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IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ------x : In re: : Chapter 11 : 1 Case No. 20-13076 (BLS) FHC HOLDINGS CORPORATION, et al., : : Debtors. : Jointly Administered : : Re: D.I. 45, 295, 384 ------x TWENTY-FIRST OMNIBUS ORDER APPROVING THE ASSUMPTION AND ASSIGNMENT OF CERTAIN EXECUTORY CONTRACTS AND UNEXPIRED LEASES IN CONNECTION WITH SALE ORDER AND GRANTING RELATED RELIEF
Upon consideration of the Motion of Debtors for Entry of Orders (I)(A) Approving Bidding
Procedures for Sale of Substantially All of the Debtors’ Assets, (B) Approving Stalking Horse Bid
Protections, (C) Scheduling Auction for, and Hearing to Approve, Sale of Substantially All of the
Debtors’ Assets, (D) Approving Form and Manner of Notices of Sale, Auction and Sale Hearing,
(E) Approving Assumption and Assignment Procedures and (F) Granting Related Relief and
(II)(A) Approving Sale of Substantially All of the Debtors’ Assets Free and Clear of All Liens,
Claims, Interests and Encumbrances, (B) Approving Assumption and Assignment of Executory
Contracts and Unexpired Leases and (C) Granting Related Relief [D.I. 45] (the “Motion”)2 filed by FHC Holdings Corporation (f/k/a Francesca’s Holdings Corporation) and its affiliated debtors
1 The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are FHC Holdings Corporation (f/k/a Francesca’s Holdings Corporation) (4704), FHC LLC (f/k/a Francesca’s LLC) (2500), FHC Collections, Inc. (f/k/a Francesca’s Collections, Inc.) (4665), and FHC Services Corporation (f/k/a Francesca’s Services Corporation) (5988). The address of the legacy Debtors’ corporate headquarters is 8760 Clay Road, Houston, TX 77080. The address for correspondence related to the Debtors is c/o Saccullo Business Consulting, LLC, 27 Crimson King Drive, Bear, DE 19701. 2 Capitalized terms used, but not otherwise defined, herein shall have the same meanings ascribed to them in the Sale Order or the Purchase Agreement, as applicable.
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and debtors in possession (collectively, the “Debtors”); and the Court having entered the Order
(A) Approving the Purchase Agreement; (B) Authorizing the Sale of Substantially All of the
Debtors’ Assets Free and Clear of All Liens, Claims, Encumbrances and Interests; (C) Authorizing
the Assumption and Assignment of Certain Executory Contracts and Unexpired Leases; and (D)
Granting Related Relief [D.I. 384] (the “Sale Order”); and the Sale Order and the Purchase
Agreement having contemplated and approved the subsequent submission, under certification of
counsel, of applicable orders approving the assumption and assignment of certain executory
contracts and unexpired leases under certain circumstances; and the Court having jurisdiction over
this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the Amended Standing Order of Reference
from the United States District Court for the District of Delaware dated as of February 29, 2012;
and the Court having found that this matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)
and that the Court may enter an order consistent with Article III of the United States Constitution;
and the Court having found that venue of this proceeding is proper pursuant to 28 U.S.C. § 1408
and 1409; and the Court having found that the statutory basis for the relief granted in this order
(this “Omnibus Assumption and Assignment Order”) are (i) sections 105, 363, 365, 503, and
541 of title 11 of the United States Code (the “Bankruptcy Code”), (ii) rules 2002, 4001, 6004,
6006, 9007, 9008, and 9014 of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy
Rules”), and (iii) Local Rules 2002-1 and 6004-1; and the Court having found that entry of this
Omnibus Assumption and Assignment Order, submitted under certification of counsel, is appropriate under the terms of the Sale Order and the Purchase Agreement, and no other or further notice is required; and after due deliberation thereon and for good cause having been shown, the
Court finds that the entry of this Omnibus Assumption and Assignment Order and granting the relief set forth herein is consistent with the Sale Order and is in the best interests of the Debtors,
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their estates, their creditors, and all other parties in interest.
IT IS HEREBY FOUND AND DETERMINED THAT:
A. Assumed Contracts and Assumed Leases. Each of the Retained Contracts set forth
on Schedule 1 attached hereto (as amended, collectively, the “Assumed Contracts and Assumed
Leases”) has been designated by the Acquisition Buyer (as contemplated by Section 1.5(a) of the
Purchase Agreement) as an “Assumed Contract” or “Assumed Lease” (as applicable and as defined in the Purchase Agreement), subject to the Master Agreement Regarding Modification of Existing
Leases entered into by and between Simon Property Group, L.P., on behalf of itself, its parent, subsidiaries and affiliates, as “Landlord”, and Francesca’s Operations, Inc., as “Tenant”, as assignee of Francesca’s Collections, Inc. (collectively, the “Amendment”) to be assumed by the
Debtors and assigned to Acquisition Buyer’s affiliate, Francesca’s Operations, Inc. (“Assignee”),
in accordance with the Sale Order, the Purchase Agreement and this Omnibus Assumption and
Assignment Order.
