备用信用证融资的个案分析.doc

备用信用证融资的个案分析
葛伟军
       备用信用证起源于美国。1977年，美国联邦储备银行管理委员会首次对其含义作出了明确界定，备用信用证是一种信用证或类似的安排，构成开证人对受益人的下列担保：偿还债务人的借款或预支给债务人款项；支付由债务人所承担的负债；对债务人不履行契约而付款。
       美国曾经禁止银行向客户提供担保，于是一些银行用备用信用证的方式变相地提供担保，备用信用证在金融领域的作用迅速得到体现，尤其在公司向银行融资的时候起到了巨大的作用。下面借助一个案例来说明备用信用证是如何帮助公司融资的以及其中相应的风险。
       中国公司A在上海投资某大型项目时碰到了资金短缺的问题，面临着选择：要么在短时间内筹集到资金并投入该项目，要么放弃该项目，但是如果选择放弃，A公司先期投入的资金则全部转为不可弥补的损失。经过深思熟虑，A公司决定向B银行贷款，继续该项目。B银行发放贷款的前提是借款人必须向银行提供与贷款相同数额的担保。但是，A公司没有可供担保的财产。
       这时候，C公司出现了。C公司是一家美国的投资公司。在其为客户提供的融资工具中，备用信用证是被经常使用的一种方式。C公司为A公司设计的方案是这样的：假设A公司需要100万美元。C公司与A公司事先签订一个委托开证协议，由A公司委托C公司开出备用信用证，A公司支付一般相当于开证金额1%-3%左右的手续费。根据开证协议，C公司按时向其位于美国的开证银行D申请开立100万美元的备用信用证，受益人是A公司在国内的开户银行或者贷款银行B。与此同时，A公司与B银行就贷款问题达成协议，即由A公司将该备用信用证抵押给B银行，B银行向A公司提供相当于信用证金额的贷款，也就是100万美元。备用信用证以最快的方式到达B银行，B银行审查信用证，确认无误后向A公司发放贷款。
      这样的安排对B银行有很大优势，因为B银行有美国D银行的信用担保。如果A公司在贷款期满时没有能力偿还或者故意不偿还贷款，B银行可以凭该备用信用证要求D银行履行信用证义务，即代替A公司偿还。对A公司来说，其贷款成本可能高于一般的商业贷款，因为有一笔额外的开证手续费需要支付。但是这种方式对于短时间内需要大量资金的公司而言，无疑是个好办法。D银行在该交易中不大可能有风险，因为开证行开证的前提是申请人C公司必须在开证行存入足够的开证保证金，或者C公司已经向D银行提供了相应的担保。
       对于C公司，情况比较复杂一点。首先这是一项业务，所以C公司会尽力取得A公司的信任并且配合A公司做好工作。其次，C公司会考虑是否能够获得预期利润，所以通常在协议中要求A公司先支付手续费，然后再安排开证。第三，也是最重要的，C公司非常关心A公司是否有能力偿还B银行的贷款。如果A公司在贷款期满不履行还款义务，B银行和D银行都不会有损失，最后倒霉的是C公司。因此，从理论上说，C公司应该具备足够的知识和技能来预测A公司的还款能力。但是在实践中，C公司很可能是第一次与A公司接触，从协商谈判、签订协议到实际交易的时间又比较短，无法了解A公司的真实财务情况。所以，C公司从一开始就不会完全相信A公司的还款承诺或还款计划。
       从保护自身利益出发，C公司最先想到的办法就是，明明知道但又装作不知道A公司会将该备用信用证用于贷款抵押，同时又在开证协议或者协议附件中明确限定：该备用信用证不得用于为获得贷款而抵押给银行，否则A公司承担一切责任。如此一来，难点和分歧就产生了：一方面，C公司明确知道A公司要该信用证是为了能够抵押给银行从而取得贷款，另一方面C公司却又要求A公司不得抵押该信用证。A公司非常矛盾，如果同意了C公司的要求，等于承担了一切交易风险，甚至还会将B银行拖入困境，而D银行则会安然无恙，理由是：C公司拿到手续费，A公司获得贷款，如果C公司将该信用证权利限制的内容通知D银行，或者D银行自己获得有关该信用证权利限制的内容，那么D银行将撤销该信用证，继而把所有的风险留给B银行和A公司。A公司如果不同意C公司的要求，就无法进行信用证抵押贷款，这显然与其需要融资的初衷相违背。
      随着金融市场的进一步开放，越来越多国外的投资公司或者证券公司到国内来开展业务，备用信用证是新的融资方法之一。与国外公司打交道的过程中，国内公司在把握机会的同时，一定要充分理解各种融资工具的含义。商场如战场，只有知彼知己，才能百战百胜。
Case study on Financing by Standby Letter of Credit
Ge Weijun
Standby Letter of Credit (L/C) originated in the USA. In 1997, the Administration Commission of American Federal Reserve Bank, for the first time, gave a clear definition to standby L/C, i.e. Standby L/C is a form of letter of credits or a similar arrangement to L/C, which constitutes a guarantee made by the opening bank to the beneficiary that it will pay debts of the debtor or advance funds to the debtor; discharge debts incurred by the debtor and pay for the debtor for its non-performance of contract.
