Senate Bill 2230

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    Florida Senate - 1998                                  SB 2230

    By Senator Campbell





    25-1144-98

  1                      A bill to be entitled

  2         An act revising the "Uniform Commercial Code:

  3         Letters of Credit"; creating ss.

  4         675.5101-675.5117, F.S.; revising provisions of

  5         the code relating to letters of credit;

  6         defining terms; providing formal requirements;

  7         providing consideration; providing time and

  8         effect of establishment of credit; providing

  9         advice of credit, confirmation, error in

10         statement of terms; providing "notation

11         credit"; prescribing issuer's obligation to its

12         customers; providing availability of credit in

13         portions; providing warranties on transfer and

14         presentment; prescribing time allowed for honor

15         or rejection; providing indemnities; providing

16         issuer's duty and privilege to honor; providing

17         a right to reimbursement; providing remedy for

18         dishonor or anticipatory repudiation; providing

19         transfer and assignment; providing insolvency

20         of bank holding funds for documentary credit;

21         amending ss. 671.105, 672.512, 679.103,

22         679.104, 679.105, 679.106, 679.304, 679.305,

23         F.S.; conforming provisions to changes made by

24         the act; repealing ss. 675.101, 675.102,

25         675.103, 675.104, 675.105, 675.106, 675.107,

26         675.108, 675.109, 675.110, 675.111, 675.112,

27         675.113, 675.114, 675.115, 675.116, 675.117,

28         F.S., relating to letters of credit; providing

29         an effective date.

30

31  Be It Enacted by the Legislature of the State of Florida:

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  1         Section 1.  Section 675.5101, Florida Statutes, is

  2  created to read:

  3         675.5101  Short title.--This article may be cited as

  4  the "Uniform Commercial Code: Letters of Credit."

  5         Section 2.  Section 675.5102, Florida Statutes, is

  6  created to read:

  7         675.5102  Definitions.--

  8         (1)  In this chapter:

  9         (a)  "Adviser" means a person who, at the request of

10  the issuer, a confirmer, or another adviser, notifies or

11  requests another adviser to notify the beneficiary that a

12  letter of credit has been issued, confirmed, or amended.

13         (b)  "Applicant" means a person at whose request or for

14  whose account a letter of credit is issued.  The term includes

15  a person who requests an issuer to issue a letter of credit on

16  behalf of another if the person making the request undertakes

17  an obligation to reimburse the issuer.

18         (c)  "Beneficiary" means a person who under the terms

19  of a letter of credit is entitled to have its complying

20  presentation honored.  The term includes a person to whom

21  drawing rights have been transferred under a transferable

22  letter of credit.

23         (d)  "Confirmer" means a nominated person who

24  undertakes, at the request or with the consent of the issuer,

25  to honor a presentation under a letter of credit issued by

26  another.

27         (e)  "Dishonor" of a letter of credit means failure

28  timely to honor or to take an interim action, such as

29  acceptance of a draft, that may be required by the letter of

30  credit.

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  1         (f)  "Document" means a draft or other demand, document

  2  of title, investment security, certificate, invoice, or other

  3  record, statement, or representation of fact, law, right, or

  4  opinion which is presented in a written or other medium

  5  permitted by the letter of credit or, unless prohibited by the

  6  letter of credit, by the standard practice referred to in s.

  7  675.5108(5) and which is capable of being examined for

  8  compliance with the terms and conditions of the letter of

  9  credit.  A document may not be oral.

10         (g)  "Good faith" means honesty in fact in the conduct

11  or transaction concerned.

12         (h)  "Honor" of a letter of credit means performance of

13  the issuer's undertaking in the letter of credit to pay or

14  deliver an item of value.  Unless the letter of credit

15  otherwise provides, "honor" occurs:

16         1.  Upon payment;

17         2.  If the letter of credit provides for acceptance,

18  upon acceptance of a draft and, at maturity, its payment; or

19         3.  If the letter of credit provides for incurring a

20  deferred obligation, upon incurring the obligation and, at

21  maturity, its performance.

22         (i)  "Issuer" means a bank or other person that issues

23  a letter of credit, but does not include an individual who

24  makes an engagement for personal, family, or household

25  purposes.

26         (j)  "Letter of credit" means a definite undertaking

27  that satisfies the requirements of s. 675.5104 by an issuer to

28  a beneficiary at the request or for the account of an

29  applicant or, in the case of a financial institution, to

30  itself or for its own account, to honor a documentary

31  presentation by payment or delivery of an item of value.

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  1         (k)  "Nominated person" means a person whom the issuer:

  2         1.  Designates or authorizes to pay, accept, negotiate,

  3  or otherwise give value under a letter of credit; and

  4         2.  Undertakes by agreement or custom and practice to

  5  reimburse.

