Court filing

Application to Appoint Omni Agent Solutions as Claims and Noticing Agent — In re KServicing

Record facts

Court	U.S. Bankruptcy Court for the District of Delaware
Filed	2022-10-03

U.S. Bankruptcy Court for the District of Delaware · No. 22-10951 · Doc. 4 · 2022-10-03 · Docket on CourtListener

Summary

An application by the debtors for appointment of Omni Agent Solutions, Inc. as claims and noticing agent effective as of the petition date, filed October 3, 2022 as Doc 4 in the chapter 11 cases of Kabbage, Inc. d/b/a KServicing, et al., Case No. 22-10951, in the U.S. Bankruptcy Court for the District of Delaware. It is brought under 11 U.S.C. § 105(a), 28 U.S.C. § 156(c) and Local Rule 2002-1(f). It states the debtors reviewed proposals from at least two other court-approved agents, and lists the services to be performed, among them serving notices, maintaining creditor and mailing lists, processing proofs of claim and keeping the official claims register. On compensation it states rates ranging from $52.50 to $187.50 per hour and a required retainer of $25,000. The filing runs 41 pages and annexes a declaration, a proposed order and an engagement agreement dated September 16, 2022.

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Full text

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UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
------------------------------------------------------------ x

In re
:
Chapter 11

KABBAGE, INC. d/b/a KSERVICING, et al., :
Case No. 22-10951 ( )

Debtors.1
:
(Joint Administration Requested)
------------------------------------------------------------ x

APPLICATION OF DEBTORS PURSUANT TO 11 U.S.C. § 105(a) AND
28 U.S.C. § 156(c) FOR APPOINTMENT OF OMNI AGENT SOLUTIONS, INC. AS
CLAIMS AND NOTICING AGENT EFFECTIVE AS OF THE PETITION DATE
Kabbage, Inc. d/b/a KServicing and its debtor affiliates, as debtors and debtors in
possession in the above-captioned chapter 11 cases (collectively, the “Debtors”) and, together
with their non-Debtor affiliates, the “Company”), respectfully represent as follows in support of
this application (the “Application”):
Relief Requested
1.
By this Application, pursuant to section 156(c) of title 28 of the United
States Code, section 105(a) of title 11 of the United State Code (the “Bankruptcy Code”), and
Rule 2002-1(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 request that the
Court (i) authorize the appointment of Omni Agent Solutions, Inc. (“Omni”) as claims and
noticing agent (“Claims and Noticing Agent”) for the Debtors in their chapter 11 cases, effective
as of the Petition Date, including assuming full responsibility for the distribution of notices and

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, as applicable are: Kabbage, Inc. d/b/a KServicing (3937); Kabbage Canada Holdings, LLC (N/A); Kabbage
Asset Securitization LLC (N/A); Kabbage Asset Funding 2017-A LLC (4803); Kabbage Asset Funding 2019-A LLC
(8973); and Kabbage Diameter, LLC (N/A). Kabbage is a trademark of American Express used under license;
Kabbage, Inc. d/b/a KServicing is not affiliated with American Express. The Debtors’ mailing and service address is
925B Peachtree Street NE, Suite 383, Atlanta, GA 30309.
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the maintenance, processing, and docketing of proofs of claim and (ii) granting related relief. In
support of this Application, the Debtors submit the Declaration of Paul H. Deutch, Omni’s
Executive Vice President (the “Deutch Declaration”), a copy of which is annexed hereto as
Exhibit A.
2.
A proposed form of order granting the relief requested herein is annexed
hereto as Exhibit B (the “Proposed Order”).
3.
The Debtors’ selection of Omni to act as the Claims and Noticing Agent has
satisfied the Court’s Protocol for the Employment of Claims and Noticing Agents under
28 U.S.C. § 156(c) (the “Claims Agent Protocol”) in that the Debtors have obtained and reviewed
engagement proposals from at least two other court-approved claims and noticing agents to ensure
selection through a competitive process. Moreover, the Debtors submit, based on all engagement
proposals obtained and reviewed, that Omni’s rates are competitive and reasonable given Omni’s
quality of services and expertise. The terms of Omni’s retention are set forth in the Engagement
Agreement, dated September 16, 2022 (the “Engagement Agreement”), annexed hereto as
Exhibit C. The Debtors are seeking approval of Omni’s retention solely on the terms and
provisions as set forth in this Application and the Proposed Order.
4.
By separate application, the Debtors will seek authorization to retain and
employ Omni as administrative agent in these chapter 11 cases pursuant to section 327(a) of the
Bankruptcy Code because the administration of these chapter 11 cases will require Omni to
perform duties outside the scope of section 156(c) of title 28 of the United States Code.
Jurisdiction and Venue
5.
The Court has jurisdiction to consider 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 February 29, 2012. This is a core proceeding
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pursuant to 28 U.S.C. § 157(b). Pursuant to Rule 9013-1(f) of the Local Rules, the Debtors consent
to the entry of a final order by the Court in connection with this Application if it is later determined
that the Court, absent consent of the parties, cannot enter final orders or judgments consistent with
Article III of the United States Constitution. Venue is proper before the Court pursuant to
28 U.S.C. §§ 1408 and 1409.
Background
6.
On October 3, 2022 (the “Petition Date”), the Debtors each commenced
with this Court a voluntary case under chapter 11 of the Bankruptcy Code (the “Chapter 11
Cases”). The Debtors are authorized to continue operating their business and managing their
properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.
No trustee, examiner, or statutory committee has been appointed in these Chapter 11 Cases.
7.
Contemporaneously herewith, the Debtors have filed a motion requesting
joint administration of their Chapter 11 Cases pursuant to Rule 1015(b) of the Bankruptcy Rules
and Rule 1015-1 of the Local Rules.
8.
Additional information regarding the Debtors’ business, capital structure,
and the circumstances leading to the commencement of these Chapter 11 Cases is set forth in the
Declaration of Deborah Rieger-Paganis In Support of Debtors’ Chapter 11 Petitions and First
Day Relief (the “First Day Declaration”), filed contemporaneously herewith.2
Omni’s Qualifications
9.
Omni is one of the country’s leading chapter 11 administrators, with
experience in noticing, claims administration, solicitation, balloting, and the facilitation of other
administrative aspects of chapter 11 cases. Omni has substantial experience in matters of similar

2 Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the First Day
Declaration.
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size and complexity and has acted as the official claims and noticing agent and/or administrative
agent in many large bankruptcy cases in this District and other districts nationwide. See, e.g., In
re Gold Standard Baking, LLC, No. 22-10559 (JKS) (Bankr. D. Del. June 23, 2022); In re PWM
Property Management LLC, No. 21-11445 (MFW) (Bankr. D. Del. Dec. 1, 2021); In re Boy Scouts
of America and Delaware BSA, LLC, No. 20-10343 (LSS) (Bankr. D. Del. Apr. 8, 2020); In re
Lucky’s Market Parent Company, LLC, No. 20-10166 (JTD) (Bank. D. Del. Jan. 28, 2020); In re
SFP Franchise Corporation, No. 20-10134 (JTD) (Bank. D. Del. Jan. 24, 2020).3
10.
By appointing Omni as the Claims and Noticing Agent in these Chapter 11
Cases, the distribution of notices and the processing of claims will be handled efficiently and
expeditiously. Furthermore, Omni’s appointment would relieve the Office of the Clerk of the
Bankruptcy Court (the “Clerk”) of the administrative burden of processing proofs of claims.
Scope of Service
11.
Omni, in its role as Claims and Noticing Agent, may assist the Debtors with
pre- and post-petition case administration matters, including data entry, preparation and
management of the creditor matrix, preparation of the Debtors’ schedules of assets and liabilities
and statements of financial affairs, claims management, noticing, the development and
maintenance of an informational website, and any other services as may be requested by the
Debtors or otherwise required by applicable law, governmental regulations, or other applicable
court rules or orders (collectively, the “Services”). The Services will include the following:
(a)
prepare and serve required notices and documents in these Chapter 11 Cases
in accordance with the Bankruptcy Code and the Bankruptcy Rules in the
form and manner directed by the Debtors and/or the Court, including:
(i) notice of the commencement of these Chapter 11 Cases and the initial
meeting of creditors under section 341(a) of the Bankruptcy Code;

