default does not mean that there is "remaining performance" on |
the part of the lessor. Likewise, the fact that the lessor has |
potential liability under a "nonoperating" lease contract for |
breaches of warranty does not mean that there is "remaining |
performance". In contrast, the lessor would have "remaining |
performance" under a lease contract requiring the lessor to |
regularly maintain and service the goods or to provide "upgrades" |
of the equipment on a periodic basis in order to avoid |
obsolescence. The basic distinction is between a mere potential |
duty to respond which is not "remaining performance," and an |
affirmative duty to render stipulated performance. Although the |
distinction may be difficult to draw in some cases, it is |
instructive to focus on the difference between "operating" and |
"nonoperating" leases as generally understood in the marketplace. |
Even if there is "remaining performance" under a lease contract, |
a transfer for security of a right to payment that is made an |
event of default or that is in violation of a prohibition against |
transfer does not give rise to the rights and remedies under |
subsection (5) (4) if it does not constitute an actual delegation |
of a material performance under subsection (3) Section 9-407 |
[Maine cite section 9-1407]. |