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DIP must honor these provisions under § 365(d)(3) as "all the obligations of the debtor . . . arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected. . . ." the statute requires performance of post-petition, prerejection obligations under a lease according to the terms of the lease. On the other hand, rejection of a lease creates a breach deemed to occur immediately before the petition date and creating an unsecured claim. The question posed in the cases then is whether the obligation at the conclusion of the lease to take an action to remedy or undue a pre-petition action is an obligation arising before or after the order for relief. The Ninth Circuit held that such an obligation arose in a case when the lease was breached by rejection, not pre-rejection, and accordingly was a pre-petition unsecured claim for rejection damages. The court distinguished cases which treat tax and other monetary obligations arising out of a lease as being capable of pro-ration before and after the order for relief, as the obligation to restore the premises was due immediately upon breach, not accruing over time.
In another Ninth Circuit case, the debtor had leased property and borrowed money from the landlords. The obligation to repay the loans evidenced by promissory notes was denominated as additional rent payable under the lease. After the debtor filed a chapter 11 petition, it sought and was denied authority to assume the lease. The landlord filed a proof of claim for the obligations incurred under the leases after the order for relief through the date of rejection and asserted that the sums owed under the promissory notes were additional rent due and payable under § 365(d)(3) as obligations arising under the lease after the order for relief. The Ninth Circuit rejected the debtors' argument that the administrative claim had to be related to use of the property and found the additional rent was payable under § 365(d)(3). Section 365(d)(3) was enacted by Congress to