3 Because of the voluminous nature of the orders cited herein, such orders have not been attached to this application.
Copies of these orders are available upon request to the Debtors’ proposed counsel.
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(ii) notice of any claims bar date; (iii) notices of transfers of claims;
(iv) notices of objections to claims and objections to transfers of claims;
(v) notices of any hearings on a disclosure statement and confirmation of
the Debtors’ chapter 11 plan, including under Bankruptcy Rule 3017(d);
(vi) notice of the effective date of any plan; and (vii) all other notices,
orders, pleadings, publications, and other documents as the Debtors or the
Court may deem necessary or appropriate for an orderly administration of
these Chapter 11 Cases;
(b)
maintain an official copy of the Debtors’ schedules of assets and liabilities
and statements of financial affairs (collectively, the “Schedules”), listing
the Debtors’ known creditors and the amounts owed thereto;
(c)
maintain a (i) list of all potential creditors, equity holders, and other parties
in interest and (ii) “core” mailing list consisting of all parties described in
Bankruptcy Rule 2002(i), (j) and (k) and those parties that have filed a
notice of appearance pursuant to Bankruptcy Rule 9010, and update and
make said lists available upon request by a party in interest or the Clerk;
(d)
furnish a notice to all potential creditors of the last date for filing proofs of
claim and a form for filing a proof of claim, after such notice and form are
approved by the Court, and notify such potential creditors of the existence,
amount, and classification of their respective claims as set forth in the
Schedules, which may be effected by inclusion of such information (or the
lack thereof, in cases where the Schedules indicate no debt due to the subject
party) on a customized proof of claim form provided to potential creditors;
(e)
maintain a post office box or address for the purpose of receiving claims
and returned mail and process all mail received;
(f)
for all notices, motions, orders, or other pleadings or documents served,
prepare and file or cause to be filed with the Clerk an affidavit or certificate
of service within seven days of service, which includes: (i) either a copy of
the notice served or the docket number(s) and title(s) of the pleading(s)
served; (ii) a list of persons to whom it was mailed (in alphabetical order)
with their addresses; (iii) the manner of service; and (iv) the date served;
(g)
process all proofs of claim received, including those received by the Clerk,
check said processing for accuracy, and maintain the original proofs of
claim in a secure area;
(h)
maintain the official claims register for each of the Debtors (the “Claims
Register”) on behalf of the Clerk, and upon the Clerk’s request, provide the
Clerk with a certified, duplicate unofficial Claims Register, and specify in
the Claims Register the following information for each claim docketed:
(i) the claim number assigned, (ii) the date received; (iii) the name and
address of the claimant and agent, if applicable, who filed the claim; (iv) the
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amount asserted; (v) the asserted classification(s) of the claim (e.g., secured,
unsecured, priority, etc.); (vi) the applicable Debtor; and (vii) any
disposition of the claim;
(i)
implement necessary security measures to ensure the completeness and
integrity of the Claims Register and the safekeeping of the original claims;
(j)
record all transfers of claims and provide any notices of such transfers as
required by Bankruptcy Rule 3001(e);
(k)
relocate, by messenger or overnight delivery, all of the court-filed proofs of
claim to the offices of Omni, not less than weekly;
(l)
upon completion of the docketing process for all claims received to date,
turn over to the Clerk copies of the Claims Register for the Clerk’s review
(upon the Clerk’s request);
(m)
monitor the Court’s docket for all notices of appearance, address changes,
and claims-related pleadings and orders filed and make necessary notations
on and/or changes to the Claims Register and any service or mailing lists,
including to identify and eliminate duplicative names and addresses from
such lists;
(n)
identify and correct any incomplete or incorrect addresses in any mailing or
service lists;
(o)
assist in the dissemination of information to the public and respond to
requests for administrative information regarding these Chapter 11 Cases as
directed by the Debtors or the Court, including through the use of a case
website and/or call center;
(p)
if these Chapter 11 Cases are converted to cases under chapter 7 of the
Bankruptcy Code, contact the Clerk within three days of notice to Omni of
entry of the order converting the cases;
(q)
30 days prior to the closing of these Chapter 11 Cases, to the extent
practicable, request that the Debtors submit to the Court a proposed order
dismissing Omni as Claims and Noticing Agent and terminating its services
in such capacity upon completion of its duties and responsibilities and upon
the closing of these Chapter 11 Cases;
(r)
within seven days of notice to Omni of entry of an order closing these
Chapter 11 Cases, provide to the Court the final version of the Claims
Register as of the date immediately before the close of these Chapter 11
Cases; and
(s)
at the close of these Chapter 11 Cases: (i) box and transport all original
documents, in proper format, as provided by the Clerk’s office, to
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(A) the Philadelphia Federal Records Center, 14700 Townsend Road,
Philadelphia, PA 19154 or (B) any other location requested by the Clerk’s
office; and (ii) docket a completed SF-135 Form indicating the accession
and location numbers of the archived claims.
12.
This Application only pertains to the work to be performed by Omni
pursuant to the Clerk’s delegation of duties permitted by section 156(c) of title 28 of the United
States Code and Local Rule 2002-1(f). Any work to be performed by Omni that falls outside of
this scope is not covered by this Application or by the Proposed Order.
Omni’s Compensation
13.
The Debtors respectfully request that the undisputed fees and expenses
incurred by Omni in the performance of the above-listed Services be treated as administrative
expenses in the Chapter 11 Cases pursuant to section 156(c) of title 28 of the United States Code
and section 503(b)(1)(A) of the Bankruptcy Code and be paid in the ordinary course of business
without further application to or order of the Court. Omni agrees to maintain records of all services
showing dates, categories of services, fees charged and expenses incurred, and to serve monthly
invoices on the Debtors, the office of the United States Trustee, counsel for the Debtors, counsel
for any official committee of unsecured creditors, and any party-in-interest who specifically
requests service of the monthly invoices. If any dispute arises relating to the Engagement
Agreement or monthly invoices, the parties shall meet and confer in an attempt to resolve the
dispute. If resolution is not achieved, the parties may seek resolution of the matter from the Court.
14.
The Services to be rendered by Omni will be billed at rates ranging
from $52.50 to $187.50 per hour according to the rate structure set forth in Exhibit A to the
Engagement Agreement. Omni has also agreed to provide the Debtors with a $30,000 prepetition
credit to be applied to Omni’s prepetition fees only. The Debtors agree to pay all of Omni’s fees,
charges, and out-of-pocket costs relating to the Services.
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15.
Prior to the Petition Date, the Debtors provided Omni a retainer in the
amount of $25,000. Omni seeks to hold the retainer pursuant to the Engagement Agreement during
these Chapter 11 Cases as security for the payment of fees and expenses incurred under the
Engagement Agreement. Except as stated in this paragraph, Omni has not received any payments
from the Debtors in the 90 days prior to the Petition Date.
16.
Additionally, under the terms of the Engagement Agreement, the Debtors
have agreed to indemnify, defend and hold harmless Omni and its members, officers, employees,
representatives, and agents under certain circumstances specified in the Engagement Agreement,
except in circumstances resulting solely from Omni’s gross negligence or willful misconduct or as
otherwise provided in the Engagement Agreement or Proposed Order. The Debtors believe that
such an indemnification obligation is customary, reasonable, and necessary to retain the services
of Omni as the Claims and Noticing Agent in these Chapter 11 Cases.
No Duplication of Services
17.
The Debtors intend that the Services will complement, and not duplicate,
the services being rendered by other professionals retained in these Chapter 11 Cases. Omni
