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Home Court filings In re KServicing Wind Down Corp., et al. Order Authorizing Retention of Omni Agent Solutions, Inc. as Administrative Agent — In…

Court filing

Order Authorizing Retention of Omni Agent Solutions, Inc. as Administrative Agent — In re KServicing

Filed October 21, 2022 in Kservicing Bankruptcy; one of 140 filings from this case.

Record facts

CourtU.S. Bankruptcy Court for the District of Delaware
Filed2022-10-21

U.S. Bankruptcy Court for the District of Delaware · No. 22-10951 · Doc. 138 · 2022-10-21 · Docket on CourtListener

Full text

RLF1 28109704v.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 (CTG) 
 
: 
 
 
: 
 
Debtors.1 
: 
: 
: 
(Jointly Administered) 
 
Ref. Docket No. 17 
------------------------------------------------------------ x 
 
ORDER AUTHORZING DEBTORS  
TO EMPLOY AND RETAIN OMNI AGENT SOLUTIONS, INC.  
AS ADMINISTRATIVE AGENT EFFECTIVE AS OF THE PETITION DATE 
 
Upon the application (the “Application”)2 of Kabbage Inc. d/b/a KServicing and 
its debtor affiliates, as debtors and debtors in possession in the Chapter 11 Cases (collectively, 
the “Debtors”), for entry of an order pursuant to section 327(a) of the Bankruptcy Code, 
Bankruptcy Rules 2014(a) and 2016, and Local Rules 2014-1 and 2016-2 authorizing the Debtors 
to retain and employ Omni as Administrative Agent effective as of the Petition Date, all as more 
fully set forth in the Application; and upon consideration of the First Day Declaration; and the 
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 from the United States 
District Court for the District of Delaware, dated February 29, 2012; and consideration of the 
 
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.   
Case 22-10951-CTG    Doc 138    Filed 10/21/22    Page 1 of 5

 
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RLF1 28109704v.1 
Application and the requested relief being a core proceeding pursuant to 28 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 upon any hearing held on 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 to the extent set forth herein.   
2. 
The Debtors are authorized, but not directed, pursuant to section 327(a) of 
the Bankruptcy Code, Bankruptcy Rules 2014(a) and 2016, and Local Rules 2014-1 and 2016-2 
to retain and employ Omni as Administrative Agent effective as of the Petition Date under the 
terms of the Engagement Agreement, and Omni is authorized and directed to perform the Services, 
and all related tasks, all as described in the Application.   
3. 
Omni is authorized to take such other action to comply with all duties set 
forth in the Application.   
4. 
Omni shall apply to the Court for allowance of compensation and 
reimbursement of expenses incurred after the Petition Date in accordance with the applicable 
Case 22-10951-CTG    Doc 138    Filed 10/21/22    Page 2 of 5

 
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RLF1 28109704v.1 
provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, and any orders entered 
in these cases regarding professional compensation and reimbursement of expenses.   
5. 
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.   
6. 
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.   
7. 
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 
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 
or settlement in respect of which indemnity is sought.  In no event shall Omni be indemnified in 
Case 22-10951-CTG    Doc 138    Filed 10/21/22    Page 3 of 5

 
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RLF1 28109704v.1 
the case for its own negligence or willful misconduct.  All parties in interest shall retain the right 
to object to any demand by Omni for indemnification, contribution, or reimbursement.   
8. 
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. 
9. 
During the course of the bankruptcy cases, any provision in the Engagement 
Agreement, the Application, or any attachment thereto, requiring the payment of interest or fees 
or expenses if not paid within a certain time frame will have no force or effect. 
10. 
The limitation of liability provision contained in the Engagement 
Agreement shall have no force and effect during the pendency of these chapter 11 cases. 
11. 
Omni shall not cease providing the Services during these Chapter 11 Cases 
for any reason, including nonpayment, without an order of the Court; provided, however, that 
Omni may seek such an order on expedited notice by filing a motion with this Court with notice 
of such motion to be served on the Debtors, the U.S. Trustee, and any official committee of 
creditors appointed in these Chapter 11 Cases. 
12. 
Notwithstanding any provision to the contrary in the Engagement Agreement, 
this Order shall be immediately effective and enforceable upon its entry. 
13. 
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.   
14. 
In the event of any inconsistency between the Engagement Agreement, the 
Application and this Order, this Order shall govern.   
Case 22-10951-CTG    Doc 138    Filed 10/21/22    Page 4 of 5

