IN the UNITED STATES BANKRUPTCY COURT for the DISTRICT of DELAWARE ------X : in Re: : Chapter 11 : 1 Case No
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Case 20-13076-BLS Doc 914 Filed 07/01/21 Page 1 of 8 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. RLF1 25601242v.1 Case 20-13076-BLS Doc 914 Filed 07/01/21 Page 2 of 8 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, 2 RLF1 25601242v.1 Case 20-13076-BLS Doc 914 Filed 07/01/21 Page 3 of 8 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 3 RLF1 25601242v.1 Case 20-13076-BLS Doc 914 Filed 07/01/21 Page 4 of 8 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 4 RLF1 25601242v.1 Case 20-13076-BLS Doc 914 Filed 07/01/21 Page 5 of 8 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.