Court filing
Exhibit B — In re KServicing Wind Down Corp., et al. (f/k/a Kabbage, Inc. d/b/a KServicing) (Dkt. 16.2)
Summary
Exhibit B to Document 16-2, filed October 4, 2022 in the chapter 11 case of Kabbage, Inc. d/b/a KServicing, No. 22-10951-CTG. It is an engagement letter dated April 25, 2022 under which AlixPartners, LLP agreed to provide turnaround and restructuring consulting services to Weil, Gotshal & Manges LLP as counsel to the company. The letter lists the services, among them a rolling 13-week cash receipts and disbursements forecast, a global wind-down plan, and finalization of the 2020 financial audit report. Three managing directors are named as responsible for the engagement, with consultant time capped at 40 hours per week during an initial period. Schedule 1 sets hourly rates from US$75 to US$1,335 by level, a retainer of US$200,000 and no break fee; attached general terms address bankruptcy retention. The 21-page exhibit was signed electronically on April 28, 2022.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
No. 22-10951 · Doc. 16-2 · Docket on CourtListener
Full text
Case 22-10951-CTG Doc 16-2 Filed 10/04/22 Page 1 of 21
Exhibit B
Engagement Letter
RLF1 28018300v.1
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Candace M. Arthur April 25, 2022
Ray C. Schrock, P.C.
Weil, Gotshal & Manges LLP
767 5th Ave
New York, NY 10153
Re: Agreement for Turnaround and Restructuring Consulting Services
Dear Ms. Arthur and Mr. Schrock:
This letter, together with the attached Schedule(s) and General Terms and Conditions, sets
forth the agreement (“Agreement”) between AlixPartners, LLP (“AlixPartners”) and Weil,
Gotshal & Manges LLP (the “Firm”) as counsel to Kabbage, Inc. d/b/a KServicing, Inc. and its
indirect and direct subsidiaries (collectively, the “Company” or “KServicing”) for the
engagement of AlixPartners by the Firm to provide consulting services for the benefit of the
Company.
All defined terms shall have the meanings ascribed to them in this letter and in the attached
Schedule(s) and General Terms and Conditions. The Company and AlixPartners are each a
“party,” and together the “parties.”
Objectives and Tasks
AlixPartners has been requested to provide advisory services to the Firm for the benefit of the
Company. Accordingly, AlixPartners will provide the following services (the “Services”):
x Support the CEO, management team and Board of Directors in planning and
executing strategic and financial decisions.
x Assist the Company with providing financial leadership and support.
x Assist the Company with development of its rolling 13-week cash receipts and
disbursements forecasting tool designed to provide on-time information related to
the Company’s liquidity; evaluate and assist with liquidity generating initiatives.
x Assist the Company in developing a global wind-down plan and a detailed work plan
identifying key milestones and in setting appropriate priorities.
x Assist the Company with the finalization of the 2020 financial audit report.
x Assist with contingency planning, as may be necessary.
x If appropriate, assist the Company in the design and implementation of a
restructuring strategy designed to maximize enterprise value, taking into account
the unique interests of all constituencies.
x If appropriate, assist the Company to negotiate and implement restructuring
initiatives and evaluate strategic alternatives.
x Assist the Company with its communications and/or negotiations with outside parties
including the Company’s stakeholders and partner banks.
x Assist the Company with such other matters as may be requested that fall within
AlixPartners’ expertise and that are mutually agreeable.
AlixPartners | 909 Third Avenue, 30th Floor | New York, NY 10022 | 212.490.2500 | alixpartners.com
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Weil, Gotshal & Manges LLP
Page 2 of 10
Privileged and Confidential Work Product
The Services will be done at the direction of the Firm to assist the Firm in rendering legal
advice. It is the parties’ intent that all of the Services are privileged and protected by the
attorney work product privilege, attorney client privilege, and any other applicable privilege
doctrine available under applicable law.
Staffing
Deborah Rieger-Paganis, Eric Koza and Susan Markel will be the managing directors
responsible for the overall engagement. Deb Rieger-Paganis with be responsible for the day-
to-day activities of the engagement. She will also be assisted by a staff of consultants at
various levels who have a wide range of skills and abilities related to this type of assignment.
In addition, AlixPartners has relationships with, and may periodically use, independent
contractors with specialized skills and abilities to assist in this engagement.
AlixPartners anticipates initially using two consultant(s) to support Deb Rieger-Paganis for this
engagement. We will periodically review the staffing levels to determine the proper mix for
this assignment. We will only use the necessary staff required to complete the requested or
planned tasks.
Until the earlier to occur of (i) four weeks from the Engagement Commencement (as defined
below) or (ii) the filing of a petition for relief under chapter 11 of the bankruptcy code,
AlixPartners agrees to a cap of 40 hours per week per consultant (“Cap Period”). To the extent
that the Cap Period expires in any mid-week period, the hours subject to the cap shall be
adjusted pro rata based upon the number of days the consultants worked inside the Cap Period
that week.
Timing, Fees and Retainer
AlixPartners will commence this engagement on or about April 25, 2022 after receipt of a copy
of the executed Agreement accompanied by the retainer, as set forth on Schedule 1.
The Company shall compensate AlixPartners for its services, and reimburse AlixPartners for
expenses, as set forth on Schedule 1. In no event shall the Firm be responsible for, have any
liability for, or have any obligation for the payment of any amount owed by the Company to
AlixPartners in connection with this engagement, including, without limitation, any claims for
any fees, expenses, indemnification, contribution, or breach of contract.
***
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Weil, Gotshal & Manges LLP
Page 3 of 10
If these terms meet with your approval, please sign and return a copy of this Agreement and
wire transfer the amount to establish the retainer.
We look forward to working with you.
Sincerely yours,
ALIXPARTNERS, LLP
Deborah Rieger-Paganis Eric Koza Susan Markel
Managing Director Managing Director Managing Director
Acknowledged and Agreed to:
WEIL, GOTSHAL & MANGES LLP
By:
Candace Arthur
Its: Partner
Dated: 4/28/2022 | 11:50 AM EDT
Acknowledged and Agreed to:
KServicing
By:
Holly Loiseau
Its: General Counsel
Dated: 4/28/2022 | 12:01 PM EDT
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Schedule 1
Fees and Expenses
1. Fees: AlixPartners’ fees will be based on the hours spent by AlixPartners personnel at
AlixPartners’ hourly rates, which are:
Managing Director US$1,060 – US$1,335
Director US$840 - US$990
Senior Vice President US$700 – US$795
Vice President US$510 – US$685
Consultant US$190 – US$505
Paraprofessional US$320 – US$340
Intern US$75 – US$110
Developer US$315 – US$750
AlixPartners reviews and revises its billing rates on January 1 of each year.
2. Expenses: In addition to the Fees set forth in this Schedule, the Company shall pay
directly, or reimburse AlixPartners upon receipt of periodic billings, for all reasonable
out-of-pocket expenses incurred in connection with this assignment, such as travel,
lodging and meals.
3. Break Fee: AlixPartners does not seek a break fee in connection with this engagement.
4. Retainer: The Company shall pay AlixPartners a retainer of US$200,000 to be applied
against Fees and expenses as set forth in this Schedule and in accordance with Section
2 of the General Terms and Conditions.
