Application to Retain Omni Agent Solutions as Administrative Agent — In re Kabbage, Inc.

Summary

An Application of Debtors under 11 U.S.C. § 327(a) and Fed. R. Bankr. P. 2014(a) and 2016 for authority to retain and employ Omni Agent Solutions, Inc. as administrative agent, filed October 5, 2022 as Doc 50-1 in In re Kabbage, Inc. d/b/a KServicing, et al., Case No. 22-10951-CTG, U.S. Bankruptcy Court for the District of Delaware. The Debtors ask the court to authorize them to retain Omni as administrative agent effective as of the Petition Date, October 3, 2022, under an Engagement Agreement dated September 16, 2022. The application describes Omni's qualifications, the services it would provide and its compensation, and states that a proposed form of order is annexed as Exhibit C and the Declaration of Paul H. Deutch as Exhibit B.

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Date: 2022-10-05

Cite this document

“Application to Retain Omni Agent Solutions as Administrative Agent — In re Kabbage, Inc.” Original at archive.org, dated 2022-10-05. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2022-10-05-kservicing-bankruptcy-867720be-1/, SHA-256 867720be2efa05b83bd21ae155c0e7f386dfcdaefce9d62c86ba92611908eb01.

Full text

RLF1 28027442v.1

EXHIBIT A

Application

Case 22-10951-CTG Doc 50-1 Filed 10/05/22 Page 1 of 35
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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
:
(Joint Administration Requested)
:
------------------------------------------------------------ x

APPLICATION OF DEBTORS PURSUANT TO
11 U.S.C. § 327(a) AND FED. R. BANKR. P. 2014(a) AND 2016 FOR
AUTHORITY TO RETAIN AND EMPLOY OMNI AGENT SOLUTIONS, INC.
AS ADMINISTRATIVE AGENT EFFECTIVE AS OF THE PETITION DATE

Kabbage, Inc. d/b/a KServicing and its debtor affiliates, as debtors and debtors in

possession in the above-captioned chapter 11 cases (collectively, the “Debtors”), respectfully

represent as follows in support of this application (the “Application”):2

Relief Requested

1.
By this Application, the Debtors request, pursuant to section 327(a) of title

11 of the United States Code (the “Bankruptcy Code”), Rules 2014(a) and 2016 of the Federal

Rules of Bankruptcy Procedure (the “Bankruptcy Rules”), and Rules 2014-1 and 2016-2 of the

Local Rules of Bankruptcy Practice and Procedure of the United States Bankruptcy Court for the

District of Delaware (the “Local Rules”), entry of an order (i) authorizing, but not directing, the

1 The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, as applicable are: Kabbage, Inc. d/b/a KServicing (3937); Kabbage Canada Holdings, LLC (N/A); Kabbage
Asset Securitization LLC (N/A); Kabbage Asset Funding 2017-A LLC (4803); Kabbage Asset Funding 2019-A LLC
(8973); and Kabbage Diameter, LLC (N/A). Kabbage is a trademark of American Express used under license;
Kabbage, Inc. d/b/a KServicing is not affiliated with American Express. The Debtors’ mailing and service address is
925B Peachtree Street NE, Suite 383, Atlanta, GA 30309.

2 Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the First
Day Declaration.

Docket No. 17
Filed: 10/4/22

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Debtors to employ and retain Omni Agent Solutions, Inc. (“Omni”) as administrative agent

(“Administrative Agent”) in these chapter 11 cases, effective as of the Petition Date (as defined

below), in accordance with the terms set forth in the Engagement Agreement, dated September 16,

2022 (the “Engagement Agreement”), annexed hereto as Exhibit A; and (ii) granting related

relief.

2.
A proposed form of order granting the relief requested herein is annexed

hereto as Exhibit C (the “Proposed Order”).