  6         (l)  "Presentation" means delivery of a document to an

  7  issuer or nominated person for honor or giving of value under

  8  a letter of credit.

  9         (m)  "Presenter" means a person making a presentation

10  as or on behalf of a beneficiary or nominated person.

11         (n)  "Record" means information that is inscribed on a

12  tangible medium, or that is stored in an electronic or other

13  medium and is retrievable in perceivable form.

14         (o)  "Successor of a beneficiary" means a person who

15  succeeds to substantially all of the rights of a beneficiary

16  by operation of law, including a corporation with or into

17  which the beneficiary has been merged or consolidated, an

18  administrator, executor, personal representative, trustee in

19  bankruptcy, debtor in possession, liquidator, and receiver.

20         (2)  Definitions in other chapters applying to this

21  chapter and the sections in which they appear are:

22         (a)  "Accept" or "Acceptance," s. 673.4091

23         (b)  "Value," ss. 673.3031, 674.2111

24         (3)  Chapter 671 contains certain additional general

25  definitions and principles of construction and interpretation

26  applicable throughout this article.

27         Section 3.  Section 675.5103, Florida Statutes, is

28  created to read:

29         675.5103  Scope.--

30

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  1         (1)  This article applies to letters of credit and to

  2  certain rights and obligations arising out of transactions

  3  involving letters of credit.

  4         (2)  The statement of a rule in this article does not

  5  by itself require, imply, or negate application of the same or

  6  a different rule to a situation not provided for, or to a

  7  person not specified, in this article.

  8         (3)  With the exception of this subsection, subsections

  9  (1) and (4), ss. 675.5102(1)(i) and (j), 675.5106(4), and

10  675.5114(4), and except to the extent prohibited in ss.

11  671.102(3) and 675.5117(4), the effect of this article may be

12  varied by agreement or by a provision stated or incorporated

13  by reference in an undertaking.  A term in an agreement or

14  undertaking generally excusing liability or generally limiting

15  remedies for failure to perform obligations is not sufficient

16  to vary obligations prescribed by this article.

17         (4)  Rights and obligations of an issuer to a

18  beneficiary or a nominated person under a letter of credit are

19  independent of the existence, performance, or nonperformance

20  of a contract or arrangement out of which the letter of credit

21  arises or which underlies it, including contracts or

22  arrangements between the issuer and the applicant and between

23  the applicant and the beneficiary.

24         Section 4.  Section 675.5104, Florida Statutes, is

25  created to read:

26         675.5104  Formal requirements.--A letter of credit,

27  confirmation, advice, transfer, amendment, or cancellation may

28  be issued in any form that is a record and is authenticated by

29  a signature or in accordance with the agreement of the parties

30  or the standard practice referred to in s. 675.5108(5).

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  1         Section 5.  Section 675.5105, Florida Statutes, is

  2  created to read:

  3         675.5105  Consideration.--Consideration is not required

  4  to issue, amend, transfer, or cancel a letter of credit,

  5  advice, or confirmation.

  6         Section 6.  Section 675.5106, Florida Statutes, is

  7  created to read:

  8         675.5106  Issuance, amendment, cancellation, and

  9  duration.--

10         (1)  A letter of credit is issued and becomes

11  enforceable according to its terms against the issuer when the

12  issuer sends or otherwise transmits it to the person requested

13  to advise or to the beneficiary.  A letter of credit is

14  revocable only if it so provides.

15         (2)  After a letter of credit is issued, rights and

16  obligations of a beneficiary, applicant, confirmer, and issuer

17  are not affected by an amendment or cancellation to which that

18  person has not consented except to the extent the letter of

19  credit provides that it is revocable or that the issuer may

20  amend or cancel the letter of credit without that consent.

21         (3)  If there is no stated expiration date or other

22  provision that determines its duration, a letter of credit

23  expires one year after its stated date of issuance or, if none

24  is stated, after the date on which it is issued.

25         (4)  A letter of credit that states that it is

26  perpetual expires five years after its stated date of

27  issuance, or if none is stated, after the date on which it is

28  issued.

29         Section 7.  Section 675.5107, Florida Statutes, is

30  created to read:

31         675.5107  Confirmer, nominated person, and adviser.--

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  1         (1)  A confirmer is directly obligated on a letter of

  2  credit and has the rights and obligations of an issuer to the

  3  extent of its confirmation.  The confirmer also has rights

  4  against and obligations to the issuer as if the issuer were an

  5  applicant and the confirmer had issued the letter of credit at

  6  the request and for the account of the issuer.

  7         (2)  A nominated person who is not a confirmer is not

  8  obligated to honor or otherwise give value for a presentation.