B. Assumption and Assignment of Contracts. With respect to the Assumed Contracts
and Assumed Leases, the Debtors and Assignee have, to the extent necessary, satisfied the
requirements of section 365 of the Bankruptcy Code, including, without limitation, sections
365(b)(1)(A), 365(b)(1)(B), and 365(f) of the Bankruptcy Code, in connection with the Sale and
the assumption and assignment of the Assumed Contracts and Assumed Leases, and Assignee has
demonstrated adequate assurance of future performance with respect to the Assumed Contracts
and Assumed Leases pursuant to section 365(b)(1)(C) of the Bankruptcy Code, and the assumption
and assignment of the Assumed Contracts and Assumed Leases pursuant to the terms of this
Omnibus Assumption and Assignment Order is integral to the Purchase Agreement and is in the
best interests of the Debtors, their estates, their creditors, and other parties in interest, and
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represents the exercise of sound and prudent business judgment by the Debtors.
C. Cure Payments and Adequate Assurance. Pursuant to the Bankruptcy Code, the
Assumed Contracts and Assumed Leases are assignable notwithstanding any provisions contained
therein to the contrary or providing for the termination thereof upon assignment or the insolvency
or commencement of the Bankruptcy Case. The Debtors and Assignee, on behalf of the Debtors,
have provided for payment of appropriate or agreed upon Cure Amounts and/or other payments or
actions required for the Debtors to assume and assign the Assumed Contracts and Assumed Leases
to Assignee as set forth herein or as may be set forth in the Amendment.
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
THAT:
1. The relief requested in the Motion with respect to the assumption and assignment
of the Assumed Contracts and Assumed Leases is GRANTED to the extent set forth herein.
2. Objections Overruled. All objections raised by any non-Debtor Counterparty to the
Assumed Contracts and Assumed Leases that have not been withdrawn, waived, or settled, and all reservations of rights included therein, are overruled and denied on the merits with prejudice with respect to such non-Debtor Counterparty.
3. Prior Findings and Conclusions Incorporated. The Court’s findings of fact and
conclusions of law set forth in the Sale Order are incorporated herein by reference.
4. Authorization for Assumption and Assignment of Assumed Contracts and
Assumed Leases. Except as otherwise provided herein, the Debtors are hereby authorized, in
accordance with sections 105(a) and 365 of the Bankruptcy Code, to assume and assign the
Assumed Contracts and Assumed Leases to Assignee free and clear of all Liens-Claims-
Encumbrances-Interests, and to execute and deliver to Assignee such documents or other
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instruments as may be reasonably necessary to assign and transfer the Assumed Contracts and
Assumed Leases to Assignee, as provided in the Purchase Agreement, the Sale Order and this
Omnibus Assumption and Assignment Order.
5. Consent to Assumption and Assignment. All non-Debtor Counterparties to each
Assumed Contract or Assumed Lease shall be deemed to have consented to such assignment under
section 365(c)(1) of the Bankruptcy Code, section 365(e)(2) of the Bankruptcy Code, or otherwise,
and Assignee shall enjoy all of the rights and benefits under each such Assumed Contract or
Assumed Lease as of the applicable effective date of assumption and assignment without the
necessity of obtaining such Person’s written consent to the assumption or assignment of such
Assumed Contract or Assumed Lease.
6. Effective Date of Assumption and Assignment. Pursuant to this Omnibus
Assumption and Assignment Order, the Assumed Contracts and Assumed Leases shall be assumed
by the Debtors and assigned to Assignee effective as of the date that this Omnibus Assumption and Assignment Order is entered.