understands that the Debtors have retained and may retain additional professionals during the term
of the engagement and will work cooperatively with such professionals to integrate any respective
work conducted by the professionals on behalf of the Debtors.
Disinterestedness
18.
Although the Debtors do not propose to employ Omni under section 327 of
the Bankruptcy Code pursuant to this Application (such retention will be sought by separate
application), Omni has nonetheless reviewed its electronic database to determine whether it has
any relationships with the creditors and parties in interest provided by the Debtors, and, to the best
of the Debtors’ knowledge, information, and belief, and except as may be disclosed in the Deutch
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Declaration, Omni has represented that it neither holds nor represents any interest materially
adverse to the Debtors’ estates in connection with any matter on which it would be employed.
19.
Moreover, in connection with its retention as Claims and Noticing Agent,
Omni represents in the Deutch Declaration, among other things, that:
(a)
Omni is not a creditor of the Debtors;
(b)
Omni will not consider itself employed by the United States government
and shall not seek any compensation from the United States government in
its capacity as the Claims and Noticing Agent in these Chapter 11 Cases;
(c)
By accepting employment in these Chapter 11 Cases, Omni waives any
rights to receive compensation form the United States government in
connection with these Chapter 11 Cases;
(d)
In its capacity as the Claims and Noticing Agent in these Chapter 11 Cases,
Omni will not be an agent of the United States and will not act on behalf of
the United States;
(e)
Omni will not employ any past or present employees of the Debtors in
connection with its work as the Claims and Noticing Agent in these Chapter
11 Cases;
(f)
On October 16, 2019, Omni executed a contract with X-Claim Inc. (“X-
Claim”) whereby Omni agreed to provide X-Claim with publicly available
claims register data in a downloadable format (the “Agreement”). Omni
ceased providing services under the Agreement as of June 8, 2022 and, as
confirmed to Omni by X-Claim, the Agreement was terminated as of June
9, 2022.
(g)
Other than the disclosed contract with X-Claim, Omni is not a party to any
agreement where it receives consideration in exchange for transferring
information derived from Omni’s role as claims and noticing agent or as an
administrative agent in cases in the District of Delaware or elsewhere to
non-client third parties.
(h)
Omni is a “disinterested person” as that term is defined in section 101(14)
of the Bankruptcy Code with respect to the matters upon which it is
engaged;
(i)
In its capacity as Claims and Noticing Agent in these Chapter 11 Cases,
Omni will not intentionally misrepresent any fact to any person;
(j)
Omni shall be under the supervision and control of the Clerk’s Office with
respect to the receipt and recordation of claims and claim transfers;
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(k)
Omni will comply with all requests of the Clerk’s Office and the guidelines
promulgated by the Judicial Conference of the United States for the
implementation of section 156(c) of title 28 of the United States Code; and
(l)
None of the services provided by Omni as Claims and Noticing Agent in
these Chapter 11 Cases shall be at the expense of the Clerk’s Office.
20.
Omni will supplement its disclosure to the Court if any facts or
circumstances are discovered that would require such additional disclosure.
Basis for Relief
21.
Bankruptcy Rule 2002 generally governs what notices must be given to
creditors and other parties in interest in bankruptcy cases. Under Bankruptcy Rule 2002, the Court
may direct that some person other than the Clerk of the Court give notice of the various matters
described below. See Fed. R. Bankr. P. 2002.
22.
Section 156(c) of title 28 of the United States Code, which governs the
staffing and expenses of bankruptcy courts, authorizes the Court to use “facilities” or “services”
other than the Clerk’s Office for administration of bankruptcy cases. It states:
Any court may utilize facilities or services, either on or off the
court’s premises, which pertain to the provision of notices, dockets,
calendars, and other administrative information to parties in cases
filed under the provisions of title 11, United States Code, where the
costs of such facilities or services are paid for out of the assets of the
estate and are not charged to the United States. The utilization of
such facilities or services shall be subject to such conditions and
limitations as the pertinent circuit council may prescribe.
23.
In addition, Local Rule 2002-1(f) provides:
Upon motion of the debtor or trustee . . . at any time without notice
or hearing, the Court may authorize the retention of a notice and/or
claims clerk under 28 U.S.C. § 156(c). In all cases with more than
200 creditors or parties in interest listed on the creditor matrix,
unless the Court orders otherwise, the debtor shall file such motion
on the first day of the case or within seven (7) days thereafter. The
notice and/or claims clerk shall comply with the Protocol for the
Employment of Claims and Noticing Agents under 28 U.S.C. §
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156(c) (which can be found on the Court’s website) and shall
perform the claims and noticing services.
24.
Further, section 105(a) of the Bankruptcy Code empowers the Court to
“issue any order, process, or judgment that is necessary or appropriate to carry out the provisions
of this title.” 11 U.S.C. § 105(a).
25.
Accordingly, Bankruptcy Rule 2002 and section 156(c) of title 28 of the
United States Code empower the Court to use outside agents and facilities for claims, noticing,
and administrative purposes, provided that the Debtors’ estates pay the cost of such services.
Additionally, section 105(a) of the Bankruptcy Code provides the Court with the power to appoint
Omni as the Claims and Noticing Agent in these Chapter 11 Cases, effective as of the Petition
Date.
26.
Although the Debtors have not yet filed their Schedules, the Debtors
anticipate that there will be hundreds of thousands of entities and individuals to be noticed in these
Chapter 11 Cases. In view of the number of anticipated claimants, the Debtors submit that the
appointment of a claims and noticing agent is necessary, required by Local Rule 2002-1(f), and in
the best interests of both the Debtors’ estate and their creditors. To relieve the Court and the
Clerk’s Office of the burdens associated with the anticipated number of claimants in these Chapter
11 Cases, the Debtors propose to engage Omni as claims and noticing agent.
27.
The Debtors submit that selection of Omni and this Application satisfy the
requirements set forth in the Claims Agent Protocol.
Request for Waiver of Stay
28.
Additionally, with respect to any aspect of the relief sought in this
Application that constitutes a use of property under Bankruptcy Code section 363(b), the Debtors
seek a waiver of the fourteen-day stay under Bankruptcy Rule 6004(h), which provides that “[a]n
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order authorizing the use, sale, or lease of property other than cash collateral is stayed until the
expiration of 14 days after entry of the order, unless the court orders otherwise.” Fed. R. Bankr.
P. 6004(h). As described above, the relief that the Debtors seek in this Application is necessary
for the Debtors to operate their businesses without interruption and to preserve value for their
estates. Accordingly, the Debtors respectfully request that the Court waive the fourteen-day stay
imposed by Bankruptcy Rule 6004(h), as the exigent nature of the relief sought herein justifies
immediate relief.
Notice
29.
Notice of this Application will be provided to (a) the Office of the United
States Trustee for the District of Delaware; (b) the holders of the thirty (30) largest unsecured
claims against the Debtors on a consolidated basis; (c) the Federal Reserve Bank; (d) Customers
Bank; (e) Cross River Bank; (f) the United States Department of Justice; (g) the Federal Trade
Commission; (h) the Small Business Administration; (i) the Internal Revenue Service; (j) the
Securities and Exchange Commission; (k) the United States Attorney’s Office for the District of
Delaware; and (l) any party that is entitled to notice pursuant to Local Rule 9013-1(m)
(collectively, the “Notice Parties”). As this Application is seeking “first-day” relief, the Debtors
will serve copies of this Application and any order entered in respect of this Application as required
by Local Rule 9013-1(m). The Debtors believe that no further notice is required.
No Prior Request
30.
No previous request for the relief sought herein has been made by the
Debtors to this or any other court.

