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Kabbage - Omni 327(a) Retention Application As filed, Doc. 17-3 — In re KServicing Wind Down Corp., et al.

Date
2022-10-04

Source document: Kabbage - Omni 327(a) Retention Application As filed; document type: technology-provider-materials.

Full text

RLF1 28018302v.1
Exhibit C
Proposed Order

Case 22-10951-CTG    Doc 17-3    Filed 10/04/22    Page 1 of 5

RLF1 28018302v.1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
------------------------------------------------------------ x

:

In re
:
Chapter 11

:

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

:

:

Debtors.1
:
(Jointly Administered)

:

------------------------------------------------------------ x

ORDER AUTHORZING DEBTORS
TO EMPLOY AND RETAIN OMNI AGENT SOLUTIONS, INC.
AS ADMINISTRATIVE AGENT EFFECTIVE AS OF THE PETITION DATE

Upon the application (the “Application”)2 of Kabbage Inc. d/b/a KServicing and
its debtor affiliates, as debtors and debtors in possession in the Chapter 11 Cases (collectively,
the “Debtors”), for entry of an order pursuant to section 327(a) of the Bankruptcy Code,
Bankruptcy Rules 2014(a) and 2016, and Local Rules 2014-1 and 2016-2 authorizing the Debtors
to retain and employ Omni as Administrative Agent effective as of the Petition Date, all as more
fully set forth in the Application; and upon consideration of the First Day Declaration; and the
Court having jurisdiction to consider the Application and the relief requested therein pursuant to
28 U.S.C. §§ 157 and 1334, and the Amended Standing Order of Reference from the United States
District Court for the District of Delaware, dated February 29, 2012; and consideration of the
Application and the requested relief being a core proceeding pursuant to 28 U.S.C. § 157(b); and

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, as applicable are: Kabbage, Inc. d/b/a KServicing (3937); Kabbage Canada Holdings, LLC (N/A); Kabbage
Asset Securitization LLC (N/A); Kabbage Asset Funding 2017-A LLC (4803); Kabbage Asset Funding 2019-A LLC
(8973); and Kabbage Diameter, LLC (N/A). Kabbage is a trademark of American Express used under license;
Kabbage, Inc. d/b/a KServicing is not affiliated with American Express. The Debtors’ mailing and service address is
925B Peachtree Street NE, Suite 383, Atlanta, GA 30309.
2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the
Application.
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RLF1 28018302v.1
venue being proper before this Court pursuant to 28 U.S.C. §§ 1408 and 1409; and due and proper
notice of the Application having been provided; and such notice having been adequate and
appropriate under the circumstances; and it appearing that no other or further notice need be
provided; and this Court having reviewed the Application; and upon any hearing held on the
Application; and all objections, if any, to the Application having been withdrawn, resolved, or
overruled; and this Court having determined that the legal and factual bases set forth in the
Application establish just cause for the relief granted herein; and it appearing that the relief
requested in the Application is in the best interests of the Debtors, their estates, creditors, and all
parties in interest; and upon all of the proceedings had before this Court and after due deliberation
and sufficient cause appearing therefor,
IT IS HEREBY ORDERED THAT
1.
The Application is granted to the extent set forth herein.
2.
The Debtors are authorized, but not directed, pursuant to section 327(a) of
the Bankruptcy Code, Bankruptcy Rules 2014(a) and 2016, and Local Rules 2014-1 and 2016-2
to retain and employ Omni as Administrative Agent effective as of the Petition Date under the
terms of the Engagement Agreement, and Omni is authorized and directed to perform the Services,
and all related tasks, all as described in the Application.
3.
Omni is authorized to take such other action to comply with all duties set
forth in the Application.
4.
Omni shall apply to the Court for allowance of compensation and
reimbursement of expenses incurred after the Petition Date in accordance with the applicable
provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules, and any orders entered
in these cases regarding professional compensation and reimbursement of expenses.
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RLF1 28018302v.1
5.
The Debtors shall indemnify Omni under the terms of the Engagement
Agreement, as modified pursuant to this Order, as modified pursuant to this Order.  Omni shall not
be entitled to indemnification, contribution, or reimbursement pursuant to the Engagement
Agreement for services other than the Services provided under the Engagement Agreement, unless
such services and the indemnification, contribution or reimbursement therefor are approved by the
Court.
6.
Notwithstanding anything to the contrary in the Engagement Agreement,
the Debtors shall have no obligation to indemnify Omni, or provide contribution or reimbursement
to Omni, for any claim or expense that is either: (i) judicially determined (the determination having
become final) to have arisen from Omni’s gross negligence, willful misconduct or fraud; (ii) for a
contractual dispute in which the Debtors allege the breach of Omni’s contractual obligations if the
Court determines that indemnification, contribution, or reimbursement would not be permissible
pursuant to In re United Artists Theatre Co., 315 F.3d 217 (3d Cir. 2003); or (iii) settled prior to a
judicial determination under (i) or (ii), but determined by this Court, after notice and a hearing, to
be a claim or expense for which Omni should not receive indemnity, contribution, or
reimbursement under the terms of the Engagement Agreement as modified by this Order.
7.
To the extent applicable in the Engagement Agreement, all requests by
Omni for the payment of indemnification shall be made by means of an application to the Court
and shall be subject to review by the Court to ensure that payment of such indemnity conforms to
the terms of the Engagement Agreement and is reasonable under the circumstances of the litigation
or settlement in respect of which indemnity is sought.  In no event shall Omni be indemnified in
the case for its own negligence or willful misconduct.  All parties in interest shall retain the right
to object to any demand by Omni for indemnification, contribution, or reimbursement.
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RLF1 28018302v.1
8.
In the event that Omni seeks reimbursement from the Debtors for attorneys’
fees in connection with the payment of an indemnity claim, the invoices and supporting time
records for the attorneys’ fees and expenses shall be included in Omni’s own applications, both
interim and final, but determined by this Court after notice and a hearing.
9.
The limitation of liability provision contained in the Engagement
Agreement shall have no force and effect during the pendency of these chapter 11 cases.
10.
Notwithstanding any provision to the contrary in the Engagement Agreement,
this Order shall be immediately effective and enforceable upon its entry.
11.
Notwithstanding any term in the Engagement Agreement to the contrary,
this Court shall retain jurisdiction with respect to all matters arising from or related to the
implementation of this Order.
12.
In the event of any inconsistency between the Engagement Agreement, the
Application and this Order, this Order shall govern.
13.
Notwithstanding entry of this Order, nothing herein shall create, nor is
intended to create, any rights in favor of or enhance the status of any claim held by any party.
14.
The Debtors and Omni are authorized to take all actions necessary or
appropriate to effectuate the relief granted in this Order.
15.
This Court shall retain jurisdiction to hear and determine all matters arising
from or related to the implementation, interpretation, or enforcement of this Order.
Case 22-10951-CTG    Doc 17-3    Filed 10/04/22    Page 5 of 5

