| nominated persons may give or be obligated to give value under a | letter of credit, this section contemplates that a secured party | obtains control of a letter-of-credit right with respect to the | issuer or a particular nominated person only to the extent that | the issuer or that nominated person consents to the assignment. | For example, if a secured party obtains control to the extent of | an issuer's obligation but fails to obtain the consent of a | nominated person, the secured party does not have control to the | extent that the nominated person gives value. In many cases the | person or persons who will give value under a letter of credit | will be clear from its terms. In other cases, prudence may | suggest obtaining consent from more than one person. The details | of the consenting issuer's or nominated person's duties to pay or | otherwise render performance to the secured party are left to the | agreement of the parties. |
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| | 3. "Proceeds of a Letter of Credit." Section 5-114 follows | traditional banking terminology by referring to a letter of | credit beneficiary's assignment of its right to receive payment | thereunder as an assignment of the "proceeds of a letter of | credit." However, as the seller of goods can assign its right to | receive payment (an "account") before it has been earned by | delivering the goods to the buyer, so the beneficiary of a letter | of credit can assign its contingent right to payment before the | letter of credit has been honored. See Section 5-114(b). If the | assignment creates a security interest, the security interest can | be perfected at the time it is created. An assignment of, | including the creation of a security interest in, a letter-of- | credit right is an assignment of a present interest. |
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| | 4. "Transfer" vs. "Assignment." Letter-of-credit law and | practice distinguish the "transfer" of a letter of credit from an | "assignment." Under a transfer, the transferee itself becomes | the beneficiary and acquires the right to draw. Whether a new, | substitute credit is issued or the issuer advises the transferee | of its status as such, the transfer constitutes a novation under | which the transferee is the new, substituted beneficiary (but | only to the extent of the transfer, in the case of a partial | transfer). |
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| | Section 5-114(e) provides that the rights of a transferee | beneficiary or nominated person are independent of the | beneficiary's assignment of the proceeds of a letter of credit | and are superior to the assignee's right to the proceeds. For | this reason, transfer does not appear in this Article as a means | of control or perfection. Section 9-109(c)(4) [Maine cite | section 9-1109, subsection (3), paragraph (d)] recognizes the | independent and superior rights of a transferee beneficiary under | Section 5-114(e); this Article does not apply to the rights of a |
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