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WHEREFORE the Debtors respectfully request entry of the Proposed Order
granting the relief requested herein and such other and further relief as the Court may deem just
and appropriate.
Dated: October 3, 2022
Atlanta, Georgia

KABBAGE, INC. d/b/a KSERVICING, et al.
(on behalf of itself and each of its affiliated
Debtors)

/s/ Holly Loiseau

Name: Holly Loiseau
Title: General Counsel and Secretary

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Exhibit A
Deutch Declaration

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UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
------------------------------------------------------------ x

In re
:
Chapter 11

KABBAGE, INC. d/b/a KSERVICING, et al., :
Case No. 22-10951 ( )

Debtors.1
:
(Joint Administration Requested)
------------------------------------------------------------ x

DECLARATION OF PAUL H. DEUTCH IN SUPPORT OF
APPLICATION OF DEBTORS PURSUANT TO 11 U.S.C. § 105(a) AND
28 U.S.C. § 156(c) FOR APPOINTMENT OF OMNI AGENT SOLUTIONS, INC.
AS CLAIMS AND NOTICING AGENT EFFECTIVE AS OF PETITION DATE
I, Paul H. Deutch, under penalty of perjury, declare as follows:
1.
I am the Executive Vice President of Omni Agent Solutions, Inc. (“Omni”),
a chapter 11 administrative services firm, whose offices are located at 5955 DeSoto Avenue,
Woodland Hills, California 91367 and 1120 Avenue of the Americas, 4th Floor, New York, New
York 10036. Except as otherwise noted, I have personal knowledge of the matters set forth herein
and, if called and sworn as a witness, I could and would testify competently thereto.2
2.
This declaration (this “Declaration”) is made in support of the Application
of Debtors’ Pursuant to 11 U.S.C. § 105(a) and 28 U.S.C. § 156(c) for Appointment of Omni Agent

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, as applicable are: Kabbage, Inc. d/b/a KServicing (3937); Kabbage Canada Holdings, LLC (N/A); Kabbage
Asset Securitization LLC (N/A); Kabbage Asset Funding 2017-A LLC (4803); Kabbage Asset Funding 2019-A LLC
(8973); and Kabbage Diameter, LLC (N/A). Kabbage is a trademark of American Express used under license;
Kabbage, Inc. d/b/a KServicing is not affiliated with American Express. The Debtors’ mailing and service address is
925B Peachtree Street NE, Suite 383, Atlanta, GA 30309.
2 Certain of the disclosures herein relate to matters within the knowledge of other professionals at Omni and are based
on information provided by them.
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Solutions, Inc. as Claims and Noticing Agent Effective as of the Petition Date, which was filed
contemporaneously herewith (the “Application”).3
3.
Omni is one of the country’s leading chapter 11 administrators, with
experience in noticing, claims administration, solicitation, balloting, and the facilitation of other
administrative aspects of chapter 11 cases. Omni has substantial experience in matters of similar
size and complexity and has acted as the official claims and noticing agent and/or administrative
agent in many large bankruptcy cases in this District and other districts nationwide. See, e.g., In
re Gold Standard Baking, LLC, No. 22-10559 (JKS) (Bankr. D. Del. June 23, 2022); In re PWM
Property Management LLC, No. 21-11445 (MFW) (Bankr. D. Del. Dec. 1, 2021); In re Boy Scouts
of America and Delaware BSA, LLC, No. 20-10343 (LSS) (Bankr. D. Del. Apr. 8, 2020); In re
Lucky’s Market Parent Company, LLC, No. 20-10166 (JTD) (Bank. D. Del. Jan. 28, 2020); In re
SFP Franchise Corporation, No. 20-10134 (JTD) (Bank. D. Del. Jan. 24, 2020).
4.
As agent and custodian of Court records pursuant to section 156(c) of title
28 of the United States Code, Omni will perform, at the request of the Clerk’s Office, the services
specified in the Application and the Engagement Agreement and, at the Debtors’ request, any
related administrative, technical, and support services as specified in the Application and the
Engagement Agreement. In performing such services, Omni will charge the Debtors the rates set
forth in the Engagement Agreement, which is attached as Exhibit C to the Application.
5.
Prior to the Petition Date, the Debtors provided Omni a retainer in the
amount of $25,000. Omni seeks to hold the retainer under the Engagement Agreement during

3 Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the
Application.
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these Chapter 11 Cases as security for the payment of fees and expenses incurred under the
Engagement Agreement. Omni represents, among other things, the following:
(a)
Omni is not a creditor of the Debtors;
(b)
Omni will not consider itself employed by the United States government
and shall not seek any compensation from the United States government in
its capacity as the Claims and Noticing Agent in these Chapter 11 Cases;
(c)
By accepting employment in these Chapter 11 Cases, Omni waives any
rights to receive compensation from the United States government in
connection with these Chapter 11 Cases;
(d)
In its capacity as the Claims and Noticing Agent in these Chapter 11 Cases,
Omni will not be an agent of the United States and will not act on behalf of
the United States;
(e)
Omni will not employ any past or present employees of the Debtors in
connection with its work as the Claims and Noticing Agent in these
Chapter 11 Cases;
(f)
Omni is a “disinterested person” as that term is defined in section 101(14)
of the Bankruptcy Code with respect to the matters upon which it is
engaged;
(g)
In its capacity as Claims and Noticing Agent in these Chapter 11 Cases,
Omni will not intentionally misrepresent any fact to any person;
(h)
Omni shall be under the supervision and control of the Clerk’s Office with
respect to the receipt and recordation of claims and claim transfers;
(i)
Omni will comply with all requests of the Clerk’s Office and the guidelines
promulgated by the Judicial Conference of the United States for the
implementation of section 156(c) of title 28 of the United States Code; and
(j)
None of the services provided by Omni as Claims and Noticing Agent in
these Chapter 11 Cases shall be at the expense of the Clerk’s Office.
6.
To the best of my knowledge and based solely upon information provided
to me by the Debtors, and except as provided herein, neither Omni, nor any employee thereof, has
any materially adverse connection to the Debtors, their creditors, or other relevant parties. Omni
may have relationships with certain of the Debtors’ creditors as a vendor or in connection with
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cases in which Omni serves or has served in a neutral capacity as noticing, claims, and balloting
agent for another chapter 11 debtor.
7.
Omni’s personnel may have relationships with some of the Debtors’
creditors or other parties in interest. However, to the best of my knowledge, such relationships, to
the extent they exist, are of a personal nature and completely unrelated to these Chapter 11 Cases.
Omni has and will continue to represent clients in matters unrelated to these Chapter 11 Cases. In
addition, Omni has had and will continue to have relationships in the ordinary course of its business
with certain vendors, professionals, and other parties in interest that may be involved in the
Debtors’ cases in matters unrelated to these cases. Omni may also provide professional services
to entities or persons that may be creditors or parties in interest in these Chapter 11 Cases, which
services do not directly relate to, or have any direct connection with, these Chapter 11 Cases or the
Debtors. To the best of my knowledge, neither Omni, nor any employees thereof, represents any
interest materially adverse to the Debtors’ estates with respect to any matter upon which Omni is
to be engaged.
8.
Although the Debtors do not propose to retain Omni under section 327 of
the Bankruptcy Code (such retention will be sought by separate application), Omni has nonetheless
reviewed its electronic database to determine whether it has any relationships with the entities
provided by the Debtors. At this time, we are not aware of any relationship which would present
a disqualifying conflict of interest. Should Omni discover any new relevant facts or relationships
bearing on the matters described herein during the period of its retention, Omni will use reasonable
efforts to file promptly a supplemental declaration.
9.
On October 16, 2019, Omni executed a contract with X-Claim Inc. (“X-
Claim”) whereby Omni agreed to provide X-Claim with publicly available claims register data in
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a downloadable format (the “Agreement”). Omni ceased providing services under the Agreement
as of June 8, 2022 and, as confirmed to Omni by X-Claim, the Agreement was terminated as of
June 9, 2022.
10.
Other than the disclosed contract with X-Claim, Omni is not a party to any
agreement where it receives consideration in exchange for transferring information derived from
Omni’s role as an administrative agent in cases in the District of Delaware or elsewhere to non-
client third parties.
11.
Based on the foregoing, I believe that Omni is a “disinterested person” as
that term is defined in section 101(14) of the Bankruptcy Code.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing
is true and correct to the best of my information, knowledge, and belief.
Dated: October 3, 2022

New York, New York

/s/ Paul H. Deutch

Paul H. Deutch
Executive Vice President
Omni Agent Solutions, Inc.
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Exhibit B
Proposed Order