5. Payment: AlixPartners will submit semi-monthly invoices, or sooner such that the
retainer remains with a positive balance, for services rendered and expenses incurred.
All invoices shall be due and payable immediately upon receipt. No discount is provided
for prompt payment, and none shall be taken, but interest on any invoices paid late
shall accrue in accordance with the General Terms and Conditions. Weil shall under no
circumstances be obligated to pay any compensation, expense, reimbursement,
indemnification, or other amounts payable pursuant to this Schedule or the Agreement.
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Data Protection Schedule
Description of Transfer
AlixPartners will generally not process any Personal Data on behalf of the Company under this Agreement
but will receive and potentially process personal details of employees/contractors of the Company who will
be involved in the services to which this engagement relates such as name, job title, email address,
telephone number. AlixPartners will use such personal details (i) for the purpose of communicating about
the services to which this engagement relates and performing the services under this Agreement and (ii)
for the duration necessary for the delivery of the services under this Agreement.
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AlixPartners, LLP
General Terms and Conditions
These General Terms and Conditions (“Terms”) are incorporated into the Agreement to which these Terms are
attached. In case of conflict between the wording in the letter and/or schedule(s) and these Terms, the wording of
the letter and/or schedule(s) shall prevail.
Section 1. Company Responsibilities this Agreement is intended for the purpose of
facilitating services by the Firm of legal services to the
The Company will undertake responsibilities as set forth Company and constitutes attorney work product and
below: that any communication to the Firm (including any
correspondence, analyses, reports, and related
1. Provide reliable and accurate detailed information, materials that AlixPartners prepares) is intended to
materials, documentation and constitute confidential and privileged communications.
The parties intend that an independent contractor
relationship will be created by the Agreement. As an
2. Make decisions and take future actions, as the
independent contractor, AlixPartners will have
Company determines in its sole discretion, on any
complete and exclusive charge of the management and
recommendations made by AlixPartners in connection
operation of its business, including hiring and paying
with this Agreement.
the wages and other compensation of all its employees
and agents, and paying all bills, expenses and other
AlixPartners’ delivery of the services and the fees charges incurred or payable with respect to the
charged are dependent on (i) the Company’s timely and operation of its business. Employees of AlixPartners will
effective completion of its responsibilities; and (ii) not be entitled to receive from the Company of the Firm
timely decisions and approvals made by the Company’s any vacation pay, sick leave, retirement, pension or
management. social security benefits, workers’ compensation,
disability, unemployment insurance benefits or any
other employee benefits. AlixPartners will be
Section 2. Retainer, Billing, Payments and Taxes responsible for all employment, withholding, income
and other taxes incurred in connection with the
Retainer. Upon execution of the Agreement, the operation and conduct of its business. Nothing in this
Company shall promptly pay AlixPartners the agreed- Agreement is intended to create, nor shall be deemed
upon advance retainer as set forth on Schedule 1. or construed to create a fiduciary or agency relationship
Invoices shall be offset against the retainer. Payments between AlixPartners, the Company, or the Firm
of invoices will be used to replenish the retainer to the
agreed-upon amount. Any unearned portion of the
AlixPartners is providing advisory and consulting
retainer will be applied against the final invoice or
services only, and will not make management decisions
returned to the Company at the end of the
for the Company. While AlixPartners may from time to
engagement.
time suggest options that may be available to the
Company, the ultimate decision as to such options rests
Billing and Payments. All payments to be made to with the Company, and AlixPartners makes no promise
AlixPartners shall be due and payable upon delivery of or guarantee about the outcome of the Company’s
invoice via check or wire transfer to AlixPartners’ bank matters.
account, as shown on the invoice. All amounts invoiced
are based on services rendered and expenses incurred
AlixPartners is not an accounting firm and does not give
to date, and are not contingent upon future services or
accounting advice or guidance. While AlixPartners’
Work Product (as defined below), or the outcome of any
work may involve analysis of accounting, business and
case or matter. “Fees,” as used in this Agreement, shall
other related records, this engagement does not
include all amounts payable by the Company to
constitute an audit in accordance with either generally
AlixPartners in accordance with Schedule 1, including
accepted auditing standards or the standards of the
any success fee or break fee, but excluding
Public Company Accounting Oversight Board or any
reimbursable expenses.
other similar governing body.
Under no circumstances shall the Firm be liable for any
Fees or any other amounts payable under this AlixPartners is not authorized to practice law or provide
Agreement. legal advice. No services provided under this
Agreement are intended to be, nor should be construed
to be, legal services.
Taxes. AlixPartners’ fees are exclusive of taxes or
similar charges, which shall be the responsibility of the
Section 4. Confidentiality
Company (other than taxes imposed on AlixPartners’
income generally). If AlixPartners’ fees are subject to
Each party shall use reasonable efforts, but in no event
any taxes, such as State sales tax, Goods and Services
less effort than it would use to protect its own
Tax/Harmonized Sales Tax or Value Added Tax, then
confidential information, to keep confidential all non-
AlixPartners will include such taxes on its invoices as
public confidential or proprietary information obtained
separate line items.
from the other party during the performance of
AlixPartners’ services hereunder (the “Confidential
Section 3. Relationship of the Parties
Information”), and neither party will disclose any
Confidential Information to any other person or entity.
AlixPartners acknowledges that the Work Product (as
“Confidential Information” includes the terms of this
defined below) produced by AlixPartners pursuant to
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AlixPartners, LLP
General Terms and Conditions
Agreement, non-public confidential and proprietary Information necessary to support the Work Product
data, plans, reports, schedules, drawings, accounts, subject to its confidentiality obligations in this
records, calculations, specifications, flow sheets, Agreement.
computer programs, source or object codes, results,
models or any work product relating to the business of All methodologies, processes, techniques, ideas,
either party, its subsidiaries, distributors, affiliates, concepts, know-how, procedures, software, tools,
vendors, customers, employees, contractors and templates, models, utilities and other intellectual
consultants. property that AlixPartners has created, acquired or
developed or will create, acquire or develop
The foregoing is not intended to prohibit, nor shall it be (collectively, “Engagement Tools”), are, and shall be,
construed as prohibiting, AlixPartners from making the sole and exclusive property of AlixPartners. The
such disclosures of Confidential Information that Company shall not acquire any interest in the
AlixPartners reasonably believes are required by law or Engagement Tools other than a limited worldwide,
any regulatory requirement or authority to clear client perpetual, non-transferable license to use the
conflicts. AlixPartners may also disclose Confidential Engagement Tools to the extent they are contained in
Information to its partners, directors, officers, the Work Product.
employees, independent contractors and agents who
have a need to know the Confidential Information as it The Company acknowledges and agrees, except as
relates to the services being provided under this otherwise set forth in this Agreement, that any
Agreement, provided AlixPartners is responsible for any Engagement Tools provided to the Company are
breach of these confidentiality obligations by any such provided “as is” and without any warranty or condition
parties. AlixPartners may make reasonable disclosures of any kind, express, implied or otherwise, including,
of Confidential Information to third parties, such as the implied warranties of merchantability or fitness for a
Company’s suppliers and/or vendors, in connection particular purpose.
with the performance of AlixPartners’ obligations and
assignments hereunder, provided AlixPartners Section 6. Framework of the Engagement
reasonably believes that such third party is bound by
confidentiality obligations. In addition, AlixPartners will The Company acknowledges that AlixPartners is being
have the right to disclose to any person that it provided retained by the Firm solely to assist and advise as
services to the Company or its affiliates and a general described in the Agreement. This engagement shall not
description of such services, but shall not provide any constitute an audit, review or compilation, or any other
other information about its involvement with the type of financial statement reporting engagement.