7. Cure Amounts. The mutually agreed Cure Amount for each Assumed Contract and
Assumed Lease as set forth on Schedule 1 attached hereto, if any, shall be paid by the Debtors in
full, final, and complete satisfaction of any and all obligations that the Debtors have to pay any
Cure Amounts or other claims for the payment of December rent, including Stub Rent (as defined
in the DIP Order), on account of the Assumed Contract and Assumed Leases. The payment of any
Cure Amount in the amount listed on Schedule 1 attached hereto, or the fact that the Cure Amount
is $0.00, shall be deemed to be in full satisfaction of and cure all defaults (as that concept is
contemplated by section 365 of the Bankruptcy Code) under each Assumed Contract and Assumed
Lease necessary to effectuate the assumption by the Debtors and the assignment to Assignee of
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each such Assumed Contract or Assumed Lease pursuant to section 365 of the Bankruptcy Code, and, upon payment of the Cure Amounts in accordance with this Omnibus Assumption and
Assignment Order, such Assumed Contracts and Assumed Leases shall be deemed to be in full force and effect, free of default for such purposes. The Cure Amounts listed on Schedule 1 attached hereto have been and shall be deemed to be finally determined, and each non-Debtor
Counterparty to an Assumed Contract and Assumed Lease shall be prohibited, barred, and estopped from challenging, objecting to, or denying the validity and finality of the Cure Amount at any time. Upon the payment of the applicable Cure Amount, each non-Debtor Counterparty to an Assumed Contract or Assumed Lease is forever prohibited, barred, and estopped from asserting against the Debtors, Acquisition Buyer and its Affiliates (including Assignee), or their successors or assigns, or the property of any of them, any default existing as of the entry of this Omnibus
Assumption and Assignment Order; provided, however, that the Debtors shall remain liable solely to the extent of any available insurance coverage with respect to third-party claims asserted in connection with the Debtors’ use and occupancy of the premises subject to such Assumed Lease with regard to events that occurred prior to the effective date of assumption and assignment to
Assignee.
8. Notwithstanding anything to the contrary in the Motion, the Purchase Agreement, the Sale Order, or this Omnibus Assumption and Assignment Order to the contrary, from and after the assumption and assignment to Assignee of such Assumed Contract or Assumed Lease in accordance with this Omnibus Assumption and Assignment Order, Assignee shall comply with the terms of each Assumed Contract and Assumed Lease in its entirety (as may be modified in any agreement with the applicable non-Debtor Counterparty to such Assumed Contract or Assumed
Lease), including, without limitation, in the case of each Assumed Contract or Assumed Lease,
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any indemnification obligations expressly contained in such Assumed Contract or Assumed Lease
(including with respect to third party claims asserted in connection with the Debtors’ use and occupancy of the premises subject to such Assumed Lease with regard to events that occurred before the effective date of assumption and assignment to Assignee but that were not known to the applicable non-Debtor Counterparty as of such date) and any accrued rent, common area maintenance, insurance, taxes, or similar charges billed expressly contained in such Assumed
Lease (as may be modified in any agreement with the applicable non-Debtor Counterparty to such
Assumed Lease) that will come due after the effective date of assumption and assignment to
Assignee of such Assumed Lease, as applicable, regardless of when accrued.
9. Assumption and Assignment Order Binds Successors. The terms of this Omnibus
Assumption and Assignment Order shall be binding in all respects upon: (a) the Acquisition Buyer,
its Affiliates, and its successors and assigns, including, without limitation, Assignee; (b) Agent
and its Affiliates; (c) the Debtors and their Affiliates; (d) successors of the Debtors, including,
without limitation, any trustee or examiner appointed in any Bankruptcy Case or upon a conversion
of any Bankruptcy Case to proceedings under chapter 7 of the Bankruptcy Code; (e) all known
and unknown creditors of, and holders of equity interests in, the Debtors, including, without
limitation, any holders of Liens-Claims-Encumbrances-Interests; (f) all non-Debtor Counterparties
to the Assumed Contracts and Assumed Leases; (g) governmental units (as defined in section
101(27) of the Bankruptcy Code); and (h) all other parties in interest in the Bankruptcy Case and
their successors and assigns. This Omnibus Assumption and Assignment Order shall survive any
dismissal of the Bankruptcy Case notwithstanding section 349 of the Bankruptcy Code.
10. Order Is Effective Immediately. Notwithstanding the provisions of Bankruptcy
Rule 6006(d), this Omnibus Assumption and Assignment Order shall be effective immediately
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upon entry.
11. Jurisdiction. The Court retains jurisdiction over all matters arising from or related to the implementation or interpretation of this Omnibus Assumption and Assignment Order.