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RLF1 28018179V.1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
------------------------------------------------------------ x

In re
:
Chapter 11

KABBAGE, INC. d/b/a KSERVICING, et al., :
Case No. 22-10951 ( )

Debtors.1
:
(Jointly Administered)
------------------------------------------------------------ x

ORDER PURSUANT TO 11 U.S.C. § 105(a) AND 28 U.S.C. § 156(c)
APPOINTING OMNI AGENT SOLUTIONS, INC. AS CLAIMS AND
NOTICING AGENT EFFECTIVE AS THE OF PETITION DATE
Upon the application, dated October 3, 2022 (the “Application”),2 of Kabbage, Inc.
d/b/a KServicing and its debtor affiliates, as debtors and debtors in possession in the above-
captioned chapter 11 cases (collectively, the “Debtors”), for entry of an order pursuant to section
156(c) of title 28 of the United States Code, section 105(a) of the Bankruptcy Code, and Local
Rule 2002-1(f) (i) authorizing the appointment of Omni as Claims and Noticing Agent in the
Debtors’ Chapter 11 Cases and (ii) granting related relief, all as more fully set forth in the
Application; and upon consideration of the First Day Declaration and the Deutch Declaration; and
this Court having jurisdiction to consider the Application and the relief requested therein pursuant
to 28 U.S.C. §§ 157 and 1334, and the Amended Standing Order of Reference entered by the
United States District Court for the District of Delaware, dated February 29, 2012; and
consideration of the Application and the requested relief being a core proceeding pursuant to 28

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, as applicable are: Kabbage, Inc. d/b/a KServicing (3937); Kabbage Canada Holdings, LLC (N/A); Kabbage
Asset Securitization LLC (N/A); Kabbage Asset Funding 2017-A LLC (4803); Kabbage Asset Funding 2019-A LLC
(8973); and Kabbage Diameter, LLC (N/A). Kabbage is a trademark of American Express used under license;
Kabbage, Inc. d/b/a KServicing is not affiliated with American Express. The Debtors’ mailing and service address is
925B Peachtree Street NE, Suite 383, Atlanta, GA 30309.
2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the
Application.
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U.S.C. § 157(b); and venue being proper before this Court pursuant to 28 U.S.C. §§ 1408 and
1409; and due and proper notice of the Application having been provided; and such notice having
been adequate and appropriate under the circumstances, and it appearing that no other or further
notice need be provided; and this Court having reviewed the Application; and this Court having
held a hearing to consider the relief requested in the Application; and all objections, if any, to the
Application having been withdrawn, resolved, or overruled; and this Court having determined that
the legal and factual bases set forth in the Application establish just cause for the relief granted
herein; and it appearing that the relief requested in the Application is in the best interests of the
Debtors, their estates, creditors, and all parties in interest; and upon all of the proceedings had
before this Court and after due deliberation and sufficient cause appearing therefor,
IT IS HEREBY ORDERED THAT
1.
The Application is granted as set forth herein.
2.
The Debtors are authorized pursuant to section 156(c) of title 28 of the
United States Code, section 105(a) of the Bankruptcy Code, and Local Rule 2002-1(f) to retain
Omni as Claims and Noticing Agent effective as of the Petition Date under the terms of the
Engagement Agreement, and Omni is authorized and directed to perform noticing services and to
receive, maintain, record, and otherwise administer the proofs of claim filed in these Chapter 11
Cases, and all related tasks, all as described in the Application.
3.
Omni shall serve as the custodian of court records and shall be designated
as the authorized repository for all proofs of claim filed in these Chapter 11 Cases and is authorized
and directed to maintain official claims registers for each of the Debtors, to provide public access
to every proof of claim (if any), and to provide the Clerk with a certified duplicate thereof upon
the request of the Clerk.
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4.
Omni is authorized and directed to provide an electronic interface for filing
proofs of claims and to obtain a post office box or address for the receipt of proofs of claims.
5.
Omni is authorized to take such other action to comply with all the duties
set forth in the Application and this Order.
6.
The Debtors are authorized to compensate Omni in accordance with the
terms of the Engagement Agreement upon the receipt of reasonably detailed invoices setting forth
the services provided by Omni and the rates charged for each, and to reimburse Omni for all
reasonable and necessary expenses it may incur, upon the presentation of appropriate
documentation, without the need for Omni to file fee applications or otherwise seek Court approval
for the compensation of its services and reimbursement of its expenses.
7.
Omni shall comply with all requests of the Clerk and the guidelines
promulgated by the Judicial Conference of the United States for the implementation of 28 U.S.C.
§ 156(c).
8.
Omni may apply its retainer to all prepetition invoices and Omni may hold
its retainer under the Engagement Agreement during the Chapter 11 Cases as security for the
payment of fees and expenses under the Engagement Agreement.
9.
Omni shall maintain records of all services showing dates, categories of
services, fees charged, and expenses incurred, and shall serve monthly invoices on the Debtors,
the Office of the United States Trustee, counsel for the Debtors, counsel for any official committee
monitoring the expenses of the Debtors, and any party in interest who specifically requests service
of the monthly invoices.
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10.
The parties shall meet and confer in an attempt to resolve any dispute that
may arise relating to the Engagement Agreement or monthly invoices; provided, however, that the
parties may seek resolution of the matter from the Court if resolution is not achieved.
11.
Pursuant to section 503(b)(1)(A) of the Bankruptcy Code, the fees and
expenses of Omni under this Order shall be an administrative expense of the Debtors’ estates.
12.
The Debtors shall indemnify Omni under the terms of the Engagement
Agreement, as modified pursuant to this Order, as modified pursuant to this Order. Omni shall not
be entitled to indemnification, contribution, or reimbursement pursuant to the Engagement
Agreement for services other than the Services provided under the Engagement Agreement, unless
such services and the indemnification, contribution or reimbursement therefor are approved by the
Court.
13.
Notwithstanding anything to the contrary in the Engagement Agreement,
the Debtors shall have no obligation to indemnify Omni, or provide contribution or reimbursement
to Omni, for any claim or expense that is either: (i) judicially determined (the determination having
become final) to have arisen from Omni’s gross negligence, willful misconduct or fraud; (ii) for a
contractual dispute in which the Debtors allege the breach of Omni’s contractual obligations if the
Court determines that indemnification, contribution, or reimbursement would not be permissible
pursuant to In re United Artists Theatre Co., 315 F.3d 217 (3d Cir. 2003); or (iii) settled prior to a
judicial determination under (i) or (ii), but determined by this Court, after notice and a hearing, to
be a claim or expense for which Omni should not receive indemnity, contribution, or
reimbursement under the terms of the Engagement Agreement as modified by this Order.
14.
To the extent applicable in the Engagement Agreement, all requests by
Omni for the payment of indemnification shall be made by means of an application to the Court
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RLF1 28018179v.1
and shall be subject to review by the Court to ensure that payment of such indemnity conforms to
the terms of the Engagement Agreement and is reasonable under the circumstances of the
litigation, dispute, or settlement in respect of which indemnity is sought. In no event shall Omni
be indemnified for its actions in these Chapter 11 Cases for its own gross negligence or willful
misconduct. All parties in interest shall retain the right to object to any demand by Omni for
indemnification, contribution, or reimbursement.
15.
The limitation of liability provision contained in the Engagement
Agreement shall have no force and effect during the pendency of these chapter 11 cases.
16.
In the event that Omni seeks reimbursement from the Debtors for attorneys’
fees in connection with the payment of an indemnity claim, the invoices and supporting time
records for the attorneys’ fees and expenses shall be included in Omni’s own applications, both
interim and final, but determined by this Court after notice and a hearing.
17.
In the event Omni is unable to provide the services set out in this Order,
Omni will immediately notify the Clerk and the Debtors’ counsel and, upon approval of this Court,
cause to have all original proofs of claim and computer information turned over to another claims
and noticing agent with the advice and consent of the Clerk and the Debtors’ counsel.
18.
Notwithstanding any term in the Engagement Agreement to the contrary,
this Court shall retain jurisdiction with respect to all matters arising from or related to the
implementation of this Order.
19.
Omni shall not cease providing claims processing services during these
Chapter 11 Cases for any reason, including nonpayment, without an order of this Court; provided,
however, that Omni may seek such an order on expedited notice by filing a request with this Court
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RLF1 28018179v.1
with notice of such request to be served on the Debtors, the Office of the United States Trustee,
and any official committee of creditors appointed in these cases.
20.
After entry of an order terminating Omni’s services as the Claims and
Noticing Agent, upon the closing of these Chapter 11 Cases, or for any other reason, Omni shall
be responsible for preparing all proofs of claim to be archived with the Federal Archives Record
Administration, if applicable.
21.
The requirements of Bankruptcy Rule 6003(b) are satisfied and that the
relief granted in this Order is necessary to avoid immediate and irreparable harm.
22.
Notice of the Application shall be deemed good and sufficient notice of such
application, and the notice requirement of Bankruptcy Rule 6004(a) is satisfied.
23.
This Order is immediately effective and enforceable notwithstanding the
provisions of Bankruptcy Rule 6004(h) or otherwise.
24.
In the event of any inconsistency between the Engagement Agreement, the
Application and this Order, this Order shall govern.
25.
The Debtors and Omni are authorized to take all action necessary to
effectuate the relief granted pursuant to this Order in accordance with the Application.
26.
This Court shall retain jurisdiction to hear and determine all matters arising
from or related to the implementations, interpretations, or enforcement of this Order.