Company. The obligations of the parties under this
Section 4 shall survive the end of any engagement Section 7. Indemnification and Other Matters
between the parties for a period of three (3) years.
The Company shall indemnify, hold harmless and
Work Product (as defined in Section 5) may contain defend AlixPartners and its affiliates and its and their
AlixPartners proprietary information or other partners, directors, officers, employees and agents
information that is deemed to be Confidential (collectively, the “AlixPartners Parties”) from and
Information for purposes of this Agreement, and the against all claims, liabilities, losses, expenses and
parties may not want to make public. Therefore, the damages arising out of or in connection with the
parties acknowledge and agree that (i) all information engagement of AlixPartners that is the subject of the
(written or oral), including advice and Work Product (as Agreement. The Company shall pay damages and
defined in Section 5), generated by AlixPartners in expenses as incurred, including reasonable legal fees
connection with this engagement is intended solely for and disbursements of counsel. If, in the opinion of
the benefit and use of the Company in connection with counsel, representing both parties in the matter
this Agreement, and (ii) no such information shall be covered by this indemnification creates a potential
used for any other purpose or disseminated to any third conflict of interest, the AlixPartners Parties may engage
parties, or, quoted or referred to with or without separate counsel to represent them at the Company’s
attribution to AlixPartners at any time in any manner or expense.
for any purpose without AlixPartners’ prior approval
(not to be unreasonably withheld or delayed), except The Company’s indemnification obligations in this
as required by law. The Company may not rely on any Section 7 shall be primary to, and without allocation
draft or interim Work Product. against, any similar indemnification obligations that
AlixPartners may offer to its personnel generally.
Section 5. Intellectual Property
AlixPartners is not responsible for any third-party
All analyses, final reports, presentation materials, and
products or services separately procured by the
other work product (other than any Engagement Tools,
Company. The Company’s sole and exclusive rights and
as defined below) that AlixPartners creates or develops
remedies with respect to any such third party products
specifically for the Company and delivers to the
or services are against the third-party vendor and not
Company as part of this engagement (collectively
against AlixPartners, whether or not AlixPartners is
known as “Work Product”) shall be owned by the
instrumental in procuring such third-party product or
Company and shall constitute Company Confidential
service.
Information as defined above. AlixPartners may retain
copies of the Work Product and any Confidential
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AlixPartners, LLP
General Terms and Conditions
AlixPartners and the Company acknowledge that the Section 10. Non-Solicitation of Employees
Firm shall have no indemnification obligations
hereunder. The Company acknowledges and agrees that
AlixPartners has made a significant monetary
Section 8. Governing Law and Arbitration investment recruiting, hiring and training its personnel.
During the term of this Agreement and for a period of
The Agreement is governed by and shall be construed two years after the final invoice is rendered by
in accordance with the laws of the State of New York AlixPartners with respect to this engagement (the
with respect to contracts made and to be performed “Restrictive Period”), the Company and its affiliates
entirely therein and without regard to choice of law or agree not to directly or indirectly hire, contract with, or
principles thereof. solicit the employment of any of AlixPartners’ Managing
Directors, Directors, or other employees/
Any controversy or claim arising out of or relating to contractors the Company or its affiliates had
the Agreement, or the breach thereof, shall be settled interactions with or gained knowledge about as a result
by arbitration. Each party shall appoint one non-neutral of the services provided under this Agreement.
arbitrator. The two party arbitrators shall select a third
arbitrator. If within 30 days after their appointment the If during the Restrictive Period the Company or its
two party arbitrators do not select a third arbitrator, affiliates directly or indirectly hires or contracts with
the third arbitrator shall be selected by the American any of AlixPartners’ Managing Directors, Directors, or
Arbitration Association (AAA). The arbitration shall be other employees/contractors in violation of the
conducted in New York, New York under the AAA’s preceding paragraph, the Company agrees to pay to
Commercial Arbitration Rules, and the arbitrators shall AlixPartners as liquidated damages and not as a penalty
issue a reasoned award. The arbitrators may award the sum total of: (i) for a Managing Director,
costs and attorneys’ fees to the prevailing party. $1,000,000; (ii) for a Director, $500,000; and (iii) for
Judgment on the award rendered by the arbitrators any other employee/contractor, $250,000. The
may be entered in any court having jurisdiction thereof. Company acknowledges and agrees that liquidated
damages in such amounts are (x) fair, reasonable and
Notwithstanding the foregoing, any party may proceed necessary under the circumstances to reimburse
directly to a court of competent jurisdiction to enforce AlixPartners for the costs of recruiting, hiring and
the terms of this Agreement for any claim in connection training its employees as well as the lost profits and
with (i) the non-payment of Fees or expenses due opportunity costs related to such personnel, and to
under this Agreement, or (ii) the non-performance of protect the significant investment that AlixPartners has
obligations under Section 7. made in its Managing Directors, Directors, and other
employees/ consultants; and (y) appropriate due to the
difficulty of calculating the exact amount and value of
In any court proceeding arising out of this Agreement,
that investment.
the parties hereby waive any right to trial by jury.
Section 9. Termination and Survival The provisions of this Section shall apply except to the
extent the provisions conflict with applicable law.
The Agreement may be terminated at any time by
written notice by one party to the other, or by the Firm Section 11. Limitation of Liability
(on behalf of the Company); provided, however, that
notwithstanding such termination AlixPartners will be THE ALIXPARTNERS PARTIES SHALL NOT BE LIABLE
entitled to any Fees and expenses due under the TO THE COMPANY, OR ANY PARTY ASSERTING CLAIMS
provisions of the Agreement (for fixed fee ON BEHALF OF THE COMPANY, EXCEPT FOR DIRECT
engagements, fees will be pro rata based on the DAMAGES FOUND IN A FINAL DETERMINATION TO BE
amount of time completed). Such payment obligation THE DIRECT RESULT OF THE GROSS NEGLIGENCE,
shall inure to the benefit of any successor or assignee BAD FAITH, SELF-DEALING OR INTENTIONAL
of AlixPartners. MISCONDUCT OF ALIXPARTNERS. THE ALIXPARTNERS
PARTIES SHALL NOT BE LIABLE FOR INCIDENTAL,
CONSEQUENTIAL OR SPECIAL DAMAGES, LOST
Additionally, unless the Agreement is terminated by the
PROFITS, LOST DATA, REPUTATIONAL DAMAGES,
Company due to AlixPartners’ material breach (and
PUNITIVE DAMAGES OR ANY OTHER SIMILAR
such material breach continues after 30 days’ written
DAMAGES UNDER ANY CIRCUMSTANCES, EVEN IF
notice thereof and opportunity to cure) AlixPartners
THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF
shall remain entitled to the success fee(s), if any, that
SUCH DAMAGES. THE ALIXPARTNERS PARTIES’
otherwise would be payable during the 12 months after
AGGREGATE LIABILITY, WHETHER IN TORT,
the date of termination of the Agreement.