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archive.org
  1. In re Kabbage, Inc. — Schrock Declaration Supporting Retention of Weil, Gotshal & Mangessame docket · 2022-10-04
  2. Kabbage - Omni 327(a) Retention Application As filed, Doc. 17-2 — In re KServicing Wind Down Corp., et al.same docket · 2022-10-04
  3. Joint Administration Ordersame docket · 2022-10-04
  4. Kabbage - Omni 327(a) Retention Application As filed, Doc. 17-1 — In re KServicing Wind Down Corp., et al.same docket · 2022-10-04
  5. Cash Management Bridge Ordersame docket · 2022-10-04
  6. In re Kabbage, Inc. — Loiseau Declaration Supporting Retention of Weil, Gotshal & Mangessame docket · 2022-10-04
  7. Application to Retain and Employ Weil, Gotshal & Manges LLP as Debtors' Counsel — In re KServicingsame docket · 2022-10-04
  8. Retention Application — Richards, Layton & Finger, P.A. as Co-Counsel — In re KServicingsame docket · 2022-10-04
  9. Order Directing Joint Administration of Related Chapter 11 Cases — In re KServicingsame docket · 2022-10-04
  10. Disclosure Statement for Joint Chapter 11 Plan of Liquidation — In re Kabbage, Inc. (KServicing)same docket · 2022-10-05
  11. Kabbage - Notice of Revised Interim Cash Management Order, Doc. 62-2 — In re KServicing Wind Down Corp., et al.same docket · 2022-10-05
  12. Application to Retain Richards, Layton & Finger as Co-Counsel — In re Kabbage, Inc.same docket · 2022-10-05
  13. Application to Retain Omni Agent Solutions as Administrative Agent — In re Kabbage, Inc.same docket · 2022-10-05
  14. Application to Retain AlixPartners as Financial Advisor — In re Kabbage, Inc. (KServicing)same docket · 2022-10-05
  15. Kabbage - Notice of Revised Interim Cash Management Order, Doc. 62-1 — In re KServicing Wind Down Corp., et al.same docket · 2022-10-05
  16. Application to Retain Weil, Gotshal & Manges as Attorneys — In re Kabbage, Inc.same docket · 2022-10-05
  17. Interim order — cash management system and bank accounts — In re KServicing (Bankr. D. Del., 2022-10-06, 1)same docket · 2022-10-06
  18. Interim order — payment of prepetition employee wages and benefits — In re KServicingsame docket · 2022-10-06
  19. Interim order — continuation of insurance policies — In re KServicing (Bankr. D. Del., 2022-10-06, 2)same docket · 2022-10-06
  20. Interim order — payment of prepetition taxes and assessments — In re KServicingsame docket · 2022-10-06

Part of: In re KServicing Wind Down Corp., et al. — U.S. Bankruptcy Court, D. Del. · In re KServicing Wind Down Corp., et al. · Paycheck Protection Program (PPP) · Federal court dockets (PACER) · 2022 · Source documents

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