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RLF1 28018179V.1
Exhibit C
Engagement Agreement

Case 22-10951-CTG Doc 4 Filed 10/03/22 Page 27 of 41

STANDARD SERVICES AGREEMENT

This Agreement is entered into as of September 16, 2022, between (I) Omni Agent
Solutions (“Omni”) and (II) Kabbage, Inc. d/b/a KServicing (“Kabbage”), Kabbage
Canada Holdings, LLC (“Kabbage Canada”), Kabbage Asset Securitization LLC (“KAS”),
Kabbage Asset Funding 2017-A LLC (“KAF2017”), Kabbage Asset Funding 2019-A LLC
(“KAF2019”), Kabbage Diameter, LLC (“Diameter”), and Kabbage Asset Funding 2020-
A LLC (“KAF2020, and collectively with Kabbage, Kabbage Canada, KAS, KAF2017,
KAF2019, and Diameter, the “Company”), in preparation of, and in connection with, the
Company’s potential chapter 11 cases. The parties hereto agree as follows:

Terms and Conditions

I.
SERVICES

(a)
Omni will make itself available to the Company, as requested, for the
purposes of assisting the Company with pre- and post-petition case administration
matters including data entry, preparation and management of the creditor matrix,
preparation of schedules of assets and liabilities and statements of financial affairs, claims
management, noticing, plan solicitation and tabulation, distribution, the development and
maintenance of a virtual data room, the development and maintenance of an informational
website, and any other services as may be requested by the Company or otherwise
required by applicable law, governmental regulations or court rules or orders (collectively,
the “Services”).

(b)
The Company acknowledges and agrees that Omni will often take direction
from the Company’s representatives, employees, agents and/or professionals
(individually, a “Company Party”) with respect to providing Services hereunder. The
parties agree that Omni may rely upon, and the Company agrees to be bound by, any
requests, advice or information provided by a Company Party to the same extent as if
such requests, advice or information were provided by the Company.

(c)
In no event shall Omni’s Services constitute or contain legal advice or
opinion, and neither Omni nor its personnel shall be deemed to practice law hereunder.

II.
RATES

(a)
Except as otherwise set forth herein, the services to be rendered by Omni
will be billed at rates ranging from $52.50 to $187.50 per hour as per the rate structure
attached hereto and incorporated herein by reference as Exhibit “A” (the “Rate
Structure”). In addition, Omni has agreed to provide the Debtors with (i) a $30,000 credit
to be applied to Omni’s prepetition fees only, and (ii) restructuring-related PR services
(e.g., FAQ’s, creditor letters) at no charge. The Company agrees to pay all of Omni’s fees,
charges and out-of-pocket costs relating to the Services it provides on behalf of the
Company pursuant to this Agreement.

Case 22-10951-CTG Doc 4 Filed 10/03/22 Page 28 of 41

(b)
Rates may be adjusted annually on January 2nd of each year and are
subject to increases not to exceed ten (10%) percent per annum. Omni shall provide sixty
(60) days prior written notice of any such proposed increases.

(c)
Omni shall be compensated on a monthly basis for services it performs on
behalf of the Company during the preceding calendar month. Invoices are due and
payable upon receipt. If any amount is unpaid as of thirty (30) days after delivery of an
invoice, the Company agrees to pay a late charge equal to one and a half (1.5%) percent
of the total amount unpaid every 30 days. Notwithstanding anything herein to the contrary,
in the event of a chapter 11 filing, all payments to Omni will be in accordance with
applicable bankruptcy law and any orders of the bankruptcy court.

(d)
Omni may require an advance or direct payment from the Company of an
individual expense, or a group of related expenses, which are expected to exceed $7,500.

(e)
Upon execution of this Agreement, the Company shall pay Omni a retainer
of $25,000 (the “Retainer”). Omni may use the Retainer against all prepetition fees and
expenses, which Retainer shall then be replenished as promptly as practicable by the
Company to its original amount. At Omni’s discretion, the Retainer may then be applied
to the payment of the final invoice from Omni under and pursuant to this Agreement (the
“Final Invoice”), or to any other invoice. Except with respect to the Final Invoice, upon
notice from Omni to the Company of the application of some or all of the Retainer, the
Company shall replenish the Retainer as promptly as practicable to its original amount.
Omni shall, as promptly as practicable, return to the Company any amount of the Retainer
that remains following application of the Retainer to the payments of unpaid fees and
expenses hereunder.

(f)
The Company shall pay or reimburse all taxes applicable to services
performed under this Agreement and, specifically, taxes based on disbursements made
on behalf of the Company, notwithstanding how such taxes may be designated, levied,
or based. This provision is intended to include sales, use, and excise taxes, among other
taxes, but is not intended to include personal property taxes or taxes based on net income
of Omni.

(g)
The Company shall pay to Omni any actual charges (including fees, costs
and expenses as set forth in the Rate Structure) related to, arising out of, or resulting
from, any error or omission of the Company. Such charges may include, without limitation,
print or copy re-runs, supplies, long distance phone calls, travel expenses and overtime
expenses for work chargeable at the rates set forth on the Rate Structure.

(h)
Payments to Omni for services rendered under the terms of this Agreement
may be remitted by the Company using either or both of the following methods:

(i)
Wire Transmission
(Omni’s wire information will be included on each monthly invoice)

Case 22-10951-CTG Doc 4 Filed 10/03/22 Page 29 of 41

(ii)
Check
Omni Agent Solutions
c/o Accounts Receivable
5955 De Soto Avenue
Suite 100
Woodland Hills, CA 91367

III.
RETENTION IN BANKRUPTCY CASE

(a)
If the Company commences one or more cases pursuant to the U. S.
Bankruptcy Code (the “Code”), the Company shall timely file applications with the
bankruptcy court to retain Omni as claims and noticing agent pursuant to 28 U.S.C. §
156(c), and, where applicable, as administrative agent pursuant to section 327(a) of the
Code for all Services that fall outside the scope of 28 U.S.C. § 156(c). The form and
substance of such applications and any order approving them shall be reasonably
acceptable to Omni.

(b)
If any of the Company’s chapter 11 cases convert to a case or cases under
chapter 7 of the Bankruptcy Code, Omni will continue to be paid for Services pursuant to
28 U.S.C. § 156(c) and the terms hereunder.

