Case 20-13076 Doc 10 Filed 12/04/20 Page 1 of 14 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ------------------------------------------------------------ x : In re: : Chapter 11 : Case No. 20-13076 (___) FRANCESCA’S HOLDINGS CORPORATION, : et al.,1 : Joint Administration Requested : Debtors. : ------------------------------------------------------------ x THIS MOTION SEEKS TO REJECT CERTAIN UNEXPIRED LEASES OF NONRESIDENTIAL REAL PROPERTY. PARTIES RECEIVING THIS OMNIBUS MOTION SHOULD REVIEW THE MOTION TO SEE IF THEIR NAME(S) AND/OR LEASE(S) ARE SET FORTH IN THE MOTION AND/OR THE EXHIBITS ATTACHED THERETO TO DETERMIN E WHETHER THE MOTION AFFECTS THEIR LEASE(S). DEBTORS’ OMNIBUS MOTION FOR ENTRY OF INTERIM AND FINAL ORDERS (I) AUTHORIZING DEBTORS TO (A) REJECT CERTAIN UNEXPIRED LEASES OF NONRESIDENTIAL REAL PROPERTY EFFECTIVE NUNC PRO TUNC TO THE PETITION DATE AND (B) ABANDON DE MINIMIS PROPERTY IN CONNECTION THEREWITH, (II) GRANTING A LIMITED WAIVER OF BANKRUPTCY RULE 6006(f)(6), AND (III) GRANTING RELATED RELIEF Francesca’s Holdings Corporation (“FHC”) and its affiliated debtors and debtors in possession (collectively, the “Debtors”) respectfully request entry of interim and final orders (i) authorizing the Debtors to (a) reject certain unexpired leases of nonresidential real property effective nunc pro tunc to the Petition Date (as defined below) and (b) abandon de minimis property in connection therewith, (ii) granting a limited waiver of the numerosity requirement of rule 6006(f)(6) of the Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), and 1 The Debtors in these cases, along with the last four digits of each Debtor’s federal tax identification number, are Francesca’s Holdings Corporation (4704), Francesca’s LLC (2500), Francesca’s Collections, Inc. (4665), and Francesca’s Services Corporation (5988). The address of the Debtors’ corporate headquarters is 8760 Clay Road, Houston, Texas 77080. RLF1 24406143v.1 Case 20-13076 Doc 10 Filed 12/04/20 Page 2 of 14 (iii) granting certain related relief. In support of this motion, the Debtors rely on and incorporate by reference Andrew Clarke’s Declaration in Support of the Debtors’ Chapter 11 Petitions and First Day Pleadings (the “Clarke Declaration”), filed concurrently with this motion.2 In further support of the motion, the Debtors, by and through their undersigned proposed counsel, respectfully represent: JURISDICTION AND VENUE 1. This Court has jurisdiction to consider this motion under 28 U.S.C. §§ 157 and 1334 and venue is proper under 28 U.S.C. §§ 1408 and 1409. This is a core proceeding under 28 U.S.C. § 157(b).3 BACKGROUND 2. On December 3, 2020 (the “Petition Date”), each of the Debtors filed a voluntary petition with this Court for relief under chapter 11 of title 11 of the United States Code, §§ 101-1532, et seq. (the “Bankruptcy Code”). The Debtors continue to manage and operate their business as debtors in possession under sections 1107(a) and 1108 of the Bankruptcy Code. 3. Francesca’s is a specialty retailer that operates a nationwide-chain of boutiques providing a diverse assortment of apparel, jewelry, accessories, and gifts. As of December 1, 2020, the Debtors operate 558 boutiques in 45 states and the District of Columbia and also serve their customers through www.francescas.com, their e-commerce website, and their recently launched mobile app. Additional information on the Debtors’ business and capital 2 Capitalized terms used but not defined in this motion have the meanings used in the Clarke Declaration. 3 Pursuant to rule 9013-1(f) of the Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the District of Delaware (the “Local Rules”), the Debtors hereby expressly confirm their consent to the entry of a final order by this Court in connection with this motion if it is later determined that this Court, absent consent of the parties, cannot enter final orders or judgments in connection therewith consistent with Article III of the United States Constitution. 2 RLF1 24406143v.1 Case 20-13076 Doc 10 Filed 12/04/20 Page 3 of 14 structure, as well as a description of the reasons for filing these cases, is set forth in the Clarke Declaration. RELIEF REQUESTED 4. By this motion, pursuant to sections 365 and 554 of the Bankruptcy Code and Bankruptcy Rules 6006 and 6007, the Debtors respectfully request entry of interim and final orders, substantially in the forms attached as Exhibit A (the “Interim Order”) and Exhibit B (the “Final Order”), authorizing the Debtors to (a) reject, effective as of the Petition Date, certain unexpired leases of nonresidential real property (the “Rejected Leases”) and (b) abandon certain de minimis personal property (the “Abandoned Property”). BASIS FOR RELIEF REQUESTED I. FACTS SPECIFIC TO RELIEF REQUESTED 5. As noted above, in the ordinary course of business, the Debtors operate hundreds of retail boutiques throughout the United States. The Debtors do not own the real property where such stores are located and, instead, lease the real property from various counterparties. Prior to the Petition Date, the Debtors engaged in a comprehensive review of the financial performance of the Debtors’ boutiques and an analysis of their real estate lease portfolio. As a result of this analysis, the Debtors identified certain boutique locations that were underperforming relative to lease costs. 