Court filing
Exhibit A — In re KServicing Wind Down Corp., et al. (f/k/a Kabbage, Inc. d/b/a KServicing) (Dkt. 16.1)
Summary
Exhibit A, a proposed order filed October 4, 2022 as Doc. 16-1 in In re Kabbage, Inc. d/b/a KServicing, et al., Chapter 11 Case No. 22-10951, in the United States Bankruptcy Court for the District of Delaware. The proposed order would authorize the debtors to employ and retain AlixPartners, LLP as financial advisor effective as of the petition date under sections 327(a) and 1107(b) of the Bankruptcy Code. It would approve the Engagement Letter's fee and expense structure and indemnification provisions, subject to limits on indemnification for gross negligence, willful misconduct or bad faith, and would treat the retainer balance as an evergreen retainer. It requires AlixPartners to file monthly, interim and final fee requests and keep time in one-tenth hour increments. The proposed order is six pages.
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No. 22-10951 · Doc. 16-1 · Docket on CourtListener
Full text
Case 22-10951-CTG Doc 16-1 Filed 10/04/22 Page 1 of 6
Exhibit A
Proposed Order
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
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In re : Chapter 11
:
KABBAGE, INC. d/b/a KSERVICING, et al., : Case No. 22-10951 ( )
:
:
1
Debtors. : (Jointly Administered)
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ORDER AUTHORIZING DEBTORS TO EMPLOY AND RETAIN
ALIXPARTNERS, LLP AS FINANCIAL ADVISOR
EFFECTIVE AS OF THE PETITION DATE
2
Upon the application (the “Application”) 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 (i) authorizing the employment and retention of AlixPartners
as financial advisor to the Debtors, in accordance with the terms and conditions set forth in the
Engagement Letter effective as of the Petition Date, pursuant to sections 327(a) and 330 of the
Bankruptcy Code, Bankruptcy Rule 2014, and Local Rule 2014-1, all as more fully set forth in the
Application; and upon consideration of the Rieger-Paganis Declaration; and the Court having
found that AlixPartners is a “disinterested person” as such term is defined under section 101(14)
of the Bankruptcy Code, as supplemented by section 1107(b) of the Bankruptcy Code; and this
court having found the terms and conditions of AlixPartners’ employment, including but not
limited to the Fee and Expense Structure set forth in the Engagement Letter and Application, are
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 have the meanings ascribed to them in the Application.
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reasonable under section 330 of the Bankruptcy Code; and the Court having jurisdiction to
consider the Application and the relief requested therein pursuant to 28 U.S.C. §§ 157(a)–(b) and
1334(b), 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 Application and the
requested relief being a core proceeding pursuant to 28 U.S.C. § 157(b); 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 on the Application
(the “Hearing”); 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 after due deliberation and
sufficient cause appearing therefor,
IT IS HEREBY ORDERED THAT:
1. The Application is approved as set forth in this Order.
2. Pursuant to sections 327(a) and 1107(b) of the Bankruptcy Code,
Bankruptcy Rules 2014(a) and 2016 and Local Rules 2014-1 and 2016-1, the Debtors are hereby
authorized to employ and retain AlixPartners as their financial advisor in these Chapter 11 Cases,
effective as of the Petition Date, and in accordance with the terms and conditions set forth in the
Engagement Letter annexed to the Application as Exhibit B.
3. The terms of the Engagement Letter, including without limitation, the
Indemnification Provisions and the Fee and Expense Structure, are reasonable terms and
conditions of employment and are approved in all respects, as modified by this Order.
4. AlixPartners is authorized to apply the Retainer and advanced payments to
unpaid amounts to satisfy any unbilled or other remaining prepetition fees and expenses that
2
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AlixPartners becomes aware of during its ordinary course billing review and reconciliation. The
balance of the Retainer shall be treated as an evergreen retainer and held by AlixPartners as
security throughout the Chapter 11 Cases.
5. AlixPartners shall file monthly, interim, and final fee requests for allowance
of compensation and reimbursement of expenses pursuant to the procedures set forth in sections
330 and 331 of the Bankruptcy Code, applicable Bankruptcy Rules and the Local Rules, the U.S.
Trustee Guidelines and any other such procedures as may be fixed by order of this Court. For
billing purposes, AlixPartners shall keep its time in one-tenth (1/10) hour increments in accordance
with the U.S. Trustee Guidelines.
