Kabbage - Omni 327(a) Retention Application As filed, Doc. 17-1 — In re KServicing Wind Down Corp., et al.

Summary

Doc 17-1 in Case 22-10951-CTG, filed October 4, 2022, is Exhibit A, the Engagement Agreement: a Standard Services Agreement dated as of September 16, 2022 between Omni Agent Solutions and Kabbage, Inc. d/b/a KServicing and affiliated Kabbage entities, made in connection with potential chapter 11 cases. Omni agrees to provide case administration services including the creditor matrix, schedules, claims management, noticing, plan solicitation and distribution. Services are billed at rates ranging from $52.50 to $187.50 per hour, with a $30,000 credit against prepetition fees and a retainer of $25,000. The agreement also covers retention under 28 U.S.C. § 156(c) and section 327(a), confidentiality, termination, indemnification and limitations of liability. The final pages set out the rate structure for noticing, call center, document management and claims administration.

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Case 22-10951-CTG Doc17-1 Filed 10/04/22 Page1of15

Exhibit A

Engagement Agreement

RLF1 28018302v.1
Case 22-10951-CTG Doci7-1 Filed 10/04/22 Page 2of15

STANDARD SERVICES AGREEMENT

This Agreement is entered into as of September 16, 2022, between (1) Omni Agent
Solutions (“Omni”) and (Il) 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 (“KAEF2020, and collectively with Kabbage, Kabbage Canada, KAS, KAF2017,
KAF 2019, 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

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 lawhereunder.

Il. 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”). /n 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 Doci7-1 Filed 10/04/22 Page3of15

(b) Rates may be adjusted annually on January 2d 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
“Einal 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 Doci7-1 Filed 10/04/22 Page 4of15

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

IIT. 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 Doci7-1 Filed 10/04/22 Page5of15

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.

Vil. 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.
Case 22-10951-CTG Doci7-1 Filed 10/04/22 Page6of15

(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.

Vill. 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 Doci7-1 Filed 10/04/22 Page /7of15

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.

Xl. LIMITATIONS OF LIABILITY

Except as expressly provided herein, Omnis 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.

Xll. 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.

Xlill. 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 Doci7-1 Filed 10/04/22 Page 8of15

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 Doci7-1 Filed 10/04/22 Page9of15

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: hloiseau@ kservicecorp.com

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 Doci7-1 Filed 10/04/22 Page10of15

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

OMNI AGENT SOLUTIONS

Lbhite

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

a 6, yo 2020-A LLC
By: b/ )

Name} Holl, Loiseau
Title: ~ General Counsel

Case 22-10951-CTG Doci17-1 Filed 10/04/22 Page11of15

EXHIBIT

A”
Case 22-10951-CTG Doci7-1 Filed 10/04/22 Page12of15

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 &

$52.50 - $139.50

Technology
Staff/Consultants
Project Managers and Sr.
Project Managers $52.50 - $150
$52.50 - $150

Consultants

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 Doci17-1 Filed 10/04/22 Page13o0f15

Overtime Charges

No charge

Printing and Noticing Services Rates

Copying/Printing $0.10 per image
Personalization, Labels, and $0,035 each
Envelopes
Preferred Rates

Postage, Courier, etc.

Electronic Noticing -

$0.10 per image

Facsimile
Electronic Noticing - Email No charge
Legal Notice Publishing Preferred Rates
Electronic Solicitation N/A

Services

Call Center Rates

Standard Call Center Setup No charge

Voicemail Box No charge
Interactive Voice Response Waived
Monthly Maintenance Fee Waived

(Call Center Services)

Document Management Rates

Database and System Access

No charge

Case 22-10951-CTG Doci7-1 Filed 10/04/22 Page14of15

Document Scanning $0.08 per image
Document Storage - Paper No charge
Document Storage -
Electronic No charge
Hosting Case-Specific No charge

Website

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 Doci17-1 Filed 10/04/22 Page15o0f15

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

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