6. Based on the Debtors’ analysis, prior to the Petition Date, the Debtors wound down their operations at the boutiques (collectively, the “Rejected Locations”) subject to the Rejected Leases set forth on Exhibit 1 to the Interim Order and vacated and surrendered the Rejected Locations to the applicable lease counterparties. Prior to vacating the Rejected Locations, the Debtors removed personal property that, in their business judgment, had more than de minimis value to the Debtors and their estates. However, certain Abandoned Property remains at the 3 RLF1 24406143v.1 Case 20-13076 Doc 10 Filed 12/04/20 Page 4 of 14 Rejected Locations, including, but not limited to, furniture, fixtures, and equipment. The Debtors believe, in their business judgment, that such Abandoned Property will either be prohibitively expensive or difficult to remove, relative to its value, such that the economic benefits of removing the Abandoned Property is exceeded by the attended costs thereof. Therefore, the Debtors request permission to abandon any Abandoned Property at the Rejected Locations. 7. In light of the Debtors’ efforts to preserve and maximize the value of their estates, and to avoid incurring costs and expenses that are no longer integral to the Debtors’ business operations and their chapter 11 efforts, the relief requested herein is necessary and appropriate. II. LEGAL BASIS FOR RELIEF REQUESTED A. Rejection of the Rejected Leases is an Appropriate Exercise of the Debtors’ Business Judgment 8. Section 365(a) of the Bankruptcy Code provides that a debtor, “subject to the court’s approval, may assume or reject any executory contract or unexpired lease of the debtor.” 11 U.S.C. § 365(a). The purpose of section 365(a) is “to permit the trustee or debtor-in- possession to use valuable property of the estate and to renounce title to and abandon burdensome property.” In re Republic Airways Holdings Inc., 547 B.R. 578, 582 (Bankr. S.D.N.Y. 2016) (quoting Orion Pictures Corp. v. Showtime Networks, Inc. (In re Orion Pictures Corp.), 4 F.3d 1095, 1098 (2d Cir. 1993)); see also Nat’l Labor Relations Bd. v. Bildisco & Bildisco (In re Bildisco), 465 U.S. 513, 528 (1984) (“[T]he authority to reject an executory contract is vital to the basic purpose to a Chapter 11 reorganization, because rejection can release the debtor’s estate from burdensome obligations that can impede a successful reorganization.”); In re Exide Techs., 607 F.3d 957, 967 (3d Cir. 2010) (“Courts may use § 365 to free a [debtor] from burdensome duties that hinder its reorganization”). 4 RLF1 24406143v.1 Case 20-13076 Doc 10 Filed 12/04/20 Page 5 of 14 9. Courts generally will not second-guess a debtor’s business judgment concerning the rejection of an executory contract or unexpired lease. Further, the business judgment standard is satisfied when a debtor determines that assumption or rejection will benefit the estate. See In re Trans World Airlines, Inc., No. 01-0056 (PJW), 2001 WL 1820019, at *2 (Bankr. D. Del. Mar. 16, 2001) (noting that the standard under section 365 requires consideration of the benefit of the rejection to the debtor’s estate); see also In re TS Indus., Inc., 117 B.R. 682, 685 (Bankr. D. Utah 1990); In re Del Grosso, 115 B.R. 136, 138 (Bankr. N.D. Ill. 1990). 10. As noted above, the Debtors closed the boutiques associated with the Rejected Leases and vacated and surrendered the Rejected Locations to the applicable lease counterparties prior to the Petition Date. As such, the Rejected Leases constitute an unnecessary drain on the Debtors’ resources, do not provide any benefit to the Debtors’ estates, and are not necessary to the Debtors’ operations or the consummation of a sale transaction. The immediate rejection of the Rejected Leases will prevent the estates from incurring unnecessary administrative expenses associated with the Debtors’ obligations thereunder. The Debtors therefore submit that their decision to reject the Rejected Leases is an exercise of their sound business judgment and should be approved by the Court. 11. The Debtors may have claims against counterparties arising under, or independently of, the Rejected Leases. The Debtors do not waive such claims by the filing of this motion or by the rejection of the Rejected Leases. 12. Generally, when a real property lease is rejected any relevant subleases are also deemed rejected by operation of law. See Chatlos Sys., Inc. v. Kaplan (In re Chatlos Sys., Inc.), 147 B.R.