 America once prohibited banks from providing guarantees to its clients. Consequently some banks used the standby L/C as an alternative means to provide guarantees to clients. As a result the standby L/C started to play an important role in the financial industry, especially for companies who need financing from banks. This article takes an example as a case study to explain how the standby L/C helps companies get financing from banks and the risks involved.
A Chinese company (hereinafter called “A company”) encountered shortage of funds in the investment of a major project in Shanghai. There were two options left for A company, one was to raise funds to continue the project, the other was to give up and all funds invested would become inevitable losses for A company. After careful analysis, A company decided to apply to B bank for a loan to continue the project. However, B bank requested the applicant to provide equivalent guarantee as a precondition to make the loan. Unfortunately A company had no assets to provide the guarantee.
At this critical time, C company appeared, which is an investment company in America. The standby L/C is a facility frequently used by C company to provide financing to clients. The proposal designed by C company for A company was as follows: Suppose that A company needed US$1 million. Two companies would enter into an agreement which provided that A company would instruct C company to apply for opening of a standby L/C for A company, while A company would pay the fees equal to 1%-3% of the amount of the L/C. According to this agreement, C company applied to D bank where it opened its account for a standby L/C to be opened with the amount of US$1 million and with B bank as the beneficiary. At the mean time, A company entered into a loan agreement with B bank which provided that A company would charge the standby L/C to B bank in return for B bank to grant a loan with the amount equal to that in the L/C, i.e. US$1 million. The standby L/C reached B bank in the fastest way. When the L/C was carefully examined and confirmed by B bank, the loan was granted to A company.
The above arrangement is much more favorable to B bank because it was guaranteed by the American D bank. In the event that A failed to pay back the due loan or intentionally did not discharge the loan, B bank was entitled to demand D bank to perform the obligations under the standby L/C, i.e.to pay the loan for A company. As for A company, the cost for the loan might be higher than a general commercial loan for it shall pay the extra fees for opening the standby L/C. But the advantage for A company in this arrangement is that it can raise a substantial amount of funds in such a short time for its project which was in great need of funds. It is unlikely that D bank would have any risks involved in this transaction because C company must have sufficient money in its account in D bank for it to apply for the opening of the standby L/C or C company had already provided equivalent guarantee to D bank for the opening of the standby L/C.
 As for C company, the situation might be more complex. Firstly this transaction is the business of C company and it will make every effort to cooperate with A company and get its trust. Secondly C company will consider whether it can get profits from this business. As a result it usually requests A company to pay fees for the opening of the standby L/C before it makes the application. Thirdly and the most importantly, C company is concerned whether A company is able to pay back the loan to B bank. If A company fails to discharge the loan, it is C company rather than B bank and D bank that will suffer a loss in this transaction. Therefore theoretically C company shall have sufficient knowledge and skills to estimate the capability of A company to pay back the loan. But in reality it may be the first time for C company to know A company and it is a short time from the negotiation, making the contract and finishing the transaction. It may be difficult for C company to have a deep knowledge of the true financial situations of A company. Therefore it is highly unlikely that C company will fully trust the payment commitment or schedule made by A company. To protect its own interests, the first method C company will take is to pretend unawareness that A company will charge the standby L/C to apply for the loan and require in the agreement for application of opening of the standby L/C or any attachment to such agreement that the standby L/C shall not be charged to any bank for getting a loan, otherwise A company shall assume all liabilities. In this case there arises the difficulty and dispute. On one hand, C company knows that the purpose for A company to obtain the standby L/C is to charge it to bank for a loan, while on the other hand C company does not allow A company to do so. It will put A company in a dilemma. If it agrees to the requirement of C company, that means it will take all risks in the transaction, or get B bank into a difficulty situation while D bank will be trouble-free. The reason is that for C company it will get fees from A company and for A company it will get a loan from B bank. If C company notifies D bank of the limitation put on the usage of the standby L/C or D bank obtains such information by itself, then D bank may cancel the standby L/C and leave all risks to B bank and A company. However if A company does not agree to the requirement made by C company, it can not obtain the standby L/C to get a loan from B bank, which obviously conflicts with its original financing plan for the project.
 With further opening up of Chinese financial market, more and more foreign investment companies and securities companies will expand their business into China. Standby L/C is one of new financing facilities. The domestic companies shall fully understand the meaning of new financing facilities and be aware of any risks involved to grasp every opportunity in secure methods.