CONTRACT, OR OTHERWISE, IS LIMITED TO THE
AMOUNT OF FEES PAID TO ALIXPARTNERS FOR
Sections 2, 4, 5, 7, 8, 9, 10, 11, 12, 13 and 14 of these SERVICES UNDER THIS AGREEMENT (OR IF THE CLAIM
Terms, the provisions of Schedule 1 and the obligation ARISES FROM AN ADDENDUM TO THIS AGREEMENT,
to pay accrued fees and expenses shall survive the UNDER THE APPLICABLE ADDENDUM) (THE “LIABILITY
expiration or termination of the Agreement. CAP”). The Liability Cap is the total limit of the
AlixPartners Parties’ aggregate liability for any and all
claims or demands by anyone pursuant to this
Agreement, including liability to the Company, to any
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AlixPartners, LLP
General Terms and Conditions
other parties hereto, and to any others making claims
relating to the work performed by AlixPartners Third-Party Beneficiaries. The AlixPartners Parties
pursuant to this Agreement. Any such claimants shall shall be third-party beneficiaries with respect to Section
allocate any amounts payable by the AlixPartners 7 hereof.
Parties among themselves as appropriate, but if they
cannot agree on the allocation it will not affect the
Notices. All notices required or permitted to be
enforceability of the Liability Cap. Under no
delivered under the Agreement shall be sent, if to
circumstances shall the aggregate of all such
AlixPartners, to:
allocations or other claims against the AlixPartners
Parties pursuant to this Agreement exceed the Liability
Cap. AlixPartners, LLP
2000 Town Center, Suite 2400
Section 12. General Southfield, MI 48075
Attention: General Counsel
Equitable Remedies. Each party acknowledges and
agrees that money damages alone may not be an and if to the Company, to the address set forth in the
adequate remedy for a breach of the Agreement. Each Agreement, to the attention of the Company’s General
party agrees that the non-breaching party shall have Counsel, or to such other name or address as may be
the right to seek a restraining order and/or an given in writing to AlixPartners. All notices under the
injunction for any breach of the Agreement. If any Agreement shall be sufficient only if delivered by
provision of the Agreement is found to be invalid or overnight mail. Any notice shall be deemed to be given
unenforceable, then it shall be deemed modified or only upon actual receipt.
restricted to the extent and in the manner necessary to
render the same valid and enforceable. Section 13. Bankruptcy Related Matters
Severability. If any portion of the Agreement shall be Notwithstanding any to the contrary in these Terms, in
determined to be invalid or unenforceable, the the event the Company files for protection under the
remainder shall be valid and enforceable to the U.S. Bankruptcy Code, the following provisions will
maximum extent possible. prevail:
The Company shall promptly apply to the Bankruptcy
Entire Agreement. This Agreement, including the
Court for approval of the Company’s retention of
letter, the Terms and the schedule(s), contains the
AlixPartners under the terms of the Agreement. The
entire understanding of the parties relating to the
form of retention application and proposed order shall
services to be rendered by AlixPartners and supersedes
be reasonably acceptable to AlixPartners. AlixPartners
any other communications, agreements,
shall have no obligation to provide any further services
understandings, representations, or estimates among
if the Company becomes a debtor under the U.S.
the parties (relating to the subject matter hereof) with
Bankruptcy Code unless AlixPartners’ retention under
respect to such services. The Agreement, including the
the terms of the Agreement is approved by a final order
letter, the Terms and the schedule(s), may not be
of the Bankruptcy Court reasonably acceptable to
amended or modified in any respect except in a writing
AlixPartners. The Company shall assist, or cause its
signed by the parties. AlixPartners is not responsible for
counsel to assist, with filing, serving and noticing of
performing any services not specifically described
papers related to AlixPartners’ fee and expense
herein or in a subsequent writing signed by the parties.
matters.
Related Matters. If an AlixPartners Party is required
The Company and AlixPartners agree that the
by applicable law, legal process or government action
Bankruptcy Court shall have exclusive jurisdiction over
to produce information or testimony as a witness with
any and all matters arising under or in connection with
respect to this Agreement, the Company shall
this Agreement.
reimburse AlixPartners for any professional time and
expenses (including reasonable external and internal
legal costs and e-discovery costs) incurred to respond AlixPartners will have the right to obtain independent
to the request, except in cases where an AlixPartners legal counsel to obtain advice with respect to its
Party is a party to the proceeding or the subject of the services under this engagement. The Company will
investigation. reimburse AlixPartners’ for the reasonable fees and
expenses of such independent legal counsel.
Joint and Several. If more than one party signs this
Agreement, the liability of each party shall be joint and AlixPartners acknowledges that, during the pendency of
several. In addition, in the event more than one entity any Bankruptcy Court approved retention, the
is included in the definition of Company under this indemnification provisions and Liability Cap set forth
Agreement, the Company shall cause each other entity above may be subject to modification as stated within
which is included in the definition of Company to be the Bankruptcy Court’s retention order.
jointly and severally liable for the Company’s liabilities
and obligations set forth in this Agreement. The Firm Due to the ordinary course and unavoidable
shall not have any liability, whether joint or several, reconciliation of fees and submission of expenses
with respect to liabilities arising out of this Agreement, immediately prior to, and subsequent to, the date of
unless otherwise specified herein. filing, AlixPartners may have incurred but not billed
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AlixPartners, LLP
General Terms and Conditions
fees and reimbursable expenses which relate to the
prepetition period. AlixPartners will seek Bankruptcy
Court approval to apply the retainer to these amounts.
If AlixPartners finds it desirable to augment its
consulting staff with independent contractors (an “I/C”)
in this case, (i) AlixPartners will file, and require the I/C
to file, 2014 affidavits indicating that the I/C has
reviewed the list of the interested parties in this case,
disclosing the I/C’s relationships, if any, with the
interested parties and indicating that the I/C is
disinterested; (ii) the I/C must remain disinterested
during the time that AlixPartners is involved in
providing services on behalf of the Company; and (iii)
the I/C must represent that he/she will not work for the
Company or other parties in interest in this case during
the time AlixPartners is involved in providing services
to the Company. AlixPartners’ standard practice is to
charge for an I/C’s services at the rate equal to the
compensation provided by AlixPartners to such I/C.
Section 14. Data Protection
To the extent applicable, the Company and AlixPartners
shall comply with the terms of the AlixPartners Data
Protection Addendum (located at:
https://www.alixpartners.com/policies/processor-
data-protection-addendum/), which form part of the
Agreement. The Data Protection Schedule of this
Agreement shall apply to the Data Protection
Addendum.
