Affiliated with a proof of funds provider for over 10 years, we frequently assist with letters of credit.
If you ever want to send a chill down the spine of your banker in the United States, just mention the phrase “back-to-back letters of credit.”
In a typical letter of credit (LC) arrangement, the buyer instructs their bank to issue an LC to the seller. There may be times, however, when a broker is acting as a buying or selling agent or middleman on behalf of the buyer or the seller. In this case, the broker may not want one of the parties to know that the other exists in order to protect their place in any future transactions between the two parties.
Therefore, the buyer instructs their bank to issue an LC to the broker. The broker then must be able to provide an LC to the seller. In order to do this, the broker wants the bank to accept the letter of credit provided by the buyer as collateral to enable them to issue a second letter of credit to the seller. The broker will argue that the proceeds from the first letter of credit can be used to fund the second letter of credit that the broker is trying to get issued.
Most banks in the U.S. will refuse to issue an LC under these circumstances for a number of reasons. First, most banks require that the applicant—in this case the broker—have a line of credit in place. Holding a letter of credit to be used as collateral probably wouldn’t be enough. The bank is going to want to see more, such as a current balance sheet, a record of earnings for three or more years, cash flow projections, a business plan, and a credit rating. The list could go on and on.
Second, the bank won’t want to rely on another LC as their source of funding. The risk is just too high. When documents are presented against the LC that the buyer applied for, discrepancies could very likely be found. Once a discrepancy is found, there is a chance that payment could be refused. If this happens and then compliant documents are presented against the second LC that the broker wants issued, the bank is now in a position where they must make payment, but they don’t have a source for funding that payment. Banks don’t like to find themselves in a position like this.
Third, timing could be an issue. It’s very likely that the seller would present documents against the LC that the broker is trying to get issued before documents are presented against the LC that the buyer issued. Using the one LC as a source of funding for the other could definitely require some type of interim financing, which takes us back to the line of credit issue.
Of course the best course of action is to check with your bank to find out what their policy is regarding back-to-back letters of credit. Just don’t be surprised if they don’t have an appetite for the business.
A Transferable Letter of Credit
Let’s just assume that we have a buyer, a broker or middle man, and a manufacturer. At the request of the broker, the buyer applies for a letter of credit. The broker has instructed the buyer that the letter of credit must be transferable. Hopefully the buyer follows these instructions and indicates on the LC application that the LC must be transferable.
The issuing bank, following the instructions of their customer the buyer, issues the LC that contains the clause: “This letter of credit is transferable.” Just what does this mean, and how does it work?
When a letter of credit is transferable, the original or first beneficiary is allowed to transfer all or a part of the value of the letter of credit to a third party, otherwise known as the second beneficiary. In our example mentioned above, the beneficiary is a broker, and they now have the ability to transfer either all or a part of the value of the letter of credit to the actual manufacturer of the goods and can do so without using any of their own line of credit.
The transferring bank, which typically would be either the issuing or advising bank, will actually issue a Transferred Letter of Credit (TLC) and advise it to the second beneficiary. The TLC will look identical to the original LC, with a few exceptions. If the original LC required four documents—a bill of lading, commercial invoice, packing list and certificate of origin—the transferred LC will also contain those same documents and only those same documents.
There are a few things that can differ between the two credits:
- the value,
- the unit price if there is one,
- the expiration date,
- the period for presentation of documents,
- the shipment period, and
- The percentage of insurance coverage if required by the original LC.
In addition, the applicant on the TLC may be shown as the first beneficiary.
If the entire value of the original LC is transferred to the second beneficiary, one could assume that some type of payment was made directly to the original/first beneficiary to compensate them for the transaction. If only a partial transfer was made to the second beneficiary, the original beneficiary retains the right to present their invoice and draft to the bank at the time the second beneficiary is making their document presentation.