3.
On
October
3,
2022,
the
Debtors’
filed
an
application

(the “Section 156(c) Application”) for an order appointing Omni as claims and noticing agent in

these chapter 11 cases pursuant to 28 U.S.C. § 156(c). The Debtors believe that administration of

these chapter 11 cases will require Omni to perform duties outside the scope approved in the

Section 156(c) Application. Accordingly, the Debtors submit this Application to enable Omni to

provide such additional services.

4.
In support of this Application, the Debtors submit the Declaration of Paul

H. Deutch (the “Deutch Declaration”), a copy of which is annexed hereto as Exhibit B.

Jurisdiction and Venue

5.
The Court has jurisdiction to consider this matter 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. This is a core proceeding

pursuant to 28 U.S.C. § 157(b). Pursuant to Rule 9013-1(f) of the Local Rules, the Debtors consent

to the entry of a final order by the Court in connection with this Application to the extent it is later

determined that the Court, absent consent of the parties, cannot enter final orders or judgments

consistent with Article III of the United States Constitution. Venue is proper before the Court

pursuant to 28 U.S.C. §§ 1408 and 1409.

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Background

6.
On October 3, 2022 (the “Petition Date”), the Debtors each commenced

with this Court a voluntary case under chapter 11 of the Bankruptcy Code (the “Chapter 11

Cases”). The Debtors are authorized to continue operating their business and managing their

properties as debtors in possession pursuant to sections 1107(a) and 1108 of the Bankruptcy Code.

No trustee, examiner, or statutory committee has been appointed in these Chapter 11 Cases.

7.
The Chapter 11 Cases are being jointly administered for procedural

purposes only pursuant to Rule 1015(b) of the Bankruptcy Rules and Rule 1015-1 of the Local

Rules.

8.
Additional information regarding the Debtors’ business, capital structure,

and the circumstances leading to the commencement of these Chapter 11 Cases is set forth in the

Declaration of Deborah Rieger-Paganis in Support of Debtors’ Chapter 11 Petitions and First

Day Relief, dated October 3, 2022 (the “First Day Declaration”).

Omni’s Qualifications

9.
Omni is one of the country’s leading chapter 11 administrators, with

experience in noticing, claims administration, solicitation, balloting, and the facilitation of other

administrative aspects of chapter 11 cases. Omni has substantial experience in matters of similar

size and complexity and has acted as the official claims and noticing agent and/or administrative

agent in many large bankruptcy cases in this District and other districts nationwide. See, e.g., In

re Gold Standard Baking, LLC, No. 22-10559 (JKS) (Bankr. D. Del. June 23, 2022); In re PWM

Property Management LLC, No. 21-11445 (MFW) (Bankr. D. Del. Dec. 1, 2021); In re Boy Scouts

of America and Delaware BSA, LLC, No. 20-10343 (LSS) (Bankr. D. Del. Apr. 8, 2020); In re

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Lucky’s Market Parent Company, LLC, No. 20-10166 (JTD) (Bank. D. Del. Jan. 28, 2020); In re

SFP Franchise Corporation, No. 20-10134 (JTD) (Bank. D. Del. Jan. 24, 2020).3

Scope of Service

10.
Pursuant to the Engagement Agreement, the Debtors seek to retain Omni to

provide, among other things, the following bankruptcy administration services (the “Services”), if

and to the extent requested:

a.
assist with, among other things, solicitation, balloting, and tabulation of
votes; prepare any related reports, as required in support of confirmation of
a chapter 11 plan, and in connection with such services, process requests for
documents from parties in interest, including, if applicable, brokerage firms,
bank back-offices, and institutional holders;

b.
prepare an official ballot certification and, if necessary, testify in support of
the ballot tabulation results;

c.
assist with the preparation of the Debtors’ schedules of assets and liabilities
and statements of financial affairs and gather data in conjunction therewith;

d.
provide a confidential data room, if requested by the Debtors;

e.
manage and coordinate any distributions pursuant to a chapter 11 plan if
designated as distribution agent under such plan; and

f.
provide such other solicitation, balloting and other administrative services
described in the Engagement Agreement, but not included in the
Section 156(c) Application, as may be requested from time to time by the
Debtors, the Court, or the Office of the Clerk of the Bankruptcy Court.