Page 10 of 10
Case 22-10951-CTG Doc 16-2 Filed 10/04/22 Page 12 of 21
September 22, 2022
Kabbage, Inc. d/b/a KServicing
Ms. Laquisha Milner
925B Peachtree St. NE
Suite 383
Atlanta, GA 30309
Re: Agreement for Consulting Services
Dear Laquisha:
This letter, together with the attached Schedules and General Terms and Conditions, sets
forth the agreement (“Agreement”) between AlixPartners, LLP (“AlixPartners”) and Kabbage,
Inc. d/b/a KServicing and certain of its affiliates and subsidiaries (the “Company”) for the
engagement of AlixPartners to provide consulting services to the Company.
This letter supersedes and replaces in its entirety that certain agreement between
AlixPartners, LLP and Weil, Gotshal & Manges LLP, as counsel to the Company, dated
April 25, 2022 (the “Initial Engagement Letter”). For the avoidance of doubt, any fees and
expenses due and owing under said Initial Engagement Letter remain valid and payable. All
defined terms shall have the meanings ascribed to them in this letter and in the attached
Schedules, Exhibit and General Terms and Conditions. The Company and AlixPartners are
each a “party,” and together the “parties.”
AlixPartners understands that the Company plans to file for protection under Chapter 11 of
the United States Bankruptcy Code in the coming weeks.
Objectives and Tasks
The responsibilities of AlixPartners will be as follows:
Restructuring
x Work with the Company and its team to further identify and implement both short-
term and long-term liquidity generating and cost reduction initiatives.
x Assist the Company in developing a global wind-down plan and a detailed work plan
identifying key milestones and in setting appropriate priorities.
x Assist Company management and its professionals specifically assigned to sourcing,
negotiating and implementing any financing (including DIP and exit financing
facilities, as may be appropriate) in conjunction with the Plan of Reorganization and
the overall restructuring.
x Assist management of the Company in the design and implementation of a
restructuring strategy designed to maximize value, taking into account the unique
interests of all constituencies.
x Work with senior management to negotiate and implement restructuring initiatives
and evaluate strategic alternatives.
AlixPartners | 909 Third Avenue, 30th Floor | New York, NY 10022 | 212.490.2500 | alixpartners.com
Case 22-10951-CTG Doc 16-2 Filed 10/04/22 Page 13 of 21
Kabbage, Inc. d/b/a KServicing
Page 2 of 10
Communication with Outsiders
x Assist in negotiations with stakeholders and their representatives regarding the
restructuring.
x Assist in negotiations with potential acquirers of Company assets.
x Assist in communication and/or negotiate and implement restructuring initiatives and
evaluate strategic alternatives.
Bankruptcy Case Management
x Assist in managing the “working group” of professionals who are assisting the
Company in the winddown process or who are working for the Company’s various
stakeholders to improve coordination of their effort and individual work product to be
consistent with the Company’s overall restructuring goals.
x Assist in obtaining and presenting information required by parties in interest in the
Company’s bankruptcy process, including official committees appointed by the United
States Bankruptcy Court (the “Court”) and the Court itself.
x Assist the Company in other business and financial aspects of a Chapter 11
proceeding, including, but not limited to, development of a Disclosure Statement,
Plan of Reorganization, first day motions and petitions.
x Assist with the preparation of the statement of affairs, schedules and other regular
reports required by the Court as well as provide assistance in such areas as
testimony before the Court on matters that are with AlixPartners’ areas of expertise.
x Assist as requested in supporting any litigation that may be brought against the
Company in the Court.
x Assist as requested in analyzing preferences and other avoidance actions.
x Manage the claims and claims reconciliation processes.
x Assist the Company with electronic data collection.
Finance and Cash Management
x Assist the Company with providing financial leadership and support.
x Assist the Company and its management in developing and maintaining a short-term
cash flow forecasting tool and related methodologies and to assist with planning for
alternatives as requested by the Company
x Assist the Company in developing an actual to forecast variance reporting mechanism
including written explanations of key differences.
Miscellaneous
x Assist with such other matters as may be requested that fall with AlixPartners’
expertise and that are mutually agreeable.
Case 22-10951-CTG Doc 16-2 Filed 10/04/22 Page 14 of 21
Kabbage, Inc. d/b/a KServicing
Page 3 of 10
Staffing
Eric Koza and Deborah Rieger-Paganis will be the managing directors responsible for the
overall engagement, assisted by a staff of consultants at various levels who have a wide
range of skills and abilities related to this type of assignment. In addition, AlixPartners has
relationships with, and may periodically use, independent contractors with specialized skills
and abilities to assist in this engagement.
We will periodically review the staffing levels to determine the proper mix for this
assignment. We will only use the necessary staff required to complete the requested or
planned tasks.
Timing, Fees and Retainer
AlixPartners will commence this engagement on or about September 27, 2022 pending
receipt of a copy of the executed Agreement.
The Company shall compensate AlixPartners for its services, and reimburse AlixPartners for
expenses, as set forth on Schedule 1.
Upon the effectiveness of this Agreement, the Company expressly agrees that it approves
the transfer of any unapplied retainer under the Initial Engagement Letter to be held by
AlixPartners in accordance with this Agreement.
Case 22-10951-CTG Doc 16-2 Filed 10/04/22 Page 15 of 21
Case 22-10951-CTG Doc 16-2 Filed 10/04/22 Page 16 of 21
Schedule 1
Fees and Expenses
1. Fees: AlixPartners’ fees will be based on the hours spent by AlixPartners personnel at
AlixPartners’ hourly rates, which are:
Managing Director US$1,060 – US$1,335
Director US$840 – US$990
Senior Vice President US$700 – US$795
Vice President US$510 – US$685
Consultant US$190 – US$505
Paraprofessional US$320 – US$340
AlixPartners generally reviews and revises its billing rates semi-annually.
2. Success Fee: AlixPartners does not seek a success fee in connection with this
engagement.
3. Expenses: In addition to the Fees set forth in this Schedule, the Company shall pay
directly, or reimburse AlixPartners upon receipt of periodic billings, for all reasonable
out-of-pocket expenses incurred in connection with this assignment, such as travel,
lodging and meals.
4. Break Fee: AlixPartners does not seek a break fee in connection with this engagement.
5. Retainer: The Company provided AlixPartners with a retainer of US$500,000 under the
Initial Engagement Letter (the “Retainer”). Any balance of this Retainer will be
transferred to this engagement and held as an evergreen retainer, pending approval of
the Court, or applied to approved post-petition fees and expenses if an evergreen
retainer is not approved.
6. Payment: AlixPartners will submit monthly invoices for services rendered and expenses
incurred. All invoices shall be due and payable immediately upon receipt.
Page 5 of 10
Case 22-10951-CTG Doc 16-2 Filed 10/04/22 Page 17 of 21
Data Protection Schedule
Description of Transfer
1. Categories of Data Subjects
X Employees / Members / Contractors of Data Controller
X Clients of Data Controller
Other:
2. Types of Personal Data
Background Check Data (Criminal History, Drug Test Results, References, etc.)
Biometric Data (Facial Recognition, Fingerprints, Voice Recording, etc.)
Browsing Data (Cookies, Website History, IP Address, etc.)
X Contact Information (Contact Details, Address, Email Address, Phone Numbers, etc.)
