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Using an Irrevocable Trust Receipt to support surety/performance bond requests

 

Assets which are used to support Surety bonds may be pledged to the Obligee through use of a financial instrument known as an Irrevocable Trust Receipt (“ITR”). The ITR is a document representing an interest in particular asset which has been placed in trust in a federally insured financial institution for the particular purpose of supporting a bond for a specified project.  This far exceeds any protection provided by a corporate surety bond.  The assets underlying the ITR pledged against a surety bond are typically comprised of cash and other readily marketable assets easily convertible to cash, if necessary, within 60 to 90 45 days as specified by the ICC guidelines.  The assets are deposited in trust with either an FDIC insured financial institution or a top rated international bank selected by the Trustee.  A separate institution typically acts as Trustee of the trust and not the depository institution.  The role of the independent Trustee is to administer trust assets owned by others, select a depository bank, select the assets to be placed in the particular trust to support bonds to be issued against them, issue the ITR, monitor the value of the assets in the ITR, and supplement them if necessary to maintain the asset value equal to the bond requirements. The Trustee does not acquire a financial or ownership interest in the assets on deposit in the federally insured financial institution.  The ITR is   evidence that the assets exist, and it is the document representing a security interest in the assets being held in trust. Because the assets are in a trust, the holding bank has no access to the assets.  Likewise, the independent Trustee may not invade the corpus of the trust except to satisfy bond obligations on the occurrence of the identified condition as set forth in the ITR. In this regard, the Trustee is the equivalent of an escrow agent and is preferably, and in most cases legally, independent of the Bank holding the assets. Moreover, the surety cannot access the assets in the trust during the term of the Bond.  The ITR is not negotiable during the term of the bond. It is solely pledged as backing for the bond provided to the Owner for the term of a contract.  For federal contracts this term, or period, is defined in the FAR.  Neither does the Trustee have access to nor the authority to sell the ITR or the underlying assets, just as any other trustee has a fiduciary duty not to invade the corpus of the trust.  The ITR does have a cash value that being the value of the assets held in trust. 


Benefits of an ITR – Safety and Security

If written for the specific purpose, an ITR authorizes the Owner as the beneficiary/obligee to collect against the trust assets, and the Trustee does have a legally binding obligation to pay the Owner/Obligee of a surety bond as provided in the ITR when the prime contractor and surety default. Again, the assets in the trust remain inviolate except for the identified purpose, i.e., to secure the bind according to the provisions of the bond.  The assets are secured to support the bond until they are released, or exonerated, by the Obligee.

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