  9         (3)  A person requested to advise may decline to act as

10  an adviser.  An adviser that is not a confirmer is not

11  obligated to honor or give value for a presentation.  An

12  adviser undertakes to the issuer and to the beneficiary

13  accurately to advise the terms of the letter of credit,

14  confirmation, amendment, or advice received by that person and

15  undertakes to the beneficiary to check the apparent

16  authenticity of the request to advise.  Even if the advice is

17  inaccurate, the letter of credit, confirmation, or amendment

18  is enforceable as issued.

19         (4)  A person who notifies a transferee beneficiary of

20  the terms of a letter of credit, confirmation, amendment, or

21  advice has the rights and obligations of an adviser under

22  subsection (3).  The terms in the notice to the transferee

23  beneficiary may differ from the terms in any notice to the

24  transferor beneficiary to the extent permitted by the letter

25  of credit, confirmation, amendment, or advice received by the

26  person who so notifies.

27         Section 8.  Section 675.5108, Florida Statutes, is

28  created to read:

29         675.5108  Issuer's rights and obligations.--

30         (1)  Except as otherwise provided in s. 675.5109, an

31  issuer shall honor a presentation that, as determined by the

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  1  standard practice referred to in subsection (5), appears on

  2  its face strictly to comply with the terms and conditions of

  3  the letter of credit.  Except as otherwise provided in s.

  4  675.5113 and unless otherwise agreed with the applicant, an

  5  issuer shall dishonor a presentation that does not appear so

  6  to comply.

  7         (2)  An issuer has a reasonable time after

  8  presentation, but not beyond the end of the seventh business

  9  day of the issuer after the day of its receipt of documents:

10         (a)  To honor;

11         (b)  If the letter of credit provides for honor to be

12  completed more than seven business days after presentation, to

13  accept a draft or incur a deferred obligation; or

14         (c)  To give notice to the presenter of discrepancies

15  in the presentation.

16         (3)  Except as otherwise provided in subsection (4), an

17  issuer is precluded from asserting as a basis for dishonor any

18  discrepancy if timely notice is not given, or any discrepancy

19  not stated in the notice if timely notice is given.

20         (4)  Failure to give the notice specified in subsection

21  (2) or to mention fraud, forgery, or expiration in the notice

22  does not preclude the issuer from asserting as a basis for

23  dishonor fraud or forgery as described in s. 675.5109(1) or

24  expiration of the letter of credit before presentation.

25         (5)  An issuer shall observe standard practice of

26  financial institutions that regularly issue letters of credit.

27  Determination of the issuer's observance of the standard

28  practice is a matter of interpretation for the court.  The

29  court shall offer the parties a reasonable opportunity to

30  present evidence of the standard practice.

31         (6)  An issuer is not responsible for:

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  1         (a)  The performance or nonperformance of the

  2  underlying contract, arrangement, or transaction,

  3         (b)  An act or omission of others, or

  4         (c)  Observance or knowledge of the usage of a

  5  particular trade other than the standard practice referred to

  6  in subsection (5).

  7         (7)  If an undertaking constituting a letter of credit

  8  under s. 675.5102(1)(j) contains nondocumentary conditions, an

  9  issuer shall disregard the nondocumentary conditions and treat

10  them as if they were not stated.

11         (8)  An issuer that has dishonored a presentation shall

12  return the documents or hold them at the disposal of, and send

13  advice to that effect to, the presenter.

14         (9)  An issuer that has honored a presentation as

15  permitted or required by this article:

16         (a)  Is entitled to be reimbursed by the applicant in

17  immediately available funds not later than the date of its

18  payment of funds;

19         (b)  Takes the documents free of claims of the

20  beneficiary or presenter;

21         (c)  Is precluded from asserting a right of recourse on

22  a draft under ss. 673.4141 and 673.4151;

23         (d)  Except as otherwise provided in ss. 675.5110 and

24  675.5117, is precluded from restitution of money paid or other

25  value given by mistake to the extent the mistake concerns

26  discrepancies in the documents or tender which are apparent on

27  the face of the presentation; and

28         (e)  Is discharged to the extent of its performance

29  under the letter of credit unless the issuer honored a

30  presentation in which a required signature of a beneficiary

31  was forged.

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  1         Section 9.  Section 675.5109, Florida Statutes, is

  2  created to read:

  3         675.5109  Fraud and forgery.--

  4         (1)  If a presentation is made that appears on its face

  5  strictly to comply with the terms and conditions of the letter

  6  of credit, but a required document is forged or materially

  7  fraudulent, or honor of the presentation would facilitate a

  8  material fraud by the beneficiary on the issuer or applicant:

  9         (a)  The issuer shall honor the presentation, if honor

10  is demanded by:

11         1.  A nominated person who has given value in good

12  faith and without notice of forgery or material fraud;

13         2.  A confirmer who has honored its confirmation in

14  good faith;

15         3.  A holder in due course of a draft drawn under the

16  letter of credit which was taken after acceptance by the

17  issuer or nominated person; or

18         4.  An assignee of the issuer's or nominated person's

19  deferred obligation that was taken for value and without

20  notice of forgery or material fraud after the obligation was

21  incurred by the issuer or nominated person; and

22         (b)  The issuer, acting in good faith, may honor or

23  dishonor the presentation in any other case.