X Education and Skills (Academic Transcripts, Educational Degrees, Languages, Training, etc.)
X Employment Information (Compensation, Job Title, Personnel Number, Workers Comp, Office Location, etc.)
Family Information (Children, Parents, etc.)
X Financial Personal Information (Bank Accounts, Credit Card Numbers, etc.)
Genetic Information (Genetic Sequence)
Government Identifiers (National Identification Number, SSN, Driving License, etc.)
X Personal Identifiers (Name, Age, Date of Birth, Race, Video/Photo, Signature, etc.)
Professional Experience & Affiliations (Trade Union Membership, Qualifications/Certifications, etc.)
Social Media Data (Social Media Accounts, Social Media History, etc.)
Travel and Expense (Travel History, Expense Details, etc.)
User Account Information (Account Age, Account Number, Account Password, etc.)
Workplace Welfare (Harassment Reports, Disciplinary Action, etc.)
Other:
3. Frequency of Data Transfers
The frequency of the transfer will be continuous (multiple transfers).
4. Processing by AlixPartners
4.1. Nature of processing: The nature of processing will include receiving, storing, analyzing,
transmitting to appropriate parties, and disposing of Personal Data.
4.2. Purpose of the data transfer and further processing: The purpose of processing is to provide the
services described in the agreement above.
4.3. The period for which the personal data will be retained, or if the period is not known, the criteria
used to determine the period: AlixPartners will process Personal Data for the duration of the
engagement.
4.4. Transfer to Sub-processors: Sub-processors may process Personal Data for the duration of the
engagement life cycle and for the purposes specified above. See
https://www.alixpartners.com/policies/subprocessors/ for a list of sub-processors.
Page 6 of 10
Case 22-10951-CTG Doc 16-2 Filed 10/04/22 Page 18 of 21
AlixPartners, LLP
General Terms and Conditions
These General Terms and Conditions (“Terms”) are incorporated into the Agreement to which these Terms are
attached. In case of conflict between the wording in the letter and/or schedule(s) and these Terms, the wording of
the letter and/or schedule(s) shall prevail.
and agents, and paying all bills, expenses and other
Section 1. Company Responsibilities charges incurred or payable with respect to the
operation of its business. Employees of AlixPartners will
The Company will undertake responsibilities as set forth not be entitled to receive from the Company any
below: vacation pay, sick leave, retirement, pension or social
security benefits, workers’ compensation, disability,
1. Provide reliable and accurate detailed information, unemployment insurance benefits or any other
materials, documentation and employee benefits. AlixPartners will be responsible for
all employment, withholding, income and other taxes
incurred in connection with the operation and conduct
2. Make decisions and take future actions, as the
of its business. Nothing in this Agreement is intended
Company determines in its sole discretion, on any
to create, nor shall be deemed or construed to create a
recommendations made by AlixPartners in connection
fiduciary or agency relationship between AlixPartners
with this Agreement.
and the Company.
AlixPartners’ delivery of the services and the fees
AlixPartners is providing advisory and consulting
charged are dependent on (i) the Company’s timely and
services only, and will not make management decisions
effective completion of its responsibilities; and (ii)
for the Company. While AlixPartners may from time to
timely decisions and approvals made by the Company’s
time suggest options that may be available to the
management.
Company, the ultimate decision as to such options rests
with the Company, and AlixPartners makes no promise
or guarantee about the outcome of the Company’s
Section 2. Retainer, Billing, Payments and Taxes
matters.
Retainer. If the Company becomes a debtor under the
Bankruptcy Code, due to the ordinary course and AlixPartners is not an accounting firm and does not give
unavoidable reconciliation of fees and submission of accounting advice or guidance. While AlixPartners’
expenses immediately prior to, and subsequent to, the work may involve analysis of accounting, business and
date of filing, AlixPartners may have incurred but not other related records, this engagement does not
billed fees and reimbursable expenses which relate to constitute an audit in accordance with either generally
the prepetition period. AlixPartners will seek Court accepted auditing standards or the standards of the
approval to apply the retainer and any advance Public Company Accounting Oversight Board or any
payments to these amounts. other similar governing body.
Billing and Payments. All payments to be made to AlixPartners is not authorized to practice law or provide
AlixPartners shall be due and payable upon delivery of legal advice. No services provided under this
invoice via check or wire transfer to AlixPartners’ bank Agreement are intended to be, nor should be construed
account, as shown on the invoice. All amounts invoiced to be, legal services.
are based on services rendered and expenses incurred
to date, and are not contingent upon future services or Section 4. Confidentiality
Work Product (as defined below), or the outcome of any
case or matter. “Fees,” as used in this Agreement, shall Each party shall use reasonable efforts, but in no event
include all amounts payable by the Company to less effort than it would use to protect its own
AlixPartners in accordance with Schedule 1, including confidential information, to keep confidential all non-
any success fee or break fee, but excluding public confidential or proprietary information obtained
reimbursable expenses. from the other party during the performance of
AlixPartners’ services hereunder (the “Confidential
Information”), and neither party will disclose any
Taxes. AlixPartners’ fees are exclusive of taxes or
Confidential Information to any other person or entity.
similar charges, which shall be the responsibility of the
“Confidential Information” includes the terms of this
Company (other than taxes imposed on AlixPartners’
Agreement, non-public confidential and proprietary
income generally). If AlixPartners’ fees are subject to
data, plans, reports, schedules, drawings, accounts,
any taxes, such as State sales tax, Goods and Services
records, calculations, specifications, flow sheets,
Tax/Harmonized Sales Tax or Value Added Tax, then
computer programs, source or object codes, results,
AlixPartners will include such taxes on its invoices as
models or any work product relating to the business of
separate line items.
either party, its subsidiaries, distributors, affiliates,
vendors, customers, employees, contractors and
Section 3. Relationship of the Parties
consultants.
The parties intend that an independent contractor
relationship will be created by the Agreement. As an The foregoing is not intended to prohibit, nor shall it be
independent contractor, AlixPartners will have construed as prohibiting, AlixPartners from making
complete and exclusive charge of the management and such disclosures of Confidential Information that
operation of its business, including hiring and paying AlixPartners reasonably believes are required by law or
the wages and other compensation of all its employees any regulatory requirement or authority to clear client
conflicts. AlixPartners may also disclose Confidential
Page 7 of 10
Case 22-10951-CTG Doc 16-2 Filed 10/04/22 Page 19 of 21
AlixPartners, LLP
General Terms and Conditions
Information to its partners, directors, officers, The Company acknowledges and agrees, except as
employees, independent contractors and agents who otherwise set forth in this Agreement, that any
have a need to know the Confidential Information as it Engagement Tools provided to the Company are
relates to the services being provided under this provided “as is” and without any warranty or condition
Agreement, provided AlixPartners is responsible for any of any kind, express, implied or otherwise, including,
breach of these confidentiality obligations by any such implied warranties of merchantability or fitness for a
parties. AlixPartners may make reasonable disclosures particular purpose.
