Letters of Credit in Real Estate Finance and Lease Transactions: ISP98 Forms, UCC Article 5, Draw Procedures

Under a letter of credit, a financial institution agrees to honor a demand for payment made by a beneficiary at an applicant's request. LCs are used in various real estate transactions: to support an underlying performance obligation such as construction, or instead of cash when, for example, an escrow is required under a mortgage loan or a security deposit is required under a lease.

There are two types of LCs--commercial and standby--both follow specific rules, forms, and procedures dictated by the UCC, ISP98, or UCP. Counsel must draft and review LCs compliant with these rules and procedures and know the roles of the applicant, issuer, and beneficiary in issuing and drawing upon LCs.

Counsel should also understand the different uses for LCs and how to tailor LCs to each transaction, including expiry dates and "evergreen" clauses, whether the LC should be transferable or not transferable, and whether single or multiple draws will be permitted.

Listen as Buddy Baker, Vice President at Investment Banking Division, Goldman Sachs Bank USA discusses negotiating and drafting the critical terms in LCs and provides guidance through the annotated ISP98 forms. The panel will highlight using LCs in various real estate transactions and issues in making draws on LCs. The panel will also discuss alternative credit enhancements such as surety bonds and credit insurance and the advantages and disadvantages of each.