IV.
CONFIDENTIALITY

(a)
Each of Omni and the Company, on behalf of themselves and their
respective employees, agents, professionals and representatives, agree to keep
confidential all non-public records, systems, procedures, software and other information
received from the other party in connection with the Services provided under this
Agreement; provided, however, that if any such information was (i) publicly available
without a breach by the receiving party, (ii) already in the receiving party’s possession or
known to it and was received from a third party that, to the knowledge of the receiving
party, does not have a duty of confidentiality to the disclosing party, (iii) independently
developed, (iv) lawfully obtained from a third party who, to the knowledge of the receiving
party, does not have a duty of confidentiality to the disclosing party or (v) required to be
disclosed by law, then, subject to clause (b) below, a party shall bear no responsibility for
publicly disclosing such information.

(b)
If either party reasonably believes that it is required to produce any
confidential information pursuant to an order of any court, governmental agency or other
regulatory body, it may, upon not less than five (5) business days written notice to the
other party, release the required information.

V.
PROPERTY RIGHTS

(a)
The parties understand that the software programs and other materials
furnished by Omni pursuant to this Agreement and/or developed during the course of this
Agreement by Omni are the sole property of Omni. The term “program” shall include,
without limitation, data processing programs, specifications, applications, routines and
documentation. The Company agrees not to copy or permit others to copy the source

Case 22-10951-CTG Doc 4 Filed 10/03/22 Page 30 of 41

code from the support software or any other programs or materials furnished pursuant to
this Agreement. The Company further agrees that any ideas, concepts, know-how or
techniques relating to data processing or Omni’s performance of its services developed
during the course of its Agreement by Omni shall be the exclusive property of Omni. Fees
and expenses paid by the Company do not vest in the Company any rights in Omni’s
property. Such property is only being made available for the Company’s use during and
in connection with the Services provided by Omni hereunder.

(b)
Upon the Company’s request at any time while this Agreement is in effect,
Omni shall immediately deliver to the Company and/or the Company’s retained
professionals, at the Company’s expense, any or all of the non-proprietary data and
records held by Omni pursuant to this Agreement, in the form requested by the Company.

VI.
BANK ACCOUNTS

At the request of the Company and its officers or authorized representatives, Omni
is authorized to establish accounts with financial institutions in the name of and as agent
for the Company to facilitate distributions pursuant to a chapter 11 plan or other
transaction.

VII.
COMPANY DATA

(a)
The Company is responsible for, and Omni does not verify, the accuracy of
the programs, data and other information it or any Company Party submits for processing
to Omni and for the output of such information, including, without limitation, with respect
to preparation of statements of financial affairs and schedules of assets and liabilities
(collectively, the “SOFAs and Schedules”). Omni bears no responsibility for the accuracy
and content of the SOFAs and Schedules, and the Company is deemed hereunder to
have approved and reviewed all of the SOFAs and Schedules filed on its behalf.

(b)
The Company agrees, represents and warrants to Omni that before delivery
of any information to Omni: (i) the Company has full authority to deliver such information
to Omni; and (ii) Omni is authorized to use such information to perform Services
hereunder.

(c)
Any data, storage media, programs or other materials furnished to Omni by
the Company may be retained by Omni until the Services provided hereunder are paid in
full. The Company shall remain liable for all fees and expenses incurred by Omni under
this Agreement as a result of data, storage media or other materials maintained, stored
or disposed of by Omni. Any such disposal shall be in a manner requested by or
acceptable to the Company; provided that if the Company have not utilized Omni’s
Services for a period of ninety (90) days or more, Omni may dispose of any such
materials, and be reimbursed by the Company for the expense of such disposition, after
giving the Company thirty (30) days written notice. The Company agrees to use
commercially reasonable efforts to initiate and maintain backup files that would allow the
Company to regenerate or duplicate all programs, data or information provided by the
Company to Omni.

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(d)
If Omni is retained pursuant to bankruptcy court order, disposal of any the
Company’s data, storage media or other materials shall comply with any applicable court
orders and rules or clerk’s office instructions.

VIII.
TERM AND TERMINATION

(a)
This Agreement shall remain in effect until terminated by either party: (i) on
thirty (30) days prior written notice to the other party; or (ii) immediately upon written notice
for Cause (as defined herein). “Cause” means (i) bad faith, gross negligence, or willful
misconduct of Omni that causes material harm to the Company‘ restructuring under
chapter 11 of the Code, (ii) the failure of the Company to pay Omni’s invoices for more
than sixty (60) days from the date of invoice, or (iii) the accrual of invoices or unpaid
Services in excess of the retainer held by Omni where Omni reasonably believes in its
sole discretion, following consultation with the Company and/or the Company’s
professionals, it will not be paid.

(b)
If this Agreement is terminated after Omni is retained pursuant to
bankruptcy court order, the Company shall promptly seek entry of a bankruptcy court
order discharging Omni of its duties under such retention, which order shall be in form
and substance reasonably acceptable to Omni.

(c)
If this Agreement is terminated, the Company shall remain liable for all
amounts then accrued and/or due and owing to Omni hereunder and, following payment
of such amounts, Omni shall promptly provide the Company with to all materials and
deliverables that are in its then-current state of completion.

(d)
If this Agreement is terminated, Omni shall coordinate with the Company
and, to the extent applicable, the clerk of the bankruptcy court, to maintain an orderly
transfer of record keeping functions, and Omni shall provide the necessary staff, services
and assistance required for such an orderly transfer. The Company agrees to pay for
such Services pursuant to the Rate Structure.

IX.
NO REPRESENTATIONS OR WARRANTIES

Omni makes no representations or warranties, express or implied, including,
without limitation, any express or implied warranty of merchantability, fitness or adequacy
for a particular purpose or use, quality, productiveness or capacity. Notwithstanding the
foregoing, if the above disclaimer is not enforceable under applicable law, such disclaimer
will be construed by limiting it so as to be enforceable to the extent compatible with
applicable law.

X.
INDEMNIFICATION

(a)
To the fullest extent permitted by applicable law, the Company shall
indemnify and hold harmless Omni and its members, directors, officers, employees,
representatives, affiliates, consultants, subcontractors and agents (each, an
“Indemnified Party,” and collectively, the “Indemnified Parties”) from and against any
and all losses, claims, damages, judgments, liabilities and expenses, whether direct or

Case 22-10951-CTG Doc 4 Filed 10/03/22 Page 32 of 41

indirect (including, without limitation, counsel fees and expenses) (collectively, “Losses”)
resulting from, arising out of or related to Omni’s performance hereunder. Without limiting
the generality of the foregoing, Losses include any liabilities resulting from claims by any
third parties against any Indemnified Party.

(b)
Omni and the Company shall notify each other in writing promptly upon the
assertion, threat or commencement of any claim, action, investigation or proceeding that
either party becomes aware of with respect to the services provided under and pursuant
to the Agreement.

(c)
The Company’s indemnification of Omni hereunder shall exclude Losses
resulting from Omni’s gross negligence or willful misconduct.

(d)
The Company’s indemnification obligations hereunder shall survive the
termination of this Agreement.

XI.
LIMITATIONS OF LIABILITY

Except as expressly provided herein, Omni’s liability to the Company for any
Losses, unless due to Omni’s gross negligence or willful misconduct, shall be limited to
the total amount paid by the Company for the portion of the particular work that gave rise
to the alleged Loss. In no event shall Omni’s liability to the Company for any Losses
arising out of this Agreement exceed the total amount actually paid to Omni for services
provided under and pursuant to this Agreement. Moreover, in no event shall Omni be
liable for any indirect, special or consequential damages (such as loss of anticipated
profits or other economic loss) in connection with or arising out of the services provided
under and pursuant to this Agreement.

XII.
SYSTEM IMPROVEMENTS

Omni reserves the right to make changes in operating procedure, operating
systems, programming languages, general purpose library programs, application
programs, time of accessibility, types of terminals and other equipment, and the Omni
database serving the Company, so long as any such changes do not materially interfere
with ongoing Services provided to the Company in connection with the Company’s
pending bankruptcy cases.

XIII.
CHOICE OF LAW

The validity, enforceability and performance of this Agreement shall be governed
by and construed in accordance with the laws of the State of New York.