of Confidential Information to third parties, such as the
Company’s suppliers and/or vendors, in connection Section 6. Framework of the Engagement
with the performance of AlixPartners’ obligations and
assignments hereunder, provided AlixPartners The Company acknowledges that it is retaining
reasonably believes that such third party is bound by AlixPartners solely to assist and advise the Company as
confidentiality obligations. In addition, AlixPartners will described in the Agreement. This engagement shall not
have the right to disclose to any person that it provided constitute an audit, review or compilation, or any other
services to the Company or its affiliates and a general type of financial statement reporting engagement.
description of such services, but shall not provide any
other information about its involvement with the Section 7. Indemnification and Other Matters
Company. The obligations of the parties under this
Section 4 shall survive the end of any engagement The Company shall indemnify, hold harmless and
between the parties for a period of three (3) years. defend AlixPartners and its affiliates and its and their
partners, directors, officers, employees and agents
Work Product (as defined in Section 5) may contain (collectively, the “AlixPartners Parties”) from and
AlixPartners proprietary information or other against all claims, liabilities, losses, expenses and
information that is deemed to be Confidential damages arising out of or in connection with the
Information for purposes of this Agreement, and the engagement of AlixPartners that is the subject of the
parties may not want to make public. Therefore, the Agreement. The Company shall pay damages and
parties acknowledge and agree that (i) all information expenses as incurred, including reasonable legal fees
(written or oral), including advice and Work Product (as and disbursements of counsel. If, in the opinion of
defined in Section 5), generated by AlixPartners in counsel, representing both parties in the matter
connection with this engagement is intended solely for covered by this indemnification creates a potential
the benefit and use of the Company in connection with conflict of interest, the AlixPartners Parties may engage
this Agreement, and (ii) no such information shall be separate counsel to represent them at the Company’s
used for any other purpose or disseminated to any third expense.
parties, or, quoted or referred to with or without
attribution to AlixPartners at any time in any manner or The Company’s indemnification obligations in this
for any purpose without AlixPartners’ prior approval Section 7 shall be primary to, and without allocation
(not to be unreasonably withheld or delayed), except against, any similar indemnification obligations that
as required by law. The Company may not rely on any AlixPartners may offer to its personnel generally.
draft or interim Work Product.
AlixPartners is not responsible for any third-party
Section 5. Intellectual Property products or services separately procured by the
Company. The Company’s sole and exclusive rights and
All analyses, final reports, presentation materials, and remedies with respect to any such third party products
other work product (other than any Engagement Tools, or services are against the third-party vendor and not
as defined below) that AlixPartners creates or develops against AlixPartners, whether or not AlixPartners is
specifically for the Company and delivers to the instrumental in procuring such third-party product or
Company as part of this engagement (collectively service.
known as “Work Product”) shall be owned by the
Company and shall constitute Company Confidential Section 8. Governing Law and Arbitration
Information as defined above. AlixPartners may retain
copies of the Work Product and any Confidential The Agreement is governed by and shall be construed
Information necessary to support the Work Product in accordance with the laws of the State of New York
subject to its confidentiality obligations in this with respect to contracts made and to be performed
Agreement. entirely therein and without regard to choice of law or
principles thereof.
All methodologies, processes, techniques, ideas,
concepts, know-how, procedures, software, tools, Any controversy or claim arising out of or relating to
templates, models, utilities and other intellectual the Agreement, or the breach thereof, shall be settled
property that AlixPartners has created, acquired or by arbitration. Each party shall appoint one non-neutral
developed or will create, acquire or develop arbitrator. The two party arbitrators shall select a third
(collectively, “Engagement Tools”), are, and shall be, arbitrator. If within 30 days after their appointment the
the sole and exclusive property of AlixPartners. The two party arbitrators do not select a third arbitrator,
Company shall not acquire any interest in the the third arbitrator shall be selected by the American
Engagement Tools other than a limited worldwide, Arbitration Association (AAA). The arbitration shall be
perpetual, non-transferable license to use the conducted in New York, New York under the AAA’s
Engagement Tools to the extent they are contained in Commercial Arbitration Rules, and the arbitrators shall
the Work Product. issue a reasoned award. The arbitrators may award
costs and attorneys’ fees to the prevailing party.
Page 8 of 10
Case 22-10951-CTG Doc 16-2 Filed 10/04/22 Page 20 of 21
AlixPartners, LLP
General Terms and Conditions
Judgment on the award rendered by the arbitrators training its employees as well as the lost profits and
may be entered in any court having jurisdiction thereof. opportunity costs related to such personnel, and to
protect the significant investment that AlixPartners has
Notwithstanding the foregoing, any party may proceed made in its Managing Directors, Directors, and other
directly to a court of competent jurisdiction to enforce employees/ consultants; and (y) appropriate due to the
the terms of this Agreement for any claim in connection difficulty of calculating the exact amount and value of
with (i) the non-payment of Fees or expenses due that investment.
under this Agreement, or (ii) the non-performance of
obligations under Section 7. The provisions of this Section shall apply except to the
extent the provisions conflict with applicable law.
In any court proceeding arising out of this Agreement,
the parties hereby waive any right to trial by jury. Section 11. Limitation of Liability
Section 9. Termination and Survival THE ALIXPARTNERS PARTIES SHALL NOT BE LIABLE TO
THE COMPANY, OR ANY PARTY ASSERTING CLAIMS ON
The Agreement may be terminated at any time by BEHALF OF THE COMPANY, EXCEPT FOR DIRECT
written notice by one party to the other; provided, DAMAGES FOUND IN A FINAL DETERMINATION TO BE
however, that notwithstanding such termination THE DIRECT RESULT OF THE GROSS NEGLIGENCE,
AlixPartners will be entitled to any Fees and expenses BAD FAITH, SELF-DEALING OR INTENTIONAL
due under the provisions of the Agreement (for fixed MISCONDUCT OF ALIXPARTNERS. THE ALIXPARTNERS
fee engagements, fees will be pro rata based on the PARTIES SHALL NOT BE LIABLE FOR INCIDENTAL,
amount of time completed). Such payment obligation CONSEQUENTIAL OR SPECIAL DAMAGES, LOST
shall inure to the benefit of any successor or assignee PROFITS, LOST DATA, REPUTATIONAL DAMAGES,
of AlixPartners. PUNITIVE DAMAGES OR ANY OTHER SIMILAR
DAMAGES UNDER ANY CIRCUMSTANCES, EVEN IF
THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF
Additionally, unless the Agreement is terminated by the
SUCH DAMAGES. THE ALIXPARTNERS PARTIES’
Company due to AlixPartners’ material breach (and
AGGREGATE LIABILITY, WHETHER IN TORT,
such material breach continues after 30 days’ written
CONTRACT, OR OTHERWISE, IS LIMITED TO THE
notice thereof and opportunity to cure) AlixPartners
AMOUNT OF FEES PAID TO ALIXPARTNERS FOR
shall remain entitled to the success fee(s), if any, that
SERVICES UNDER THIS AGREEMENT (OR IF THE CLAIM
otherwise would be payable during the 12 months after
ARISES FROM AN ADDENDUM TO THIS AGREEMENT,
the date of termination of the Agreement.
