A mortgage right is one of the most frequently-occurring types of security. Mortgages are created on immovable items such as buildings and underground or aboveground networks, and on property subject to public registration such as apartment rights, large ships and aeroplanes.
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In case of a syndicate of finance parties, such as in LMA based transactions, it is possible to create security on behalf of a security agent or a security trustee (generally one of the banks) by inserting a parallel debt clause in the mortgage deed. This security agent or trustee exercises the right of mortgage on behalf of the syndicate in the case in question. There is some doubt in Dutch law concerning the possibility for creating independent security on behalf of a party that is not a creditor, or is only a partial creditor. For this reason, the mortgage deed (or the credit document or intercreditor agreement) provides that the entire amount is also payable to the security agent as a separate debt. This separate debt decreases in proportion to the repayments made or the security enforcements carried out. In the past, parallel debts were only arranged for certain jurisdictions, particularly the Netherlands. However, they are currently gaining popularity under English law as well.
Security for third-party debt is sometimes issued in the form of a mortgage. In such cases, it is important to make absolutely sure that the relevant company is authorised to enter into the transaction. The management at the local company also wishes to ascertain that it is not assuming any kind of liability by agreeing to this kind of security.
Ploum’s civil-law notaries can advise and assist you during the entire proceedings when creating a mortgage right.
Ploum’s civil-law notaries are among the top experts in the Netherlands with respect to the transfer, registration and mortgaging of underground and aboveground networks. In collaboration with Professor Hendrik Ploeger, our colleague Jolande van Loon made recommendations on registering ownership of cable and pipeline networks in a preliminary report entitled ‘Energie en Eigendom’ (Energy and Property), published in December 2011 by the Dutch Energy Law Association.
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