The second beneficiary (in our example, the manufacturer) now holds a Transferable Letter of Credit and can anticipate payment if and when they present compliant documents. The second beneficiary is responsible for making the shipment, following the shipping instructions contained in the TLC, and for presenting the required documents to the bank for payment. They are very much in control of the transaction.
Once it is determined that the documents comply, the second beneficiary will receive payment for the value of their invoice less any banking charges. In the event of a partial transfer, the original beneficiary will receive payment for the difference between their invoice and the second beneficiary’s invoice.
This appears to be the perfect solution for a three-party transaction, or is it?
Remember, the second beneficiary has a lot of control. If the shipping documents they present have discrepancies, payment could be refused. Maybe even greater danger, when the second beneficiary is loading the crate and preparing for shipment, they could include a copy of their invoice with a notation that for future shipments please contact them directly, thus cutting the first beneficiary out of any future dealings.
An Assignment of Proceeds
Again, let’s assume that we have a buyer, a broker/middleman, and a supplier/manufacturer. At the request of the broker, a buyer applies for a letter of credit, but this time there is no mention of the letter of credit needing to be transferable. The letter of credit is issued, sent to the advising bank who in turn advises it to the beneficiary, also known as the broker or middle man.
The beneficiary knows that their supplier wants some type of assurance that they will be paid, but the beneficiary wants to maintain a maximum amount of control over the transaction. An Assignment of Proceeds might just be the answer.
Once the letter of credit is received, the beneficiary would approach their bank with the original letter of credit in hand and ask that a specific value of the original letter of credit be assigned to the supplier. For example, if the LC was issued for $45,000, the request for the assignment might be $30,000.
The bank will require the original letter of credit be presented along with the written request for the assignment. The bank needs the original LC so it can endorse the backside of the LC indicating that an assignment has been made to the named party and the value of the assignment. Remember, most letters of credit are freely negotiable, meaning that the beneficiary could present documents to any bank. By endorsing the LC, any bank that might receive documents will know that an assignment has been made.
Once the endorsement is taken care of, the bank will issue a document or letter titled Assignment of Proceeds addressed, in this case, to the supplier. The content of this document will indicate that an assignment of proceeds has been made in their favor with a stated value. It will also indicate that if and when payment is made under the letter of credit, payment will automatically be made under the assignment.
Now that the supplier is holding the Assignment of Proceeds they may feel confident that they will receive payment and release the merchandise to the middleman/beneficiary. If all goes according to plan, the beneficiary arranges shipment, obtains the documents necessary to draw against the LC, presents these documents to the bank, and the bank makes payment to both the beneficiary and to the holder of the assignment of proceeds.
Again, this may sound like the perfect solution for the buyer, broker/middleman and supplier, but could something go wrong with this approach? Unfortunately, yes.
With the Assignment in place, once the supplier turns over the merchandise to the broker/middleman, the supplier does lose control of the transaction. Worst case scenario would be that the supplier goes ahead and ships the merchandise to the buyer but also contacts them proposing that they not use the LC as the method of payment. They might even suggest that instead of the LC, they would be happy to offer open account terms. They may propose that after the buyer has received the merchandise, they could wire transfer payment.
The buyer, not knowing that an assignment of proceeds has been issued, may be thrilled at the prospect of not having to pay their bank an examination fee under the LC and embrace the open account proposal.
Meanwhile, we have the supplier sitting back patiently waiting for payment. After two or three weeks, they may contact the bank asking about the status of payment against the assignment only to hear that documents have yet to be presented against the letter of credit. The supplier will be referred to the line in the assignment of proceeds that payment will be made to them if and when payment under the letter of credit is made.
The supplier then tries to contact the broker/middleman only to find out that the phone has been disconnected, and they appear to have left town. The supplier’s prospect for payment at this point isn’t very good.
For this very reason, suppliers or manufacturers may shy away from this arrangement.
It’s never a perfect world!
We offer these educational articles to help our customers understand the complicated nature of financial industry transactions. If you need help obtaining a SWIFT for a commodity trade transaction, perhaps we can help you. Call us at 1.925.352.6000
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