6. All of AlixPartners’ compensation set forth in the Engagement Letter,
including, without limitation, the Fee and Expense Structure, is approved pursuant to section 327
of the Bankruptcy Code and AlixPartners shall be compensated and reimbursed pursuant to section
327 of the Bankruptcy Code in accordance with the terms of the Engagement Letter, subject to the
procedures set forth in the Bankruptcy Code, the Bankruptcy Rules, the Local Rules and any other
applicable orders of this Court.
7. The Fee and Expense Structure is approved, and the Debtors will reimburse
AlixPartners for reasonable expenses incurred in connection with the performance of its
engagement under the Engagement Letter including, without limitation, fees, disbursements and
other charges by AlixPartners’ counsel to the extent provided for in the Engagement Letter as
modified by this order (including, without limitation, pursuant to the Indemnification Provisions
as modified by this Order), which counsel shall not be required to be retained pursuant to section
327 of the Bankruptcy Code or otherwise; provided, further, that in the event that AlixPartners
seeks reimbursement from the Debtors for attorneys’ fees and expenses consistent with the terms
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of this Order, the invoices and supporting time records from such attorneys shall be included in
AlixPartners’ own applications, both interim and final, and they shall be subject to the U.S. Trustee
Fee Guidelines and the approval of the Bankruptcy Court pursuant to sections 330 and 331 of the
Bankruptcy Code.
8. The indemnification provisions included in the Engagement Letter are
approved, subject to the following:
a) No Indemnified Agent (as that term is defined in the Engagement
Letter) shall be entitled to indemnification, contribution or
reimbursement pursuant to the Engagement Letter for services,
unless such services and the indemnification, contribution or
reimbursement therefore are approved by this Court.
b) The Debtors shall have no obligation to indemnify any Indemnified
Agent, or provide contribution or reimbursement to any Indemnified
Agent, for any claim or expense to the extent it is either: (i)
judicially determined (the determination having become final and
no longer subject to appeal) to have arisen from the Indemnified
Agent’s gross negligence, willful misconduct or bad faith; (ii) for a
contractual dispute in which the Debtors allege breach of an
Indemnified Agent’s contractual obligations, unless this Court
determines that indemnification, contribution or reimbursement
would be permissible pursuant to In re United Artists Theatre
Company, 315 F.3d 217 (3d Cir. 2003); or (iii) settled prior to a
judicial determination as to the exclusions set forth in clauses (i) and
(ii) above, but determined by this Court, after notice and a hearing
pursuant to subparagraph (c) hereof to be a claim or expense for
which the Indemnified Agent should not receive indemnity,
contribution or reimbursement under the terms of the Agreement, as
modified by this Order.
c) If, before the earlier of (i) the entry of an order confirming a chapter
11 plan in these Chapter 11 Cases (that order having become a final
order no longer subject to appeal) and (ii) the entry of an order
closing these Chapter 11 Cases, an Indemnified Agent believes that
it is entitled to the payment of any amounts by the Debtors on
account of the Debtors’ indemnification, contribution and/or
reimbursement obligations under the Agreement (as modified by
this Order), including without limitation, the advancement of
defense costs, the Indemnified Agent must file an application
therefor in this Court, and the Debtors may not pay any such
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amounts to the Indemnified Agent before the entry of an order by
this Court approving the payment. This subparagraph (c) is
intended only to specify the period of time under which this Court
shall have jurisdiction over any request for fees and expenses by any
Indemnified Agent for indemnification, contribution and/or
reimbursement, and not a provision limiting the duration of the
Debtors’ obligation to indemnify, or make contributions or
reimbursements to, the Indemnified Agents. All parties in interest
shall retain the right to object to any demand by any Indemnified
Agent for indemnification, contribution and/or reimbursement.
10. Any limitation of liability pursuant to the terms and conditions set forth in
the Engagement Letter, or otherwise, are hereby eliminated for the duration of these Chapter 11
Cases.
11. The relief granted herein shall be binding upon any chapter 11 trustee
appointed in these Chapter 11 Cases, or upon any chapter 7 trustee appointed in the event of a
subsequent conversion of these Chapter 11 Cases to cases under chapter 7.
12. To the extent there is any inconsistency between the terms of the
Engagement Letter, the Application, and this Order, the terms of this Order shall govern.
13. AlixPartners shall use its reasonable efforts to avoid any unnecessary
duplication of services provided by any retained professionals in these Chapter 11 Cases.
14. Under the circumstances of these Chapter 11 Cases, notice of the
Application is adequate under Bankruptcy Rule 6004(a).
15. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this
Order shall be immediately effective and enforceable upon its entry.
16. The Debtors are authorized to take all actions necessary to effectuate the
relief granted in this Order in accordance with the Application.
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.
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