LD 2245
pg. 299
Page 298 of 493 An Act to Adopt the Model Revised Article 9 Secured Transactions Page 300 of 493
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LR 1087
Item 1

 
The nondisclosure term also would be effective in the factual
setting of Comment 2, Example 1. If the secured party's possession
of the computers loaded with software would put it in a position to
discover confidential information that the debtor was prohibited
from disclosing, the licensor should be entitled to enforce its
rights against the secured party. Moreover, the licensor could
have required the debtor to obtain the secured party's agreement
that (i) it would immediately return all copies of software loaded
on the computers and that (ii) it would not examine or otherwise
acquire any information contained in the software. This section
does not prevent an account debtor from protecting by agreement its
independent interests that are unrelated to the "creation,
attachment, or perfection" of a security interest. In Example 1,
moreover, the secured party is not in possession of copies of
software by virtue of its security interest or in connection with
enforcing its security interest in the debtor's license of the
software. Its possession is incidental to its possession of the
computers, in which it has a security interest. Enforcing against
the secured party a restriction relating to the software in no way
interferes with its security interest in the computers.

 
7. Effect in Assignor's Bankruptcy. This section could have
a substantial effect if the assignor enters bankruptcy. Roughly
speaking, Bankruptcy Code Section 552 invalidates security
interests in property acquired after a bankruptcy petition is
filed, except to the extent that the postpetition property
constitutes proceeds of prepetition collateral.

 
Example 4: A debtor is the owner of a cable television
franchise that, under applicable law, cannot be assigned without
the consent of the municipal franchisor. A lender wishes to
extend credit to the debtor, provided that the credit is secured
by the debtor's "going business" value. To secure the loan, the
debtor grants a security interest in all its existing and after-
acquired property. The franchise represents the principal value
of the business. The municipality refuses to consent to any
assignment for collateral purposes. If other law were given
effect, the security interest in the franchise would not attach;
and if the debtor were to enter bankruptcy and sell the business,
the secured party would receive but a fraction of the business's
value. Under this section, however, the security interest would
attach to the franchise. As a result, the security interest
would attach to the proceeds of any sale of the franchise while a
bankruptcy is pending. However, this section would protect the
interests of the municipality by preventing the secured party
from enforcing its security interest to the detriment of the
municipality.


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