24         (2)  If an applicant claims that a required document is

25  forged or materially fraudulent or that honor of the

26  presentation would facilitate a material fraud by the

27  beneficiary on the issuer or applicant, a court of competent

28  jurisdiction may temporarily or permanently enjoin the issuer

29  from honoring a presentation or grant similar relief against

30  the issuer or other persons only if the court finds that:

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  1         (a)  The relief is not prohibited under the law

  2  applicable to an accepted draft or deferred obligation

  3  incurred by the issuer;

  4         (b)  A beneficiary, issuer, or nominated person who may

  5  be adversely affected is adequately protected against loss

  6  that it may suffer because the relief is granted;

  7         (c)  All of the conditions to entitle a person to the

  8  relief under the law of this State have been met; and

  9         (d)  On the basis of the information submitted to the

10  court, the applicant is more likely than not to succeed under

11  its claim of forgery or material fraud and the person

12  demanding honor does not qualify for protection under

13  paragraph (1)(a).

14         Section 10.  Section 675.5110, Florida Statutes, is

15  created to read:

16         675.5110  Warranties.--

17         (1)  If its presentation is honored, the beneficiary

18  warrants:

19         (a)  To the issuer, any other person to whom

20  presentation is made, and the applicant that there is no fraud

21  or forgery of the kind described in s. 675.5109(1); and

22         (b)  To the applicant that the drawing does not violate

23  any agreement between the applicant and beneficiary or any

24  other agreement intended by them to be augmented by the letter

25  of credit.

26         (2)  The warranties in subsection (1) are in addition

27  to warranties arising under chapters 673, 674, 677, and 678

28  because of the presentation or transfer of documents covered

29  by any of those chapters.

30         Section 11.  Section 675.5111, Florida Statutes, is

31  created to read:

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  1         675.5111  Remedies.--

  2         (1)  If an issuer wrongfully dishonors or repudiates

  3  its obligation to pay money under a letter of credit before

  4  presentation, the beneficiary, successor, or nominated person

  5  presenting on its own behalf may recover from the issuer the

  6  amount that is the subject of the dishonor or repudiation.  If

  7  the issuer's obligation under the letter of credit is not for

  8  the payment of money, the claimant may obtain specific

  9  performance or, at the claimant's election, recover an amount

10  equal to the value of performance from the issuer.  In either

11  case, the claimant may also recover incidental but not

12  consequential damages.  The claimant is not obligated to take

13  action to avoid damages that might be due from the issuer

14  under this subsection.  If, although not obligated to do so,

15  the claimant avoids damages, the claimant's recovery from the

16  issuer must be reduced by the amount of damages avoided.  The

17  issuer has the burden of proving the amount of damages

18  avoided.  In the case of repudiation the claimant need not

19  present any document.

20         (2)  If an issuer wrongfully dishonors a draft or

21  demand presented under a letter of credit or honors a draft or

22  demand in breach of its obligation to the applicant, the

23  applicant may recover damages resulting from the breach,

24  including incidental but not consequential damages, less any

25  amount saved as a result of the breach.

26         (3)  If an adviser or nominated person other than a

27  confirmer breaches an obligation under this article or an

28  issuer breaches an obligation not covered in subsection (1) or

29  subsection (2), a person to whom the obligation is owed may

30  recover damages resulting from the breach, including

31  incidental but not consequential damages, less any amount

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  1  saved as a result of the breach.  To the extent of the

  2  confirmation, a confirmer has the liability of an issuer

  3  specified in this subsection and subsections (1) and (2).

  4         (4)  An issuer, nominated person, or adviser who is

  5  found liable under subsection (1), subsection (2), or

  6  subsection (3) shall pay interest on the amount owed

  7  thereunder from the date of wrongful dishonor or other

  8  appropriate date.

  9         (5)  Reasonable attorney's fees and other expenses of

10  litigation must be awarded to the prevailing party in an

11  action in which a remedy is sought under this article.

12         (6)  Damages that would otherwise be payable by a party

13  for breach of an obligation under this article may be

14  liquidated by agreement or undertaking, but only in an amount

15  or by a formula that is reasonable in light of the harm

16  anticipated.

17         Section 12.  Section 675.5112, Florida Statutes, is

18  created to read:

19         675.5112  Transfer of letter of credit.--

20         (1)  Except as otherwise provided in s. 675.5113,

21  unless a letter of credit provides that it is transferable,

22  the right of a beneficiary to draw or otherwise demand

23  performance under a letter of credit may not be transferred.