Dated: July 1st, 2021 BRENDAN L. SHANNON Wilmington, Delaware UNITED STATES BANKRUPTCY JUDGE
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Schedule 1
Assumed Contracts and Assumed Leases
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Landlord’s Property Property Name Tenant’s Store Cure Amount Number Number 0145 Barton Creek Square 636 $13,480.38 0302 Battlefield Mall 256 $10,604.80 0552 Cordova Mall 295 $8,816.93 0732 Miller Hill Mall 324 $8,250.53 1116 Fashion Ctr at Pentagon City 245 $14,766.19 1308 Firewheel Town Center 374 $6,286.69 1325 Greenwood Park Mall 327 $9,682.45 1540 North East Mall 235 $12,019.56 2307 Tippecanoe Mall 386 $6,270.58 2318 Prien Lake Mall 438 $7,964.71 2324 Lakeline Mall 637 $6,764.86 2546 La Plaza Mall 230 $14,446.23 3107 Ross Park Mall 271 $13,160.85 3632 Smith Haven Mall 243 $16,509.41 4536 White Oaks Mall 323 $6,354.84 4645 Fashion Valley 212 $15,482.74 4666 Menlo Park Mall 169 $12,638.59 4670 Orland Square 286 $11,999.10 4674 South Hills Village 310 $10,291.26 4693 St. Johns Town Center 1 605 $13,378.47 4696 Coconut Point 289 $9,394.22 4781 Empire Mall 505 $8,852.32 4812 Hamilton Town Center 270 $5,991.66 4822 Burlington Mall 551 $16,930.74 4825 Haywood Mall 168 $10,136.02 4832 Ocean County Mall 242 $9,116.67 4835 Rockaway Townsquare 161 $9,973.79 4838 South Shore Plaza 170 $13,385.75 4839 Town Center at Boca Raton 275 $17,036.90 4841 Walt Whitman Shops 225 $14,805.78 4852 Mall of Georgia 308 $9,235.03 4919 Cape Cod Mall 241 $9,210.68 4927 The Mall of New Hampshire 409 $9,143.88 5037 Woodfield Mall 670 $17,740.02 5054 University Park Village 7 $8,234.26 5207 Concord Mills 2024 $10,320.43 5221 Opry Mills 2048 $13,019.81 5243 Del Amo Fashion Center 228 $8,203.66 1 RLF1 25601242v.1
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Landlord’s Property Property Name Tenant’s Store Cure Amount Number Number 5248 The Falls 121 $12,267.29 5255 Meadowood Mall 216 $8,204.06 5261 Stoneridge Shopping Center 305 $11,488.39 5424 The Shops at Clearfork 671 $8,566.61 7603 Penn Square Mall 120 $11,284.03 7604 Pheasant Lane Mall 264 $9,919.12 7605 SouthPark 125 $11,630.21 7607 Woodland Hills Mall 126 $11,328.96 7621 Houston Galleria 653 $27,748.13 7703 King of Prussia The Plaza 518 $17,103.42 7710 Montgomery Mall 399 $7,569.77 7711/ 7712 Lehigh Valley Mall/ Lehigh 501 $11,849.29 Valley Electric 7845 Aurora Farms Premium Outlets 2092 $7,781.26 7848 Allen Premium Outlets 2067 $10,228.21 7850 Clinton Crossing Prem Outlets 2091 $11,934.71 7852 The Crossings Premium Outlets 2087 $7,852.20 7859 Jersey Shore Premium Outlet 2010 $13,540.63 7865 Leesburg Premium Outlets 2085 $10,867.53 7876 Philadelphia Premium Outlets 2027 $9,991.56 7878 Round Rock Premium Outlets 2073 $9,908.60 7889 Wrentham Village Prem Outlets 2082 $12,739.56 7909 Houston Premium Outlets 2001 $16,250.02 7924 Cincinnati Premium Outlets 2078 $9,139.91 7967 Grove City Premium Outlets 2090 $7,415.59 7976 Orlando Intl Prem Outlets 2069 $22,665.88 7979 Pleasant Prairie Prem Outlets 2086 $10,058.43 7982 San Marcos Premium Outlets 2003 $9,557.46 7985 Williamsburg Premium Outlets 2077 $8,023.22 8008 St. Louis Premium Outlets 2076 $8,705.41 8009 Silver Sands Prem Outlets I 2074 $8,602.90 8038 Gloucester Premium Outlets 2029 $9,718.79 8041 Charlotte Premium Outlets 2009 $8,828.16 8056 Twin Cities Premium Outlets 2013 $9,234.26 8063 Norfolk Premium Outlets 2055 $9,401.57 8099 Bay Park Square 333 $6,981.67 8700 Castleton Square 141 $8,226.05 9570 Summit Mall 252 $9,182.04
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Landlord’s Property Property Name Tenant’s Store Cure Amount Number Number 9690 Tyrone Square 506 $7,916.78 9710 University Park Mall 329 $8,648.38 9896 Treasure Coast Square 302 $7,356.93
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