CORPORATE TRANSACTIONS & COMPLIANCE BLOG

Process Agent Appointment: Top 5 Qualities to Look For

By: Colleen DeVries, COGENCY GLOBAL INC. on Thu, Jul 18, 2019
What qualities should you look for when appointing a process agent?

What should you be looking for when appointing a process agent for a cross-border financing transaction?  

Appointing a process agent (or agent for service of process) for a financial transaction is just one of many important items that must be completed as a condition precedent to a funding, closing or filing date.

How do you choose the right process agent service company? These are the top 5 qualities you want, to ensure your transaction proceeds as planned.

1. Responsive

Time is always of the essence when closing on a large cross-border financial transaction or real estate CMBS or REIT deal, so responsiveness, hands-down, ranks in first place. Missing a target date for an SEC filing in a capital markets transaction because you were waiting on the acceptance of the process agent could be a disaster. Sometimes, the cost of not closing or funding on time can be significant.

Whether you are contacting a potential process agent with the intent to close in a week, 24 hours or even that very afternoon, you need a professional process agent company that understands how critical a swift response is for meeting your closing date. How fast do they respond to your initial quote request? How quickly will they deliver a draft agreement or process agent appointment letter? These are questions that help ensure you receive acceptance documentation on time to satisfy the conditions of your operative agreements and the tasks on your closing checklist.

2. Cost Effective

Cost-effectiveness is a key quality in appointing a process agent.Process agent appointment is typically a requirement set by a lender on behalf of third party, which may be a borrower, guarantor, lessor, or filer (for SEC filings) depending on the negotiated terms of the financial transaction.

Just because a process agent is required doesn’t mean that cost is not a consideration. Obtain a quote for process agent services and be sure to understand the pricing models you receive. Be aware of process agents that have additional fees to expedite delivery of their acceptance or additional revision fees, as these costs can really add up.

You want a process agent that knows no matter how large a cross-border transaction may be, the costs as a whole are always an important consideration to the companies involved.

3. Attentive and Flexible

The process agent you chose should provide personalized, customized service.

As mentioned above, time is of the essence. When you engage a process agent, expect a prompt, clear quote for services and a model form of appointment agreement or letter. But your chosen agent should also allow for customization of the appointment agreement and invoicing instructions, per the needs of your transaction.

Appointing a process agent is just one small component of closing a transaction. The ideal process agent will make the appointment as simple, seamless and transparent as possible so you stay on track for your target closing date.

4. Knowledgeable

A professional process agent should understand how their role plays into your transaction, before and after closing.

Pre-Closing

Post-Closing

  • Understands the role of a process agent in a variety of complex financial transactions under the terms of private agreements, and as part of certain regulatory requirements under the U.S.A. Patriot Act and the Securities and Exchange Commission (SEC).

  • Carefully reviews agreements to verify their limited scope as process agent to receive any legal proceeding on behalf of any borrower, guarantor, lessor or any party to a transaction and forward it to the contact provided at the company.

  • Makes quick decisions and can clearly communicate any comments to legal counsel or principals of the company.

  • Has a confidentiality policy in place and understands the confidential nature of each transaction they work on.
  • Has a tight internal control system to manage process agent appointments by transaction, noting the deal name or MSN in aircraft financings.

  • Understands what legal process or notices they are required to receive on behalf of their client company.

  • Understands what documentation they are NOT required to receive. (Just as important.)

  • Promptly provides certification to a lender that they remain active as the process agent post-closing for all types of financing transactions, as required under the U.S.A. Patriot Act.

  • Amends original appointment agreements. For example, adding additional appointing parties or replacing parties in a refinancing or when a novation to a lease agreement names a new lessor in place of the original lessor.

5. Relationship-Oriented, Before and After Closing

Appointing a process agent can often be a speedy affair but it establishes a relationship that will endure through the terms set by the transaction – and possibly more transactions to come. You want a professional process agent that embodies all of the qualities above, throughout your financial transaction, especially if your company is engaged in multiple cross-border financing transactions requiring a process agent. A relationship-oriented process agent company may, for example, create customized master agreements that can be tailored to each deal, reducing your paperwork and increasing efficiency across transactions.

A professional process agent service company that meets the five criteria outlined above will no doubt provide you with a cost-effective, time-saving solution to meet this important requirement for your financial transactions. Seek out a trusted partner who works for you, who will be available throughout the term of each transaction and proactively help you to avoid problems, delays and unnecessary costs.

 

This content is provided for informational purposes only and should not be considered, or relied upon, as legal advice.

Topics: Process Agent