24         (2)  Even if a letter of credit provides that it is

25  transferable, the issuer may refuse to recognize or carry out

26  a transfer if:

27         (a)  The transfer would violate applicable law; or

28         (b)  The transferor or transferee has failed to comply

29  with any requirement stated in the letter of credit or any

30  other requirement relating to transfer imposed by the issuer

31  which is within the standard practice referred to in s.

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  1  675.5108(5) or is otherwise reasonable under the

  2  circumstances.

  3         Section 13.  Section 675.5113, Florida Statutes, is

  4  created to read:

  5         675.5113  Transfer by operation of law.--

  6         (1)  A successor of a beneficiary may consent to

  7  amendments, sign and present documents, and receive payment or

  8  other items of value in the name of the beneficiary without

  9  disclosing its status as a successor.

10         (2)  A successor of a beneficiary may consent to

11  amendments, sign and present documents, and receive payment or

12  other items of value in its own name as the disclosed

13  successor of the beneficiary.  Except as otherwise provided in

14  subsection (5), an issuer shall recognize a disclosed

15  successor of a beneficiary as beneficiary in full substitution

16  for its predecessor upon compliance with the requirements for

17  recognition by the issuer of a transfer of drawing rights by

18  operation of law under the standard practice referred to in s.

19  675.5108(5) or, in the absence of such a practice, compliance

20  with other reasonable procedures sufficient to protect the

21  issuer.

22         (3)  An issuer is not obliged to determine whether a

23  purported successor is a successor of a beneficiary or whether

24  the signature of a purported successor is genuine or

25  authorized.

26         (4)  Honor of a purported successor's apparently

27  complying presentation under subsection (1) or subsection (2)

28  has the consequences specified in s. 675.5108(9) even if the

29  purported successor is not the successor of a beneficiary.

30  Documents signed in the name of the beneficiary or of a

31  disclosed successor by a person who is neither the beneficiary

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  1  nor the successor of the beneficiary are forged documents for

  2  the purposes of s. 675.5109.

  3         (5)  An issuer whose rights of reimbursement are not

  4  covered by subsection (4) or substantially similar law and any

  5  confirmer or nominated person may decline to recognize a

  6  presentation under subsection (2).

  7         (6)  A beneficiary whose name is changed after the

  8  issuance of a letter of credit has the same rights and

  9  obligations as a successor of a beneficiary under this

10  section.

11         Section 14.  Section 675.5114, Florida Statutes, is

12  created to read:

13         675.5114  Assignment of proceeds.--

14         (1)  In this section, "proceeds of a letter of credit"

15  means the cash, check, accepted draft, or other item of value

16  paid or delivered upon honor or giving of value by the issuer

17  or any nominated person under the letter of credit.  The term

18  does not include a beneficiary's drawing rights or documents

19  presented by the beneficiary.

20         (2)  A beneficiary may assign its right to part or all

21  of the proceeds of a letter of credit.  The beneficiary may do

22  so before presentation as a present assignment of its right to

23  receive proceeds contingent upon its compliance with the terms

24  and conditions of the letter of credit.

25         (3)  An issuer or nominated person need not recognize

26  an assignment of proceeds of a letter of credit until it

27  consents to the assignment.

28         (4)  An issuer or nominated person has no obligation to

29  give or withhold its consent to an assignment of proceeds of a

30  letter of credit, but consent may not be unreasonably withheld

31  if the assignee possesses and exhibits the letter of credit

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  1  and presentation of the letter of credit is a condition to

  2  honor.

  3         (5)  Rights of a transferee beneficiary or nominated

  4  person are independent of the beneficiary's assignment of the

  5  proceeds of a letter of credit and are superior to the

  6  assignee's right to the proceeds.

  7         (6)  Neither the rights recognized by this section

  8  between an assignee and an issuer, transferee beneficiary, or

  9  nominated person nor the issuer's or nominated person's

10  payment of proceeds to an assignee or a third person affect

11  the rights between the assignee and any person other than the

12  issuer, transferee beneficiary, or nominated person.  The mode

13  of creating and perfecting a security interest in or granting

14  an assignment of a beneficiary's rights to proceeds is

15  governed by chapter 679 or other law.  Against persons other

16  than the issuer, transferee beneficiary, or nominated person,

17  the rights and obligations arising upon the creation of a

18  security interest or other assignment of a beneficiary's right

19  to proceeds and its perfection are governed by chapter 679 or

20  other law.

21         Section 15.  Section 675.5115, Florida Statutes, is

22  created to read:

23         675.5115  Statute of limitations.--An action to enforce

24  a right or obligation arising under this article must be

25  commenced within one year after the expiration date of the

26  relevant letter of credit or one year after the ...(claim for

27  relief)... ...(cause of action)... accrues, whichever occurs

28  later.  A ...(claim for relief)... ...(cause of action)...

29  accrues when the breach occurs, regardless of the aggrieved

30  party's lack of knowledge of the breach.