XIV.
ARBITRATION

Any dispute arising out of or relating to this Agreement, or the breach thereof shall
be finally resolved by arbitration administered by the American Arbitration Association
under its Commercial Arbitration Rules, and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction. There shall be one arbitrator

Case 22-10951-CTG Doc 4 Filed 10/03/22 Page 33 of 41

named in accordance with such rules. The arbitration shall be conducted in the English
language in New York in accordance with the United States Arbitration Act.
Notwithstanding the foregoing, during the pendency of any applicable chapter 11 case(s)
of the Company, any disputes related to this Agreement shall be decided by the
bankruptcy court with jurisdiction over the chapter 11 case(s).

XV.
GENERAL

(a)
Complete agreement. Each party acknowledges that it has read this
Agreement, understands it and agrees to be bound by its terms, and further agrees that
it is the complete and exclusive statement of the agreement between the parties, which
supersedes and merges all prior proposals, understandings, agreements and
communications between the parties relating to the subject matter hereof.

(b)
Severability. If any provision of this Agreement shall be held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall in no way be affected or impaired thereby.

(c)
Modification. This Agreement may be modified only by a writing duly
executed by an authorized representative of the Company and an officer of Omni.

(d)
Assignment. This Agreement and the rights and duties hereunder shall not
be assignable by the parties hereto except upon written consent of the other; provided,
however, that either party may assign this Agreement to a wholly-owned subsidiary or
affiliate or to an entity which has succeeded to all or substantially all of the business or
assets of a party without the other party’s consent, provided that the assigning party
provides adequate assurance of performance by the proposed assignee.

(e)
Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which shall constitute
one and the same agreement. This Agreement will become effective when one or more
counterparts have been signed by each of the parties and delivered to the other party,
which delivery may be made by exchange of copies of the signature page by fax or email.

(f)
Force Majeure. Whenever performance by Omni of any of its obligations
hereunder is materially prevented or impacted by reason of any act of God, government
requirement, strike, lock-out or other industrial or transportation disturbance, fire, flood,
epidemic, lack of materials, law, regulation or ordinance, act of terrorism, war or war
condition, or by reason of any other matter beyond Omni’s reasonable control, then such
performance shall be excused, and this Agreement shall be deemed suspended during
the continuation of such prevention and for a reasonable time thereafter.

(g) Location services. The Company will use their best efforts to cooperate with
Omni at the Company’s facilities if any portion of the Services require Omni’s physical
presence.

(h)
Non-solicitation. Each party agrees that neither it nor any of its subsidiaries
shall directly or indirectly solicit for employment, employ or otherwise retain as employees,
consultants or otherwise, any employees of the other party during the term of this

Case 22-10951-CTG Doc 4 Filed 10/03/22 Page 34 of 41

Agreement and for a period of six (6) months after termination thereof unless the other
party provides prior written consent to such solicitation or retention; provided, however,
that the foregoing provisions will not prevent either party from hiring or seeking to hire
any such person who responds to general advertising or a general solicitation not
targeted to the employees of the other party.

(i)
Independent contractors. The Company and Omni are and shall be
independent contractors of each other and no agency, partnership, joint venture or
employment relationship shall arise, directly or indirectly, as a result of this Agreement.

(j)
Attorney’s fees. In the event that any legal action, including an action for
declaratory relief, is brought to enforce the performance or interpret the provisions of this
Agreement, the parties agree to reimburse the prevailing party’s reasonable attorney’s
fees, court costs, and all other related expenses, which may be set by the court in the
same action or in a separate action brought for that purpose, in addition to any other relief
to which the prevailing party may be entitled.

XVI.
NOTICING

All notices and requests in connection with this Agreement shall be sufficiently
given or made if given or made in writing via hand delivery, overnight courier, U.S. Mail
(postage prepaid) or email, and addressed as follows:

If to Omni:
Omni Agent Solutions
5955 De Soto Avenue
Suite 100
Woodland Hills, CA 91367
Tel: (818) 906-8300
Attn: Brian K. Osborne, Pres. & CEO
Email: bosborne@omniagnt.com

If to the Company: Kabbage, Inc. d/b/a KServicing
730 Peachtree Street NE, Suite 470,
Atlanta, GA 30308
Attn: Holly Loiseau, General Counsel
Email: __________________

With copies to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Attn: Candace Arthur, Esq.

candace.arthur@weil.com

[The rest of this page intentionally left blank]

Case 22-10951-CTG Doc 4 Filed 10/03/22 Page 35 of 41
hloiseau@kservicecorp.com

IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of
the date first above written.

OMNI AGENT SOLUTIONS

By: _______________

Name:Paul Deutch

Title:
Executive Vice President

Agreed and Accepted this ____ day of September, 2022.

KABBAGE, INC. D/B/A KSERVICING
KABBAGE CANADA HOLDINGS, LLC
KABBAGE ASSET SECURITIZATION LLC
KABBAGE ASSET FUNDING 2017-A LLC
KABBAGE ASSET FUNDING 2019-A LLC
KABBAGE DIAMETER, LLC
KABBAGE ASSET FUNDING 2020-A LLC

By: _______________________

Name: Holly Loiseau

Title:
General Counsel

Case 22-10951-CTG Doc 4 Filed 10/03/22 Page 36 of 41

EXHIBIT

“A”

Case 22-10951-CTG Doc 4 Filed 10/03/22 Page 37 of 41

Hourly Billing Rates
Administrative, Analysts,
Clerks, Mailroom and
Claims Control
Waived
Customer Service
Representatives / Call
Center Operators
$52.50 - $150
Project Administrators /
Case Managers
$52.50 - $150
Project Supervisors
$52.50 - $150
Systems, Programming,
Graphic Support &
Technology
Staff/Consultants
$52.50 - $139.50
Project Managers and Sr.
Project Managers
$52.50 - $150
Consultants
$52.50 - $150
Directors / Vice-Presidents /
Senior Managing
Consultants
$157.50 - $187.50
Senior Management
No charge
Solicitation Consultants &
Executives
$172.50 - $187.50
Case 22-10951-CTG Doc 4 Filed 10/03/22 Page 38 of 41

2
Overtime Charges
No charge
Printing and Noticing Services Rates
Copying/Printing
$0.10 per image
Personalization, Labels, and
Envelopes
$0.035 each
Postage, Courier, etc.
Preferred Rates
Electronic Noticing -
Facsimile
$0.10 per image
Electronic Noticing - Email
No charge
Legal Notice Publishing
Preferred Rates
Electronic Solicitation
Services
N/A
Call Center Rates
Standard Call Center Setup
No charge
Voicemail Box
No charge
Interactive Voice Response
Waived
Monthly Maintenance Fee
(Call Center Services)
Waived
Document Management Rates
Database and System Access
No charge
Case 22-10951-CTG Doc 4 Filed 10/03/22 Page 39 of 41

3
Document Scanning
$0.08 per image
Document Storage - Paper
No charge
Document Storage -
Electronic
No charge
Hosting Case-Specific
Website
No charge
License Fees, Data Storage,
Maintenance and Security
Under 10,000 records - No Charge
Over 10,000 records - $.08 per record
Virtual Data Room
Quoted based on volume
CD-ROM Creation
$3.25 per CD
Custom Client Reports
Standard hourly rates
Claims Administration Rates
Claims Association
Standard hourly rates
Electronic Import of
Creditor Data
No charge
Proofs of Claims Input
Standard hourly rates
Claim Acknowledgement
Card
No charge
Processing Undeliverables
Standard hourly rates
Check Issuance
Standard hourly rates
Miscellaneous Disbursements and Costs
Case 22-10951-CTG Doc 4 Filed 10/03/22 Page 40 of 41

4
Required Retainer
$25,000
Travel Expenses
At cost, if required
Public Relations
Certain PR/communications materials available upon
request at no additional charge
Other Anticipated Costs
N/A

Case 22-10951-CTG Doc 4 Filed 10/03/22 Page 41 of 41

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Application to Appoint Omni Agent Solutions as Claims and Noticing Agent — In re KServicing

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