Worldwide: 担保代理/担保机构的角色

公司在什么时候需要使用担保代理(也被称为担保代理或托管人)的服务?当贷方以抵押品作为贷款担保时,一般都会委任一家担保代理或代理,在借方违反贷款或债券合约时履行权利。

他们也可以在贷款期间保管抵押品。基于以下原因,你可能需要委任担保代理。贷款的贷方可能是一个银团,因此,将抵押相关职责集中委托给一名代理,后者将根据指定数名贷方的指示执行(如交易文件中所述)。另外,抵押品可能位于贷方或受托人没有据点的司法管辖区。担保证券/抵押品的债权一般由当地法律决定,因此,聘请熟悉当地的本地代理是谨慎的做法。不仅如此,也有可能会发生贷方不适合保管抵押品的情况,因此公司必须确保与有合适能力的代理合作。

抵押代理、担保代理、受管人的角色

违约发生之前,代理在担保融资的角色一般是简单的,包括接受适用抵押品的抵押,以及在收到指示的情况下对抵押品执行权力。

担保代理也有可能需要保管特定类型的抵押品,例如只有在借方以外的人实际拥有抵押品的情况下,抵押权才能生效的抵押品类型。这类抵押品通常是文件,例如股票证书、合约或契约。交易文件有可能要求担保代理对抵押品采取特别措施,如将其安全地收放在防火设备内,并记录下该抵押品是为了贷方的利益而保管。

在一些司法管辖区,为了让抵押权生效,担保代理有可能需要被命名为担保方。该代理有可能需要签署由当地法律管制的文件,以建立抵押权,并提供该代理对抵押品行使权利的能力(如:取消抵押品赎回权)。在这情况下,担保代理需要聘期当地律师,而费用则由交易保荐人或借方支付,以审核这些文件,并确保担保代理无需承担任何预期之外的负债。

如果发生融资违约的情况,担保代理可能会被要求对抵押品履行其权力。担保代理只有在得到特定贷方或债券持有人的指示下才采取行动,而且无需承担执行费用,包括律师费。任何所得款项(一般是扣除担保开销的费用)将以贷款交给贷方。

如果是妥当草拟的文件,一家实体作为担保代理的风险会降到最低。文件应该明确规定代理只属于执行性职责,这意味着代理并没有裁量权,只能在贷方的指示下行动。该文件也应为代理的行为提供赔偿(通常是代理的重大过失或故意的不当行为,并且应明确说明所有执行成本由贷方承担)。

在某些司法管辖区,有可能会在履行抵押权方面遇上困难,进而引发长期诉讼。另外,基于声誉因素,代理可能会不愿意对部分类型的抵押品取消赎回权。

无论如何,每项委任都必须根据具体情况进行审查。

TMF Group

TMF Group在全球的营运据点提供抵押/担保代理服务和全面的资本市场服务。身为一家独立服务提供商,我们的本地专家能协助处理文书工作、通过当地技术来简化客户要求的法律工作,以减轻法律费用。欢迎 与我们联系,了解我们能如何协助您。

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