31

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  1         Section 16.  Section 675.5116, Florida Statutes, is

  2  created to read:

  3         675.5116  Choice of law and forum.--

  4         (1)  The liability of an issuer, nominated person, or

  5  adviser for action or omission is governed by the law of the

  6  jurisdiction chosen by an agreement in the form of a record

  7  signed or otherwise authenticated by the affected parties in

  8  the manner provided in s. 675.5104 or by a provision in the

  9  person's letter of credit, confirmation, or other undertaking.

10  The jurisdiction whose law is chosen need not bear any

11  relation to the transaction.

12         (2)  Unless subsection (1) applies, the liability of an

13  issuer, nominated person, or adviser for action or omission is

14  governed by the law of the jurisdiction in which the person is

15  located.  The person is considered to be located at the

16  address indicated in the person's undertaking.  If more than

17  one address is indicated, the person is considered to be

18  located at the address from which the person's undertaking was

19  issued.  For the purpose of jurisdiction, choice of law, and

20  recognition of interbranch letters of credit, but not

21  enforcement of a judgment, all branches of a bank are

22  considered separate juridical entities and a bank is

23  considered to be located at the place where its relevant

24  branch is considered to be located under this subsection.

25         (3)  Except as otherwise provided in this subsection,

26  the liability of an issuer, nominated person, or adviser is

27  governed by any rules of custom or practice, such as the

28  Uniform Customs and Practice for Documentary Credits, to which

29  the letter of credit, confirmation, or other undertaking is

30  expressly made subject.  If this chapter would govern the

31  liability of an issuer, nominated person, or adviser under

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  1  subsection (1) or subsection (2); the relevant undertaking

  2  incorporates rules of custom or practice; and there is

  3  conflict between this chapter and those rules as applied to

  4  that undertaking, those rules govern except to the extent of

  5  any conflict with the nonvariable provisions specified in s.

  6  675.5103(3).

  7         (4)  If there is conflict between this chapter and

  8  chapter 673, chapter 674, or chapter 679, this chapter

  9  governs.

10         (5)  The forum for settling disputes arising out of an

11  undertaking within this article may be chosen in the manner

12  and with the binding effect that governing law may be chosen

13  in accordance with subsection (1).

14         Section 17.  Section 675.5117, Florida Statutes, is

15  created to read:

16         675.5117  Subrogation of issuer, applicant, and

17  nominated person.--

18         (1)  An issuer that honors a beneficiary's presentation

19  is subrogated to the rights of the beneficiary to the same

20  extent as if the issuer were a secondary obligor of the

21  underlying obligation owed to the beneficiary and of the

22  applicant to the same extent as if the issuer were the

23  secondary obligor of the underlying obligation owed to the

24  applicant.

25         (2)  An applicant that reimburses an issuer is

26  subrogated to the rights of the issuer against any

27  beneficiary, presenter, or nominated person to the same extent

28  as if the applicant were the secondary obligor of the

29  obligations owed to the issuer and has the rights of

30  subrogation of the issuer to the rights of the beneficiary

31  stated in subsection (1).

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  1         (3)  A nominated person who pays or gives value against

  2  a draft or demand presented under a letter of credit is

  3  subrogated to the rights of:

  4         (a)  The issuer against the applicant to the same

  5  extent as if the nominated person were a secondary obligor of

  6  the obligation owed to the issuer by the applicant;

  7         (b)  The beneficiary to the same extent as if the

  8  nominated person were a secondary obligor of the underlying

  9  obligation owed to the beneficiary; and

10         (c)  The applicant to same extent as if the nominated

11  person were a secondary obligor of the underlying obligation

12  owed to the applicant.

13         (4)  Notwithstanding any agreement or term to the

14  contrary, the rights of subrogation stated in subsections (1)

15  and (2) do not arise until the issuer honors the letter of

16  credit or otherwise pays and the rights in subsection (3) do

17  not arise until the nominated person pays or otherwise gives

18  value.  Until then, the issuer, nominated person, and the

19  applicant do not derive under this section present or

20  prospective rights forming the basis of a claim, defense, or

21  excuse.

22         Section 18.  Subsection (2) of section 671.105, Florida

23  Statutes, is amended to read:

24         671.105  Territorial application of the code; parties'

25  power to choose applicable law.--

26         (2)  When one of the following provisions of this code

27  specifies the applicable law, that provision governs; and a

28  contrary agreement is effective only to the extent permitted

29  by the law (including the conflict-of-laws rules) so

30  specified:

31

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  1         (a)  Governing law in the chapter on funds transfers.

  2  (s. 670.507)

  3         (b)  Rights of sellers' creditors against sold goods.