3 Because of the voluminous nature of the orders cited herein, such orders have not been attached to this application.
Copies of these orders are available upon request to the Debtors’ proposed counsel.

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Omni’s Compensation

11.
The Debtors respectfully submit that the fees Omni will charge in

connection with its services to the Debtors, as set forth in the Engagement Agreement, are

competitive and comparable to the rates Omni’s competitors charge for similar services. Indeed,

the Debtors conducted a review and competitive comparison of other firms and reviewed the rates

of other firms before selecting Omni as Administrative Agent. The Debtors believe Omni’s rates

are more than reasonable given the quality of Omni’s services and its professionals’ bankruptcy

expertise. Additionally, Omni will seek reimbursement from the Debtors for reasonable expenses

in accordance with the terms of the Engagement Agreement.

12.
Omni intends to apply to the Court for allowance of compensation and

reimbursement of expenses incurred after the Petition Date in connection with the Services it

provides as Administrative Agent pursuant to the Engagement Agreement. Omni will comply

with the applicable provisions of the Bankruptcy Code, the Bankruptcy Rules, the Local Rules,

and any orders entered in these Chapter 11 Cases regarding professional compensation and

reimbursement of expenses.

13.
Additionally, under the terms of the Engagement Agreement, the Debtors

have agreed to indemnify, defend and hold harmless Omni and its members, officers, employees,

representatives, and agents under certain circumstances specified in the Engagement Agreement,

except in circumstances resulting solely from Omni’s gross negligence or willful misconduct or as

otherwise provided in the Engagement Agreement or Proposed Order. The Debtors believe that

such an indemnification obligation is customary, reasonable, and necessary to retain the Services

of an Administrative Agent in these Chapter 11 Cases for the services provided by this Application.

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No Duplication of Services

14.
The Debtors intend that the services of Omni will complement, and not

duplicate, the services being rendered by other professionals retained in these Chapter 11 Cases.

Omni understands that the Debtors have retained and may retain additional professionals during

the term of the engagement and will work cooperatively with such professionals to integrate any

respective work conducted by the professionals on behalf of the Debtors.

Disinterestedness

15.
Omni has conducted a conflicts analysis to determine whether it has any

relationships with the creditors and parties in interest provided by the Debtors, and, to the best of

the Debtors’ knowledge, information, and belief, and except as disclosed in the Deutch

Declaration, Omni is a “disinterested person” within the meaning of section 101(14) of the

Bankruptcy Code, as required by section 327(a) of the Bankruptcy Code, and does not hold or

represent any interest materially adverse to the Debtors’ estates in connection with any matter on

which it would be employed.

16.
Omni will supplement its disclosure to the Court if any facts or

circumstances are discovered that would require such additional disclosure.

Relief Requested Should Be Granted

17.
Section 327(a) of the Bankruptcy Code provides that a debtor, subject to

Court approval:

may employ one or more attorneys, accountants, appraisers,
auctioneers, or other professional persons, that do not hold or
represent an interest adverse to the estate, and that are disinterested
persons, to represent or assist the [debtor] in carrying out the
[debtor]’s duties under this title.

11 U.S.C. § 327(a).

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18.
Bankruptcy Rule 2014(a) requires that an application for retention include:

specific facts showing the necessity for the employment, the name
of the [firm] to be employed, the reasons for the selection, the
professional services to be rendered, any proposed arrangement for
compensation, and, to the best of the applicant’s knowledge, all of
the [firm’s] connections with the debtor, creditors, any other party
in interest, their respective attorneys and accountants, the United
States Trustee, or any person employed in the office of the United
States Trustee.

Fed. R. Bankr. P. 2014.

