loan, but also to secure present and future debt obligations owed to the Lender arising out of personal lines of credit, credit card arrangements, automobile financing, etc. For a Homeowner whose home is worth, say, $500,000.00, and whose conventional mortgage debt is, say, at a level of $100,000.00, the use of an all obligations mortgage is attractive to both the Lender and the Homeowner. It allows the Homeowner to "tap" into the unencumbered equity value of the Homeowner's property, and because all debt thereby secured is covered by real property mortgage security, the Homeowner is usually able to access credit for other loans (including in particular, personal lines of credit) at interest rates less than what the Lender would charge for provision of such credit facilities where they were not covered by real estate security. This is attractive to the Lender because the Lender is now secured by a particularly valuable asset (ie, the Homeowner's property equity) and the Lender will usually ensure that the Lender's maximum potential exposure is limited to, in the aggregate, say (in my example) $300,000.00, thereby leaving a reasonably large "equity cushion" in case the property falls in value. There is however a potential problem in this sort of arrangement which could arise with both business borrowers and personal/consumer borrowers. Where, notwithstanding the existence of an all obligations mortgage with a relatively high or maximum stated principal or face amount, the Lender, for whatever reason or reasons, chooses not to provide further credit to the borrower, the borrower may be "stuck". The borrower still has plenty of equity in the borrower's realty but is unable to induce the Lender/mortgagee to advance further credit. But what if the borrower finds one or more other potential credit grantors ("New Lender") who would be quite willing to provide credit to the borrower on the security of the borrower's equity in the borrower's property, and to do so, notwithstanding that any such New Lender would hold a second mortgage behind the (original) Lender? The borrower and the New Lender might approach the original Lender/mortgagee and request that the (original) Lender/mortgagee enter into an intercreditor agreement with the New Lender which would provide, in effect, that the original Lender/mortgagee's realty security would secure up to a maximum principal amount of, say, $10,000,000.00 only (with interest and costs in the usual manner), notwithstanding that the original Lender/mortgagee's mortgage has a stated maximum principal or face amount of $20,000,000.00. This way, the New Lender could take a (second) mortgage against the remaining equity in the property and be adequately secured. Bear in mind that this problem is usually only a potential problem; it becomes a real problem where the original Lender/mortgagee refuses (for whatever reason) to enter into an intercreditor agreement along the lines of what the writer has just suggested. While the writer has no statistics to back up this hunch, it is the writer's strong suspicion that where a business borrower is involved, the original Lender/mortgagee will be more likely to enter into an intercreditor agreement with a new subordinate mortgage holder, than would be the case where the borrower is a personal/consumer borrower.
- What happens when the realty subject to an all obligations mortgage is transferred to a new owner? Section 77 of The Manitoba Real Property Act provides, in effect, that when titled land is transferred, then, "unless otherwise expressed", among other things, the transferee(s) are deemed to covenant to the existing mortgagee of the land that he/her/it/they (ie, the transferee(s)) will pay the obligations secured by the mortgage "at the rate and the time specified in the instrument creating (the mortgage), and, that the transferee(s) will be bound by all covenants, terms and conditions contained in the mortgage. Where - in a typical all obligations mortgage situation - the original owner has undertaken several different obligations to the Lender/mortgagee and secured same with an all obligations mortgage, what does this mean for the transferee(s)? Does it mean that the transferee(s) are, in effect, in the same position as if they had co-obligated themselves to the Lender/mortgagee with the original owner for all of the original owner's obligations? For example, assume that the original owner has entered into three different loan/credit facility agreements with the Lender/mortgagee for, say, two term loans and one line of credit, and that the original owner has also guaranteed payment to the Lender/mortgagee of the obligations from time to time owed to the Lender/mortgagee by a business entity related to the original owner. Is the result of Section 77 to put the transferee(s) in the same position they would be if they had, upon acquisition of mortgaged realty, "co-signed" in favour of the Lender/mortgagee the original owner's three loan/credit facility agreements and the original owner's guarantee? Given the language of Section 77, it is the writer's strong suspicion that the Legislature intended this Section to apply to a more traditional or "ordinary" mortgage which secures one only loan, and not one that secures multiple obligations. Further, assume that in this example, the Lender/mortgagee (coincidentally) enters into a provision of financial services arrangement with the transferee(s), thereby providing the transferee(s) with, say, two (new) term loan agreements and two (new) operating lines of credit. Is the legal result that the transferee(s) are somehow deemed to "step into the shoes" of the original owner/mortgagor with respect to all of the original owner's obligations, and, with the all obligations mortgage then and thereafter providing security to the Lender/mortgagee additionally for all of the transferee(s)' (new) obligations owed (or to be owed) to the Lender/mortgagee? Frankly, the writer doubts that a Court would hold this to be the legal result. However, a Court might so hold (and probably would so hold) if the transferee(s) entered into some sort of an agreement with the Lender/mortgagee to the effect that all obligations of the transferee(s) from that time forward (and for that matter, some or all of the original owner's obligation(s)) were to be secured by the mortgage.
- Acceleration and realization of security where not all of the debts secured are in default. It would not be unusual for an all obligations mortgage to secure, at any particular time, say, two term loans, both repayable by way of installments of principal with interest. Because there is only one mortgage involved as security for both loans, it is essential for the mortgagee that if one loan goes into default, the mortgagee must be able to treat the other loan as also being in default - whether or not it actually is in default. This allows the mortgagee to realize its security primarily to recoup the debt which is in default. Clearly, it would not be possible for the mortgagee to realize its security (typically, sell the mortgaged realty) to recoup the debt in default and still somehow preserve the mortgage as ongoing security for the loan which is not in default. The mortgage security must be utilized to try to recoup both loans at the same time. Thus for a single mortgage to stand as security for multiple obligations, it is necessary that the debtor agrees that default under any one or more of the secured debts is deemed to be default under all of them, with the result that the mortgagee can accelerate and demand...