  4  (s. 672.402)

  5         (c)  Applicability of the chapter on bank deposits and

  6  collections.  (s. 674.102)

  7         (d)  Letters of credit. (s. 675.5116)

  8         (e)(d)  Applicability of the chapter on investment

  9  securities. (s. 678.106)

10         (f)(e)  Perfection provisions of the chapter on secured

11  transactions.  (s. 679.103)

12         (g)(f)  Applicability of the chapter on leases.  (ss.

13  680.1051 and 680.1061)

14         Section 19.  Section 672.512, Florida Statutes, is

15  amended to read:

16         672.512  Payment by buyer before inspection.--

17         (1)  Where the contract requires payment before

18  inspection nonconformity of the goods does not excuse the

19  buyer from so making payment unless:

20         (a)  The nonconformity appears without inspection; or

21         (b)  Despite tender of the required documents the

22  circumstances would justify injunction against honor under the

23  provisions of this code (s. 675.5109(2) s. 675.114).

24         (2)  Payment pursuant to subsection (1) does not

25  constitute an acceptance of goods or impair the buyer's right

26  to inspect or any of her or his remedies.

27         Section 20.  Subsection (13) is added to section

28  679.104, Florida Statutes, to read:

29         679.104  Transactions excluded from chapter.--This

30  chapter does not apply:

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  1         (13)  To a transfer of an interest in a letter of

  2  credit other than the rights to proceeds of a written letter

  3  of credit.

  4         Section 21.  Subsection (3) of section 679.105, Florida

  5  Statutes, is amended to read:

  6         679.105  Definitions and index of definitions.--

  7         (3)  The following definitions in other chapters apply

  8  to this chapter:

  9         (a)  "Check," s. 673.1041.

10         (b)  "Contract for sale," s. 672.106.

11         (c)  "Holder in due course," s. 673.3021.

12         (d)  "Letter of credit," s. 675.5102.

13         (e)  "Note," s. 673.1041.

14         (f)  "Proceeds of a letter of credit," s. 675.5114(1).

15         (g)  "Sale," s. 672.106.

16         Section 22.  Subsection (1) of section 679.103, Florida

17  Statutes, is amended to read:

18         679.103  Perfection of security interests in multiple

19  state transactions.--

20         (1)  DOCUMENTS, INSTRUMENTS, LETTERS OF CREDIT, AND

21  ORDINARY GOODS.--

22         (a)  This subsection applies to documents, and

23  instruments, rights to proceeds of written letters of credit,

24  and to goods other than those covered by a certificate of

25  title described in subsection (2), mobile goods described in

26  subsection (3), and minerals described in subsection (5).

27         (b)  Except as otherwise provided in this subsection,

28  perfection and the effect of perfection or nonperfection of a

29  security interest in collateral are governed by the law of the

30  jurisdiction where the collateral is when the last event

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  1  occurs on which is based the assertion that the security

  2  interest is perfected or unperfected.

  3         (c)  If the parties to a transaction creating a

  4  purchase money security interest in goods in one jurisdiction

  5  understand at the time that the security interest attaches

  6  that the goods will be kept in another jurisdiction, then the

  7  law of the other jurisdiction governs the perfection and the

  8  effect of perfection or nonperfection of the security interest

  9  from the time it attaches until 30 days after the debtor

10  receives possession of the goods and thereafter if the goods

11  are taken to the other jurisdiction before the end of the

12  30-day period.

13         (d)  When collateral is brought into and kept in this

14  state while subject to a security interest perfected under the

15  law of the jurisdiction from which the collateral was removed,

16  the security interest remains perfected, but if action is

17  required by part III of this chapter to perfect the security

18  interest:

19         1.  If the action is not taken before the expiration of

20  the period of perfection in the other jurisdiction or the end

21  of 4 months after the collateral is brought into this state,

22  whichever period first expires, the security interest becomes

23  unperfected at the end of that period and is thereafter deemed

24  to have been unperfected as against a person who became a

25  purchaser after removal; or

26         2.  If the action is taken before the expiration of the

27  period specified in subparagraph 1., the security interest

28  continues perfected thereafter;

29         3.  For the purpose of priority over a buyer of

30  consumer goods (subsection (2) of s. 679.307), the period of

31  the effectiveness of a filing in the jurisdiction from which

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  1  the collateral is removed is governed by the rules with

  2  respect to perfection in subparagraphs 1. and 2.

  3         Section 23.  Section 679.106, Florida Statutes, is

  4  amended to read:

  5         679.106  Definitions: "account"; "general

  6  intangibles."--"Account" means any right to payment for goods

  7  sold or leased or for services rendered which is not evidenced

  8  by an instrument or chattel paper whether or not it has been

  9  earned by performance.  "General intangibles" means any

10  personal property (including things in action) other than

11  goods, accounts, chattel paper, documents, instruments, rights

12  to proceeds of written letters of credit, and money.  All

13  rights to payment earned or unearned under a charter or other

14  contract involving the use or hire of a vessel and all rights

15  incident to the charter or contract are accounts.