19.
To help manage administrative tasks with respect to the thousands of

creditors and other parties in interest that are expected to be involved in the Chapter 11 Cases, the

Debtors respectfully request the Court enter an order appointing Omni as the Administrative Agent

in these Chapter 11 Cases pursuant to section 327(a) of the Bankruptcy Code, Bankruptcy Rules

2014 and 2016, and Local Rules 2014-1 and 2016-2.

20.
The Debtors respectfully request that Omni’s retention be made effective as

of the Petition Date so that Omni may be compensated for the services performed prior to approval

of this Application. Omni has provided services to the Debtors in advance of approval of this

Application in anticipation that its retention would be approved effective as of the Petition Date.

The Debtors submit that these circumstances warrant retroactive approval. Further, the Debtors

believe that no party in interest will be prejudiced by the granting of the retroactive effectiveness

of Omni’s employment because Omni has provided, and will continue to provide, valuable services

to the Debtors’ estates in the covered period.

21.
For the reasons set forth herein, the Debtors submit that the relief requested

herein is in the best interests of the Debtors, their estates, creditors, and other parties in interest,

and therefore, should be granted.

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Notice

22.
Notice of this Application will be provided to (a) the Office of the United

States Trustee for the District of Delaware; (b) the holders of the thirty (30) largest unsecured

claims against the Debtors on a consolidated basis; (c) the Federal Reserve Bank; (d) Customers

Bank; (e) Cross River Bank; (f) the United States Department of Justice; (g) the Federal Trade

Commission; (h) the Small Business Administration; (i) the Internal Revenue Service; (j) the

Securities and Exchange Commission; (k) the United States Attorney’s Office for the District of

Delaware; and (l) any party that has requested notice pursuant to Bankruptcy Rule 2002

(collectively, the “Notice Parties”). The Debtors believe that no further notice is required.

No Prior Request

23.
No previous request for the relief sought herein has been made by the

Debtors to this or any other court.

WHEREFORE the Debtors respectfully request entry of the Proposed Order

granting the relief requested herein and such other and further relief as the Court may deem just

and appropriate.

Dated: October 4, 2022
Atlanta, Georgia

KABBAGE, INC. d/b/a KSERVICING, et al.
(on behalf of itself and each of its affiliated
Debtors)

/s/ Holly Loiseau

Name: Holly Loiseau
Title: General Counsel and Secretary

Case 22-10951-CTG Doc 50-1 Filed 10/05/22 Page 9 of 35
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Exhibit A

Engagement Agreement

Case 22-10951-CTG Doc 50-1 Filed 10/05/22 Page 10 of 35
STANDARD SERVICES AGREEMENT

This Agreement is entered into as of September 16, 2022, between (I) Omni Agent
Solutions (“2PQL”) and (II) Kabbage, Inc. d/b/a KServicing (“.DEEDJH”), 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 (“KAF2020, and collectively with Kabbage, Kabbage Canada, KAS, KAF2017,
KAF2019, 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

I.
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 law hereunder.

II.
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”). In 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 Doc 50-1 Filed 10/05/22 Page 11 of 35
(b)
Rates may be adjusted annually on January 2nd 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
“Final 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 Doc 50-1 Filed 10/05/22 Page 12 of 35
(ii)
Check
Omni Agent Solutions
c/o Accounts Receivable
5955 De Soto Avenue
Suite 100
Woodland Hills, CA 91367

III.
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 Doc 50-1 Filed 10/05/22 Page 13 of 35
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.

VII.
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 Doc 50-1 Filed 10/05/22 Page 14 of 35
(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.

VIII.
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 thenǦcurrent 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 Doc 50-1 Filed 10/05/22 Page 15 of 35
indirect (including, without limitation, counsel fees and expenses) (collectively, “/RVVHV”)
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.

XI.
LIMITATIONS OF LIABILITY

Except as expressly provided herein, Omni’s 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.