 
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RLF1 28109704v.1 
15. 
Notwithstanding entry of this Order, nothing herein shall create, nor is 
intended to create, any rights in favor of or enhance the status of any claim held by any party. 
16. 
The Debtors and Omni are authorized to take all actions necessary or 
appropriate to effectuate the relief granted in this Order.   
17. 
This Court shall retain jurisdiction to hear and determine all matters arising 
from or related to the implementation, interpretation, or enforcement of this Order. 
Dated: October 21st, 2022 
Wilmington, Delaware
CRAIG T. GOLDBLATT 
UNITED STATES BANKRUPTCY JUDGE
Case 22-10951-CTG    Doc 138    Filed 10/21/22    Page 5 of 5

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archive.org
  1. Motion for Cash Collateral Use and Adequate Protection — Federal Reserve Bank — In re KServicing (Bankr. D. Del., 2022-10-24)same case · 2022-10-24
  2. Schedules of Assets and Liabilities — Kabbage Asset Funding 2017-A LLC — In re KServicingsame case · 2022-10-24
  3. Schedules of Assets and Liabilities — Kabbage Asset Securitization LLC — In re KServicingsame case · 2022-10-24
  4. Schedules of Assets and Liabilities — Kabbage Canada Holdings, LLC — In re KServicingsame case · 2022-10-24
  5. Schedules of Assets and Liabilities — Kabbage, Inc. d/b/a KServicing — In re KServicing (Bankr. D. Del.)same case · 2022-10-24
  6. Order Authorizing Retention of Weil, Gotshal & Manges LLP as Debtors' Attorneys — In re KServicing (Bankr. D. Del., 2022-10-21)same docket · 2022-10-21
  7. Order Authorizing Retention of AlixPartners, LLP as Financial Advisor — In re KServicing (Bankr. D. Del.)same docket · 2022-10-21
  8. Supplement to Employee Wages Motion — Moore Colson Prepetition Shortfall — In re KServicingsame docket · 2022-10-21
  9. Order Establishing Interim Compensation Procedures for Professionals — In re KServicingsame docket · 2022-10-21
  10. Certification of Counsel Regarding First Omnibus Ordersame docket · 2022-10-21
  11. Final Order on Utility Providers — Adequate Assurance — In re KServicing (Bankr. D. Del.)same docket · 2022-10-21
  12. Proposed Revised Final Ordersame docket · 2022-10-21
  13. Final Order Authorizing Payment of Prepetition Taxes — In re KServicingsame docket · 2022-10-21
  14. Final Order Authorizing Continuation of PPP Loan Servicing and Subservicing — In re KServicingsame case · 2022-10-21
  15. Final Order Authorizing Continuation of Insurance Policies — In re KServicingsame case · 2022-10-21
  16. Exhibit A, Omni Agent Solutions Final Fee Period Compensation — In re KServicing (Dkt. 918-2)same docket · 2022-10-21
  17. Redline of Proposed Revised Final Order Against Proposed Final Ordersame docket · 2022-10-21
  18. Final Order Authorizing Debtors To (I) Continue Servicingsame docket · 2022-10-21
  19. Supplemental Declaration of Deborah Rieger-Paganis (AlixPartners) — In re KServicing (Bankr. D. Del.)same case · 2022-10-20
  20. Final Ordersame docket · 2022-10-20

Part of: In re KServicing Wind Down Corp., et al. — U.S. Bankruptcy Court, D. Del. · U.S. Bankruptcy Court for the District of Delaware · Paycheck Protection Program (PPP) · Bankruptcies · Orders and opinions · 2022 · Court filings

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