16         Section 24.  Section 679.304, Florida Statutes, is

17  amended to read:

18         679.304  Perfection of security interest in

19  instruments, documents, and goods covered by documents;

20  proceeds of a written letter of credit; perfection by

21  permissive filing; temporary perfection without filing or

22  transfer of possession.--

23         (1)  A security interest in chattel paper or negotiable

24  documents may be perfected by filing. A security interest in

25  the rights to proceeds of a written letter of credit can be

26  perfected only by the secured party's taking possession of the

27  letter of credit. A security interest in money or instruments

28  (other than certificated securities or instruments which

29  constitute part of chattel paper) can be perfected only by the

30  secured party's taking possession, except as provided in

31

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  1  subsections (4) and (5) of this section and subsections (2)

  2  and (3) of s. 679.306 on proceeds.

  3         (2)  During the period that goods are in the possession

  4  of the issuer of a negotiable document therefor, a security

  5  interest in the goods is perfected by perfecting a security

  6  interest in the document, and any security interest in the

  7  goods otherwise perfected during such period is subject

  8  thereto.

  9         (3)  A security interest in goods in the possession of

10  a bailee other than one who has issued a negotiable document

11  therefor is perfected by issuance of a document in the name of

12  the secured party or by the bailee's receipt of notification

13  of the secured party's interest or by filing as to the goods.

14         (4)  A security interest in instruments (other than

15  certificated securities) or negotiable documents is perfected

16  without filing or the taking of possession for a period of 21

17  days from the time it attaches to the extent that it arises

18  for new value given under a written security agreement.

19         (5)  A security interest remains perfected for a period

20  of 21 days without filing where a secured party having a

21  perfected security interest in an instrument (other than a

22  certificated security), a negotiable document, or goods in

23  possession of a bailee other than one who has issued a

24  negotiable document therefor:

25         (a)  Makes available to the debtor the goods or

26  documents representing the goods for the purpose of ultimate

27  sale or exchange or for the purpose of loading, unloading,

28  storing, shipping, transshipping, manufacturing, processing,

29  or otherwise dealing with them in a manner preliminary to

30  their sale or exchange but priority between conflicting

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  1  security interests in the goods is subject to s. 679.312(3);

  2  or

  3         (b)  Delivers the instrument to the debtor for the

  4  purpose of ultimate sale or exchange or of presentation,

  5  collection, renewal or registration of transfer.

  6         (6)  After the 21-day period in subsections (4) and (5)

  7  perfection depends upon compliance with applicable provisions

  8  of this chapter.

  9         Section 25.  Section 679.305, Florida Statutes, is

10  amended to read:

11         679.305  When possession by secured party perfects

12  security interest without filing.--A security interest in

13  letters of credit and advices of credit (s. 675.116(2)(a)),

14  goods, negotiable documents, or chattel paper may be perfected

15  by the secured party's taking possession of the collateral.  A

16  security interest in the right to proceeds of a written letter

17  of credit may be perfected by the secured party's taking

18  possession of the letter of credit. If such collateral other

19  than goods covered by a negotiable document is held by a

20  bailee, the secured party is deemed to have possession from

21  the time the bailee receives notification of the secured

22  party's interest.  A security interest is perfected by

23  possession from the time possession is taken without relation

24  back and continues only so long as possession is retained,

25  unless otherwise specified in this chapter.  The security

26  interest may be otherwise perfected as provided in this

27  chapter before or after the period of possession by the

28  secured party.

29         Section 26.  This act applies to a letter of credit

30  that is issued on or after the effective date of this act.

31  This act does not apply to a transaction, event, obligation,

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  1  or duty arising out of or associated with a letter of credit

  2  that was issued before the effective date of this act.

  3         Section 27.  A transaction arising out of or associated

  4  with a letter of credit that was issued before the effective

  5  date of this act and the rights, obligations, and interests

  6  flowing from that transaction are governed by any statute or

  7  other law amended or repealed by this act as if repeal or

  8  amendment had not occurred and may be terminated, completed,

  9  consummated, or enforced under that statute or other law.

10         Section 28.  Sections 675.101, 675.102, 675.103,

11  675.104, 675.105, 675.106, 675.107, 675.108, 675.109, 675.110,

12  675.111, 675.112, 675.113, 675.114, 675.115, 675.116, and

13  675.117, Florida Statutes, are repealed.

14         Section 29.  This act shall take effect July 1, 1998.

15

16            *****************************************

17                          SENATE SUMMARY

18    Repeals existing Uniform Commercial Code: Letter of
      Credit. Creates new sections relating to letters of
19    credit incorporating changes recommended by the American
      Law Institute and the National Conference of
20    Commissioners on Uniform State Laws.

21

22

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25

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