XII.
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.

XIII.
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 Doc 50-1 Filed 10/05/22 Page 16 of 35
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 whollyǦowned 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, lockǦout 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 Doc 50-1 Filed 10/05/22 Page 17 of 35
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: __________________

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]

hloiseau@kservicecorp.com

Case 22-10951-CTG Doc 50-1 Filed 10/05/22 Page 18 of 35
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of
the date first above written.

OMNI AGENT SOLUTIONS

By: _______________

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
KABBAGE ASSET FUNDING 2020-A LLC

By: _______________________

Name: Holly Loiseau

Title:
General Counsel

ABBAGE ASSET FUNDING 2020-

___________________

me: Holl

Loiseau

e:
General Counsel

Case 22-10951-CTG Doc 50-1 Filed 10/05/22 Page 19 of 35
EXHIBIT

“A”

Case 22-10951-CTG Doc 50-1 Filed 10/05/22 Page 20 of 35
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 &
Technology
Staff/Consultants

$52.50 - $139.50

Project Managers and Sr.
Project Managers
$52.50 - $150

Consultants
$52.50 - $150

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 Doc 50-1 Filed 10/05/22 Page 21 of 35
2

Overtime Charges
No charge

Printing and Noticing Services Rates

Copying/Printing
$0.10 per image

Personalization, Labels, and
Envelopes
$0.035 each

Postage, Courier, etc.
Preferred Rates

Electronic Noticing -
Facsimile
$0.10 per image

Electronic Noticing - Email
No charge

Legal Notice Publishing
Preferred Rates

Electronic Solicitation
Services
N/A

Call Center Rates

Standard Call Center Setup
No charge

Voicemail Box
No charge

Interactive Voice Response
Waived

Monthly Maintenance Fee
(Call Center Services)
Waived

Document Management Rates

Database and System Access
No charge

Case 22-10951-CTG Doc 50-1 Filed 10/05/22 Page 22 of 35
3

Document Scanning
$0.08 per image

Document Storage - Paper
No charge

Document Storage -
Electronic
No charge

Hosting Case-Specific
Website
No charge

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 Doc 50-1 Filed 10/05/22 Page 23 of 35
4

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

Case 22-10951-CTG Doc 50-1 Filed 10/05/22 Page 24 of 35
RLF1 28018302v.1

Exhibit B

Deutch Declaration

Case 22-10951-CTG Doc 50-1 Filed 10/05/22 Page 25 of 35
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
:
(Joint Administration Requested)

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

DECLARATION OF PAUL H. DEUTCH IN SUPPORT OF
APPLICATION OF DEBTORS PURSUANT TO 11 U.S.C. § 327(a)
AND FED. R. BANKR. P. 2014 AND 2016 FOR AUTHORITY
TO RETAIN AND EMPLOY OMNI AGENT SOLUTIONS, INC. AS
ADMINISTRATIVE AGENT EFFECTIVE AS OF THE PETITION DATE

I, Paul H. Deutch, under penalty of perjury, declare as follows:

1.
I am the Executive Vice President of Omni Agent Solutions, Inc. (“Omni”),

a chapter 11 administrative services firm, whose offices are located at 5955 DeSoto Avenue,

Woodland Hills, California 91367 and 1120 Avenue of the Americas, 4th Floor, New York, New

York 10036. Except as otherwise noted, I have personal knowledge of the matters set forth herein

and, if called and sworn as a witness, I could and would testify competently thereto.

2.
This declaration (this “Declaration”) is made in support of the Application

of Debtors’ Pursuant to 11 U.S.C. § 327(a) and Fed. R. Bankr. P. 2014(a) and 2016 for Authority

Case 22-10951-CTG Doc 50-1 Filed 10/05/22 Page 26 of 35
2

RLF1 28018302v.1

to Retain and Employ Omni Agent Solutions, Inc. as Administrative Agent Effective as of the

Petition Date, which was filed contemporaneously herewith (the “Application”).2

3.
Omni is one of the country’s leading chapter 11 administrators, with