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value to the estate by virtue of § 503(b)(1).118 This has also led to an argument, rejected by a majority of the courts, that it creates a "superpriority" for such rent obligations,119 but this issue really comes to a head only in administratively insolvent cases.
Pre-BAPCPA, the Code required debtors to assume or reject nonresidential real property leases within 60 days of the petition, unless the court extended that time. Most chapter 11 debtors are not in a position, within 60 days of the commencement of the case, to determine whether to assume or reject all their leases. This is particularly true with large chains that have operating stores on leased property throughout a large region or the whole country, some of which are well worth saving and some of which ultimately should be jettisoned. Consequently within 60 days the debtor should file a motion to extend the time within which to assume or reject these leases. Although the Code's language rather clearly seems to indicate the court must enter the order granting an extension within that 60 day time period, at least the Ninth Circuit has held that it is sufficient that the motion is filed within that time period, and the court may grant it later.120 It has also held that § 365(d)(4) does not limit the debtor to only one motion for extension.121 By local rule, Delaware has provided that if a motion to extend time is filed prior to the expiration of that time, the time is automatically extended until the court acts on the motion, and a bridge order is not necessary. DLR 9006-2.
118 In re Pacific-Atlantic Trading Co., 27 F.3d 401 (9th Cir. 1994), rev'g, In re Dant & Russell, 853 F.2d 700 (9th
Cir. 1988), decided before the 1984 BAFJA amendment added § 365(d)(3).
119 See, e.g., In re Microvideo Learnings Systems, 1999 U.S. Dist. LEXIS 18532 (S.D.N.Y. 1999)(no superpriority;
collecting cases).
120 In re Southwest Aircraft Services, Inc., 831 F.2d 838 (9th Cir. 1987), cert. denied, 487 U.S. 1206 (1988). 121 In re Victoria Station Inc., 875 F.2d 1380 (1989).
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