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4.1 Timely Performing Obligations Arising Under the Lease.
Section 365(d)(3) requires the debtor in possession to perform the obligations arising under the lease after the order for relief.
The trustee shall timely perform all the obligations of the debtor, except those specified in section 365(b)(2), arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected, notwithstanding section 503(b)(1) of this title. The court may extend, for cause, the time for performance of any such obligation that arises within 60 days after the date of the order for relief, but the time for performance shall not be extended beyond such 60-day period. This subsection shall not be deemed to affect the trustee's obligations under the provisions of subsection (b) or (f) of this section. Acceptance of any such performance does not constitute waiver or relinquishment of the lessor's rights under such lease or under this title.
The statute provided landlords certainty of performance during the time the debtor / trustee has the option to decide whether to assume or reject.
The trustee's obligation is subject to traditional principles of estoppel and waiver. So, if a nondebtor landlord agrees to reduce the rent and premises so that the DIP does not reject the lease, the landlord may be estopped to claim additional rent as an expense of administration if the DIP lives up to its bargain.
Any number of obligations may be owed under a lease. Are all those obligations due under § 365(d)(3)? Real property leases often contain numerous terms in addition to payment obligations. Common provisions include covenants concerning maintenance of property by the lessee and repair of the premises after damages. In addition, many leases require the tenant to return the property to the same condition it was in at the inception of the lease, reasonable wear and tear accepted. Where a lease terminates after bankruptcy, a landlord will argue that the trustee or