UNDER THE APPLICABLE ADDENDUM) (THE “LIABILITY
CAP”). The Liability Cap is the total limit of the
Sections 2, 4, 5, 7, 8, 9, 10, 11, 12, 13 and 14 of these AlixPartners Parties’ aggregate liability for any and all
Terms, the provisions of Schedule 1 and the obligation claims or demands by anyone pursuant to this
to pay accrued fees and expenses shall survive the Agreement, including liability to the Company, to any
expiration or termination of the Agreement. other parties hereto, and to any others making claims
relating to the work performed by AlixPartners
Section 10. Non-Solicitation of Employees pursuant to this Agreement. Any such claimants shall
allocate any amounts payable by the AlixPartners
The Company acknowledges and agrees that Parties among themselves as appropriate, but if they
AlixPartners has made a significant monetary cannot agree on the allocation it will not affect the
investment recruiting, hiring and training its personnel. enforceability of the Liability Cap. Under no
During the term of this Agreement and for a period of circumstances shall the aggregate of all such
two years after the final invoice is rendered by allocations or other claims against the AlixPartners
AlixPartners with respect to this engagement (the Parties pursuant to this Agreement exceed the Liability
“Restrictive Period”), the Company and its affiliates Cap.
agree not to directly or indirectly hire, contract with, or
solicit the employment of any of AlixPartners’ Managing Section 12. General
Directors, Directors, or other employees/
contractors the Company or its affiliates had Equitable Remedies. Each party acknowledges and
interactions with or gained knowledge about as a result agrees that money damages alone may not be an
of the services provided under this Agreement. adequate remedy for a breach of the Agreement. Each
party agrees that the non-breaching party shall have
If during the Restrictive Period the Company or its the right to seek a restraining order and/or an
affiliates directly or indirectly hires or contracts with injunction for any breach of the Agreement. If any
any of AlixPartners’ Managing Directors, Directors, or provision of the Agreement is found to be invalid or
other employees/contractors in violation of the unenforceable, then it shall be deemed modified or
preceding paragraph, the Company agrees to pay to restricted to the extent and in the manner necessary to
AlixPartners as liquidated damages and not as a penalty render the same valid and enforceable.
the sum total of: (i) for a Managing Director,
$1,000,000; (ii) for a Director, $500,000; and (iii) for Severability. If any portion of the Agreement shall be
any other employee/contractor, $250,000. The determined to be invalid or unenforceable, the
Company acknowledges and agrees that liquidated remainder shall be valid and enforceable to the
damages in such amounts are (x) fair, reasonable and maximum extent possible.
necessary under the circumstances to reimburse
AlixPartners for the costs of recruiting, hiring and
Entire Agreement. This Agreement, including the
Page 9 of 10
Case 22-10951-CTG Doc 16-2 Filed 10/04/22 Page 21 of 21
AlixPartners, LLP
General Terms and Conditions
letter, the Terms and the schedule(s), contains the if the Company becomes a debtor under the U.S.
entire understanding of the parties relating to the Bankruptcy Code unless AlixPartners’ retention under
services to be rendered by AlixPartners and supersedes the terms of the Agreement is approved by a final order
any other communications, agreements, of the Bankruptcy Court reasonably acceptable to
understandings, representations, or estimates among AlixPartners. The Company shall assist, or cause its
the parties (relating to the subject matter hereof) with counsel to assist, with filing, serving and noticing of
respect to such services. The Agreement, including the papers related to AlixPartners’ fee and expense
letter, the Terms and the schedule(s), may not be matters.
amended or modified in any respect except in a writing
signed by the parties. AlixPartners is not responsible for The Company and AlixPartners agree that the
performing any services not specifically described Bankruptcy Court shall have exclusive jurisdiction over
herein or in a subsequent writing signed by the parties. any and all matters arising under or in connection with
this Agreement.
Related Matters. If an AlixPartners Party is required
by applicable law, legal process or government action AlixPartners will have the right to obtain independent
to produce information or testimony as a witness with legal counsel to obtain advice with respect to its
respect to this Agreement, the Company shall services under this engagement. The Company will
reimburse AlixPartners for any professional time and reimburse AlixPartners’ for the reasonable fees and
expenses (including reasonable external and internal expenses of such independent legal counsel.
legal costs and e-discovery costs) incurred to respond
to the request, except in cases where an AlixPartners
AlixPartners acknowledges that, during the pendency of
Party is a party to the proceeding or the subject of the
any Bankruptcy Court approved retention, the
investigation.
indemnification provisions and Liability Cap set forth
above may be subject to modification as stated within
Joint and Several. If more than one party signs this the Bankruptcy Court’s retention order.
Agreement, the liability of each party shall be joint and
several. In addition, in the event more than one entity
Due to the ordinary course and unavoidable
is included in the definition of Company under this
reconciliation of fees and submission of expenses
Agreement, the Company shall cause each other entity
immediately prior to, and subsequent to, the date of
which is included in the definition of Company to be
filing, AlixPartners may have incurred but not billed
jointly and severally liable for the Company’s liabilities
fees and reimbursable expenses which relate to the
and obligations set forth in this Agreement.
prepetition period. AlixPartners will seek Bankruptcy
Court approval to apply the retainer to these amounts.
Third-Party Beneficiaries. The AlixPartners Parties
shall be third-party beneficiaries with respect to Section
If AlixPartners finds it desirable to augment its
7 hereof.
consulting staff with independent contractors (an “I/C”)
in this case, (i) AlixPartners will file, and require the I/C
Notices. All notices required or permitted to be to file, 2014 affidavits indicating that the I/C has
delivered under the Agreement shall be sent, if to reviewed the list of the interested parties in this case,
AlixPartners, to: disclosing the I/C’s relationships, if any, with the
interested parties and indicating that the I/C is
AlixPartners, LLP disinterested; (ii) the I/C must remain disinterested
2000 Town Center, Suite 2400 during the time that AlixPartners is involved in
Southfield, MI 48075 providing services on behalf of the Company; and (iii)
Attention: General Counsel the I/C must represent that he/she will not work for the
Company or other parties in interest in this case during
and if to the Company, to the address set forth in the the time AlixPartners is involved in providing services
Agreement, to the attention of the Company’s General to the Company. AlixPartners’ standard practice is to
Counsel, or to such other name or address as may be charge for an I/C’s services at the rate equal to the
given in writing to AlixPartners. All notices under the compensation provided by AlixPartners to such I/C.
Agreement shall be sufficient only if delivered by
overnight mail. Any notice shall be deemed to be given Section 14. Data Protection
only upon actual receipt.
To the extent applicable, the Company and AlixPartners
Section 13. Bankruptcy Related Matters shall comply with the terms of the AlixPartners Data
Protection Addendum (located at:
Notwithstanding any to the contrary in these Terms, in https://www.alixpartners.com/policies/processor-
the event the Company files for protection under the data-protection-addendum/), which form part of the
U.S. Bankruptcy Code, the following provisions will Agreement. The Data Protection Schedule of this
prevail: Agreement shall apply to the Data Protection
Addendum.
The Company shall promptly apply to the Bankruptcy
Court for approval of the Company’s retention of
AlixPartners under the terms of the Agreement. The
form of retention application and proposed order shall
be reasonably acceptable to AlixPartners. AlixPartners
shall have no obligation to provide any further services
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