| | | 6. "Repledges" of Investment Property. The following example | | will aid the discussion of "repledges" of investment property. |
|
| | | Example. Debtor grants Alpha Bank a security interest in a | | security entitlement that includes 1000 shares of XYZ Co. stock | | that Debtor holds through an account with Able & Co. Alpha does | | not have an account with Able. Alpha uses Beta Bank as its | | securities custodian. Debtor instructs Able to transfer the | | shares to Beta, for the account of Alpha, and Able does so. Beta | | then credits Alpha's account. Alpha has control of the security | | entitlement for the 1000 shares under Section 8-106(d)[Maine cite | | section 8-1106, subsection (4)]. (These are the facts of Example | | 2, Section 8-106 [Maine cite section 8-1106], Comment 4.) | | Although, as between Debtor and Alpha, Debtor may have become the | | beneficial owner of the new securities entitlement with Beta, | | Beta has agreed to act on Alpha's entitlement orders because, as | | between Beta and Alpha, Alpha has become the entitlement holder. |
|
| | | Next, Alpha grants Gamma Bank a security interest in the | | security entitlement with Beta that includes the 1000 shares of | | XYZ Co. stock. In order to afford Gamma control of the | | entitlement, Alpha instructs Beta to transfer the stock to | | Gamma's custodian, Delta Bank, which credits Gamma's account for | | 1000 shares. At this point Gamma holds its securities | | entitlement for its benefit as well as that of its debtor, Alpha. | | Alpha's derivative rights also are for the benefit of Debtor. |
|
| | | In many, probably most, situations and at any particular point | | in time, it will be impossible for Debtor or Alpha to "trace" | | Alpha's "repledge" to any particular securities entitlement or | | financial asset of Gamma or anyone else. Debtor would retain, of | | course, a right to redeem the collateral from Alpha upon | | satisfaction of the secured obligation. However, in the absence | | of a traceable interest, Debtor would retain only a personal | | claim against Alpha in the event Alpha failed to restore the | | security entitlement to Debtor. Moreover, even in the unlikely | | event that Debtor could trace a property interest, in the context | | of the financial markets, normally the operation of this section, | | Debtor's explicit agreement to permit Alpha to create a senior | | security interest, or legal rules permitting Gamma to cut off | | Debtor's rights or become immune from Debtor's claims would | | effectively subordinate Debtor's interest to the holder of a | | security interest created by Alpha. And, under the shelter | | principle, all subsequent transferees would obtain interests to | | which Debtor's interest also would be subordinate. |
|
| | | 7. Buyers of Chattel Paper and Other Receivables; Consignors. | | This section has been revised to reflect the fact |
|
|